Delaware |
06-1488212 |
(State of other jurisdiction of incorporation or organization) |
(IRS Employer Identification Number) |
| ||
|
Item 1. Financial Statements |
Page |
Consolidated Balance Sheets as of September 30, 2004 (unaudited) and |
|
December 31, 2003 (audited) |
1 |
Consolidated Statement of Operations for the three month and nine month |
|
periods ended September 30, 2004 (unaudited) and September 30, 2003 (unaudited) |
2 |
Consolidated Statement of Cash Flows for the nine month periods ended |
|
September 30, 2004 (unaudited) and September 30, 2003 (unaudited) |
3 |
Notes to Consolidated Financial Statements |
4 |
Item 2. Managements Discussion and Analysis of Financial Condition |
|
and Results of Operations |
|
Overview |
7 |
Comparison of the three months ended |
|
September 30, 2004 and September 30, 2003 |
11 |
Comparison of the nine months ended |
|
September 30, 2004 and September 30, 2003 |
15 |
Liquidity and capital resources |
18 |
Forward-looking statements and risk factors |
18 |
Item 3. Controls and Procedures |
21 |
Part II | |
Other Information | |
Item 4. Submission of Matters to a Vote of Security Holders |
22 |
Item 6. Exhibits and Reports on form 8-K |
23 |
Signatures |
28 |
| ||
|
September 30, 2004 |
December 31, 2003 |
||||||
Assets |
(unaudited) |
(audited) |
|||||
Current assets: |
|||||||
Cash and cash equivalents |
$ |
8,317,423 |
$ |
2,522,107 |
|||
Accounts receivable, net of allowance for doubtful
accounts of $50,000 |
15,244,127 |
2,715,418 |
|||||
Note receivable |
22,500 |
90,000 |
|||||
Prepaid expenses and other current assets |
267,577 |
103,367 |
|||||
Total current assets |
23,851,627 |
5,430,892 |
|||||
Property and equipment, net |
3,873,398 |
1,714,606 |
|||||
Restricted certificates of deposit |
32,100 |
291,352 |
|||||
Goodwill |
3,914,624 |
3,600,522 |
|||||
Deferred income tax benefit, net of valuation allowance |
2,000,000 |
2,000,000 |
|||||
Other assets |
561,714 |
271,956 |
|||||
Total assets |
$ |
34,233,463 |
$ |
13,309,328 |
|||
Liabilities and Stockholders Equity |
|||||||
Current liabilities: |
|||||||
Accounts payable and accrued expenses |
$ |
2,419,446 |
$ |
848,177 |
|||
Accrued purchase price payable for Interboro
Institute, Inc |
94,283 |
973,337 |
|||||
Deferred revenue |
11,827,491 |
1,007,621 |
|||||
Notes payable |
318,907 |
480,235 |
|||||
Current portion of capitalized lease obligations |
389,081 |
161,805 |
|||||
Total current liabilities |
15,049,208 |
3,471,175 |
|||||
Accrued purchase price payable for Interboro,
net of current portion |
- |
1,622,227 |
|||||
Capital lease obligations, net of current portion |
712,777 |
236,194 |
|||||
Notes payable |
367,962 |
964,968 |
|||||
Deferred rent |
577,290 |
- |
|||||
Total liabilities |
16,707,237 |
6,294,564 |
|||||
Stockholders equity: |
|||||||
Preferred stock - $.0001 par value: authorized 1,000,000
shares, outstanding 0 shares |
- |
- |
|||||
Common stock - $.0001 par value; authorized
20,000,000 shares: issued and outstanding
12,208,645 and 10,862,452 shares, respectively |
1,242 |
1,090 |
|||||
Additional paid-in capital |
49,477,787 |
39,296,760 |
|||||
Accumulated deficit. |
(31,952,803 |
) |
(32,283,086 |
) | |||
Stockholders equity |
17,526,226 |
7,014,764 |
|||||
Total liabilities and stockholders equity |
$ |
34,233,463 |
$ |
13,309,328 |
|||
See Notes to Consolidated Financial Statements |
| ||
1 | ||
|
Three months ended September 30, |
Nine Months ended September 30, |
|||||||||||
2004 |
2003 |
2004 |
2003 |
|||||||||
Revenue |
$ |
6,509,471 |
$ |
4,475,036 |
$ |
20,830,887 |
$ |
14,435,542 |
||||
Operating expenses: |
||||||||||||
Cost of revenue |
1,833,488 |
980,600 |
5,079,077 |
3,334,796 |
||||||||
Selling, general and administrative expenses |
6,007,295 |
3,381,068 |
15,213,831 |
9,713,195 |
||||||||
Total operating expenses |
7,840,783 |
4,361,668 |
20,292,908 |
13,047,991 |
||||||||
Income/ (loss) from operations |
(1,331,312 |
) |
113,368 |
537,979 |
1,387,551 |
|||||||
Other income (expense): |
||||||||||||
Interest expense |
(34,166 |
) |
(33,193 |
) |
(150,572 |
) |
(94,472 |
) | ||||
Interest income |
15,944 |
3,362 |
47,876 |
20,405 |
||||||||
Pre-tax income/(loss) |
(1,349,534 |
) |
83,537 |
435,283 |
1,313,484 |
|||||||
Provision/ (benefit) for income taxes |
(170,000 |
) |
(4,450 |
) |
105,000 |
120,000 |
||||||
Net income/(loss) |
(1,179,534 |
) |
79,087 |
330,283 |
1,193,484 |
|||||||
Accreted value of series B preferred |
- |
(63,707 |
) |
- |
(179,382 |
) | ||||||
Undeclared dividends on preferred series B |
- |
(203,764 |
) |
- |
(630,333 |
) | ||||||
Income/ (loss) available to common stockholders |
$ |
(1,179,534 |
) |
$ |
(188,384 |
) |
$ |
330,283 |
$ |
383,769 |
||
|
||||||||||||
Income/(loss) per common share: |
||||||||||||
Basic |
$ |
(0.10 |
) |
$ |
(0.03 |
) |
$ |
0.03 |
$ |
0.06 |
||
Diluted |
$ |
(0.10 |
) |
$ |
(0.03 |
) |
$ |
0.03 |
$ |
0.06 |
||
|
||||||||||||
Weighted average of number of
shares outstanding: |
||||||||||||
Basic |
12,208,645 |
