UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-Q
(Mark
One)
x
|
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
For the
quarterly period ended March
31, 2009
OR
¨
|
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
For the
transition period from
__________ to __________
Commission
File Number 0-2000
Entrx
Corporation
(Exact
name of registrant as specified in its charter)
(State
or other jurisdiction of
|
(I.R.S.
Employer
|
incorporation
or organization)
|
Identification
No.)
|
800
Nicollet Mall, Suite 2690, Minneapolis, MN
|
55402
|
(Address
of Principal Executive Office)
|
(Zip
Code)
|
Registrant's
telephone number, including area code (612) 333-0614
Indicate by checkmark whether the
registrant (1) has filed all reports required to be filed by Section 13 or 15(d)
of the Securities Exchange Act of 1934 during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90
days. Yes x No ¨
Indicate by check mark whether the
registrant has submitted electronically and posted on its corporate Web site, if
any, every Interactive Data File required to be submitted and posted pursuant to
Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12
months (or for such shorter period that the registrant was required to submit
and post such files). Yes ¨ No ¨
Indicate by check mark whether the
Registrant is a shell company (as defined in Rule 12b-2 of the Exchange
Act).
Yes ¨ Nox
Indicate by checkmark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company.
|
Large
accelerated filer ¨
|
Accelerated
filer ¨
|
|
Non-accelerated
filer ¨
|
Smaller
reporting Company x
|
As of May 4, 2009, the registrant had
7,656,147 shares outstanding of its Common Stock, $.10 par value.
ENTRX
CORPORATION AND SUBSIDIARIES
TABLE
OF CONTENTS
|
Page
|
|
|
PART
I. FINANCIAL INFORMATION
|
|
|
|
|
|
|
Item
1.
|
Financial
Statements.
|
|
|
|
|
|
|
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Consolidated
Balance Sheets at March 31, 2009 (unaudited) and December 31, 2008
(audited)
|
1
|
|
|
|
|
|
|
Consolidated
Statements of Operations and Comprehensive Income for the three months
ended March 31, 2009 and 2008 (unaudited)
|
2
|
|
|
|
|
|
|
Consolidated
Statements of Cash Flows for the three months ended March 31, 2009 and
2008 (unaudited)
|
3
|
|
|
|
|
|
|
Notes
to Consolidated Financial Statements (unaudited)
|
4
|
|
|
|
|
|
Item
2.
|
Management's
Discussion of Financial Condition and Results of
Operations
|
10
|
|
|
|
|
|
Item
4T.
|
Controls
and Procedures
|
16
|
|
|
|
|
PART
II. OTHER INFORMATION
|
|
|
|
|
|
|
Item
1.
|
Legal
Proceedings
|
16
|
|
|
|
|
|
Item
6.
|
Exhibits
|
20
|
|
|
|
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SIGNATURES
|
20
|
References
to “we”, “us”, “our”, “the registrant” and “the Company” in this quarterly
report on Form 10-Q shall mean or refer to Entrx Corporation and its
consolidated subsidiary, Metalclad Insulation Corporation, unless the context in
which those words are used would indicate a different meaning.
PART
I
FINANCIAL
INFORMATION
Item 1. Financial
Statements
ENTRX
CORPORATION AND SUBSIDIARIES
CONSOLIDATED
BALANCE SHEETS
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
(audited)
|
|
ASSETS
|
|
|
|
|
|
|
Current
assets:
|
|
|
|
|
|
|
Cash
and cash equivalents
|
|
$ |
2,823,496 |
|
|
$ |
2,078,666 |
|
Available-for-sale
securities
|
|
|
272,168 |
|
|
|
296,266 |
|
Accounts
receivable, less allowance for doubtful accounts of $79,000 and $80,000 as
of March 31, 2009 and December 31, 2008, respectively
|
|
|
4,432,472 |
|
|
|
5,697,084 |
|
Costs
and estimated earnings in excess of billings on uncompleted
contracts
|
|
|
969,995 |
|
|
|
1,067,384 |
|
Inventories
|
|
|
123,490 |
|
|
|
115,670 |
|
Prepaid
expenses and other current assets
|
|
|
187,684 |
|
|
|
292,957 |
|
Insurance
claims receivable
|
|
|
7,025,000 |
|
|
|
7,250,000 |
|
Other
receivables
|
|
|
125,394 |
|
|
|
138,229 |
|
Total
current assets
|
|
|
15,959,699 |
|
|
|
16,936,256 |
|
|
|
|
|
|
|
|
|
|
Property,
plant and equipment, net
|
|
|
351,988 |
|
|
|
369,981 |
|
Insurance
claims receivable
|
|
|
36,412,500 |
|
|
|
38,000,000 |
|
Other
assets
|
|
|
46,620 |
|
|
|
46,620 |
|
|
|
$ |
52,770,807 |
|
|
$ |
55,352,857 |
|
|
|
|
|
|
|
|
|
|
LIABILITIES
AND SHAREHOLDERS’ EQUITY
|
|
|
|
|
|
|
|
|
Current
liabilities:
|
|
|
|
|
|
|
|
|
Current
portion of long-term debt
|
|
$ |
142,183 |
|
|
$ |
153,290 |
|
Accounts
payable
|
|
|
808,432 |
|
|
|
999,737 |
|
Accrued
expenses
|
|
|
1,353,122 |
|
|
|
1,942,453 |
|
Reserve
for asbestos liability claims
|
|
|
7,025,000 |
|
|
|
7,250,000 |
|
Billings
in excess of costs and estimated earnings on uncompleted
contracts
|
|
|
194,251 |
|
|
|
100,615 |
|
Total
current liabilities
|
|
|
9,522,988 |
|
|
|
10,446,095 |
|
|
|
|
|
|
|
|
|
|
Long-term
debt, less current portion
|
|
|
106,721 |
|
|
|
140,602 |
|
Reserve
for asbestos liability claims
|
|
|
36,412,500 |
|
|
|
38,000,000 |
|
Total
liabilities
|
|
|
46,042,209 |
|
|
|
48,586,697 |
|
|
|
|
|
|
|
|
|
|
Commitments
and contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders’
equity:
|
|
|
|
|
|
|
|
|
Preferred
stock, par value $1; 5,000,000 shares authorized; none
issued
|
|
|
- |
|
|
|
- |
|
Common
stock, par value $0.10; 80,000,000 shares authorized; 7,656,147 issued and
outstanding at March 31, 2009 and December 31, 2008
|
|
|
811,095 |
|
|
|
811,095 |
|
Additional
paid-in capital
|
|
|
69,831,881 |
|
|
|
69,831,881 |
|
Accumulated
deficit
|
|
|
(63,890,280 |
) |
|
|
(63,876,816 |
) |
Accumulated
other comprehensive income (loss)
|
|
|
(24,098 |
) |
|
|
- |
|
Total
shareholders’ equity
|
|
|
6,728,598 |
|
|
|
6,766,160 |
|
|
|
$ |
52,770,807 |
|
|
$ |
55,352,857 |
|
See Notes
to Consolidated Financial Statements
ENTRX
CORPORATION AND SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME
(Unaudited)
|
|
Three Months Ended March 31,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contract
revenues
|
|
$ |
5,378,249 |
|
|
$ |
8,556,750 |
|
|
|
|
|
|
|
|
|
|
Contract
costs and expenses
|
|
|
4,530,260 |
|
|
|
7,130,964 |
|
|
|
|
|
|
|
|
|
|
Gross
margin
|
|
|
847,989 |
|
|
|
1,425,786 |
|
|
|
|
|
|
|
|
|
|
Operating
expenses:
|
|
|
|
|
|
|
|
|
Selling,
general and administrative
|
|
|
863,775 |
|
|
|
948,502 |
|
Change
in allowance on shareholder note receivable
|
|
|
- |
|
|
|
7,500 |
|
Gain
on disposal of property, plant and equipment
|
|
|
- |
|
|
|
(11,850 |
) |
Total
operating expenses
|
|
|
863,775 |
|
|
|
944,152 |
|
|
|
|
|
|
|
|
|
|
Operating
income (loss)
|
|
|
(15,786 |
) |
|
|
481,634 |
|
|
|
|
|
|
|
|
|
|
Interest
income
|
|
|
4,533 |
|
|
|
10,527 |
|
Interest
expense
|
|
|
(2,211 |
) |
|
|
(2,369 |
) |
Impairment
charge on available-for-sale securities
|
|
|
- |
|
|
|
(173,153 |
) |
|
|
|
|
|
|
|
|
|
Net
income (loss)
|
|
|
(13,464 |
) |
|
|
316,639 |
|
|
|
|
|
|
|
|
|
|
Other
comprehensive income (loss)
|
|
|
|
|
|
|
|
|
Unrealized
gains (losses) on available-for-sale securities
|
|
|
(24,098 |
) |
|
|
(5,717 |
) |
|
|
|
|
|
|
|
|
|
Comprehensive
income (loss)
|
|
$ |
(37,562 |
) |
|
$ |
310,922 |
|
|
|
|
|
|
|
|
|
|
Weighted
average number of common shares — basic and diluted
|
|
|
7,656,147 |
|
|
|
7,644,279 |
|
|
|
|
|
|
|
|
|
|
Net
income (loss) per share of common stock — basic and
diluted
|
|
$ |
(0.00 |
) |
|
$ |
0.04 |
|
See Notes
to Consolidated Financial Statements
ENTRX
CORPORATION AND SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF CASH FLOWS
|
|
Three Months Ended March 31,
|
|
|
|
|
|
|
|
|
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
Cash
flows from operating activities:
|
|
|
|
|
|
|
Net
income (loss)
|
|
$ |
(13,464 |
) |
|
$ |
316,639 |
|
Adjustments
to reconcile net income to net cash provided by operating
activities:
|
|
|
|
|
|
|
|
|
Depreciation
and amortization
|
|
|
54,650 |
|
|
|
51,165 |
|
Gain
on disposal of property, plant and equipment
|
|
|
- |
|
|
|
(11,850 |
) |
Change
in allowance for doubtful accounts
|
|
|
(1,000 |
) |
|
|
- |
|
Impairment
charge on investments
|
|
|
- |
|
|
|
173,153 |
|
Common
stock issued for services
|
|
|
- |
|
|
|
14,000 |
|
Allowance
on shareholder note receivable
|
|
|
- |
|
|
|
7,500 |
|
Changes
in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Accounts
receivable
|
|
|
1,265,612 |
|
|
|
1,052,063 |
|
Costs
and estimated earnings in excess of billings on uncompleted
contracts
|
|
|
97,389 |
|
|
|
(282,720 |
) |
Inventories
|
|
|
(7,820 |
) |
|
|
(149,348 |
) |
Prepaid
expenses and other current assets
|
|
|
105,273 |
|
|
|
159,376 |
|
Other
receivables
|
|
|
12,835 |
|
|
|
(1,698 |
) |
Accounts
payable and accrued expenses
|
|
|
(780,636 |
) |
|
|
(146,596 |
) |
Billings
in excess of costs and estimated earnings on uncompleted
contracts
|
|
|
93,636 |
|
|
|
49,130 |
|
Net
cash provided by operating activities
|
|
|
826,475 |
|
|
|
1,230,814 |
|
|
|
|
|
|
|
|
|
|
Cash
flows from investing activities:
|
|
|
|
|
|
|
|
|
Capital
expenditures
|
|
|
(36,657 |
) |
|
|
(5,254 |
) |
Net
cash used in investing activities
|
|
|
(36,657 |
) |
|
|
(5,254 |
) |
|
|
|
|
|
|
|
|
|
Cash
flows from financing activities:
|
|
|
|
|
|
|
|
|
Payments
on long-term debt
|
|
|
(44,988 |
) |
|
|
(38,622 |
) |
Net
cash used in financing activities
|
|
|
(44,988 |
) |
|
|
(38,622 |
) |
|
|
|
|
|
|
|
|
|
Increase
in cash and cash equivalents
|
|
|
744,830 |
|
|
|
1,186,938 |
|
Cash
and cash equivalents at beginning of period
|
|
|
2,078,666 |
|
|
|
1,444,883 |
|
Cash
and cash equivalents at end of period
|
|
$ |
2,823,496 |
|
|
$ |
2,631,821 |
|
|
|
|
|
|
|
|
|
|
Non-cash
investing and financing activities:
|
|
|
|
|
|
|
|
|
Acquisition
of property, plant and equipment in exchange for notes
payable
|
|
$ |
- |
|
|
$ |
59,239 |
|
|
|
|
|
|
|
|
|
|
See Notes
to Consolidated Financial Statements
ENTRX
CORPORATION AND SUBSIDIARIES
NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS
For
the Three Months Ended March 31, 2009 and 2008
(Unaudited)
1. The
accompanying unaudited consolidated financial statements of Entrx Corporation
and its subsidiaries (the "Company") have been prepared in accordance with
accounting principles generally accepted in the United States of America for
interim financial information and the instructions to Form
10-Q. Accordingly, they do not include all of the information and
footnotes required by accounting principles generally accepted in the United
States of America. In the opinion of management all adjustments,
consisting of normal recurring items, necessary for a fair presentation have
been included. Operating results for the three months ended March 31,
2009 are not necessarily indicative of the results that may be expected for the
year ending December 31, 2009. These consolidated financial
statements should be read in conjunction with the consolidated financial
statements and footnotes thereto included in the Company's Annual Report on Form
10-K for the year ended December 31, 2008.
