Attached files
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EX-31.1 - EXHIBIT 31.1 - Diversified Restaurant Holdings, Inc. | c00939exv31w1.htm |
EX-32.2 - EXHIBIT 32.2 - Diversified Restaurant Holdings, Inc. | c00939exv32w2.htm |
EX-32.1 - EXHIBIT 32.1 - Diversified Restaurant Holdings, Inc. | c00939exv32w1.htm |
EX-31.2 - EXHIBIT 31.2 - Diversified Restaurant Holdings, Inc. | c00939exv31w2.htm |
Table of Contents
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended March 28, 2010
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from
Commission File No. 000-53577
DIVERSIFIED RESTAURANT HOLDINGS, INC.
(Exact name of small business issuer as specified in its charter)
Nevada | 03-0606420 | |
(State or other jurisdiction of | (I.R.S. employer | |
incorporation or formation) | identification number) |
27680 Franklin Road
Southfield, Michigan 48034
(Address of principal executive offices)
Southfield, Michigan 48034
(Address of principal executive offices)
Issuers telephone number: (248) 223-9160
Issuers facsimile number: (248) 223-9165
Issuers facsimile number: (248) 223-9165
No change
(Former name, former address and former
fiscal year, if changed since last report)Copies to:
301 East Liberty, Suite 500
Ann Arbor, Michigan 48104-2266
(734) 623-1663
www.dickinson-wright.com
Michael T. Raymond
Dickinson Wright, PLLC301 East Liberty, Suite 500
Ann Arbor, Michigan 48104-2266
(734) 623-1663
www.dickinson-wright.com
Indicate by check mark 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 preceding 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 þ No o
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 during the preceding
12 months (or for such shorter period that the registrant was required to
submit and post such files). Yes o No o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act). Yes o No þ
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE
PRECEDING FIVE YEARS
PRECEDING FIVE YEARS
Indicate by check mark whether the registrant has filed all documents and reports required to be
filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court. Yes o No o
APPLICABLE ONLY TO CORPORATE ISSUERS
Indicate the number of shares outstanding of each of the issuers classes of common stock, as of
the latest practicable date: 18,876,000 shares of $.0001 par value common stock outstanding as of
May 11, 2010.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large Accelerated Filer o | Accelerated Filer o | Non-Accelerated Filer o | Smaller reporting company þ | |||
(Do not check if a smaller reporting company) |
INDEX
1 | ||||||||
1 | ||||||||
2 | ||||||||
3 | ||||||||
4 | ||||||||
5 | ||||||||
6 | ||||||||
25 | ||||||||
30 | ||||||||
30 | ||||||||
31 | ||||||||
31 | ||||||||
31 | ||||||||
31 | ||||||||
31 | ||||||||
31 | ||||||||
32 | ||||||||
Exhibit 31.1 | ||||||||
Exhibit 31.2 | ||||||||
Exhibit 32.1 | ||||||||
Exhibit 32.2 |
i
Table of Contents
Table of Contents
DIVERSIFIED RESTAURANT HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
March 28 | December 27 | |||||||
2010 | 2009 | |||||||
(unaudited) | (audited) | |||||||
ASSETS |
||||||||
Current assets |
||||||||
Cash and cash equivalents |
$ | 1,294,021 | $ | 649,518 | ||||
Accounts receivable related party |
| 254,540 | ||||||
Inventory |
302,170 | 125,332 | ||||||
Prepaid assets |
101,959 | 103,452 | ||||||
Accounts receivable other |
32,456 | 11,219 | ||||||
Other assets |
15,592 | 49,280 | ||||||
Total current assets |
1,746,198 | 1,193,341 | ||||||
Property and equipment, net (Note 3) |
11,915,555 | 7,866,149 | ||||||
Intangible assets, net (Note 4) |
817,843 | 411,983 | ||||||
Deferred income taxes (Note 8) |
505,876 | 246,754 | ||||||
Total assets |
$ | 14,985,472 | $ | 9,718,227 | ||||
LIABILITIES AND STOCKHOLDERS EQUITY |
||||||||
Current liabilities |
||||||||
Current portion of long-term debt (Notes 5 and 6) |
$ | 2,786,486 | $ | 1,402,742 | ||||
Accounts payable |
841,419 | 293,984 | ||||||
Accrued liabilities |
791,869 | 329,355 | ||||||
Deferred rent |
104,940 | 54,273 | ||||||
Total current liabilities |
4,524,714 | 2,080,354 | ||||||
Accrued rent |
904,639 | 253,625 | ||||||
Deferred rent |
611,789 | 422,068 | ||||||
Other liabilities interest rate swap |
214,074 | 167,559 | ||||||
Long-term debt, less current portion (Notes 5 and 6) |
9,023,271 | 4,601,909 | ||||||
Total liabilities |
15,278,487 | 7,525,515 | ||||||
Commitments and contingencies (Notes 5, 6, 9, 10, and 11) |
||||||||
Stockholders
(deficit) equity (Note 7) |
||||||||
Common stock $0.0001 par value; 100,000,000 shares authorized,
18,876,000 and 18,626,000, respectfully, issued and outstanding |
1,888 | 1,863 | ||||||
Additional paid-in capital |
2,614,208 | 2,356,155 | ||||||
(Accumulated
deficit) retained earnings |
(2,909,111 | ) | (165,306 | ) | ||||
Total
stockholders (deficit) equity |
(293,015 | ) | 2,192,712 | |||||
Total liabilities and stockholders equity |
$ | 14,985,472 | $ | 9,718,227 | ||||
2
Table of Contents
DIVERSIFIED RESTAURANT HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
Three Months Ended | ||||||||
March 28 | March 31 | |||||||
2010 | 2009 | |||||||
Revenue |
||||||||
Food and beverage sales |
$ | 8,642,001 | $ | 4,135,010 | ||||
Management and advertising fees |
165,886 | 456,529 | ||||||
Total revenue |
8,807,887 | 4,591,539 | ||||||
Operating expenses |
||||||||
Compensation costs |
2,586,812 | 1,359,207 | ||||||
Food and beverage costs |
2,672,548 | 1,281,996 | ||||||
General and administrative |
2,157,855 | 1,108,472 | ||||||
Occupancy |
610,166 | 274,397 | ||||||
Depreciation and amortization |
522,560 | 346,405 | ||||||
Total operating expenses |
8,549,941 | 4,370,477 | ||||||
Operating profit |
257,946 | 221,062 | ||||||
Interest expense |
(150,283 | ) | (111,307 | ) | ||||
Other income, net |
13,091 | 11,219 | ||||||
Income before income taxes |
120,754 | 120,974 | ||||||
Income tax benefit (provision) |
110,516 | (41,761 | ) | |||||
Net income |
$ | 231,270 | $ | 79,213 | ||||
Basic earnings per share as reported |
$ | 0.012 | $ | 0.004 | ||||
Fully diluted earnings per share as reported |
$ | 0.008 | $ | 0.003 | ||||
Weighted average number of common shares
outstanding (Notes 1 and 7) |
||||||||
Basic |
18,870,505 | 18,070,000 | ||||||
Diluted |
29,020,000 | 29,020,000 |
3
Table of Contents
DIVERSIFIED RESTAURANT HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS EQUITY
(Accumulated | ||||||||||||||||||||
Additional | Deficit) | Total | ||||||||||||||||||
Common Stock | Paid-in | Retained | Stockholders | |||||||||||||||||
Shares | Amount | Capital | Earnings | Equity | ||||||||||||||||
Balances December
27, 2009 (audited) |