7,397,576 |
11,768,668 |
6,226,771 |
||||||||
Diluted |
12,208,645 |
7,397,576 |
12,446,452 |
6,969,582 |
2 | ||
|
Nine months ended September 30, |
|||||||
2004 |
2003 |
||||||
Cash flows from operating activities: |
|||||||
Net income |
$ |
330,283 |
$ |
1,193,484 |
|||
Adjustments to reconcile net income to net cash provided by (used
in) operating activities: |
|||||||
Depreciation and amortization |
633,220 |
618,958 |
|||||
Non cash compensation expense |
213,984 |
22,050 |
|||||
Changes in operating assets and liabilities: |
|||||||
Increase in accounts receivable |
(12,528,709 |
) |
(7,030,435 |
) | |||
Increase in prepaid expenses and other current assets |
(164,210 |
) |
(492,809 |
) | |||
Increase in accounts payable and accrued expenses |
1,571,269 |
567,344 |
|||||
Increase in deferred revenue |
10,819,870 |
3,984,883 |
|||||
Increase in deferred rent |
577,290 |
- |
|||||
Increase in accrued costs related to discontinued operations |
- |
(64,956 |
) | ||||
Net cash provided by (used in) operating activities |
1,452,997 |
(1,201,481 |
) | ||||
Cash flows used in investing activities: |
|||||||
Deposits required |
(289,758 |
) |
- |
||||
Return of restricted certificates of deposit |
259,252 |
- |
|||||
Investment in restricted certificate of deposit |
- |
(2,120 |
) | ||||
Purchase of property and equipment |
(1,726,851 |
) |
(380,586 |
) | |||
Repayments on notes receivable |
67,500 |
- |
|||||
Payment on accrued purchase price of Interboro |
(2,815,383 |
) |
(305,000 |
) | |||
Net cash used in investing activities |
(4,505,240 |
) |
(687,706 |
) | |||
|
|||||||
Cash flows from financing activities: |
|||||||
Principal payments under capital lease obligations |
(361,302 |
) |
(78,061 |
) | |||
Principal payments of notes payable |
(758,334 |
) |
(949,131 |
) | |||
Net proceeds from notes payable |
- |
1,050,000 |
|||||
Proceeds from issuance of common stock |
9,348,841 |
2,000,000 |
|||||
Proceeds from exercise of warrants and options |
618,354 |
773,071 |
|||||
Dividends paid on Series B preferred |
- |
(332,522 |
) | ||||
Legal fess paid on conversion of preferred stock-Series B |
- |
(50,000 |
) | ||||
Net cash provided by financing activities |
8,847,559 |
2,413,357 |
|||||
Net increase in cash and cash equivalents |
5,795,316 |
524,170 |
|||||
Cash and cash equivalents at beginning of period |
2,522,107 |
2,622,485 |
|||||
Cash and cash equivalents at end of period |
$ |
8,317,423 |
$ |
3,146,655 |
|||
Supplemental schedule of cash flow information: |
|||||||
Cash paid during the period for: |
|||||||
Interest |
$ |
150,572 |
$ |
89,996 |
|||
Taxes |
$ |
384,801 |
$ |
144,944 |
|||
Supplemental schedule of non-cash financing activity: |
|||||||
Capital lease obligations incurred |
$ |
1,065,161 |
$ |
105,328 |
|||
See Notes to Consolidated Financial Statements |
3 | ||
|
4 | ||
|
Three months ended September 30, |
Nine months ended September 30, | ||||||||||
2004 |
2003 |
2004 |
2003 | ||||||||
Basic weighted average number of common shares outstanding |
12,208,645 |
7,397,576 |
11,768,668 |
6,226,771 | |||||||
Effect of assumed exercise of outstanding options |
- |
- |
425,615 |
311,377 | |||||||
Effect of assumed exercise of Outstanding warrants |
- |
- |
252,169 |
431,434 | |||||||
Diluted weighted average number of shares of common stock outstanding |
12,208,645 |
7,397,576 |
12,446,452 |
6,969,582 | |||||||
Options and warrants not included above* |
1,812,873 |
416,438 |
242,100 |
No. of Shares |
Exercise Price | |
181,131* |
$ |
4.70 |
213,572 |
$ |
10.715 |
100,000 |
$ |
6.935 |
5 | ||
|
Three months ended September 30, | Nine months ended September 30, | |||||||||||
2004 |
2003 |
2004 |
2003 |
|||||||||
|
|
|
|
|
||||||||
Reported net income/ (loss) |
$ | (1,179,534 |
) |
$ |
79,087 |
$ |
330,283 |
$ |
1,193,484 |
|||
Add: stock-based employee compensation expense included in recorded
net income, net of related tax effects |
192,384 |
- |
213,984 |
- |
||||||||
Deduct: total stock-based employee compensation expense determined under fair-value based method for all awards, net of related tax effects |
(1,029,852 |
) |
(23,277 |
) |
(1,145,148 |
) |
(69,832 |
) | ||||
Pro forma net income/(loss) |
(2,017,002 |
) |
55,810 |
(600,881 |
) |
1,123,652 |
||||||
Reported net income/(loss) per common share: |
||||||||||||
Basic |
$ |
(0.10 |
) |
$ |
(0.03 |
) |
$ |
0.03 |
$ |
0.06 |
||
Diluted |
$ |
(0.10 |
) |
$ |
(0.03 |
) |
$ |
0.03 |
$ |
0.06 |
||
Pro forma net income per common share: |
||||||||||||
Basic |
$ |
(0.17 |
) |
$ |
(0.03 |
) |
$ |
(0.05 |
) |
$ |
0.05 |
|
Diluted |
$ |
(0.17 |
) |
$ |
(0.03 |
) |
$ |
(0.05 |
) |
$ |
0.05 |
6 | ||
|
· | Interboros full-time student enrollments for its fall semester increased to approximately 3,900 in 2004 from approximately 2,300 in 2003, a 70% increase. |
· | Interboro leased an additional 4,500 square feet of space for classrooms in Flushing, New York at 136-56 39th Avenue. |