2. The
income per share amounts for the three months ended March 31, 2009 and 2008,
were computed by dividing the net income by the weighted average shares
outstanding during the applicable period. Dilutive common equivalent
shares have not been included in the computation of diluted income per share
because their inclusion would be antidilutive.
All stock
options and warrants were anti-dilutive for the three months ended March 31,
2009 and 2008 because their respective exercise prices were greater than the
average market price of the common stock.
3. Investments
held by the Company are classified as available-for-sale
securities. Available-for-sale securities are reported at fair value
with all unrealized gains or losses included in other comprehensive income
(loss). The fair value of the securities was determined by quoted
market prices of the underlying security (Level 1 instruments under the
three-level fair value hierarchy established under FASB Statement No. 157, Fair
Value Measurements). For purposes of determining gross realized gains
(losses), the cost of available-for-sale securities is based on specific
identification.
|
|
Aggregate fair value
|
|
|
Gross unrealized
gains
|
|
|
Gross unrealized
losses
|
|
|
Cost
|
|
Available
for sale securities
– March 31,
2009
|
|
$ |
272,168 |
|
|
$ |
9,624 |
|
|
$ |
33,722 |
|
|
$ |
296,266 |
|
Available
for sale securities – December 31, 2008
|
|
$ |
296,266 |
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
296,266 |
|
The
Company's net unrealized holding loss was $(24,098) and $(5,717) for the three
months ended March 31, 2009 and 2008, respectively.
On an
ongoing basis, the Company evaluates its investments in available-for-sale
securities to determine if a decline in fair value is other-than-temporary such
that the change should be reflected in the Company’s financial
statements. When a decline in fair value is determined to be
other-than-temporary, an impairment charge is recorded and a new cost basis in
the investment is established.
Considering
the severity and duration of the decline in fair value and the financial
condition and near-term prospects of our investment, we recognized other than
temporary impairment charge in the amount of $173,153 on our investment in
Clearwire Corporation during the three months ended March 31, 2008.
The
following table shows the gross unrealized losses and fair value of the
Company's investments with unrealized losses that are not deemed to be
other-than-temporarily impaired, aggregated by investment category and length of
time that individual securities have been in a continuous unrealized loss
position, at March 31, 2009.
|
|
Less than 12 Months
|
|
|
12 Months or Greater
|
|
|
Total
|
|
Description
of Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marketable
equity securities
|
|
$ |
67,561 |
|
|
$ |
(33,722 |
) |
|
$ |
- |
|
|
$ |
- |
|
|
$ |
67,561 |
|
|
$ |
(33,722 |
) |
Total
|
|
$ |
67,561 |
|
|
$ |
(33,722 |
) |
|
$ |
- |
|
|
$ |
- |
|
|
$ |
67,561 |
|
|
$ |
(33,722 |
) |
4. Inventories,
which consist principally of insulation products and related materials, are
stated at the lower of cost (determined on the first-in, first-out method) or
market.
5. Blake
Capital Partners, LLC was current in the payment of interest on the shareholder
note receivable through the payment due March 1, 2006. The payments
due after September 1, 2006, however, were not made. For the year
ended December 31, 2006, we increased our reserve against the note receivable
from Blake Capital Partners, LLC (“Blake”) by $1,083,885 as a result of the
non-payment of interest, bringing the net of the note receivable less the
reserve down to $210,000, the approximate value of the collateral securing the
note. In April 2007, the Company canceled 500,000 shares of the
Company’s common stock that were pledged as collateral on the note and applied
the $115,000 value of the stock against the outstanding note
balance. The note was not repaid on the October 31, 2007 due
date. As of December 31, 2007 the Company adjusted the net book value
of the note to $25,000, the approximate value of the remaining collateral
securing the note. In December 2008, the Company received a notice
from the United States Bankruptcy Court that Blake Capital Partners, LLC and Mr.
Mills had filed for Chapter 7 bankruptcy. The Company is exploring
its opportunities to obtain proceeds from the sale of the 25,000 shares (250,000
shares before a one for ten share reverse stock split on April 30, 2008) of
VioQuest Pharmaceuticals, Inc. common stock pledged as collateral on the note,
but any proceeds are expected to be de minimis. As such, the Company
has completely written-off the note from Blake Capital Partners, LLC as of
December 31, 2008.
6. Accrued
expenses consist of the following:
|
|
|
|
|
|
|
Wages,
bonuses and payroll taxes
|
|
$ |
489,153 |
|
|
$ |
1,014,893 |
|
Union
dues
|
|
|
255,651 |
|
|
|
316,290 |
|
Accounting
and legal fees
|
|
|
30,000 |
|
|
|
30,000 |
|
Insurance
|
|
|
9,887 |
|
|
|
35,015 |
|
Insurance
settlement reserve
|
|
|
375,000 |
|
|
|
375,000 |
|
Taxes
|
|
|
40,170 |
|
|
|
- |
|
Other
|
|
|
153,261 |
|
|
|
171,255 |
|
|
|
$ |
1,353,122 |
|
|
$ |
1,942,453 |
|
7. As
more fully described in our Annual Report on Form 10-K for the year ended
December 31, 2008, the Company has granted stock options over the years to
employees and directors under various stockholder approved stock option
plans. At March 31, 2009, options to purchase 1,892,500 shares of the
Company’s common stock were outstanding. No stock options were
granted during the first three months of 2009 or 2008. Stock options
expiring during the first three months of 2009 and 2008 were 213,400 and 82,230,
respectively. Stock warrants expiring in the first three months of
2008 were 50,000.
8. Sales
to significant customers were as follows:
|
|
Three Months Ended
March 31, 2009
|
|
|
Three Months Ended
March 31, 2008
|
|
|
|
Revenue
|
|
|
%
of Total Revenue
|
|
|
Revenue
|
|
|
%
of Total Revenue
|
|
Jacobs
Field Services North America, Inc.
|
|
$ |
548,000 |
|
|
|
10.2 |
% |
|
$ |
1,190,000 |
|
|
|
13.9 |
% |
ARB,
Inc.
|
|
$ |
2,000 |
|
|
|
0.0 |
% |
|
$ |
1,955,000 |
|
|
|
22.8 |
% |
NRG
Energy
|
|
$ |
1,086,000 |
|
|
|
20.2 |
% |
|
$ |
257,000 |
|
|
|
3.0 |
% |
Critchfield
Mechanical of So. California
|
|
$ |
546,000 |
|
|
|
10.2 |
% |
|
$ |
70,000 |
|
|
|
0.8 |
% |
BP
West Coast Products LLC
|
|
$ |
903,000 |
|
|
|
16.8 |
% |
|
$ |
2,185,000 |
|
|
|
25.5 |
% |
Significant
accounts receivable were as follows:
|
|
March 31, 2009
|
|
|
December 31, 2008
|
|
|
|
Accounts
Receivable
|
|
|
%
of Total Accounts
Receivable
|
|
|
Accounts
Receivable
|
|
|
%
of Total Accounts
Receivable
|
|
NRG
Energy
|
|
$ |
797,000 |
|
|
|
18.0 |
% |
|
$ |
108,000 |
|
|
|
2.4 |
% |
Black
& Veatch
|
|
$ |
689,000 |
|
|
|
15.5 |
% |
|
$ |
1,054,000 |
|
|
|
18.5 |
% |
Jacobs
Field Services North America, Inc.
|
|
$ |
177,000 |
|
|
|
4.0 |
% |
|
$ |
840,000 |
|
|
|
14.7 |
% |
Since
many of the projects we undertake are relatively large, it is normal that
various customers will represent a significant portion of our sales and/or
accounts receivable in a given period. It is also the nature of the
Company’s business that a significant customer in one year may not be a
significant customer in a succeeding year.