18,626,000 | $ | 1,863 | $ | 2,356,155 | $ | (165,306 | ) | $ | 2,192,712 | ||||||||||
Shares issued for
warrants exercised
at $1.00 per share
(Note 7) |
250,000 | 25 | 249,975 | | 250,000 | |||||||||||||||
Share-based
compensation (Note
7) |
| 8,078 | | 8,078 | ||||||||||||||||
Acquisition of BWW
restaurants (Note 2) |
| (2,975,075 | ) | (2,975,075 | ) | |||||||||||||||
Net income |
| | 231,270 | 231,270 | ||||||||||||||||
Balances March
28, 2010
(unaudited) |
18,876,000 | $ | 1,888 | $ | 2,614,208 | $ | (2,909,111 | ) | $ | (293,015 | ) | |||||||||
4
Table of Contents
DIVERSIFIED RESTAURANT HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Three Months Ended | ||||||||
March 28 | March 31 | |||||||
2010 | 2009 | |||||||
Cash flows from operating activities |
||||||||
Net income |
$ | 231,270 | $ | 79,213 | ||||
Adjustments to reconcile net income to
net cash provided by (used in) operating activities |
||||||||
Depreciation and amortization |
522,560 | 346,405 | ||||||
Loss on
disposal of property and equipment |
34,875 | | ||||||
Share-based compensation |
8,078 | 8,078 | ||||||
Deferred income tax benefit |
(259,122 | ) | 154,761 | |||||
Changes in operating assets and liabilities that
provided (used) cash |
||||||||
Accounts receivable related party |
254,540 | (82,099 | ) | |||||
Accounts payable |
302,004 | (237,669 | ) | |||||
Inventory |
(20,295 | ) | 9,252 | |||||
Prepaid assets |
65,707 | 20,812 | ||||||
Accounts receivable other |
(21,237 | ) | 145,364 | |||||
Intangible assets |
(73,116 | ) | | |||||
Other assets |
33,688 | (11,780 | ) | |||||
Accrued liabilities |
163,144 | 43,565 | ||||||
Accrued rent |
46,069 | 40,558 | ||||||
Deferred rent |
(22,011 | ) | (13,899 | ) | ||||
Net cash provided by operating activities |
1,266,154 | 502,561 | ||||||
Cash flows used in investing activities |
||||||||
Purchases of property and equipment |
(636,505 | ) | (26,496 | ) | ||||
Cash from financing activities |
||||||||
Proceeds from issuance of notes payable related party |
236,198 | 4,375 | ||||||
Proceeds from issuance of long-term debt |
| 427,953 | ||||||
Repayment of notes payable related party |
(25,084 | ) | (25,048 | ) | ||||
Repayments of long-term debt |
(446,260 | ) | (209,005 | ) | ||||
Proceeds from issuance of common stock |
250,000 | | ||||||
Net cash provided by financing activities |
14,854 | 198,275 | ||||||
Net increase in cash and cash equivalents |
644,503 | 674,340 | ||||||
Cash and cash equivalents, beginning of period |
649,518 | 133,865 | ||||||
Cash and cash equivalents, end of period |
$ | 1,294,021 | $ | 808,205 | ||||
5
Table of Contents
NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS
1. BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of Business
Diversified
Restaurant Holdings, Inc. (DRH) was formed on September 25, 2006. DRH and its three
wholly-owned subsidiaries, AMC Group, Inc, (AMC), AMC Wings, Inc. (WINGS), and AMC Burgers,
Inc. (BURGERS) (collectively referred to as the Company), develop, own, and operate, as well
as render management and advertising services for, Buffalo Wild Wings (BWW) restaurants located
throughout Michigan and Florida and the Companys own restaurant concept, Bagger Daves Legendary
Burgers and Fries (Bagger Daves), as detailed below.
The following organizational chart outlines the corporate structure of the Company and its
subsidiaries, all of which are wholly-owned by the Company. A brief textual description of the
entities follows the organizational chart. DRH is incorporated in the State of Nevada. All other
entities are incorporated in the State of Michigan.
* Under development |
AMC was formed on March 28, 2007 and serves as the operational and administrative center for the
Company. AMC renders management and advertising services to WINGS and its subsidiaries, BURGERS
and its subsidiaries, and, prior to February 1, 2010 acquisition (see Note 2 for details), nine BWW
restaurants affiliated with the Company through common ownership and management control but not
required to be consolidated for financial reporting purposes. Services rendered by AMC include
marketing, restaurant operations, restaurant management consultation, hiring and training of
management and staff, and other management services reasonably required in the ordinary course of
restaurant operations.
6
Table of Contents
WINGS was formed on March 12, 2007 and serves as a holding company for its BWW restaurants. WINGS,
through its subsidiaries, holds the following 16 BWW restaurants that are currently in operation:
Date of | ||
Subsidiary | Restaurant Opening | |
Flyer Enterprises, Inc. (Sterling Heights, MI) |
December 1999* | |
Anker, Inc. (Fenton, MI) |
April 2001* | |
TMA Enterprises of Novi, Inc. (Novi, MI) |
June 2002* | |
Bearcat Enterprises, Inc. (Clinton Township, MI) |
December 2003* | |
MCA Enterprises Brandon, Inc. (Brandon, FL) |
June 2004* | |
TMA Enterprises of Ferndale, Inc. (Ferndale, MI) |
March 2005* | |
Buckeye Group, LLC (Riverview/Fish Hawk Ranch, FL) |
September 2005* | |
Buckeye Group II, LLC (Sarasota, FL) |
March 2006* | |
AMC Warren, LLC (Warren, MI) |
July 2006* | |
AMC North Port, Inc. (North Port, FL) |
August 2007 | |
AMC Riverview, Inc. (Riverview, FL) |
August 2007 | |
AMC Grand Blanc, Inc. (Grand Blanc, MI) |
March 2008 | |
AMC Troy, Inc. (Troy, MI) |
July 2008 | |
AMC Petoskey, Inc. (Petoskey, MI) |
August 2008 | |
AMC Flint, Inc. (Flint, MI) |
December 2008 | |
AMC Port Huron, Inc. (Port Huron, MI) |
June 2009 |
* | This restaurant location was previously managed by DRH. Effective February 1, 2010, DRH acquired
this location (see Note 2 for details). |
The Company also executed franchise agreements with Buffalo Wild Wings, Inc. (BWWI) to open two
more restaurants in 2010, one in Chesterfield Township, Michigan and the other in Marquette,
Michigan. These restaurants will be held by AMC Chesterfield, Inc. and AMC Marquette, Inc.,
respectively. The Company is economically dependent on retaining its franchise rights with BWWI.
Each of the franchise agreements has a specific expiration date ranging from September 28, 2026
through October 20, 2029, depending on the date that each was executed and its initial term. The
franchise agreements are renewable at the option of the franchisor and are generally renewable if
the franchisee has complied with the franchise agreement. The Company is in compliance with the
terms of these agreements at March 28, 2010. The Company is under contract with BWWI to open 20
additional stores by 2017. The Company held an option to purchase the nine (9) affiliated
restaurants that were managed by AMC, which it exercised on February 1, 2010 (see Note 2 for
details).