· | Interboro leased an additional 4,000 square feet of space for classrooms and administrative offices in the Washington Heights section of Manhattan at 111 Wadsworth Street. |
· | Interboro leased an additional 5,400 square feet of space for classrooms and administrative offices in Yonkers, New York at 30 South Broadway. |
· | Interboros four new annexes (mid-town Manhattan, Flushing, Washington Heights and Yonkers) were ready for use by the beginning of the 2004 fall semester. |
7 | ||
|
· | Interboro received authority from the New York State Board of Regents to grant Associate in Applied Sciences (AAS) degrees for two of its computer technology programs. These are the first AAS degrees Interboro has been authorized to grant. The AAS degree requires a minimum of one-third of the courses to consist of liberal arts. This requirement gives AAS graduates a better chance to be accepted into four-year colleges as transfer students. While not mandated by the Board of Regents, Interboro requires a number of liberal arts courses in each of its Associate in Occupational Studies degree programs in order to enhance the employment and college transfer opportunities of its graduates. |
· | Interboro hired a senior compliance officer with substantial experience at schools participating in Title IV programs and TAP to replace a senior compliance officer who retired from full-time employment. Neither the retirement nor replacement was related to the ongoing TAP audit. |
· | 100% of Interboros ophthalmic dispensing students passed the New York State ophthalmic examination. |
· | Interboro Institute and its students participated in a talent show, sponsored by the Interboro Foundation, that was a keynote event at a fund raiser held at the Apollo Theatre in the Harlem section of Manhattan. This participation fostered student to student and faculty to student social interaction, increased public awareness of Interboro, enhanced Interboros image, enhanced student and faculty esprit de corps and helped increase student enrollment. The Interboro Foundation is a public charity that grants scholarships to needy students, principally those attending Interboro. |
· | As disclosed in more detail in Item 4 of Part II of this report, Dr. John J. McGrath and Royce Flippin, Jr. were re-elected directors of EVCI and all other matters |
· | Interboro was able to continue to operate effectively over one week at the beginning of the fall 2004 semester while its computer systems were inoperable as the result of a virus that could not be stopped initially by existing anti-virus software. |
8 | ||
|
Period |
Semester |
June-September |
Fall |
October-January |
Spring |
February-May |
Summer |
9 | ||
|
10 | ||
|
Three Months Ended September 30, | ||||||||
2004 |
2003 |
|||||||
Revenue |
100.0 |
100.0 |
||||||
Cost of revenue |
28.2 |
21.9 |
||||||
Selling, general and administrative expenses |
92.3 |
75.5 |
||||||
Total operating expenses |
120.5 |
97.4 |
||||||
Net income/(loss) |
(18.1 |
) |
1.8 |
|||||
Net loss available to common stockholders |
(18.1 |
) |
(4.1 |
) |
11 | ||
|
2004 |
||||||||
|
September 30 |
June 30 |
September 30, 2003 | |||||
Adjunct instructors |
165 |
99 |
74 | |||||
Full-time instructors |
48 |
46 |
30 | |||||
Part-time tutors |
47 |
24 |
14 | |||||
Admissions staff |
35 |
22 |
12 | |||||
Deans and staff |
10 |
10 |
8 | |||||
Librarians |
10 |
5 |
6 | |||||
Total |
315 |
206 |
144 |
Three months ended September 30, | |||||
2004 |
2003 | ||||
Salaries and benefits |
44.3 |
35.0 | |||
Marketing |
16.8 |
12.2 | |||
Depreciation |
4.0 |
4.5 | |||
Other expenses |
21.3 |
19.8 | |||
Non cash compensation |
2.9 |
0.5 | |||
Professional fees |
3.0 |
3.5 | |||
Total |
92.3 |
75.5 |
12 | ||
|
2004 |
|||||||||
September 30 |
June 30 |
September 30, 2003 |
|||||||
Student support services |
84 |
68 |
40 |
||||||
Financial aid |
23 |
20 |
18 |
||||||
Technology |
22 |
20 |
20 |
||||||
Administrative assistant |
18 |
13 |
4 |
||||||
Maintenance |
15 |
12 |
9 |
||||||
Accounting |
14 |
14 |
11 |
||||||
Admissions and placement |
13 |
13 |
6 |
||||||
Registrar |
12 |
12 |
9 |
||||||
Administrative officers |
9 |
8 |
7 |
||||||
Site director |
3 |
3 |
3 |
||||||
Security |
2* |
24 |
13 |
||||||
Total |
215 |
207 |
140 |
13 | ||
|
Three months ended September 30, | |||||
2004 |
2003 | ||||
Rent and utilities |
$ 661,000 |
$ 419,000 | |||
Insurance |
108,000 |
53,000 | |||
Equipment rental expense |
42,000 |
63,000 | |||
Telephone and internet |
142,000 |
71,000 | |||
Supplies |
94,000 |
47,000 | |||
Travel and entertainment |
42,000 |
42,000 | |||
Investor relations |
44,000 |
58,000 | |||
Sales and miscellaneous taxes |
35,000 |
2,000 | |||
$ |
1,168,000 |
$ |
755,000 |
Net loss available to common stockholders |
$ (1,180,000 |
) | |
Additional revenue |
1,080,000 |
||
Assumed tax on additional revenue |
(162,000 |
) | |
$ |
(262,000 |
) |
14 | ||
|
Nine months ended September 30, | |||||
2004 |
2003 | ||||
Revenue |
100.0 |
100.0 | |||
Cost of revenue |
24.4 |
23.1 | |||
Selling, general and administrative expenses |