9. In
December 2007, the FASB issued SFAS No. 141(R), Business
Combinations. SFAS 141(R) requires the acquiring entity in a
business combination to record all assets acquired and liabilities assumed at
their respective acquisition-date fair values and changes other practices under
SFAS No. 141, Business Combinations, some of which could have a material impact
on how an entity accounts for its business combinations. SFAS 141(R)
also requires additional disclosure of information surrounding a business
combination. SFAS 141(R) is effective for fiscal years beginning
after December 15, 2008, and is to be applied prospectively to business
combinations for which the acquisition date is on or after December 15,
2008. The adoption of SFAS No. 141(R) had no impact on the Company’s
financial position or results of operations.
In
December 2007, the FASB issued SFAS No. 160, Non-controlling Interest in
Consolidated Financial Statements – an amendment of ARB No.
51. SFAS 160 requires entities to report non-controlling minority
interests in subsidiaries as equity in consolidated financial
statements. SFAS 160 is effective for fiscal years beginning on or
after December 15, 2008. The adoption of SFAS 160 had no impact on
the Company’s financial position or results of operations since its consolidated
subsidiaries are wholly owned and non-controlling interests in consolidated
variable interest entities are not material.
In March
2008, the FASB issued Statement of Financial Accounting Standards No. 161, Disclosures about Derivative
Instruments and Hedging Activities, an Amendment of FASB Statement No.
133. SFAS No. 161 amends and expands upon the disclosure
requirements for derivative financial instruments and for hedging activities
required under FASB Statement No. 133 to provide users of financial statements
with an enhanced understanding of how and why an entity uses derivative
financial instruments, how derivative financial instruments are accounted for
under Statement 133 and it’s related interpretations, and how derivative
financial instruments affect an entity’s financial position, financial
performance, and results of operations. SFAS No. 161 is effective for
financial statement and interim periods beginning after November 15,
2008. The adoption of SFAS No. 161 had no material effect on the
Company’s financial statements and disclosures.
In May
2008, the FASB issued Statement of Financial Accounting Standards No. 162, The Hierarchy of Generally Accepted
Accounting Principles. This standard is intended to improve
financial reporting by identifying a consistent framework, or hierarchy, for
selecting accounting principles to be used in preparing financial statements
that are presented in conformity with generally accepted accounting principles
in the United States for non-governmental entities. SFAS No. 162 is effective 60
days following approval by the SEC of the Public Company Accounting Oversight
Board’s amendments to AU Section 411, The Meaning of Present Fairly in Conformity with
Generally Accepted Accounting Principles, or January 15,
2009. The Company does not expect that the adoption of SFAS No. 162
will have a material impact its consolidated financial statements.
On April
9, 2009, the FASB issued FASB Staff Position (“FSP”) FAS 107-1 and APB 28-1,
which amends FASB Statement No. 107, Disclosures about Fair Value of Financial
Instruments (SFAS 107) to require entities to disclose, among other things, the
methods and significant assumptions used to estimate the fair value of financial
instruments in both interim and annual financial statements. This FSP
also amends APB Opinion No. 28, Interim Financial Reporting (Opinion 28), to
require those disclosures in summarized financial information at interim
reporting periods. The FSP is effective for interim and annual periods ending
after June 15, 2009. The Company is currently assessing the impact of
adoption of the new FSP on its interim and annual reporting
periods.
Also on
April 9, 2009, the FASB issued FSP FAS 115-2, Recognition and Presentation of
Other-Than-Temporary Impairments. FSP FAS 115-2 amends the
other-than-temporary impairment (OTTI) guidance for debt securities to make the
guidance more operational and to improve the presentation and disclosure of OTTI
on debt and equity securities in the financial statements. This FSP does not
amend existing recognition and measurement guidance related to OTTI of equity
securities. The FSP requires that an entity disclose information for
interim and annual periods that enables users of its financial statements to
understand the types of available-for-sale and held-to maturity debt and equity
securities held, including information about investments in an unrealized loss
position for which an OTTI has or has not been recognized. The FSP is
effective for interim and annual reporting periods ending after June 15,
2009. The Company is currently assessing the impact of adoption of
the new FSP on its interim and annual reporting periods.
10. The
number of asbestos-related cases which have been initiated naming us (primarily
our subsidiary, Metalclad Insulation Corporation) as a defendant have fluctuated
from 265 in 2004, to 199 in 2005, to 232 in 2006, to 163 in 2007 and to 187 in
2008, but overall have exhibited a downward trend. There were 51 new
claims made in the first three months of 2009, compared to 40 in the first three
months of 2008. At December 31, 2004, 2005, 2006 and 2007, there
were, respectively, approximately 710, 507, 404 and 222 cases
pending. As of December 31, 2008, there were 271 cases pending and as
of March 31, 2009, there were 288 cases pending. These claims are
currently defended and covered by insurance.
We have
closely monitored the trend of asbestos-related injury claims made against the
Company over the past eight years. That trend, on a year to year
basis, has been somewhat erratic over the past three years, but has been
generally downward over the past eight years. We believe, however,
that it is probable that a general downward trend will continue, although such
continuance cannot be assured and we have seen an increase in the number of
cases pending as of December 31, 2008 and March 31, 2009. From 2001
through 2008, the annual average indemnity paid on over 3,000 resolved cases has
fluctuated significantly, between a low of $14,504 in 2006 and a high of $54,946
in 2008, with an overall average over that period of approximately
$20,900. During this period, there has been no discernible upward or
downward trend in indemnity payments. The indemnity paid on the 34
cases resolved during the three months ended March 31, 2009 averaged
$50,000.
We
believe that the sympathies of juries, the aggressiveness of the plaintiffs’ bar
and the declining base of potential defendants as the result of business
failures, have tended to increase payments on resolved cases. This
tendency, we believe, has been mitigated by the declining pool of claimants
resulting from death, and the likelihood that the most meritorious claims have
been ferreted out by plaintiffs’ attorneys and that the newer cases being
brought are not as meritorious nor do they have as high a potential for damages
as do cases which were brought earlier. We have no reason to believe,
therefore, that the average future indemnity payments will increase materially
in the future.
In
addition, direct defense costs per resolved claim increased from $8,514 in 2003
to $44,359 in 2008. The weighted average defense cost per resolved
claim from 2005 through 2008 was $18,233. We believe that these
defense costs increased as a result of a change in legal counsel in 2004, and
the more aggressive defense posture taken by new legal counsel since that
change. Due to this aggressive defensive posture, the new claims
against the Company have tended to have a greater potential liability and
therefore require more resources to defend. We intend to monitor the
defense costs in 2009 and will adjust our estimates if events occur which would cause us to believe
that those estimates need revision. We are currently
projecting those costs to be approximately $18,500 per claim.
In our
Form 10-KSB filed with the Securities and Exchange Commission for the year ended
December 31, 2007, we projected that approximately 186 new asbestos-related
claims would be commenced, and approximately 237 cases would be resolved, in
2007, resulting in an estimated 353 cases pending at December 31,
2007. We further projected that an aggregate of 738 new cases would
be commenced after December 31, 2007, and that 148 of these cases would be
commenced in 2008 and that we would resolve 194 cases in
2008. Accordingly, we previously had projected the cases pending and
projected to be commenced in the future at December 31, 2008, would be 897
cases. Multiplying 897 claims times the approximate average indemnity
paid and defense costs incurred per resolved claim from 2002 through 2006 of
$32,600, we previously estimated our liability for current and future
asbestos-related claims at December 31, 2008 to be approximately
$29,000,000. This amounted to a $7,000,000 reduction from the
$36,000,000 liability we estimated as of December 31, 2007, or a $1,750,000
reduction per quarter in 2008.
As of
December 31, 2008, we re-evaluated our estimates to take into account our
experience in 2008, which was unfavorable compared to previous
years. Primarily as a result of an increase in the number of new
cases commenced during 2008 which exceeded our previous estimates, we now
estimate that there will be 877 asbestos-related injury claims made against the
Company after December 31, 2008. The 877, in addition to the 271
claims existing as of December 31, 2008, totaled 1,148 current and future
claims. Multiplying the average indemnity per resolved claim over the
past eight years of $20,900, times 1,148, we projected the probable future
indemnity to be paid on those claims after December 31, 2008 to be equal to
approximately $24,000,000. In addition, multiplying an estimated cost
of defense per resolved claim of approximately $18,500 times 1,148, we projected
the probable future defense costs to equal approximately
$21,250,000. Accordingly, our total estimated future asbestos-related
liability at December 31, 2008 was $45,250,000.
We intend
to re-evaluate our estimate of future liability for asbestos claims at the end
of each fiscal year, or whenever actual results are materially different from
our estimates, integrating our actual experience in that fiscal year with that
of prior fiscal years since 2001. We estimate that the effects of
economic inflation on either the average indemnity payment or the projected
direct legal expenses will be approximately equal to a discount rate applied to
our future liability based upon the time value of money.
Although
defense costs are included in our insurance coverage, we expended $30,000 and
$107,000 in the three months ended March 31, 2009 and 2008, respectively, to
administer the asbestos claims and defend the ACE Lawsuit discussed
below. These amounts were primarily fees paid to attorneys to monitor
the activities of the insurers, and their selected defense counsel, and to look
after our rights under the various insurance policies.
There are
numerous insurance carriers which have issued a number of policies to us over a
period extending from approximately 1967 through approximately 1985 that still
provide coverage for asbestos-related injury claims. After
approximately 1985 the policies were issued with provisions which purport to
exclude coverage for asbestos related claims. The terms of our
insurance policies are complex, and coverage for many types of claims is limited
as to the nature of the claim and the amount of coverage
available. It is clear, however, under California law, where the
substantial majority of the asbestos-related injury claims are litigated, that
all of those policies cover any asbestos-related injury occurring during the
1967 through 1985 period when these policies were in force.
We have
determined that the minimum probable insurance coverage available to satisfy
asbestos-related injury claims significantly exceeds our estimated future
liability for such claims of $43,437,500 and $45,250,000 as of March 31, 2009
and December 31, 2008, respectively. Accordingly, we have included
$43,437,500 and $45,250,000 of such insurance coverage receivable as an asset on
our March 31, 2009 and December 31, 2008 balance sheets,
respectively. Our determination assumes that the general trend of
reducing asbestos-related injury claims will continue and that the average
indemnity and direct legal costs of each resolved claim will not materially
increase. The determination also assumes that the insurance companies
remain solvent and live up to what we believe is their obligation to continue to
cover our exposure with regards to these claims. Several affiliated
insurance companies have brought a declaratory relief action against our
subsidiary, Metalclad, as well as a number of other insurers, to resolve certain
coverage issues, as discussed below. Regardless of our best
estimates of liability for current and future asbestos-related claims, the
liability for these claims could be higher or lower than estimated by amounts
which are not predictable. We, of course, cannot give any assurance
that our liability for such claims will not ultimately exceed our available
insurance coverage. We believe, however, that our current insurance
is adequate to satisfy additional liability that is reasonably possible in the
event actual losses exceed our estimates. We will update our
estimates of liability and insurance coverage in future filings with the
Securities and Exchange Commission, as events occur which would cause us to
believe that those estimates need revision, based upon the subsequent claim
experience, using the methodology we have employed.