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Table of Contents
BURGERS was formed on March 12, 2007 to own the Companys Bagger Daves restaurants, a new
full service, ultra casual dining concept developed by the Company. BURGERS subsidiaries, Ann Arbor Burgers, Inc. and
Berkley Burgers, Inc., own restaurants currently in operation in Ann Arbor, Michigan and Berkley,
Michigan, respectively. BURGERS subsidiary, Troy Burgers, Inc.,
opened on February 21, 2010 in Novi, MI.
BURGERS also has a wholly-owned subsidiary named Bagger Daves Franchising Corporation that was
formed to act as the franchisor for the Bagger Daves concept.
We have filed for rights, and have been approved, to
franchise in Michigan, Ohio, and Indiana, but have not yet franchised any Bagger Daves
restaurants. Our filing in the State of Illinois remains pending
review by the pertinent authorities.
We follow accounting standards set by the Financial Accounting Standards Board (FASB). The FASB
sets generally accepted accounting principles (GAAP) that we follow to ensure we consistently
report our financial condition, results of operations, and cash flows. References to GAAP issued
by the FASB in these footnotes are to the FASB Accounting Standards Codification (Codification or
ASC). The FASB finalized the Codification effective for periods ending on or after September 15,
2009. Prior FASB standards, like FASB Statement No. 13,
Accounting for Leases, are no longer being
issued by the FASB. For further discussion of the Codification, refer to the Recent Accounting
Pronouncements section of this note.
Principles of Consolidation
The interim consolidated financial statements include the accounts of DRH and its subsidiaries,
AMC, WINGS and its subsidiaries, and BURGERS and its subsidiaries. The interim consolidated
financial statements include the accounts related to the nine recently acquired, affiliated
restaurants from February 1, 2010 through March 28, 2010,
as they are now subsidiaries of WINGS (refer to Note 2 for details).
All significant intercompany accounts and transactions have been eliminated upon consolidation.
Fiscal Year
During 2009, the Company changed its fiscal year to utilize a 52- or 53-week accounting period that
ends on the last Sunday in December. Consequently, fiscal year 2009 ended on December 27, 2009,
comprising 51 weeks and three days. Prior to 2009, the Company reported on a calendar-year basis
and, accordingly, fiscal year 2008 ended on December 31, 2008, comprising 52 weeks and one day.
This quarterly report on Form 10-Q is for the three-month period ended March 28, 2010, comprising
13 weeks.
Segment Reporting
The Company has determined that it does not have any separately reportable business segments at
March 28, 2010 and December 27, 2009.
Cash and Cash Equivalents
Cash and cash equivalents consist of cash on hand and demand deposits in banks. The Company
considers all highly-liquid investments purchased with original maturities of three months or less
to be cash equivalents. The Company, at times throughout the year, may, in the ordinary course of
business, maintain cash balances in excess of federally-insured limits. Management does not
believe the Company is exposed to any unusual risks on such deposits.
Revenue Recognition
Management and advertising fees are calculated by applying a percentage, as stipulated in a
management services agreement, to managed restaurant revenues. Revenues derived from management
and advertising fees are recognized in the period in which they are earned, which is the period in
which the management services are rendered. Revenues from food and beverage sales are recognized
and generally collected at the point of sale. As a result of the
recent acquisition, management and advertising fees will no longer be
recognized (refer to Note 2 for details).
8
Table of Contents
Accounts Receivable Related Party
Accounts receivable are stated at the amount management expects to collect from outstanding
balances. Balances that are outstanding after management has used reasonable collection efforts
are written off with a corresponding charge to bad debt expense. The balances at March 28, 2010
and December 27, 2009 relate principally to management and advertising fees charged to and
intercompany transactions with the related BWW restaurants that are managed by AMC and arise in the
ordinary course of business (see Note 4). Refer to Note 2 for details
on the recent acquisition, which will essentially eliminate
management and advertising fees revenue. Management does not believe any allowances for doubtful
accounts are necessary at March 28, 2010 or December 27, 2009.
Accounting for Gift Cards
The Company records the net increase or decrease in BWW gift card sales versus gift card
redemptions to the gift card liability account on a monthly basis. The gift card processor deducts
gift card sales dollars from each restaurants bank account weekly and deposits gift card
redemption dollars weekly. Under this centralized system, any breakage would be recorded by Blazin
Wings, Inc., a subsidiary of BWWI, and be subject to the breakage laws in the state of Minnesota
where Blazin Wings, Inc. is located.
The Company records the net increase or decrease in Bagger Daves gift card sales versus gift card
redemptions to the gift card liability account on a monthly basis. Michigan law states that gift
cards cannot expire and any post-sale fees cannot be assessed until five (5) years after the date
of gift card purchase by the consumer. There is no breakage attributable to Bagger Daves
restaurants for the Company to record for the three months ended March 28, 2010 and for the three
months ended March 31, 2009, respectively.
The liability is included in accrued liabilities in the interim consolidated balance sheets. As of
March 28, 2010, the Companys gift card liability was approximately $4,169, compared to
approximately $19,961 at December 27, 2009.
Lease Accounting
Certain operating leases provide for minimum annual payments that increase over the life of the
lease. The aggregate minimum annual payments are expensed on a straight-line basis beginning when
we take possession of the property and extending over the term of the related lease. The amount by
which straight-line rent exceeds actual lease payment requirements in the early years of the lease
is accrued as deferred rent liability and reduced in later years when the actual cash payment
requirements exceed the straight-line expense. The Company also accounts, in its straight-line
computation, for the effect of any rental holidays or tenant incentives.
Inventory
Inventory, which consists mainly of food and beverage products, is accounted for at the lower of
cost or market using the first-in, first-out method of inventory valuation.
Prepaid, Intangible, and Other Assets
Prepaid expenses consist principally of prepaid insurance and are recognized ratably as operating
expense over the period covered by the unexpired premium. Amortizable intangible assets consist
principally of franchise fees, trademarks, and loan fees and are deferred and amortized to
operating expense on a straight-line basis over the term of the related underlying agreements based
on the following:
Franchise fees |
10 to 20 years | |
Trademarks |
15 years | |
Loan fees |
2 to 7 years (loan term) |
Liquor licenses, also a component of intangible assets, are deemed to have an indefinite life and,
accordingly, are not amortized. Management annually reviews these assets to determine whether
carrying values have been impaired. During the period ended March 28, 2010, no impairments
relating to intangible assets with finite or infinite lives were recognized.
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Table of Contents
Property and Equipment
Property and equipment are stated at cost. Major improvements and renewals are capitalized, while
ordinary maintenance and repairs are expensed. Management annually reviews these assets to
determine whether carrying values have been impaired.
The Company capitalizes, as restaurant construction in progress, costs incurred in connection with
the design, build out, and furnishing of restaurants. Such costs consist principally of
leasehold improvements, directly related costs such as architectural and design fees, construction
period interest (when applicable), and equipment, furniture and fixtures not yet placed in service.
Depreciation and Amortization
Depreciation on equipment and furniture and fixtures is computed using the straight-line method
over the estimated useful lives of the related assets, which range from five to seven years.