73.0 |
67.3 | |||
Total operating expenses |
97.4 |
90.4 | |||
Net income |
1.6 |
8.3 | |||
Net income available to common stockholders |
1.6 |
2.7 |
15 | ||
|
2004 |
|||||||||
|
September 30 |
January 1 |
September 30, 2003 |
||||||
Adjunct instructors |
165 |
76 |
74 |
||||||
Full-time instructors |
48 |
32 |
30 |
||||||
Part-time tutors |
47 |
24 |
14 |
||||||
Admissions staff |
35 |
16 |
12 |
||||||
Deans and staff |
10 |
8 |
8 |
||||||
Librarians |
10 |
6 | 6 | ||||||
Total |
315 |
162 |
144 |
Nine months ended September 30, | |||||
2004 |
2003 | ||||
Salaries and benefits |
36.9 |
30.6 | |||
Marketing |
11.7 |
10.0 | |||
Depreciation |
3.0 |
4.2 | |||
Other expenses |
17.9 |
18.4 | |||
Non cash compensation expense |
1.0 |
0.2 | |||
Professional fees |
2.5 |
3.9 | |||
Total |
73.0 |
67.3 |
2004 |
||||||||
September 30 |
January 1 |
September 30, 2003 | ||||||
Student support services |
84 |
29 |
40 | |||||
Financial aid |
23 |
16 |
18 | |||||
Technology |
22 |
16 |
20 | |||||
Administrative assistant |
18 |
10 |
4 | |||||
Maintenance |
15 |
10 |
9 | |||||
Accounting |
14 |
11 |
11 | |||||
Admissions and placement |
13 |
12 |
6 | |||||
Registrar |
12 |
9 |
9 | |||||
Administrative officers |
9 |
7 |
7 | |||||
Site director |
3 |
3 |
3 | |||||
Security |
2* |
13 |
13 | |||||
Total |
215 |
136 |
140 |
16 | ||
|
Nine months ended September 30, | |||||
2004 |
2003 | ||||
Rent and utilities |
$ 1,698,000 |
$ 1,223,000 | |||
Insurance |
318,000 |
321,000 | |||
Equipment rental expense |
137,000 |
162,000 | |||
Telephone and internet |
424,000 |
193,000 | |||
Supplies |
270,000 |
155,000 | |||
Travel and entertainment |
195,000 |
108,000 | |||
Investor relations |
104,000 |
92,000 | |||
Sales and miscellaneous taxes |
110,000 |
27,000 | |||
$ |
3,256,000 |
$ |
2,281,000 |
Net income available to common stockholders |
$ |
330,000 |
|
Additional revenue |
1,080,000 |
||
Assumed tax on additional revenue |
(162,000 |
) | |
$ |
1,248,000 |
17 | ||
|
Sources: |
||
Cash collections from operations |
$ |
22,459,000 |
Return of restricted cash |
259,000 | |
Net proceeds from private placement |
9,349,000 | |
Proceeds from exercises of options and warrants |
618,000 | |
Proceeds of note receivable |
67,000 | |
$ |
32,752,000 | |
Uses: |
||
Payment of operating expenses |
21,320,000 | |
Deposits required |
290,000 | |
Payment of notes payable |
758,000 | |
Payment of principle of capital leases |
361,000 | |
Purchase of property and equipment |
1,727,000 | |
Payment of purchase price for Interboro |
2,501,000 | |
26,957,000 | ||
Net increase in cash |
5,795,000 | |
Cash on hand January 1, 2004 |
2,522,000 | |
Cash on hand September 30, 2004 |
$ |
8,317,000 |
18 | ||
|
· | Interboro Institutes failure to comply with extensive federal and New York State regulations could have a material adverse impact on its ability to operate and grow. |
· | Adverse changes in the rules governing, or the amount or timing of, TAP program disbursements could materially impede Interboros ability to operate. |
· | Adverse changes in the rules governing, or the amount or timing of, Title IV program disbursements could materially impede Interboros ability to operate. |
· | An ongoing TAP audit could result in Interboro being required to make material refunds of TAP grants and EVCI being required to reduce its net income available to common stockholders by the full amount of such disallowances. |
· | If Interboro has a Title IV audit (program review), it could be required to make material refunds of Pell grants and EVCI could be required to reduce its current net income available to common stockholders by the full amount of such disallowances. |
· | Because it is becoming increasingly difficult to obtain additional space within the buildings of Interboros existing sites or for additional annexes to its existing sites, Interboros same site growth rate could be materially limited. |
· | If the New York State Education Department does not give Interboro the requisite approval to open new college sites or to receive extension center status for its Yonkers site, Interboros operations and growth could be adversely affected. |
· | If Interboro is not able to continue to improve its retention and graduation rates, the New York State Education Department may seek to limit its operations and growth. |
· | If regulators were to limit Interboros enrollment growth, Interboros rate of growth could be materially and adversely affected. |
· | Interboros failure to effectively manage its aggressive enrollment growth could materially hurt our business and prospects. |
· | Interboro will not be able to continue to operate if the New York State Board of Regents does not renew Interboros accreditation in 2008 and Interboro is unable to obtain accreditation from another accrediting agency before then that is acceptable to the U.S. and New York State Departments of Education. |
· | Our share price has fluctuated greatly since we went public and may be very volatile in the future as a result of developments affecting public education companies generally or EVCI specifically. |