On
February 23, 2005 ACE Property & Casualty Company ("ACE"), Central National
Insurance Company of Omaha ("Central National") and Industrial Underwriters
Insurance Company ("Industrial"), which are all related entities, filed a
declaratory relief lawsuit (“the ACE Lawsuit”) against Metalclad Insulation
Corporation (“Metalclad”) and a number of Metalclad's other liability insurers,
in the Superior Court of the State of California, County of Los
Angeles. ACE, Central National and Industrial issued umbrella and
excess policies to Metalclad, which has sought and obtained from the plaintiffs
both defense and indemnity under these policies for the asbestos lawsuits
brought against Metalclad during the last four to five years. The ACE
Lawsuit seeks declarations regarding a variety of coverage issues, but is
centrally focused on issues involving whether historical and currently pending
asbestos lawsuits brought against Metalclad are subject to either an "aggregate"
limits of liability or separate "per occurrence" limits of
liability. Whether any particular asbestos lawsuit is properly
classified as being subject to an aggregate limit of liability depends upon
whether or not the suit falls within the "products" or "completed operations"
hazards found in most of the liability policies issued to
Metalclad. Resolution of these classification issues will determine
if, as ACE and Central National allege, their policies are nearing exhaustion of
their aggregate limits and whether or not other Metalclad insurers who
previously asserted they no longer owed any coverage obligations to Metalclad
because of the claimed exhaustion of their aggregate limits, in fact, owe
Metalclad additional coverage obligations. The ACE Lawsuit also seeks
to determine the effect of the settlement agreement between the Company and
Allstate Insurance Company on the insurance obligations of various other
insurers of Metalclad, and the effect of the “asbestos exclusion” in the
Allstate policy. The ACE Lawsuit does not seek any monetary recovery
from Metalclad. The
ACE Lawsuit is principally about coverage responsibility among the several
insurers, as well as total coverage. Regardless of the outcome of
this litigation, Entrx does not believe that the ACE Lawsuit will result in
materially diminishing Entrx’s insurance coverage for asbestos-related
claims. Nonetheless, we anticipate that we will incur attorneys fees and
other associated litigation costs in defending the lawsuit and any counter
claims made against us by any other insurers, and in prosecuting any claims we
may seek to have adjudicated regarding our insurance coverage. In
addition, the ACE Lawsuit may result in our incurring costs in connection with
obligations we may have to indemnify Allstate under the settlement
agreement. Allstate, in a cross-complaint filed against Metalclad
Insulation Corporation in October, 2005, asked the court to determine the
Company’s obligation to assume and pay for the defense of Allstate in the ACE
Lawsuit under the Company’s indemnification obligations in the settlement
agreement. The Company does not believe that it has any legal
obligation to assume or pay for such defense, but has accrued $375,000 to cover
potential indemnification obligations. Based upon information known
to date, the Company is unable to predict to what extent its indemnification
obligations are reasonably possible to vary from the amounts
accrued.
In June
2004, Metalclad Insulation Corporation, our wholly owned subsidiary, and Entrx
Corporation, entered into a Settlement Agreement and Full Policy Release (the
“Agreement”) releasing Allstate Insurance Company from its policy obligations
for a broad range of claims arising from injury or damage which may have
occurred during the period March 15, 1980 to March 15, 1981, under an umbrella
liability policy (the “Policy”). The Policy provided limits of
$5,000,000 in the aggregate and per occurrence. Allstate claimed that
liability under the Policy had not attached, and that regardless of that fact,
an exclusion in the Policy barred coverage for virtually all claims of bodily
injury from exposure to asbestos, which is of primary concern to Metalclad
Insulation Corporation. Metalclad Insulation Corporation took the
position that such asbestos coverage existed. The parties to the
Agreement reached a compromise, whereby Metalclad Insulation Corporation
received $2,500,000 in cash, and Metalclad Insulation Corporation and Entrx
Corporation agreed to indemnify and hold harmless the insurer from all claims
which could be alleged against the insurer respecting the policy, limited to
$2,500,000 in amount. Based on past experience related to asbestos
insurance coverage, we believe that the Agreement we entered into in June 2004,
will result in a probable loss contingency for future insurance claims based on
the indemnification provision in the Agreement. Although we are
unable to estimate the exact amount of the loss, we believe at this time the
reasonable estimate of the loss will not be less than $375,000 or more than
$2,500,000 (the $2,500,000 represents the maximum loss we would have based on
the indemnification provision in the Agreement). Based on the
information available to us, no amount in this range appears at this time to be
a better estimate than any other amount. The $375,000 estimated loss
contingency noted in the above range represents 15% of the $2,500,000 we
received and is based upon our attorney’s informal and general inquiries to an
insurance company of the cost for us to purchase an insurance policy to cover
the indemnification provision we entered into. The ACE Lawsuit may
result in our incurring costs in connection with obligations we may have to
indemnify Allstate under the Settlement Agreement. Allstate, in a
cross-complaint filed against Metalclad Insulation Corporation in October, 2005,
asked the court to determine the Company’s obligation to assume and pay for the
defense of Allstate in the ACE Lawsuit under the Company’s indemnification
obligations in the Settlement Agreement. The Company is taking the
position that it has no legal obligation to assume or pay for such defense. If Allstate
is required to provide indemnity for Entrx’s asbestos-related lawsuits, it is
likely that Entrx would have to indemnify Allstate for asbestos-related claims
that it defends up to $2,500,000 in the aggregate. If Allstate is not
required to provide indemnity, Entrx would have no liability to
Allstate. Entrx has accrued $375,000 as a potential loss in
connection with the Allstate matter and nothing has come to our attention that
would require us to record a different estimate at March 31, 2009.
11. Supplemental
disclosures of cash flow information:
Cash paid
for interest was $2,210 and $2,369 for the three months ended March 31, 2009 and
2008, respectively.
12. Subsequent
event
On May 4,
2009, the Company’s shareholders approved two proposals to amend Entrx’s
Restated and Amended Certificate of Incorporation. The first
amendment effects a reverse 1-for-500 share stock split of Entrx’s common
stock. The second amendment effects a subsequent forward 500-for-1
share stock split of Entrx’s common stock. The proposals have the
effect of reducing the number of the Company’s shareholders from an estimated
2,350 to between 800 and 900, and the number of shareholders of record from
approximately 520 to approximately 53, by cashing out fractional shares after
the reverse stock split. The shareholdings of a person owning 500
shares or more of Entrx in any one account is unaffected, while the shares held
by persons owning less than 500 shares of Entrx in any one account will be
bought out at the price of $0.35 per share. The amendments will be
effective with regards to shareholders of record at the close of business on May
15, 2009. The Company estimates that 170,000 shares of common stock
will be cashed-out related to the reverse and forward splits and therefore the
amount of cash to be paid to the cashed-out shareholders will be approximately
$60,000, which is immaterial to the Company’s cash balance and shareholder’s
equity as of March 31, 2009. On a pro-forma basis, the earnings per
share amounts for the three months ended March 31, 2009 and 2008 would not
change due to the reverse and forward splits.
Item 2. Management’s Discussion and
Analysis of Financial Condition and Results of
Operations
All
statements, other than statements of historical fact, included in this Form
10-Q, including without limitation the statements under “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and “Description
of Business” are, or may be deemed to be, “forward-looking statements” within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934. Such
forward-looking statements involve assumptions, known and unknown risks,
uncertainties, and other factors which may cause the actual results, performance
or achievements of Entrx Corporation (the “Company”) to be materially different
from any future results, performance or achievements expressed or implied by
such forward-looking statements contained in this Form 10-Q. Such
potential risks and uncertainties include, without limitation; estimates of
future revenues; the outcome of existing litigation; competitive pricing and
other pressures from other businesses in the Company’s markets; the accuracy of
the Company’s estimate of future liability for asbestos-related injury claims;
the adequacy of insurance, including the adequacy of insurance to cover current
and future asbestos-related injury claims; the valuation of the Company’s
investments; the imposition of laws or regulations relating to asbestos related
injury claims; economic conditions generally and in the Company’s primary
markets; availability of capital; the adequacy of the Company’s cash and cash
equivalents; the cost of labor; the accuracy of the Company’s cost analysis for
fixed price contracts; and other risk factors detailed herein and in other of
the Company’s filings with the Securities and Exchange
Commission. The forward-looking statements are made as of the date of
this Form 10-Q and the Company assumes no obligation to update the
forward-looking statements or to update the reasons actual results could differ
from those projected in such forward-looking statements. Therefore,
readers are cautioned not to place undue reliance on these forward-looking
statements. You can
identify these forward-looking statements by forward-looking words such as
“may,” “will,” “expect,” “anticipate,” “believe,” “intend,” “estimate,”
“continue,” and similar words.
General. The
Company provides insulation installation and removal services, including
asbestos abatement services, primarily on the West Coast. We also
enter into contracts to repair and maintain existing insulation
systems. These maintenance contracts are generally awarded on a year
to year basis, but are often renewed from year to year. We also
provide and erect scaffolding both with respect to our installation, removal and
maintenance services and for others. Through our wholly-owned
subsidiary Metalclad Insulation Corporation, we provide these services to a wide
range of industrial, commercial and public agency clients. Insulation
installation services include the installation of high- and low-temperature
insulation on pipe, ducts, furnaces, boilers, and other types of industrial
equipment and commercial applications. Insulation removal services
involve the removal of old insulation prior to the installation of new
insulation or system demolition, including the removal and disposal of
asbestos-containing products. We fabricate specialty items for the
insulation industry, and sell insulation material and accessories incidental to
our services business to our customers as well as to other
contractors. A diverse list of clientele includes refineries,
utilities, chemical/petrochemical plants, manufacturing facilities, commercial
properties, office buildings and various governmental
facilities.