Restaurant leasehold improvements are amortized over the shorter of the lease term or the useful
life of the related improvement. Restaurant construction in progress is not amortized or
depreciated until the related assets are placed into service.
Advertising
Advertising expenses are recognized in the period in which they are incurred. Advertising expense
was approximately $384,144 and $281,855 for the three months ended March 28, 2010 and the three
months ended March 31, 2009, respectively.
Income Taxes
Deferred income tax assets and liabilities are computed for differences between the financial
statement and tax bases of assets and liabilities that will result in taxable or deductible amounts
in the future, based on enacted tax laws and rates applicable to the periods in which the
differences are expected to affect taxable income. Valuation allowances are established when
necessary to reduce deferred tax assets to the amount expected to be realized. Income tax expense
is the tax payable or refundable for the period plus or minus the change during the period in
deferred tax assets and liabilities.
Earnings Per Share
Earnings
per share are calculated under the provisions of FASB ASC 260,
Earnings per Share. ASC 260
requires a dual presentation of basic and diluted earnings per share on the face of the income
statement. Diluted reflects the potential dilution of all common stock equivalents except in
cases where the effect would be anti-dilutive.
Concentration Risks
Approximately 2% and 10% of the Companys revenues during the three months ended March 28, 2010 and
the three months ended March 31, 2009, respectively, are generated from the management of BWW
restaurants located in Michigan and Florida, which were related under common ownership and
management control until the acquisition on February 1, 2010 (see Note 2 for further details). The
management and advertising fees are reflective of fees collected from the nine acquired affiliated
restaurants for the period of December 28, 2009 through January 31, 2010. Approximately 81% and
82% of food and beverage sales came from restaurants located in Michigan during the three months
ended March 28, 2010 and the three months ended March 31, 2009, respectively.
Use of Estimates
The preparation of consolidated financial statements in conformity with GAAP requires management to
make estimates and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the consolidated financial
statements and the reported amounts of income and expenses during the reporting period. Actual
results could differ from those estimates.
10
Table of Contents
Financial Instrument
The Company utilizes interest rate swap agreements with a bank to fix interest rates on a portion
of the Companys portfolio of variable rate debt, which reduces exposure to interest rate
fluctuations. The Company does not use any other types of derivative financial instruments to
hedge such exposures, nor does it use derivatives for speculative purposes.
The Company records the fair value of their interest rate swaps on the balance sheet in other
assets or other liabilities depending on the fair value of the swaps. The terms of the agreements
match those of the underlying debt and, therefore, are classified as non-current. Fair value
adjustments are recorded each period in other income or other expense on the statement of
operations. The notional value of interest rate swap agreements in place at March 28, 2010 and
December 27, 2009 was $2,893,249 and $2,492,303, respectively. The increase is due to the
acquisition of the nine recently acquired, affiliated restaurants, of which one had a swap
agreement. The expiration dates of these agreements are consistent with debt instruments as
described in Note 6.
Recent Accounting Pronouncements
In May 2009, the FASB issued Statement of Financial Accounting Standards SFAS No. 165 (SFAS No.
165 or ASC 855-10), Subsequent Events. Companies are now required to disclose the date through
which subsequent events have been evaluated by management. Public entities (as defined) must
conduct the evaluation as of the date the financial statements are issued, and provide disclosure
that such date was used for this evaluation. ASC 855-10 provides that financial statements are
considered issued when they are widely distributed for general use and reliance in a form and
format that complies with GAAP. ASC 855-10 is effective for interim and annual periods ending
after June 15, 2009 and must be applied prospectively. The adoption of ASC 855-10 during the
quarter ended September 30, 2009 did not have a significant effect on the Companys financial
statements as of that date or for the quarter or year-to-date period then ended.
In June 2009, the FASB issued SFAS No. 168 (SFAS No. 168 or ASC 105-10),
The FASB Accounting
Standards Codification and the Hierarchy of Generally Accepted Accounting Principles a
Replacement of FASB Statement No. 162. ASC 105-10 establishes the Codification as the sole source
of authoritative accounting principles recognized by the FASB to be applied by all nongovernmental
entities in the preparation of financial statements in conformity with GAAP. ASC 105-10 was
prospectively effective for financial statements issued for fiscal years ending on or after
September 15, 2009 and interim periods within those fiscal years. The adoption of ASC 105-10 on
July 1, 2009 did not impact the Companys results of operations or financial condition. The
Codification did not change GAAP, however, it did change the way GAAP is organized and presented.
As a result, these changes impact how companies reference GAAP in its financial statements and in
its significant accounting policies. The Company implemented the Codification in these interim
consolidated financial statements by providing references to the Codification topics alongside
references to the corresponding standards.
With the exception of the pronouncements noted above, no other accounting standards or
interpretations issued or recently adopted are expected to have a material impact on the Companys
financial position, operations, or cash flows.
Reclassifications
Certain reclassifications have been made to the prior year consolidated financial statements to
conform to the current years presentation.
11
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2. ACQUISITION OF NINE AFFILIATED BWW RESTAURANTS
On February 1, 2010, the Company, through its WINGS subsidiary, acquired nine affiliated BWW
restaurants it previously (through January 31, 2010) used to manage. Under the terms of the
agreements (Purchase Agreements), the purchase price for each of the affiliated restaurants was
determined by multiplying each restaurants average annual earnings before interest, taxes,
depreciation and amortization (EBITDA) for the previous three (3) fiscal years (2007, 2008, and
2009) by two, and subtracting the long-term debt of the respective restaurant. Two of the
affiliated restaurants did not have a positive purchase price under the above formula. As a
result, the purchase price for those restaurants was set at $1.00 per membership interest
percentage. The total
purchase price for these nine restaurants was $3,134,790. The acquisition of the affiliated
restaurants was approved by resolution of the disinterested directors of the Company, who
determined that the acquisition terms were at least as favorable as those that could be obtained
through arms-length negotiations with an unrelated party. The Company paid the purchase price for
each of the affiliated restaurants to each selling shareholder by issuing an unsecured promissory
note for the pro-rata value of the equity interest in the affiliated restaurants. The promissory
notes bear interest at 6% per year, mature on February 1, 2016, and are payable in quarterly
installments, with principal and interest fully amortized over six years.
As a result of the acquisition, the following were assumed: current assets of $951,745, long-term
assets of $4,053,081, current liabilities of $1,695,201, long-term liabilities of $3,149,907, and
equity of $159,718.
3. PROPERTY AND EQUIPMENT
Property and equipment are comprised of the following assets:
March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Equipment |
$ | 7,038,423 | $ | 3,008,670 | ||||
Furniture and fixtures |
1,895,850 | 831,313 | ||||||
Leasehold improvements |
12,074,667 | 6,087,233 | ||||||
Restaurant construction in progress |
70,283 | 126,804 | ||||||
Total |
21,079,223 | 10,054,020 | ||||||
Less accumulated depreciation |
(9,163,668 | ) | (2,187,871 | ) | ||||
Property and equipment, net |
$ | 11,915,555 | $ | 7,866,149 | ||||
Accumulated depreciation increased from $2,187,871 at December 27, 2009 to $9,163,668 at March 28,
2010, an increase of $6,975,797. This was largely due to the recent acquisition of the nine
affiliated BWW restaurants (refer to Note 2 for details). The portion of this increase
attributable to depreciation for the three months ended March 28, 2010 is $516,972 compared to
$344,925 for the three months ended March 31, 2009.