· | Our share price may be adversely affected if Interboros aggressive enrollment growth rate decreases, even though enrollments continue to grow faster than industry averages. |
· | If regulators were to stop allowing students without a high school diploma to qualify for college admissions by passing a federal ability to benefit test, or if they placed material limitations on the number of ability to benefit students that could attend a college, Interboros operations and growth would be materially and adversely affected. |
19 | ||
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· | If the maximum Title IV and TAP grants do not increase over time, our margins, and eventually our ability to operate without participating in Title IV loan programs, could be adversely affected. |
· | Our aggressive growth has attracted significant attention that could result in higher regulatory scrutiny and media coverage that could have an adverse affect on us and our stock price. |
· | If Interboro is unable to compete effectively for the more qualified and seasoned management and personnel that it needs to competently handle its growth, Interboros operations, regulatory compliance and financial results could be adversely affected. |
· | Allegations, even if untrue, that Interboro failed to comply with laws, rules and regulations relating to TAP or Title IV, its accreditation by the New York State Board of Regents or its compliance with securities laws could result in costly and materially adverse litigation. |
· | The seasonality of Interboros enrollments and its continuing investment in its aggressive growth is expected to produce significant variations in our results from quarter to quarter. |
· | The loss of the services of key management personnel of EVCI or Interboro, could have a material adverse affect on our operations and growth. |
· | Our business could materially suffer if we improperly balance or divert resources from operations to making acquisitions or if we make acquisitions that do not meet our expectations. |
· | If the operation of Interboros computer systems is adversely affected by computer viruses that are not recognized by available anti-virus software, or for any other reason, its ability to operate could be severely impaired until an anti-virus is found. |
· | A change in control of EVCI would adversely affect Interboros participation in Title IV and TAP grants. |
· | A change in control of EVCI would cause regulatory and accrediting authorities to return Interboro to a probationary status. |
· | Future changes in ownership of our common stock could substantially limit the utilization of our net operating loss carryforwards. |
· | Interboros inability to foster and maintain relationships with community organizations in the communities where its college sites are located could adversely affect those sites. |
· | Terrorist activity, or the threat of it, in the New York City metropolitan area could adversely affect Interboro. |
20 | ||
|
· | Actual or potential future sales of our common stock by senior management could have an adverse affect on the market price of our common stock. |
· | Provisions of laws or regulations, our certificate of incorporation and by-laws and agreements with our executive officers could discourage takeover attempts and other investments in our common stock. |
· | Our classified board limits stockholder voting for the election and removal of directors. |
· | Indemnification and limitation of liability of our officers and directors may insulate them from accountability to stockholders at substantial cost to us. |
21 | ||
|
Name |
Votes For |
Votes Withheld |
|||||
Dr. John J. McGrath |
10,904,987 |
83,216 |
|||||
Royce N. Flippin, Jr. |
10,973,638 |
14,565 |
Votes For |
Votes Against |
Abstained |
|||||
10,964,209 |
14,019 |
9,975 |
3. | For the approval for EVCIs 2004 Incentive Stock Plan: |
Votes For |
Votes Against |
Abstained |
|||||
6,943,225 |
1,099,422 |
20,988 |
Votes For |
Votes Against |
Abstained |
|||||
7,364,210 |
686,670 |
12,755 |
Votes For |
Votes Against |
Abstained |
|||||
10,971,133 |
11,640 |
5,430 |
22 | ||
|
Exhibit No.* |
Description of Exhibit |
3.1[1] - |
Certificate of Incorporation of the Registrant. |
3.2[1] - |
Certificate of Merger of Educational Video Conferencing, Inc. (a New York Corporation) into the Registrant (a Delaware Corporation). |
3.3[1] - |
Certificate of Correction of the Certificate of Incorporation of the Registrant. |
3.4[3] - |
Certificate of Amendment, dated February 22, 1999, to Certificate of Incorporation of the Registrant. |
3.5[10] - |
Amended and Restated By-Laws of the Registrant. |
3.6[5] - |
Certificate Eliminating Reference to Series A 7.5% Convertible Preferred Stock from the Certificate of Incorporation of the Registrant. |
3.7[17] - |
Certificate of Amendment, dated May 23, 2002, to Certificate of Incorporation of the Registrant. |