Results of
Operations: Three Months Ended March 31, 2009 and
2008
Revenue
Revenue
for the three months ended March 31, 2009 was $5,378,000, a decrease of 37.1% as
compared to $8,557,000 for the three months ended March 31,
2008. Revenues decreased during the three months ended March 31, 2009
as compared with the three months ended March 31, 2008 primarily as result of
the Company performing non-recurring capital project work for major industrial
clients in the three months ended March 31, 2008. The decrease in oil
prices during the fourth quarter of 2008 and the first quarter of 2009 caused
some of these same customers who are in the oil refining business to tighten
their budgets for both maintenance and capital project work in the three months
ended March 31, 2009.
Approximately
42.3% of the revenues for the three months ended March 31, 2009 were from
insulation maintenance contracts, which often continue from year to
year. This compares with 70.7% of our revenues being derived from
insulation maintenance contracts in the three months ended March 31,
2008. Approximately 39.3% of revenues in the three months ended March
31, 2009 were derived from insulation installation and removal projects, which
are not normally continuing, but can go on for a year or more. This
compares with 25.1% of our revenues being derived from insulation installation
and removal projects in the three months ended March 31, 2008. These
percentages are approximate because some installation and removal projects
involve maintenance arrangements, and vice versa. Approximately 12.7%
of the revenues for the three months ended March 31, 2009 were from scaffolding
contracts, which often continue from year to year. The Company bids
on hundreds of projects during any given year. These projects range
in value from a few hundred dollars to multi-million dollar projects, and the
projects can last from a few hours up to over a year in duration. The
Company cannot predict what projects will be coming up for bid in any particular
period, or whether it will be the winning bidder. Accordingly, the
Company is unable to determine if the revenue trends, or the allocation between
maintenance contracts and installation and removal contracts, will
continue.
Cost
of Revenue and Gross Margin
Cost of
revenue was $4,530,000 for the three months ended March 31, 2009, as compared to
$7,131,000 for the three months ended March 31, 2008. The gross
margin percentage was approximately 15.8% for the three months ended March 31,
2009 as compared to 16.7% for the three months ended March 31,
2008. The decrease in the gross margin percentage during the three
months ended March 31, 2009, as compared with the three months ended March 31,
2008, is primarily the result of the decrease in revenues, and the fact that our
fixed cost do not decrease in proportion to the decrease in those
revenues. While the gross margin percentage varies from job to job,
insulation maintenance contracts generally have a lower gross margin percentage
than insulation installation and removal contracts.
Selling,
General and Administrative
Selling,
general and administrative expenses for the three months ended March 31, 2009
were $864,000 as compared to $949,000 for the comparable period ended March 31,
2008, a decrease of 8.9%. The decrease for the three months ended
March 31, 2009 as compared to the three months ended March 31, 2008 was
primarily due to decreases in the accrual for bonuses, legal fees and tax
expense. The overall decrease in selling, general and administrative
costs was partially offset by an increase in salary expense.
Change
in Allowance on Shareholder Note Receivable
Blake
Capital Partners, LLC was current in the payment of interest on the shareholder
note receivable through the payment due March 1, 2006. The payment
due September 1, 2006, however, was not made, and we were informed by Mr. Mills,
the principal of Blake Capital Partners and guarantor on the note, that no
payment should be expected in the foreseeable future. For the year
ended December 31, 2006, we increased our reserve against the note receivable
from Blake Capital Partners, LLC (“Blake”) by $1,083,885 as a result of the
non-payment of interest, bringing the net of the note receivable less the
reserve down to $210,000, the approximate value of the collateral securing the
note. In April 2007, the Company canceled 500,000 shares of the
Company’s common stock that were pledged as collateral on the note and applied
the $115,000 value of the stock against the outstanding note
balance. The note was not repaid on the October 31, 2007 due
date. As of December 31, 2007 the Company adjusted the net book value
of the note to $25,000, the approximate value of the collateral securing the
note. In December 2008, the Company received a notice from the United
States Bankruptcy Court that Blake Capital Partners, LLC and Mr. Mills had filed
for Chapter 7 bankruptcy. The Company is exploring its opportunities
to obtain proceeds from the sale of the 25,000 shares (250,000 shares before a
one for ten share reverse stock split on April 30, 2008) of VioQuest
Pharmaceuticals, Inc. common stock pledged as collateral on the note, but any
proceeds are expected to be de minimis. As such, the Company
completely wrote-off the note from Blake Capital Partners, LLC as of December
31, 2008.
Gain
on Disposal of Property, Plant and Equipment
Gain on
the disposal of property plant and equipment was $0 and $12,000 for the three
months ended March 31, 2009 and 2008, respectively.
Interest
Income and Expense
Interest
income for the three months ended March 31, 2009 was $5,000 as compared to
interest income of $11,000 for the three months ended March 31,
2008. Interest expense for the three months ended March 31, 2009 was
$2,000 as compared to interest expense of $2,000 for the three months ended
March 31, 2008.
Impairment
Charge on Available-for-Sale Securities
The
Company recognized impairment charges of $173,000 on its investment in Clearwire
Corporation for the three months ended March 31, 2008.
Net
Income
We had a
net loss of $13,000 for the three months ended March 31, 2009 as compared to net
income of $317,000 for the three months ended March 31, 2008.
Liquidity and Capital
Resources
As of
March 31, 2009, we had $2,823,000 in cash and cash equivalents and $272,000 in
available-for-sale securities. The Company had working capital of
$6,437,000 as of March 31, 2009. We own 19,057 shares (190,566 shares
before a one for ten share reverse stock split on April 30, 2008) of the common
stock of VioQuest Pharmaceuticals, Inc., the common stock of which is publicly
traded on the OTC Bulletin Board under the symbol “VOQP”. Of the
19,057 shares, 7,500 shares are subject to options exercisable by one current
and two former members of our Board of Directors at $12.50 per
share. We also own 39,415 shares of Clearwire Corporation’s common
stock (NASDAQ: CLWR) and 384,084 shares of Catalytic Solutions, Inc. common
stock (AIM: CTSU).
In an
effort to increase shareholder value and to diversify from our insulation
services business, we have made equity investments in Catalytic Solutions, Inc.
and Clearwire Corporation, that are not in the insulation services business and
which we believed had the ability to provide acceptable return on our
investment. The Company determined that there had been an impairment
with respect to Entrx’s investment in the common stock of Catalytic Solutions
based upon the severity of declines in the market price of the common stock
below our carrying value and our belief that there had been impairment
indicators as discussed in EITF 03-1, including factors that raise significant
concerns about Catalytic Solution’s ability to continue as a going
concern. The shares in Catalytic Solutions are traded on the London
Stock Exchange’s Alternative International Market for smaller company’s (the
“AIM”). We therefore recognized a $349,000 impairment on this
investment during the year ended December 31, 2008, representing the difference
between our carrying value and the quoted market price on December 31,
2008. Catalytic Solutions, Inc. manufactures and delivers proprietary
technology that improves the performance and reduces the cost of catalytic
converters. The Company also determined that there had been an
impairment with respect to Entrx’s investment in the common stock of Clearwire
Corporation based upon the severity of declines in the market price of the
common stock below our carrying value. We therefore recognized an
impairment charge of $563,000 on this investment during the year ended December
31, 2008, representing the difference between our carrying value and the quoted
market price on December 31, 2008.
Cash
provided by operations was $826,000 for the three months ended March 31, 2009
compared with cash provided by operations of $1,231,000 for the three months
ended March 31, 2008. For the three months ended March 31, 2009 the
positive cash flow from operations was primarily the result of a decrease in
accounts receivable of $1,266,000, a decrease in prepaid expenses and other
current assets of $105,000, a decrease in costs and estimated earnings in excess
of billings on uncompleted contracts of $97,000 and an increase in billings in
excess of costs and estimated earnings on uncompleted contracts of
$94,000. This positive cash flow was partially offset by a decrease
in accounts payable and accrued expenses of $781,000. For the three
months ended March 31, 2008 the positive cash flow from operations was primarily
the result of our $317,000 of net income and a decrease in accounts receivable
of $1,052,000. This positive cash flow was partially offset by an
increase in costs and estimated earnings in excess of billings on uncompleted
contracts of $283,000.
Net
investing activities used $37,000 and $5,000 of cash in the three months ended
March 31, 2009 and 2008, respectively. For the three months ended
March 31, 2009 and 2008, we used cash of $37,000 and $17,000, respectively, for
capital expenditures, primarily at our subsidiary, Metalclad Insulation
Corporation. During the three months ended March 31, 2008, cash of
$12,000 was provided by proceeds from sales of assets.
Cash used
in financing activities totaled $45,000 for the three months ended March 31,
2009 compared with cash used in financing activities of $39,000 for the
comparable period in 2008. Payments on long-term borrowings used
$45,000 and $39,000 of cash in the three months ended March 31, 2009 and 2008,
respectively.
As of
March 31, 2009, our subsidiary, Metalclad Insulation Corporation, employed
approximately 144 hourly employees for insulation and asbestos/lead abatement
contracting services, nearly all of whom are members of Local No. 5 -
International Association of Heat and Frost Insulators and Allied Workers
("AFL-CIO") or Laborers Local Union 300, which makes hourly employees available
to us. Metalclad Insulation Corporation is a party to agreements with
local chapters of various trade unions. The number of hourly
employees employed by us fluctuates depending upon the number and size of
projects that we have under construction at any particular time. It
has been our experience that hourly employees are generally available for our
projects, and we have continuously employed a number of hourly employees on
various projects over an extended period of time. We consider our
relations with our hourly employees and the unions representing them to be good,
and have not experienced any recent work stoppages due to strikes by such
employees. Additionally, many of the trade union agreements we are a
party to include no strike, no work stoppage provisions. The
Company’s subsidiary, Metalclad Insulation Corporation, is one of a group of
employers with a collective bargaining agreement with Local No. 5 -
International Association of Heat and Frost Insulators and Allied Workers
("Local No. 5"). Our “Basic Agreement” with Local No. 5 of the
International Association of Heat and Frost Insulators and Allied Workers
expired in September 2008. The “Basic Agreement” included a
“Maintenance Agreement” as an addendum. Metalclad Insulation
Corporation and the other employers have agreed with the negotiating
representatives of Local No. 5 for an extension of the expired contract while
the parties continue their efforts to establish a new agreement. The
extension expires on June 28, 2009 at which point it becomes subject to
termination upon 72 hour notice. We continue to negotiate with Local
5 for a new Basic Agreement. Negotiations seem to center around
issues of compensation and the length of the new
contract. Approximately 95% of our hourly employees are covered by
the Local No. 5 agreement. An agreement with the Laborers Local 300
was signed in January 2007 and expires in December
2009. Approximately 5% of our hourly employees are covered by the
Labors Local 300 agreement.