4. INTANGIBLES
Intangible assets are comprised of the following:
March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Amortized Intangibles |
||||||||
Franchise Fees |
$ | 376,250 | $ | 141,250 | ||||
Trademark |
2,500 | 2,500 | ||||||
Loan Fees |
81,393 | 15,691 | ||||||
Total |
460,143 | 159,441 | ||||||
Less accumulated amortization |
(129,117 | ) | (11,818 | ) | ||||
Amortized Intangibles, net |
331,026 | 147,623 | ||||||
Unamortized Intangibles |
||||||||
Liquor Licenses |
486,817 | 264,360 | ||||||
Total Intangibles, net |
$ | 817,843 | $ | 411,983 | ||||
Accumulated amortization increased from $11,818 at December 27, 2009 to $129,117 at March 28, 2010,
an increase of $117,299. This was largely due to the recent acquisition of the nine affiliated BWW
restaurants (refer to
Note 2 for details). The portion of this increase attributable to amortization for the three
months ended March 28, 2010 is $5,588 compared to $1,480 for the three months ended March 31, 2009.
12
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5. RELATED PARTY TRANSACTIONS
The acquisition of the affiliated restaurants (see Note 2 for details) was accomplished by issuing
unsecured promissory notes to each selling shareholder that bear interest at 6% per year, mature on
February 1, 2016, and are payable in quarterly installments, with principal and interest fully
amortized over six years.
Fees for monthly accounting and financial statement compilation services are paid to an entity
owned by a director and stockholder of the Company. Fees paid during the three months ended March
28, 2010 and the three months ended March 31, 2009 were $54,773 and $21,040, respectively.
Management and advertising fees were earned from restaurants affiliated with the Company through
common ownership and management control (prior to the February 1, 2010 acquisition; refer to Note 2
for details). Fees earned during the three months ended March 28, 2010 and the three months ended
March 31, 2009 totaled $165,886 and $456,529, respectively. Accounts receivable arising from such
billed fees were $0 and $128,473 at March 28, 2010 and December 31, 2009, respectively.
The Company is a guarantor of debt of two entities that are affiliated through common ownership and
management control. Under the terms of the guarantees, the Companys maximum liability is equal to
the unpaid principal and any unpaid interest. There are currently no separate agreements that
provide recourse for the Company to recover any amounts from third parties should the Company be
required to pay any amounts or otherwise perform under the guarantees and there are no assets held
either as collateral or by third parties, that, under the guarantees, the Company could liquidate to
recover all or a portion of any amounts required to be paid under the guarantees. The event or
circumstance that would require the Company to perform under the
guarantees is an event of
default. An event of default is defined in the related note agreements principally as a)
default of any liability, obligation, or covenant with a bank, including failure to pay, b) failure
to maintain adequate collateral security value, or c) default of any material liability or
obligation to another party. As of March 28, 2010 and December 27, 2009, the carrying amount of
the underlying debt obligation of the related entity was approximately $1,473,000 and 2,938,000,
respectively. The Companys guarantees extend for the full term of the debt agreements, which
expire in 2019. This amount is also the maximum potential amount of future payments the Company
could be required to make under the guarantees. As noted above, the Company, and the related entities
for which it has provided the guarantees, operates under common ownership and management control
and, in accordance with FASB ASC 460 (ASC 460), Guarantees, the initial recognition and
measurement provisions of ASC 460 do not apply. At March 28, 2010, payments on the debt obligation
were current.
Long-term debt (Note 6) contains two promissory notes in the amount of $100,000 each, along with
accrued interest, due to two of DRHs stockholders. The notes bear interest at a rate of 3.2% per
annum and are being repaid over a two-year period that commenced January 2009 in monthly
installments of approximately $4,444 each.
Current debt (Note 6) also includes a promissory note to a DRH stockholder in the amount of
$250,000. The note is a demand note that does not require principal or interest payments.
Interest is accrued at 8.00% per annum and is compounded quarterly. The Company has 180 days from
the date of demand to pay the principal and accrued interest.
See Note 9 for related party lease transactions.
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6. LONG-TERM DEBT
Long-term debt consists of the following obligations:
March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Note payable to a bank secured by the
property and equipment of AMC Grand Blanc,
Inc. as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. The
agreement calls for interest only payments
through February 2009 with monthly
principal and interest payments of
approximately $15,000 for the period
beginning March 2009 through maturity in
February 2011. Interest is charged based
on the one month London InterBank Offered
Rate (LIBOR) plus 2.5% (effective annual
rate of approximately 2.75% at March 28,
2010). |
$ | 162,596 | $ | 206,396 | ||||
Note payable to a bank secured by the
property and equipment of AMC Grand Blanc,
Inc. as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. Scheduled
monthly principal and interest payments
are approximately $11,800 through maturity
in February 2015. Interest is charged
based on a swap arrangement designed to
yield a fixed annual rate of approximately
6.05%. |
607,867 | 634,081 | ||||||
Note payable to a bank secured by the
property and equipment of AMC Petoskey,
Inc. as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. The
agreement calls for interest only payments
through February 2009 with monthly
principal and interest payments of
approximately $14,800 for the period
beginning March 2009 through maturity in
February 2011. Interest is charged based
on the one month LIBOR plus 2.5%
(effective annual rate of approximately
2.75% at March 28, 2010). |
158,329 | 201,510 | ||||||
Note payable to a bank secured by the
property and equipment of AMC Petoskey,
Inc. as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. The
agreement calls for payments of principal
and interest of approximately $12,200 for
the period beginning July 2008 through
maturity in June 2015. Interest is
charged based on a swap arrangement
designed to yield a fixed annual rate of
approximately 6.98%. |
636,943 | 661,651 | ||||||
Note payable to a bank secured by the
property and equipment of Berkley Burgers,
Inc. as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. Scheduled
monthly principal and interest payments
are approximately $6,900, including annual
interest charged based on a swap
arrangement designed to yield a fixed
annual rate of approximately 6.95%. The
note matures in November 2014. |
346,641 | 361,129 |
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March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Note payable to a bank secured by the
property and equipment of AMC Troy, Inc.
as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. The
agreement calls for monthly payments of
principal and interest of approximately
$15,600 for the period beginning July 2008
through maturity in June 2015. Interest
is charged based on a swap arrangement
designed to yield a fixed annual rate of
approximately 7.28%. |
804,380 | 835,442 | ||||||
Note payable to a bank secured by the
property and equipment of AMC Troy, Inc.
as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. The
agreement calls for a line of credit up to
$476,348, and interest only payments
through February 2009 with monthly
principal and interest payments of
approximately $8,600 for the period
beginning March 2009 through maturity in
February 2014. Interest is charged based
on the one month LIBOR plus 2.75%
(effective annual rate of approximately
3.00% at March 28, 2010). |
373,139 | 396,957 | ||||||
Note payable to a bank secured by the
property and equipment of AMC North Port,
Inc. as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. Scheduled
monthly principal and interest payments
are approximately $12,400 with annual
interest charged at 9.15%. The note
matures in November 2014. |
580,818 | 604,373 | ||||||
Note payable to a bank secured by the
property and equipment of AMC Riverview,
Inc. as well as corporate and personal
guarantees of DRH, certain stockholders,
and various related parties. Scheduled
monthly principal and interest payments
are approximately $12,200 with annual
interest charged at 8.67%. The note
matures in December 2014. |
587,903 | 611,531 | ||||||
Note payable to a bank secured by
generally all assets of Ann Arbor Burgers,
Inc. as well as personal guarantees of
certain stockholders and various related
parties. Scheduled monthly principal and
interest payments are approximately
$7,669. Interest is charged at a fixed
annual rate of approximately 7.50%. The
note matures in December 2015. |
428,757 | 443,537 | ||||||
Note payable to a bank secured by the
property and equipment of Flyer
Enterprises, Inc. as well as corporate and
personal guarantees of certain
stockholders and various related parties.