3.8[5] - |
Certificate Eliminating Reference to Series B 7% Convertible Preferred stock from the Certificate of Incorporation of the Registrant. |
3.9[5] - |
Certificate Eliminating Reference to Series C 8% Convertible Preferred stock from the Certificate of Incorporation of the Registrant. |
3.10** - |
Certificate of Amendment, filed August 9, 2004, to Certificate of Incorporation of the Registrant. |
4.2[2] - |
Form of Common Stock certificate. |
4.3[4] - |
Warrant Agreement, dated January 14, 2000, between the Registrant and Bruce. R. Kalisch. |
4.4[6] - |
Warrant Agreement, dated April 18, 2000, between the Registrant and Peter J. Solomon Company Limited. |
4.5[7] - |
Form of Warrant issued to each seller of shares of ICTS, Inc. |
4.6[8] - |
Warrant to purchase 50,000 shares of common stock of the Registrant issued to Rosenthal & Rosenthal, Inc. on July 12, 2002. |
| ||
23 | ||
|
4.7[9] - |
Form of Registrants Common Stock Purchase Warrant issued to three institutional investors on August 1, 2003. |
4.8[15] - |
Common Stock Purchase Warrant issued in September 2003, to purchase 45,000 shares of the Registrants common stock. |
4.9[18] - |
Common Stock Purchase Warrant issued to placement agent on March 29, 2004. |
10.1[10] - |
Employment Agreement between the Registrant and Dr. Arol I. Buntzman, dated January 1, 2003. |
10.2[10] - |
Employment Agreement between the Registrant and Dr. John J. McGrath, Dated January 1, 2003. |
10.3[10] - |
Employment Agreement between the Registrant and Richard Goldenberg, dated January 1, 2003. |
10.4[11] - |
Amended and Restated 1998 Incentive Stock Option Plan of the Registrant. |
10.5[12] - |
2001 Non-Qualified Stock Option Plan. |
10.6[10] - |
Form of Change in Control Agreement used for agreements the Registrant has with each of Dr. Arol I. Buntzman, Dr. John J. McGrath, and Richard Goldenberg, dated February 11, 2003. |
10.7[1] - |
Form of Indemnification Agreement. |
10.8[4] - |
Stock Purchase Agreement, dated January 14, 2000, among Bruce R. Kalisch, Interboro Holding, Inc. and Interboro Institute, Inc. |
10.9[13] - |
Lease Agreement between 444 Realty Company and Interboro Institute, Inc. dated July 27, 1983, as amended by agreements dated September 20, 1988, September 1, 1992, and February 1, 1993. |
10.10[13] - |
Lease Agreement between Interboro Institute, Inc. JUYI, Inc., dated January 26, 2001. |
10.11[9] - |
Promissory Note for $1,000,000, dated August 4, 2003, payable by Interboro Institute, Inc. to North Fork Bank. |
10.12[9] - |
Form of the Registrants Subscription and Registration Rights Agreement relating to the Registrants August 1, 2003, issuance of common stock and warrants. |
10.13[14] - |
Settlement Agreement made October 3, 2003, between Amaranth Trading L.L.C. and the Registrant. |
10.14[14] - |
Form of Share Claim Purchase and Registration Rights Agreement between the Registrant and each investor acquiring a portion of the Amaranth Trading L.L.C.s rights to claims to shares of EVCIs common stock upon conversion of Series B Preferred shares. |
24 | ||
|
10.15[15] - |
Third Amendment and Lease Extension Agreement, made as of August 1, 2003, between 444 Realty Company, L.L.C. and Interboro Institute, Inc. |
10.16[16] - |
Ownership and Registration Rights Agreement, dated November 11, 2003, between the Registrant and JLF Partners I, L.P., JLF Partners II, L.P. and JLF Offshore Fund. |
10.17[17] - |
Employment Agreement between the Registrant and Joseph D. Alperin dated January 1, 2004. |
10.18[17] - |
Option Agreement between the Registrant and Joseph D. Alperin dated January 1, 2004. |
10.19[17] - |
Change of control letter agreement between the Registrant and Joseph D. Alperin dated January 1, 2004. |
10.20[17] - |
Agreement, made February 28, 2004, between Interboro Institute, Inc. and OPEIU Local 153, AFL-CIO. |
10.21[18] - |
Securities Purchase Agreement, dated March 29, 2004, by and among the Registrant and each buyer named in the Schedule of Buyers. |
10.22[18] - |
Registration Rights Agreement, dated March 29, 2004, by and among the Registrant and each buyer named in the Schedule of Buyers. |
10.23[19] - |
Ownership and Registration Rights Agreement, dated April 2, 2004, by and among the Registrant, and six funds managed by Wellington Management Company, LLP. |
10.24[20] - |
2004 Amended and Restated Incentive Stock Plan |
10.25** - |
Form of Stock Option Agreement (Nonqualified Stock Option) |
10.26** - |
Form of Stock Option Agreement (Nonqualified Stock Option) covering option grants to executive officers that were approved at the Registrants July 27, 2004 stockholders meeting. |
31.1** - |
Certification of Chief Executive Officer required by Rule 13a-14(a) under the Exchange Act. |
31.2** - |
Certification of Chief Financial Officer required by Rule 13a-14(a) under the Exchange Act. |
32.1** - |
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes-Oxley Act of 2002. |
32.2** - |
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes-Oxley Act of 2002. |