The
number of asbestos-related cases which have been initiated naming us (primarily
our subsidiary, Metalclad Insulation Corporation) as a defendant have fluctuated
from 265 in 2004, to 199 in 2005, to 232 in 2006, to 163 in 2007 and to 187 in
2008, but overall have exhibited a downward trend. There were 51 new
claims made in the first three months of 2009, compared to 40 in the first three
months of 2008. At December 31, 2004, 2005, 2006 and 2007, there
were, respectively, approximately 710, 507, 404 and 222 cases
pending. As of December 31, 2008, there were 271 cases pending and as
of March 31, 2009, there were 288 cases pending. These claims are
currently defended and covered by insurance.
We have
closely monitored the trend of asbestos-related injury claims made against the
Company over the past eight years. That trend, on a year to year
basis, has been somewhat erratic over the past three years, but has been
generally downward over the past eight years. We believe, however,
that it is probable that a general downward trend will continue, although such
continuance cannot be assured and we have seen an increase in the number of
cases pending as of December 31, 2008 and March 31, 2009. From 2001
through 2008, the annual average indemnity paid on over 3,000 resolved cases has
fluctuated significantly, between a low of $14,504 in 2006 and a high of $54,946
in 2008, with an overall average over that period of approximately
$20,900. During this period, there has been no discernible upward or
downward trend in indemnity payments. The indemnity paid on the 34
cases resolved during the three months ended March 31, 2009 averaged
$50,000.
We
believe that the sympathies of juries, the aggressiveness of the plaintiffs’ bar
and the declining base of potential defendants as the result of business
failures, have tended to increase payments on resolved cases. This
tendency, we believe, has been mitigated by the declining pool of claimants
resulting from death, and the likelihood that the most meritorious claims have
been ferreted out by plaintiffs’ attorneys and that the newer cases being
brought are not as meritorious nor do they have as high a potential for damages
as do cases which were brought earlier. We have no reason to believe,
therefore, that the average future indemnity payments will increase materially
in the future.
In
addition, direct defense costs per resolved claim increased from $8,514 in 2003
to $44,359 in 2008. The weighted average defense cost per resolved
claim from 2005 through 2008 was $18,233. We believe that these
defense costs increased as a result of a change in legal counsel in 2004, and
the more aggressive defense posture taken by new legal counsel since that
change. Due to this aggressive defensive posture, the new claims
against the Company have tended to have a greater potential liability and
therefore require more resources to defend. We intend to monitor the
defense costs in 2009 and will adjust our estimates if events occur which would cause us to believe
that those estimates need revision. We are currently
projecting those costs to be approximately $18,500 per claim.
In our
Form 10-KSB filed with the Securities and Exchange Commission for the year ended
December 31, 2007, we projected that approximately 186 new asbestos-related
claims would be commenced, and approximately 237 cases would be resolved, in
2007, resulting in an estimated 353 cases pending at December 31,
2007. We further projected that an aggregate of 738 new cases would
be commenced after December 31, 2007, and that 148 of these cases would be
commenced in 2008 and that we would resolve 194 cases in
2008. Accordingly, we previously had projected the cases pending and
projected to be commenced in the future at December 31, 2008, would be 897
cases. Multiplying 897 claims times the approximate average indemnity
paid and defense costs incurred per resolved claim from 2002 through 2006 of
$32,600, we previously estimated our liability for current and future
asbestos-related claims at December 31, 2008 to be approximately
$29,000,000. This amounted to a $7,000,000 reduction from the
$36,000,000 liability we estimated as of December 31, 2007, or a $1,750,000
reduction per quarter in 2008.
As of
December 31, 2008, we re-evaluated our estimates to take into account our
experience in 2008, which was unfavorable compared to previous
years. Primarily as a result of an increase in the number of new
cases commenced during 2008 which exceeded our previous estimates, we now
estimate that there will be 877 asbestos-related injury claims made against the
Company after December 31, 2008. The 877, in addition to the 271
claims existing as of December 31, 2008, totaled 1,148 current and future
claims. Multiplying the average indemnity per resolved claim over the
past eight years of $20,900, times 1,148, we projected the probable future
indemnity to be paid on those claims after December 31, 2008 to be equal to
approximately $24,000,000. In addition, multiplying an estimated cost
of defense per resolved claim of approximately $18,500 times 1,148, we projected
the probable future defense costs to equal approximately
$21,250,000. Accordingly, our total estimated future asbestos-related
liability at December 31, 2008 was $45,250,000.
We intend
to re-evaluate our estimate of future liability for asbestos claims at the end
of each fiscal year, or whenever actual results are materially different from
our estimates, integrating our actual experience in that fiscal year with that
of prior fiscal years since 2001. We estimate that the effects of
economic inflation on either the average indemnity payment or the projected
direct legal expenses will be approximately equal to a discount rate applied to
our future liability based upon the time value of money.
Although
defense costs are included in our insurance coverage, we expended $30,000 and
$107,000 in the three months ended March 31, 2009 and 2008, respectively, to
administer the asbestos claims and defend the ACE Lawsuit discussed
below. These amounts were primarily fees paid to attorneys to monitor
the activities of the insurers, and their selected defense counsel, and to look
after our rights under the various insurance policies.
There are
numerous insurance carriers which have issued a number of policies to us over a
period extending from approximately 1967 through approximately 1985 that still
provide coverage for asbestos-related injury claims. After
approximately 1985 the policies were issued with provisions which purport to
exclude coverage for asbestos related claims. The terms of our
insurance policies are complex, and coverage for many types of claims is limited
as to the nature of the claim and the amount of coverage
available. It is clear, however, under California law, where the
substantial majority of the asbestos-related injury claims are litigated, that
all of those policies cover any asbestos-related injury occurring during the
1967 through 1985 period when these policies were in force.
We have
determined that the minimum probable insurance coverage available to satisfy
asbestos-related injury claims significantly exceeds our estimated future
liability for such claims of $43,437,500 and $45,250,000 as of March 31, 2009
and December 31, 2008, respectively. Accordingly, we have included
$43,437,500 and $45,250,000 of such insurance coverage receivable as an asset on
our March 31, 2009 and December 31, 2008 balance sheets,
respectively. Our determination assumes that the general trend of
reducing asbestos-related injury claims will continue and that the average
indemnity and direct legal costs of each resolved claim will not materially
increase. The determination also assumes that the insurance companies
remain solvent and live up to what we believe is their obligation to continue to
cover our exposure with regards to these claims. Several affiliated
insurance companies have brought a declaratory relief action against our
subsidiary, Metalclad, as well as a number of other insurers, to resolve certain
coverage issues, as discussed below. Regardless of our best
estimates of liability for current and future asbestos-related claims, the
liability for these claims could be higher or lower than estimated by amounts
which are not predictable. We, of course, cannot give any assurance
that our liability for such claims will not ultimately exceed our available
insurance coverage. We believe, however, that our current insurance
is adequate to satisfy additional liability that is reasonably possible in the
event actual losses exceed our estimates. We will update our
estimates of liability and insurance coverage in future filings with the
Securities and Exchange Commission, as events occur which would cause us to
believe that those estimates need revision, based upon the subsequent claim
experience, using the methodology we have employed.
On
February 23, 2005 ACE Property & Casualty Company ("ACE"), Central National
Insurance Company of Omaha ("Central National") and Industrial Underwriters
Insurance Company ("Industrial"), which are all related entities, filed a
declaratory relief lawsuit (“the ACE Lawsuit”) against Metalclad Insulation
Corporation (“Metalclad”) and a number of Metalclad's other liability insurers,
in the Superior Court of the State of California, County of Los
Angeles. ACE, Central National and Industrial issued umbrella and
excess policies to Metalclad, which has sought and obtained from the plaintiffs
both defense and indemnity under these policies for the asbestos lawsuits
brought against Metalclad during the last four to five years. The ACE
Lawsuit seeks declarations regarding a variety of coverage issues, but is
centrally focused on issues involving whether historical and currently pending
asbestos lawsuits brought against Metalclad are subject to either an "aggregate"
limits of liability or separate "per occurrence" limits of
liability. Whether any particular asbestos lawsuit is properly
classified as being subject to an aggregate limit of liability depends upon
whether or not the suit falls within the "products" or "completed operations"
hazards found in most of the liability policies issued to
Metalclad. Resolution of these classification issues will determine
if, as ACE and Central National allege, their policies are nearing exhaustion of
their aggregate limits and whether or not other Metalclad insurers who
previously asserted they no longer owed any coverage obligations to Metalclad
because of the claimed exhaustion of their aggregate limits, in fact, owe
Metalclad additional coverage obligations. The ACE Lawsuit also seeks
to determine the effect of the settlement agreement between the Company and
Allstate Insurance Company on the insurance obligations of various other
insurers of Metalclad, and the effect of the “asbestos exclusion” in the
Allstate policy. The ACE Lawsuit does not seek any monetary recovery
from Metalclad. The
ACE Lawsuit is principally about coverage responsibility among the several
insurers, as well as total coverage. Regardless of the outcome of
this litigation, Entrx does not believe that the ACE Lawsuit will result in
materially diminishing Entrx’s insurance coverage for asbestos-related
claims. Nonetheless, we anticipate that we will incur attorneys fees and
other associated litigation costs in defending the lawsuit and any counter
claims made against us by any other insurers, and in prosecuting any claims we
may seek to have adjudicated regarding our insurance coverage. In
addition, the ACE Lawsuit may result in our incurring costs in connection with
obligations we may have to indemnify Allstate under the settlement
agreement. Allstate, in a cross-complaint filed against Metalclad
Insulation Corporation in October, 2005, asked the court to determine the
Company’s obligation to assume and pay for the defense of Allstate in the ACE
Lawsuit under the Company’s indemnification obligations in the settlement
agreement. The Company does not believe that it has any legal
obligation to assume or pay for such defense, but has accrued $375,000 to cover
potential indemnification obligations. Based upon information known
to date, the Company is unable to predict to what extent its indemnification
obligations are reasonably possible to vary from the amounts
accrued.
The
Company projects that cash flow generated through the operation of its
subsidiary, Metalclad Insulation Corporation, and the Company’s net cash assets
as of March 31, 2009 will be sufficient to meet the Company’s cash requirements
for at least the next twelve months.
Significant Accounting
Policies
Our
significant accounting policies are described in Note 1 to the consolidated
financial statements included in our annual report for the year ended December
31, 2008. The accounting policies used in preparing our interim 2009
consolidated condensed financial statements are the same as those described in
our annual report.