The agreement calls for monthly principal
and interest payments of approximately
$10,400 for the period beginning March
2008 through maturity in July 2013.
Interest is charged based a fixed rate of
6.30% per annum. |
146,552 |
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March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Note payable to a bank secured by the
property and equipment of TMA Enterprises
of Ferndale, LLC as well as personal
guarantees of certain stockholders and
various related parties. Scheduled
monthly principal and interest payments
are approximately $11,200 through maturity
in August 2014. Interest is charged based
on a swap arrangement designed to yield a
fixed annual rate of approximately 7.60%. |
497,418 | |||||||
Note payable to a bank secured by the
property and equipment of Anker, Inc. as
well as personal guarantees of certain
stockholders and various related parties.
The agreement calls for monthly principal
and interest payments of approximately
$6,200 for the period beginning June 2003
through maturity in May 2021. Interest is
charged based on a fixed rate of 7.61% per
annum. |
210,585 | |||||||
Note payable to a bank secured by the
property and equipment of TMA Enterprises
of Novi, Inc. and personal guarantees of
certain stockholders and various related
parties. The agreement calls for payments
of principal and interest of approximately
$11,300 for the period beginning June 2007
through maturity in May 2014. Interest is
charged based on a fixed rate of 8.20% per
annum. |
480,934 | |||||||
Note payable to a bank secured by the
property and equipment of Bearcat
Enterprises, Inc. as well as personal
guarantees of certain stockholders and
various related parties. Scheduled monthly
principal and interest payments are
approximately $4,600 including annual
interest charged at a variable rate of
3.70% above the 30 day LIBOR rate. The
rate at December 31, 2009 was
approximately 3.95%. The note matures in
September 2014. |
60,633 | |||||||
Note payable to a bank secured by the
property and equipment of AMC Warren, LLC
as well as personal guarantees of certain
members and various related parties. The
agreement calls for monthly payments of
principal and interest of approximately
$12,600 through maturity in September
2013. Interest is charged based on a
fixed annual rate of approximately 8.63%. |
458,793 | |||||||
Note payable to a bank secured by the
property and equipment of MCA Enterprises
Brandon, Inc. as well as personal
guarantees of certain stockholders and
various related parties. The agreement
calls for monthly payments of principal
and interest of approximately $11,700 for
the period beginning August 2004 through
maturity in July 2011. Interest is
charged based on a fixed annual rate of
approximately 8.10%. |
179,062 | |||||||
Note payable to a bank secured by the
property and equipment of Buckeye Group,
LLC as well as personal guarantees of
certain members and various related
parties. Scheduled monthly principal and
interest payments are approximately
$10,900 with annual interest charged at
approximately 8.27%. The note matures in
December 2012. |
323,801 |
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March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Note payable to a bank secured by the
property and equipment of Buckeye Group
II, LLC as well as personal guarantees of
certain members and various related
parties. Scheduled monthly principal and
interest payments are approximately
$11,900 with annual interest charged at
approximately 8.46%. The note matures in
April 2013. |
390,544 | |||||||
Note payable to Ford Credit secured by a
vehicle purchased by Flyer Enterprises,
Inc. to be used in the operation of the
business. This is an interest free loan
under a promotional 0.00% rate. Scheduled
monthly principal payments are
approximately $430. The note matures in
April 2013. |
15,879 | |||||||
Obligation under capital leases (Note 10) |
889,442 | 693,196 | ||||||
Notes payable related parties (Note 5) |
3,468,740 | 354,848 | ||||||
Total long-term debt |
$ | 11,809,757 | $ | 6,004,651 | ||||
Less current portion |
(2,786,486 | ) | (1,402,742 | ) | ||||
Long-term debt, net of current portion |
$ | 9,023,271 | $ | 4,601,909 | ||||
As a result of the recent acquisition of nine affiliated restaurants on February 1, 2010 (refer to
Note 2 for details), the assumed debt is reflected in these interim consolidated financial
statements at March 28, 2010.
Scheduled principal maturities of long-term debt for each of the five years succeeding December 27,
2009, and thereafter, are summarized as follows:
Year | Amount | |||
2010 |
$ | 2,786,486 | ||
2011 |
2,301,297 | |||
2012 |
2,379,493 | |||
2013 |
1,870,162 | |||
2014 |
1,547,243 | |||
Thereafter |
925,076 | |||
Total |
$ | 11,809,757 | ||
Interest expense was $150,283 and $111,307 (including related party interest expense of $5,770 for
the three months ended March 28, 2010 and $5,959 for the three months ended March 31, 2009; refer
to Note 5) for the three months ended March 28, 2010 and the three months ended March 31, 2009,
respectively.
The above agreements contain various customary financial covenants generally based on the
performance of the specific borrowing entity and other related entities. The more significant
covenants consist of a minimum global debt service ratio, maximum global funded indebtedness to
EBITDA ratio, and a Corporate Fixed Charge Coverage Ratio.
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7. CAPITAL STOCK (INCLUDING PURCHASE WARRANTS AND OPTIONS)
On July 30, 2007, DRH granted options for the purchase of 150,000 shares of common stock to the
directors of the Company. These options vest ratably over a three-year period and expire nine
years from issuance. Once vested, the options can be exercised at a price of $2.50 per share.
Stock option expense of $8,078 and $8,078, as determined using the Black-Scholes model, was
recognized during the three months ended March 28, 2010 and the three months ended March 31, 2009,
respectively, as compensation cost in the consolidated statements of operations
and as additional paid-in capital on the consolidated statement of stockholders equity to reflect
the fair value of shares vested as of March 28, 2010. The fair value of unvested shares, as
determined using the Black-Scholes model, is $10,821 as of March 28, 2010. The fair value of the
unvested shares will be amortized ratably over the remaining vesting term. The valuation
methodology used an assumed term based upon the stated term of three years, a risk-free rate of
return represented by the U.S. Treasury Bond rate and volatility factor of 0 based on the concept
of minimum value as defined in FASB ASC 718, CompensationStock Compensation. A dividend yield of
0% was used because the Company has never paid a dividend and does not anticipate paying dividends
in the reasonably foreseeable future.
In October 2009, one member of the Board of Directors exercised 6,000 vested options at a price of
$2.50 per share. Consequently, at March 28, 2010, 144,000 shares of authorized common stock are
reserved for issuance to provide for the exercise of the Companys stock options.