25 | ||
|
[1] | Incorporated by reference to the Registrants Registration Statement on Form SB-2, filed October 23, 1998, Registration No. 333-66085. |
[2] | Incorporated by reference to Amendment No. 4, dated February 10, 1999, to the Registrants Form SB-2, Registration No. 333-66085. |
[3] | Incorporated by reference to Registrants Form 10-QSB for the quarter ended September 30, 1999. |
[4] | Incorporated by reference to the Registrants Form 8-K dated January 14, 2000. |
[5] | Incorporated by reference to the Registrants Form 8-K dated October 6, 2000. |
[6] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2000. |
[7] | Incorporated by reference to the Registrants Form 8-K dated July 1, 2001. |
[8] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2002. |
[9] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2003. |
[10] | Incorporated by reference to the Registrants Form 10-KSB for the year ended December 31, 2002. |
[11] | Incorporated by reference to the Registrants Registration Statement on Form S-8 filed December 31, 2002, Registration No. 333-102310. |
[12] | Incorporated by reference to the Registrants Registration Statement on Form S-8 filed October 23, 2001, Registration No. 333-72080. |
[13] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2003. |
[14] | Incorporated by reference to the Registrants Form 8-K dated October 10, 2003. |
26 | ||
|
[15] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2003. |
[16] | Incorporated by reference to Amendment No. 1 to the Registrants Registration Statement on Form S-3, filed December 4, 2003, Registration No. 333-110567. |
[17] | Incorporated by reference to the Registrants Form 10-KSB/A for the year ended December 31, 2003. |
[18] | Incorporated by reference to the Registrants Form 8-K dated March 29, 2004. |
[19] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended March 31, 2004. |
[20] | Incorporated by reference to the Registrants Form 8-K dated September 17, 2004. |
27 | ||
|
EVCI CAREER COLLEGES HOLDING CORP. | ||
|
|
|
Date: November 12, 2004 | By: | /s/ Richard Goldenberg |
Richard Goldenberg Chief Financial Officer | ||
(Principal Financial and Accounting Officer) |
28 | ||
|
Exhibit No.* |
Description of Exhibit |
3.1[1] - |
Certificate of Incorporation of the Registrant. |
3.2[1] - |
Certificate of Merger of Educational Video Conferencing, Inc. (a New York Corporation) into the Registrant (a Delaware Corporation). |
3.3[1] - |
Certificate of Correction of the Certificate of Incorporation of the Registrant. |
3.4[3] - |
Certificate of Amendment, dated February 22, 1999, to Certificate of Incorporation of the Registrant. |
3.5[10] - |
Amended and Restated By-Laws of the Registrant. |
3.6[5] - |
Certificate Eliminating Reference to Series A 7.5% Convertible Preferred Stock from the Certificate of Incorporation of the Registrant. |
3.7[17] - |
Certificate of Amendment, dated May 23, 2002, to Certificate of Incorporation of the Registrant. |
3.8[5] - |
Certificate Eliminating Reference to Series B 7% Convertible Preferred stock from the Certificate of Incorporation of the Registrant. |
3.9[5] - |
Certificate Eliminating Reference to Series C 8% Convertible Preferred stock from the Certificate of Incorporation of the Registrant. |
3.10** - |
Certificate of Amendment, filed August 9, 2004, to Certificate of Incorporation of the Registrant. |
4.2[2] - |
Form of Common Stock certificate. |
4.3[4] - |
Warrant Agreement, dated January 14, 2000, between the Registrant and Bruce. R. Kalisch. |
4.4[6] - |
Warrant Agreement, dated April 18, 2000, between the Registrant and Peter J. Solomon Company Limited. |
4.5[7] - |
Form of Warrant issued to each seller of shares of ICTS, Inc. |
4.6[8] - |
Warrant to purchase 50,000 shares of common stock of the Registrant issued to Rosenthal & Rosenthal, Inc. on July 12, 2002. |
29 | ||
|
4.7[9] -- |
Form of Registrants Common Stock Purchase Warrant issued to three institutional investors on August 1, 2003. |
4.8[15] - |
Common Stock Purchase Warrant issued in September 2003, to purchase 45,000 shares of the Registrants common stock. |
4.9[18] - |
Common Stock Purchase Warrant issued to placement agent on March 29, 2004. |
10.1[10] - |
Employment Agreement between the Registrant and Dr. Arol I. Buntzman, dated January 1, 2003. |
10.2[10] - |
Employment Agreement between the Registrant and Dr. John J. McGrath, Dated January 1, 2003. |
10.3[10] - |
Employment Agreement between the Registrant and Richard Goldenberg, dated January 1, 2003. |
10.4[11] - |
Amended and Restated 1998 Incentive Stock Option Plan of the Registrant. |
10.5[12] - |
2001 Non-Qualified Stock Option Plan. |
30 | ||
|
10.6[10] - |
Form of Change in Control Agreement used for agreements the Registrant has with each of Dr. Arol I. Buntzman, Dr. John J. McGrath, and Richard Goldenberg, dated February 11, 2003. |
10.7[1] - |
Form of Indemnification Agreement. |
10.8[4] - |
Stock Purchase Agreement, dated January 14, 2000, among Bruce R. Kalisch, Interboro Holding, Inc. and Interboro Institute, Inc. |