Our
critical accounting policies are those both having the most impact to the
reporting of our financial condition and results, and requiring significant
judgments and estimates. Our critical accounting policies include
those related to (a) revenue recognition, (b) valuation of investments, (c)
allowances for uncollectible accounts receivable, (d) judgments and estimates
used in determining the amount of our asbestos liability, and (e) evaluation and
estimates of our probable insurance coverage for asbestos-related
claims. Revenue recognition for fixed price insulation installation
and asbestos abatement contracts are accounted for by the
percentage-of-completion method, wherein costs and estimated earnings are
included in revenues as the work is performed. If a loss on a fixed
price contract is indicated, the entire amount of the estimated loss is accrued
when known. Revenue recognition on time and material contracts is
recognized based upon the amount of work performed. We have made
investments in companies which can still be considered to be in the startup or
development stages. We monitor these investments for impairment
considering factors such as the severity and duration of any decline in fair
value, our ability and intent to retain our investment for a period of time
sufficient to allow for a recovery of market value and based on the financial
condition and near-term prospects of these companies. We make
appropriate reductions in carrying values if we determine an impairment charge
is required. These investments are inherently risky, as the markets
for the technologies or products these companies are developing are typically in
the early stages and may never materialize. Accounts receivable are
reduced by an allowance for amounts that may become uncollectible in the
future. The estimated allowance for uncollectible amounts is based
primarily on our evaluation of the financial condition of the
customer. Future changes in the financial condition of a customer may
require an adjustment to the allowance for uncollectible accounts
receivable. We have estimated the probable amount of future claims
related to our asbestos liability and the probable amount of insurance coverage
related to those claims. We offset proceeds received from our
insurance carriers resulting from claims of personal injury allegedly related to
asbestos exposure against the payment issued to the plaintiff. The
cash from the insurance company goes directly to the plaintiff, so we never have
access to this cash. We never have control over any of the funds the
insurance company issues to the plaintiff. Once a claim is settled,
payment of the claim is normally made by the insurance carrier or carriers
within 30 to 60 days. Changes in any of the judgments and estimates
could have a material impact on our financial condition and results of
operations.
Recent Accounting
Pronouncements
See
footnote 9 of the financial statements.
Item 4T. Controls and
Procedures
Evaluation
of Disclosure Controls and Procedures
We have
established disclosure controls and procedures to ensure that material
information relating to the Company is made known to the officers who certify
the financial statements and to other members of senior management and the Audit
Committee of the Board.
We
conducted an evaluation, under the supervision and with the participation of our
chief executive officer and chief financial officer of our disclosure controls
and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities
Exchange Act of 1934). Based on this evaluation our chief executive
officer and chief financial officer have concluded that, as of March 31, 2009,
our disclosure controls and procedures are effective.
Changes
in Internal Control Over Financial Reporting
There
have been no changes in our internal controls over financial reporting for the
three-months ended March 31, 2009 that have materially affected, or are
reasonably likely to materially affect, our internal control over financial
reporting.
PART
II
OTHER
INFORMATION
Item 1. Legal
Proceedings
Asbestos-related
Claims
Prior to
1975, we were engaged in the sale and installation of asbestos-related
insulation materials, which has resulted in numerous claims of personal injury
allegedly related to asbestos exposure. Many of these claims are now
being brought by the children and close relatives of persons who have died,
allegedly as a result of the direct or indirect exposure to
asbestos. To date all of our asbestos-related injury claims have been
paid and defended by our insurance carriers.
The
number of asbestos-related cases which have been initiated naming us (primarily
our subsidiary, Metalclad Insulation Corporation) as a defendant fluctuated from
265 in 2004, to 199 in 2005, to 232 in 2006, to 163 in 2007 and to 187 in 2008,
but overall have exhibited a downward trend. At December 31, 2004,
2005, 2006 and 2007, there were, respectively, approximately 710, 507, 404 and
222 cases pending. As of December 31, 2008, there were 271 cases
pending and as of March 31, 2009 there were 288 cases pending. These
claims are currently defended and covered by insurance.
Set forth
below is a table for the years ended December 31, 2005, 2006, 2007, 2008 and the
three months ended March 31, 2009, which sets forth for each such period the
approximate number of asbestos-related cases filed, the number of such cases
resolved by dismissal or by trial, the number of such cases resolved by
settlement, the total number of resolved cases, the number of filed cases
pending at the end of such period, the total indemnity paid on all resolved
cases, the average indemnity paid on all settled cases and the average indemnity
paid on all resolved cases:
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
Three Months
Ended
March 31, 2009
|
|
New
cases filed
|
|
|
199 |
|
|
|
232 |
|
|
|
163 |
|
|
|
187 |
|
|
|
51 |
|
Defense
judgments and dismissals
|
|
|
294 |
(3)
|
|
|
253 |
|
|
|
292 |
(3)
|
|
|
109 |
|
|
|
28 |
|
Plaintiff
judgments and Settled cases
|
|
|
108 |
|
|
|
82 |
|
|
|
53 |
|
|
|
29 |
|
|
|
6 |
|
Total
resolved cases (1)
|
|
|
402 |
(3)
|
|
|
335 |
|
|
|
345 |
(3)
|
|
|
138 |
|
|
|
34 |
|
Pending
cases (1)
|
|
|
507 |
(2,3)
|
|
|
404 |
|
|
|
222 |
(3)
|
|
|
271 |
|
|
|
288 |
|
Total
indemnity payments
|
|
$ |
8,513,750 |
|
|
$ |
4,858,750 |
|
|
$ |
7,974,500 |
|
|
$ |
7,582,550 |
|
|
$ |
1,700,000 |
|
Average
indemnity paid on plaintiff judgments and settled cases
|
|
$ |
78,831 |
|
|
$ |
59,253 |
|
|
$ |
150,462 |
|
|
$ |
261,467 |
|
|
$ |
283,333 |
|
Average
indemnity paid on all resolved cases
|
|
$ |
21,178 |
(2)
|
|
$ |
14,504 |
|
|
$ |
23,114 |
|
|
$ |
54,946 |
|
|
$ |
50,000 |
|
|
(1)
|
Total
resolved cases includes, and the number of pending cases excludes, cases
which have been settled but which have not been closed for lack of final
documentation or payment.
|
|
(2)
|
The
average indemnity paid on resolved cases does not include, and the number
of pending cases includes, a jury award rendered on March 22, 2005 and a
judgment on that award rendered on April 4, 2005, finding Metalclad
Insulation Corporation liable for $1,117,000 in damages, which is covered
by insurance. The judgment is being appealed by our
insurer.
|
|
(3)
|
80
cases which had been previously counted in error are included in “Defense
judgments and dismissals” and “Total resolved cases” during
2005. Included in the decrease from 404 cases pending at
December 31, 2006 to 222 cases pending at December 31, 2007, were 53 cases
which had been previously counted in error and are included in “Defense
judgments and dismissals” and “Total resolved cases”, so that the actual
decrease for the year ended December 31, 2007 was 129
cases.
|
We have
closely monitored the trend of asbestos-related injury claims made against the
Company over the past eight years. That trend, on a year to year
basis, has been somewhat erratic over the past three years, but has been
generally downward over the past eight years. We believe, however,
that it is probable that a general downward trend will continue, although such
continuance cannot be assured and we have seen an increase in the number of
cases pending as of December 31, 2008 and March 31, 2009. From 2001
through 2008, the annual average indemnity paid on over 3,000 resolved cases has
fluctuated significantly, between a low of $14,504 in 2006 and a high of $54,946
in 2008, with an overall average over that period of approximately
$20,900. During this period, there has been no discernible upward or
downward trend in indemnity payments. The indemnity paid on the 34
cases resolved during the three months ended March 31, 2009 averaged
$50,000.
We
believe that the sympathies of juries, the aggressiveness of the plaintiffs’ bar
and the declining base of potential defendants as the result of business
failures, have tended to increase payments on resolved cases. This
tendency, we believe, has been mitigated by the declining pool of claimants
resulting from death, and the likelihood that the most meritorious claims have
been ferreted out by plaintiffs’ attorneys and that the newer cases being
brought are not as meritorious nor do they have as high a potential for damages
as do cases which were brought earlier. We have no reason to believe,
therefore, that the average future indemnity payments will increase materially
in the future.
In
addition, direct defense costs per resolved claim increased from $8,514 in 2003
to $44,359 in 2008. The weighted average defense cost per resolved
claim from 2005 through 2008 was $18,233. We believe that these
defense costs increased as a result of a change in legal counsel in 2004, and
the more aggressive defense posture taken by new legal counsel since that
change. Due to this aggressive defensive posture, the new claims
against the Company have tended to have a greater potential liability and
therefore require more resources to defend. We intend to monitor the
defense costs in 2009 and will adjust our estimates if events occur which would cause us to believe
that those estimates need revision. We are currently
projecting those costs to be approximately $18,500 per claim.
In our
Form 10-KSB filed with the Securities and Exchange Commission for the year ended
December 31, 2007, we projected that approximately 186 new asbestos-related
claims would be commenced, and approximately 237 cases would be resolved, in
2007, resulting in an estimated 353 cases pending at December 31,
2007. We further projected that an aggregate of 738 new cases would
be commenced after December 31, 2007, and that 148 of these cases would be
commenced in 2008 and that we would resolve 194 cases in
2008. Accordingly, we previously had projected the cases pending and
projected to be commenced in the future at December 31, 2008, would be 897
cases. Multiplying 897 claims times the approximate average indemnity
paid and defense costs incurred per resolved claim from 2002 through 2006 of
$32,600, we previously estimated our liability for current and future
asbestos-related claims at December 31, 2008 to be approximately
$29,000,000. This amounted to a $7,000,000 reduction from the
$36,000,000 liability we estimated as of December 31, 2007, or a $1,750,000
reduction per quarter in 2008.
As of
December 31, 2008, we re-evaluated our estimates to take into account our
experience in 2008, which was unfavorable compared to previous
years. Primarily as a result of an increase in the number of new
cases commenced during 2008 which exceeded our previous estimates, we now
estimate that there will be 877 asbestos-related injury claims made against the
Company after December 31, 2008. The 877, in addition to the 271
claims existing as of December 31, 2008, totaled 1,148 current and future
claims. Multiplying the average indemnity per resolved claim over the
past eight years of $20,900, times 1,148, we projected the probable future
indemnity to be paid on those claims after December 31, 2008 to be equal to
approximately $24,000,000. In addition, multiplying an estimated cost
of defense per resolved claim of approximately $18,500 times 1,148, we projected
the probable future defense costs to equal approximately
$21,250,000. Accordingly, our total estimated future asbestos-related
liability at December 31, 2008 was $45,250,000.