On November 30, 2006, pursuant to a private placement, DRH issued warrants to purchase 800,000
common shares at a purchase price of $1 per share. These warrants vest over a three-year period
from the issuance date and expire three years after issuance. The fair value of these warrants,
which totaled approximately $145,000 as determined using the Black-Scholes model, was recognized as
an offering cost in 2006. The valuation methodology used an assumed term based upon the stated
term of three years, a risk-free rate of return represented by the U.S. Treasury Bond rate and
volatility factor of 0 based on the concept of minimum value as
defined in FASB ASC 505-50, Equity
Based Payments to Non-Employees. A dividend yield of 0% was used because the Company has never
paid a dividend and does not anticipate paying dividends in the reasonably foreseeable future. An
extension of time to exercise warrants until December 31, 2009 was approved by resolution of the
disinterested directors of the Company. As of March 28, 2010, all 800,000 warrants were exercised
at the option price of $1.
The Company authorized 10,000,000 shares of preferred stock at a par value of $0.0001. No
preferred shares are issued or outstanding as of March 28, 2010. Any preferences, rights, voting
powers, restrictions, dividend limitations, qualifications, and terms and conditions of redemption
shall be set forth and adopted by a board of directors resolution prior to issuance of any series
of preferred stock.
8. INCOME TAXES
The benefit (provision) for income taxes consists of the following components for the three months
ended March 28, 2010 and the three months ended March 31, 2009:
March 28 | March 31 | |||||||
2010 | 2009 | |||||||
Federal |
||||||||
Current |
$ | | $ | | ||||
Deferred |
114,356 | (33,650 | ) | |||||
State |
||||||||
Current |
(36,502 | ) | | |||||
Deferred |
32,662 | (8,111 | ) | |||||
Income Tax Benefit
(Provision) |
$ | 110,516 | $ | (41,761 | ) | |||
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The benefit (provision) for income taxes is different from that which would be obtained by applying
the statutory federal income tax rate to loss before income taxes. The items causing this
difference are as follows:
March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Income tax provision at federal statutory rate |
$ | (33,235 | ) | $ | (207,455 | ) | ||
State income tax benefit (provision) |
102,829 | (57,585 | ) | |||||
Permanent differences |
(12,029 | ) | (32,111 | ) | ||||
Tax credits |
35,000 | 93,500 | ||||||
Other |
21,791 | (48,413 | ) | |||||
Income tax benefit (provision) |
$ | 114,356 | $ | (252,064 | ) | |||
Deferred income taxes reflect the net tax effects of temporary differences between the carrying
amounts of assets and liabilities for financial reporting purposes and the amounts used for income
tax purposes. The Company expects the deferred tax assets to be fully realizable within the next
several years. Significant components of the Companys deferred income tax assets and liabilities
are summarized as follows:
March 28 | December 27 | |||||||
2010 | 2009 | |||||||
Deferred tax assets: |
||||||||
Net operating loss carry forwards |
$ | 457,131 | $ | 954,370 | ||||
Deferred rent expense |
551,265 | 78,998 | ||||||
Start-up costs |
216,180 | 104,327 | ||||||
Tax credit carry forwards |
184,222 | 164,366 | ||||||
Swap loss recognized for book |
72,785 | 56,970 | ||||||
Other including state deferred tax assets |
401,254 | 193,781 | ||||||
Total deferred assets |
1,882,837 | 1,552,812 | ||||||
Deferred tax liabilities: |
||||||||
Other including state deferred tax liabilities |
191,036 | 146,325 | ||||||
Tax depreciation in excess of book |
1,185,925 | 1,159,733 | ||||||
Total
deferred tax liabilities |
1,376,961 | 1,306,058 | ||||||
Net deferred income tax assets |
$ | 505,876 | $ | 246,754 | ||||
If deemed necessary by management, the Company establishes valuation allowances in accordance with
the provisions of FASB ASC 740, Income Taxes. Management continually reviews realizability of
deferred tax assets and the Company recognizes these benefits only as reassessment indicates that
it is more likely than not that such tax benefits will be realized.
The
Company expects to use net operating loss and general business tax credit carry forwards before
its 20-year expiration. A significant amount of net operating loss carry forwards were used when
the Company purchased nine affiliated restaurants, which were previously managed by DRH. Net
operating loss carry forwards of $273,141 and $1,071,363 will expire in 2029 and 2028,
respectively. General business tax credits of $35,000, $78,356, $59,722 and $11,144 will expire in
2030, 2029, 2028 and 2027, respectively.
On
January 1, 2007, the Company adopted the provisions of FASB ASC
740, (ASC 740), Income Taxes
regarding the accounting for uncertainty in income taxes. There was no impact on the Companys
consolidated financial statements upon adoption.
The Company classifies all interest and penalties as income tax expense. There are no accrued
interest amounts or penalties related to uncertain tax positions as of March 28, 2010.
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In July 2007, the State of Michigan signed into law the Michigan Business Tax Act (MBTA),
replacing the Michigan Single Business Tax, with a business income tax and a modified gross
receipts tax. This new tax took effect January 1, 2008, and, because the MBTA is based on or
derived from income-based measures, the provisions of ASC 740 apply as of the enactment date. The
law, as amended, established a deduction to the business income tax base if temporary differences
associated with certain assets results in a net deferred tax liability as of December 31, 2007 (the
year of enactment of this new tax). This deduction has a carry-forward period to at least tax year
2029. This benefit amounts to $33,762.
The Company is a member of a unitary group with other parties related by common ownership according
to the provisions of the MBTA. This group will file a single tax return for all members. An
allocation of the current and deferred Michigan business tax incurred by the unitary group has been
made based on an estimate of Michigan business tax attributable to the Company and has been
reflected as state income tax expense in the accompanying interim consolidated financial statements
consistent with the provisions of ASC 740.
The Company files income tax returns in the United States federal jurisdiction and various state
jurisdictions.
9. OPERATING LEASES (INCLUDING RELATED PARTY)
The Company previously leased its office facilities under a lease that required monthly payments of
$3,835; this lease expired on April 30, 2010. The Company relocated its general offices effective
March 1, 2010, and now occupies 5,340 square feet of office space for a period of fifty-one (51)
months with two (2) two-year options to extend. Rent payments begin May 1, 2010 at $4,450 per
month.
The Company renegotiated its lease for AMC Northport, Inc. Effective March 1, 2009, the base rent
is approximately $6,129, reduced from approximately $12,267, through February 2011. For
consideration of the above rent modification, DRH agreed to guarantee the rent for a period of five
years beginning March 1, 2009. The lease contains two (2) five-year options to extend.
The Company renegotiated its lease for AMC Riverview, Inc. Effective April 1, 2009, the base rent
was reduced from approximately $12,800 to approximately $9,600 through March 2010. An extension to
this rent reduction was later granted through May 2010. The lease contains two (2) five-year
options to extend.
Berkley Burgers, Inc. signed a lease for restaurant space from an entity related through common
ownership. The 15-year lease commenced in February 2008 and requires monthly payments of
approximately $6,300. This lease contains three (3) five-year options to extend.
AMC Grand Blanc, Inc.s lease payments commenced March 2008 and require monthly payments of
approximately $10,300. The 10-year lease expires in 2018. This lease contains two (2) five-year
options to extend.