10.9[13] - |
Lease Agreement between 444 Realty Company and Interboro Institute, Inc. dated July 27, 1983, as amended by agreements dated September 20, 1988, September 1, 1992, and February 1, 1993. |
10.10[13] - |
Lease Agreement between Interboro Institute, Inc. JUYI, Inc., dated January 26, 2001. |
10.11[9] - |
Promissory Note for $1,000,000, dated August 4, 2003, payable by Interboro Institute, Inc. to North Fork Bank. |
10.12[9] - |
Form of the Registrants Subscription and Registration Rights Agreement relating to the Registrants August 1, 2003, issuance of common stock and warrants. |
10.13[14] - |
Settlement Agreement made October 3, 2003, between Amaranth Trading L.L.C. and the Registrant. |
10.14[14] - |
Form of Share Claim Purchase and Registration Rights Agreement between the Registrant and each investor acquiring a portion of the Amaranth Trading L.L.C.s rights to claims to shares of EVCIs common stock upon conversion of Series B Preferred shares. |
10.15[15] - |
Third Amendment and Lease Extension Agreement, made as of August 1, 2003, between 444 Realty Company, L.L.C. and Interboro Institute, Inc. |
10.16[16] - |
Ownership and Registration Rights Agreement, dated November 11, 2003, between the Registrant and JLF Partners I, L.P., JLF Partners II, L.P. and JLF Offshore Fund. |
10.17[17] - |
Employment Agreement between the Registrant and Joseph D. Alperin dated January 1, 2004. |
10.18[17] - |
Option Agreement between the Registrant and Joseph D. Alperin dated January 1, 2004. |
10.19[17] - |
Change of control letter agreement between the Registrant and Joseph D. Alperin dated January 1, 2004. |
10.20[17] - |
Agreement, made February 28, 2004, between Interboro Institute, Inc. and OPEIU Local 153, AFL-CIO. |
10.21[18] - |
Securities Purchase Agreement, dated March 29, 2004, by and among the Registrant and each buyer named in the Schedule of Buyers. |
10.22[18] - |
Registration Rights Agreement, dated March 29, 2004, by and among the Registrant and each buyer named in the Schedule of Buyers. |
10.23[19] - |
Ownership and Registration Rights Agreement, dated April 2, 2004, by and among the Registrant and six funds managed by Wellington Management Company, LLP. |
10.24[20] - |
2004 Amended and Restated Incentive Stock Plan |
10.25** - |
Form of Stock Option Agreement (Nonqualified Stock Option) |
10.26** - |
Form of Stock Option Agreement (Nonqualified Stock Option) covering option grants to executive officers that were approved at the Registrants July 27, 2004 stockholders meeting. |
| ||
31 | ||
|
31.1** - |
Certification of Chief Executive Officer required by Rule 13a-14(a) under the Exchange Act. |
31.2** - |
Certification of Chief Financial Officer required by Rule 13a-14(a) under the Exchange Act. |
32.1** - |
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes-Oxley Act of 2002. |
32.2** - |
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes-Oxley Act of 2002. |
[1] | Incorporated by reference to the Registrants Registration Statement on Form SB-2, filed October 23, 1998, Registration No. 333-66085. |
[2] | Incorporated by reference to Amendment No. 4, dated February 10, 1999, to the Registrants Form SB-2, Registration No. 333-66085. |
[3] | Incorporated by reference to Registrants Form 10-QSB for the quarter ended September 30, 1999. |
[4] | Incorporated by reference to the Registrants Form 8-K dated January 14, 2000. |
[5] | Incorporated by reference to the Registrants Form 8-K dated October 6, 2000. |
[6] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2000. |
[7] | Incorporated by reference to the Registrants Form 8-K dated July 1, 2001. |
[8] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2002. |
[9] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2003. |
[10] | Incorporated by reference to the Registrants Form 10-KSB for the year ended December 31, 2002. |
[11] | Incorporated by reference to the Registrants Registration Statement on Form S-8 filed December 31, 2002, Registration No. 333-102310. |
32 | ||
|
[12] | Incorporated by reference to the Registrants Registration Statement on Form S-8 filed October 23, 2001, Registration No. 333-72080. |
[13] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2003. |
[14] | Incorporated by reference to the Registrants Form 8-K dated October 10, 2003. |
[15] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended September 30, 2003. |
[16] | Incorporated by reference to Amendment No. 1 to the Registrants Registration Statement on Form S-3, filed December 4, 2003, Registration No. 333-110567. |
[17] | Incorporated by reference to the Registrants Form 10-KSB/A for the year ended December 31, 2003. |
[18] | Incorporated by reference to the Registrants Form 8-K dated March 29, 2004. |
[19] | Incorporated by reference to the Registrants Form 10-QSB for the quarter ended March 31, 2004. |
[20] | Incorporated by reference to the Registrants Form 8-K dated September 17, 2004. |
33 | ||
|