We intend
to re-evaluate our estimate of future liability for asbestos claims at the end
of each fiscal year, or whenever actual results are materially different from
our estimates, integrating our actual experience in that fiscal year with that
of prior fiscal years since 2001. We estimate that the effects of
economic inflation on either the average indemnity payment or the projected
direct legal expenses will be approximately equal to a discount rate applied to
our future liability based upon the time value of money.
Although
defense costs are included in our insurance coverage, we expended $30,000 and
$107,000 in the three months ended March 31, 2009 and 2008, respectively, to
administer the asbestos claims and defend the ACE Lawsuit discussed
below. These amounts were primarily fees paid to attorneys to monitor
the activities of the insurers, and their selected defense counsel, and to look
after our rights under the various insurance policies.
There are
numerous insurance carriers which have issued a number of policies to us over a
period extending from approximately 1967 through approximately 1985 that still
provide coverage for asbestos-related injury claims. After
approximately 1985 the policies were issued with provisions which purport to
exclude coverage for asbestos related claims. The terms of our
insurance policies are complex, and coverage for many types of claims is limited
as to the nature of the claim and the amount of coverage
available. It is clear, however, under California law, where the
substantial majority of the asbestos-related injury claims are litigated, that
all of those policies cover any asbestos-related injury occurring during the
1967 through 1985 period when these policies were in force.
We have
determined that the minimum probable insurance coverage available to satisfy
asbestos-related injury claims significantly exceeds our estimated future
liability for such claims of $43,437,500 and $45,250,000 as of March 31, 2009
and December 31, 2008, respectively. Accordingly, we have included
$43,437,500 and $45,250,000 of such insurance coverage receivable as an asset on
our March 31, 2009 and December 31, 2008 balance sheets,
respectively. Our determination assumes that the general trend of
reducing asbestos-related injury claims will continue and that the average
indemnity and direct legal costs of each resolved claim will not materially
increase. The determination also assumes that the insurance companies
remain solvent and live up to what we believe is their obligation to continue to
cover our exposure with regards to these claims. Several affiliated
insurance companies have brought a declaratory relief action against our
subsidiary, Metalclad, as well as a number of other insurers, to resolve certain
coverage issues, as discussed below. Regardless of our best
estimates of liability for current and future asbestos-related claims, the
liability for these claims could be higher or lower than estimated by amounts
which are not predictable. We, of course, cannot give any assurance
that our liability for such claims will not ultimately exceed our available
insurance coverage. We believe, however, that our current insurance
is adequate to satisfy additional liability that is reasonably possible in the
event actual losses exceed our estimates. We will update our
estimates of liability and insurance coverage in future filings with the
Securities and Exchange Commission, as events occur which would cause us to
believe that those estimates need revision, based upon the subsequent claim
experience, using the methodology we have employed.
Insurance
Coverage Litigation
On
February 23, 2005 ACE Property & Casualty Company ("ACE"), Central National
Insurance Company of Omaha ("Central National") and Industrial Underwriters
Insurance Company ("Industrial"), which are all related entities, filed a
declaratory relief lawsuit (“the ACE Lawsuit”) against Metalclad Insulation
Corporation (“Metalclad”) and a number of Metalclad's other liability insurers,
in the Superior Court of the State of California, County of Los
Angeles. ACE, Central National and Industrial issued umbrella and
excess policies to Metalclad, which has sought and obtained from the plaintiffs
both defense and indemnity under these policies for the asbestos lawsuits
brought against Metalclad during the last four to five years. The ACE
Lawsuit seeks declarations regarding a variety of coverage issues, but is
centrally focused on issues involving whether historical and currently pending
asbestos lawsuits brought against Metalclad are subject to either an "aggregate"
limits of liability or separate "per occurrence" limits of
liability. Whether any particular asbestos lawsuit is properly
classified as being subject to an aggregate limit of liability depends upon
whether or not the suit falls within the "products" or "completed operations"
hazards found in most of the liability policies issued to
Metalclad. Resolution of these classification issues will determine
if, as ACE and Central National allege, their policies are nearing exhaustion of
their aggregate limits and whether or not other Metalclad insurers who
previously asserted they no longer owed any coverage obligations to Metalclad
because of the claimed exhaustion of their aggregate limits, in fact, owe
Metalclad additional coverage obligations. The ACE Lawsuit also seeks
to determine the effect of the settlement agreement between the Company and
Allstate Insurance Company on the insurance obligations of various other
insurers of Metalclad, and the effect of the “asbestos exclusion” in the
Allstate policy. The ACE Lawsuit does not seek any monetary recovery
from Metalclad. The
ACE Lawsuit is principally about coverage responsibility among the several
insurers, as well as total coverage. Regardless of the outcome of
this litigation, Entrx does not believe that the ACE Lawsuit will result in
materially diminishing Entrx’s insurance coverage for asbestos-related
claims. Nonetheless, we anticipate that we will incur attorneys fees and
other associated litigation costs in defending the lawsuit and any counter
claims made against us by any other insurers, and in prosecuting any claims we
may seek to have adjudicated regarding our insurance coverage. In
addition, the ACE Lawsuit may result in our incurring costs in connection with
obligations we may have to indemnify Allstate under the settlement
agreement. Allstate, in a cross-complaint filed against Metalclad
Insulation Corporation in October, 2005, asked the court to determine the
Company’s obligation to assume and pay for the defense of Allstate in the ACE
Lawsuit under the Company’s indemnification obligations in the settlement
agreement. The Company does not believe that it has any legal
obligation to assume or pay for such defense, but has accrued $375,000 to cover
potential indemnification obligations. Based upon information known
to date, the Company is unable to predict to what extent its indemnification
obligations are reasonably possible to vary from the amounts
accrued.
Claim Against Former
Employee, Etc.
In
October 1999, we completed the sale of our operating businesses and development
project located in Aguascalientes, Mexico. That sale specifically
excluded those Mexican assets involved in the Company’s NAFTA claim which was
settled in 2001. Under the terms of the sale we received an initial
cash payment of $125,000 and recorded a receivable for $779,000, which has been
fully reserved. On November 13, 2000, the Company filed a complaint
in the Superior Court of California against a former employee, the U.S. parent
of the buyer and its representative for breach of contract, fraud, collusion and
other causes of action in connection with this sale seeking damages in the form
of a monetary award. An arbitration hearing was held in September,
2002 in Mexico City, as requested by one of the defendants. This
arbitration hearing was solely to determine the validity of the assignment of
the purchase and sale agreement by the buyer to a company formed by the former
employee defendant. The Superior Court action against the U.S. parent
was stayed pending the Mexican arbitration. On April 8, 2003, the
arbitrator ruled that the assignment was inexistent, due to the absence of our
consent. In June 2003, the Court of Appeal for the State of
California ruled that the U.S. parent was also entitled to compel a Mexican
arbitration of the claims raised in our complaint. We are now
prepared to pursue our claim in an arbitration proceeding for the aforementioned
damages. No assurances can be given on the outcome.
In a
related action, a default was entered against us in December, 2002, in favor of
the same former employee referred to in the foregoing paragraph by the Mexican
Federal Labor Arbitration Board, for an unspecified amount. The
former employee was seeking in excess of $9,000,000 in damages as a result of
his termination as an employee. The default was obtained without the
proper notice being given to us, and was set aside in the quarter ended June 30,
2003. The Mexican Federal Labor Arbitration Board rendered a
recommendation on December 13, 2004, to the effect that the former employee was
entitled to an award of $350,000 from Entrx in connection with the termination
of his employment. The award is in the form of a recommendation which
has been affirmed by the Mexican Federal Court, but is only exercisable against
assets of the Company located in Mexico. The Company has no material
assets in Mexico. The award does not represent a collectible judgment
against the Company in the United States. Since the Company has no
material assets in Mexico, the likelihood of any obligation to satisfy this
award is remote, and we therefore believe that there is no potential liability
to the Company which needs to be recorded in our financial
statements. The Company intends to continue to pursue its claims
against the same employee for breach of contract, fraud, collusion and other
causes of action in connection with the 1999 sale of one of the Company’s
operating businesses in Mexico.
On May
31, 2006, we entered into a Settlement Agreement with Ventana Global
Environmental Organizational Partnership, L.P. and North America Environmental
Fund, L.P. (collectively referred to as “Ventana”) whereby Ventana agreed to pay
Entrx Corporation $1,250,000 in exchange for the dismissal with prejudice by
Entrx Corporation of the law suit (the “Ventana Action”) filed by Entrx
Corporation against Ventana and others in Orange County, California Superior
Court in November 2000. Entrx Corporation and Ventana also entered
into a mutual release of all claims each may have had against the
other. In addition, Entrx Corporation released Carlos Alberto de
Rivas Oest and Geologic de Mexico S.A. de C.V., which were parties related to
Ventana, and against whom Entrx Corporation had claims pending in
Mexico. The Settlement Agreement does not limit claims that Entrx had
or currently has against Javier Guerra Cisneros and Promotora Industrial
Galeana, S.A. de C.V., which Entrx Corporation continues to pursue in
Mexico. Javier Guerra Cisneros and Promotora Industrial Galeana, S.A.
de C.V. were involved with the transactions which were the subject of the
Ventana Action. Entrx Corporation received approximately $925,000 net
after payment of legal fees and expenses associated with the Ventana Action and
the Settlement Agreement.
Since the
May 2006 Settlement Agreement, the remaining action against Javier Guerra
Cisneros and Promotora Industrial Galeana, S.A. de C.V has experienced repeated
and extended delays in the State Court in Mexico City. In the fourth
quarter of 2007, the Company filed an amparo (injunction)
application with the Mexican federal court in Mexico City, requesting that the
State Court take affirmative action in the Company's pending case. That amparo was denied during the
first quarter of 2008 and an appeal was presented to the federal appellate
court. The appeal was denied during the second quarter of
2008. The Company is investigating its options with regard to
pursuing the lawsuit.
Item
6.
Exhibits
Exhibits
31.1 Rule
13a-14(a) Certification of Chief Executive Officer.
31.2 Rule
13a-14(a) Certification of Chief Financial Officer.
32 Section
1350 Certification.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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ENTRX
CORPORATION |
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Date: May
13, 2009
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By:
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/s/Peter L. Hauser
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Peter
L. Hauser
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Chief
Executive
Officer
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Date: May
13, 2009
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By:
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/s/Brian D.
Niebur
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Brian
D. Niebur
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Chief
Financial Officer
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(Principal
Accounting Officer)
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