AMC Troy, Inc.s and Ann Arbor Burgers, Inc.s lease payments commenced in August 2008. Both
leases have 10-year terms expiring in 2018 and monthly payments of approximately $13,750 and
$6,890, respectively. Each lease contains two (2) five-year options to extend.
AMC Petoskey, Inc.s lease commenced in August 2008 under a 10-year term expiring in 2018. Monthly
lease payments of approximately $9,000 began in September 2009. This lease contains two (2)
five-year options to extend.
AMC Flint, Inc.s lease commenced in December 2008 under a 10-year term expiring in 2018. The
lease requires monthly payments of approximately $4,800. This lease contains three (3) five-year
options to extend.
AMC Port Huron, Inc.s lease commenced in June 2009 under a 10-year term expiring in 2019. The
lease requires monthly payments of approximately $6,500. This lease contains three (3) five-year
options to extend.
Troy Burgers, Inc. signed a lease for restaurant space in Novi, MI; the site of the third Bagger
Daves restaurant. The lease commenced on February 21, 2010. The lease term is 10 years with two
(2) five-year options to extend. Monthly lease payments are approximately $7,000 per month.
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Flyer Enterprises, Inc.s lease payments commenced in December 1999 and require monthly payments,
effective January 2010, of $11,116 per month. The lease continues through December 31, 2014 with
3% annual increases.
Anker, Inc.s lease payments commenced May 2001 and require monthly payments of approximately
$9,354. The lease ran through May 2011, with annual rent adjustments based on the Consumer Price
Index, but was recently amended to extend through April 2021. The lease contains two (2) five-year options to extend.
TMA Enterprises of Novi, Inc.s lease payments commenced June 2002 and require monthly payments of
approximately $14,493. Payments will increase approximately 9% in June 2012. The lease runs
through June 2014 and contains one (1) five-year renewal option.
Bearcat Enterprises, Inc.s lease payments commenced February 2004 and require monthly payments of
approximately $20,197. The 15-year lease expires in 2019. This lease contains three (3) five-year
options to extend. This lease is with a party related through common ownership.
MCA Enterprises Brandon, Inc.s lease payments commenced June 2004 and monthly payments are
approximately $20,829. This 20-year lease expires June 2024 and contains four (4) five-year
options to extend.
TMA Enterprises of Ferndale, LLCs lease payments commenced March 2005 and monthly payments are
approximately $8,864. This 10-year lease expires March 2015 and contains two (2) five-year options
to extend.
Buckeye Group, LLCs lease commenced March 2006 under a 10-year term expiring in 2016. The lease
requires monthly payments of approximately $9,333. This lease contains two (2) five-year options
to extend.
Buckeye Group II, LLCs lease commenced April 2006 under a 10-year term expiring in 2016. The
lease requires monthly payments of approximately $15,102. The lease contains two (2) five-year
options to extend.
AMC Warren, LLCs lease commenced July 2006 under a 10-year term expiring in 2016. The lease calls
for monthly payments of approximately $15,755. The lease contains two (2) five-year options to
extend.
Total rent expense was $507,854 and $231,890 for the three months ended March 28, 2010 and the
three months ended March 31, 2009, respectively. Of these amounts, $61,792 and $20,872 for the
three months ended March 28, 2010 and the three months ended March 31, 2009, respectively, were
paid to a related party.
Scheduled future minimum lease payments for each of the five years and thereafter for
non-cancelable operating leases with initial or remaining lease terms in excess of one year at
March 28, 2010 are summarized as follows:
Year | Amount | |||
2010 |
$ | 2,520,060 | ||
2011 |
2,638,297 | |||
2012 |
2,724,716 | |||
2013 |
2,790,660 | |||
2014 |
2,672,635 | |||
Thereafter |
10,082,067 | |||
Total |
$ | 23,428,435 | ||
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10. CAPITAL LEASES
In January 2009, the Company entered into an agreement to sell and immediately lease back various
equipment and furniture at its Flint location. The lease requires 48 monthly payments of
approximately $10,854, including applicable taxes, with an option to purchase the assets under
lease for $100 at the conclusion of the lease. This transaction is reflected in the interim
consolidated financial statements as a capital lease with the assets recorded at
their purchase price of $427,902 and depreciated as purchased furniture and equipment, and the
lease obligation is included in long-term debt at its present value.
In May 2009, the Company entered into an agreement to sell and immediately lease back various
equipment and furniture at its Port Huron location. The lease requires 48 monthly payments of
approximately $10,778, excluding applicable taxes, with an option to purchase the assets under
lease for $100 at the conclusion of the lease. This transaction is reflected in the interim
consolidated financial statements as a capital lease with the assets recorded at their purchase
price of $430,877 plus $31,041 of sales tax paid upfront and depreciated as purchased furniture and
equipment, and the lease obligation is included in long-term debt at its present value.
In February 2010, the Company entered into an agreement to sell and immediately lease back various
equipment and furniture at its Novi Bagger Daves location. The lease requires thirty six (36)
monthly payments of approximately $8,155, excluding applicable taxes, with an option to purchase
the assets under lease for $1 at the conclusion of the lease. This transaction is reflected in the
interim consolidated financial statements as a capital lease with the assets recorded at their
purchase price of $250,000 plus $6,241 of sales tax paid upfront and depreciated as purchased
furniture and equipment, and the lease obligation is included in long-term debt at its present
value.
The following is a schedule by years of future minimum lease payments under the capital lease
together with the present value of the net minimum lease payments as of the date of the lease:
Year | Amount | |||
2010 |
$ | 268,085 | ||
2011 |
357,446 | |||
2012 |
357,446 | |||
2013 |
48,644 | |||
2014 |
| |||
Total minimum lease payments |
1,031,621 | |||
Less amount representing interest |
(142,179 | ) | ||
Present value of minimum lease payments |
$ | 889,442 | ||
11. COMMITMENTS AND CONTINGENCIES
Prior to February 1, 2010, the Company had management service agreements in place with nine BWW
restaurants located in Michigan and Florida. These management service agreements contained options
that allowed WINGS to purchase each restaurant for a price equal to a factor of twice the average
EBITDA of the restaurant for the previous three fiscal years (2007, 2008, and 2009) less long-term
debt. These options were exercised by the subsidiary on February 1, 2010, six months prior to the
expiration of the options and in line with the Companys strategic plan.
The Company assumed, from a related entity, an Area Development Agreement with BWWI in which the
Company undertakes to open 23 BWW restaurants within their designated development territory, as
defined by the agreement, by October 1, 2016. On December 12, 2008, this agreement was amended
adding nine additional restaurants and extending the date of fulfillment to March 1, 2017. Failure
to develop restaurants in accordance with the schedule detailed in the agreement could lead to
potential penalties of $50,000 for each undeveloped restaurant, payment of the initial franchise
fees for each undeveloped restaurant, and loss of rights to development territory. As of March 28,
2010, of the 32 restaurants required to be opened, 10 of these restaurants had been opened for
business.
The Company is required to pay BWWI royalties (5% of net sales) and advertising fund contributions
(3% of net sales) for the term of the individual franchise agreements. The Company incurred
$399,136 and $183,860 in royalty expense for the three months ended March 28, 2010 and the three
months ended March 31, 2009, respectively. Advertising fund contribution expenses were $244,052
and $113,971 for the three months ended March 28, 2010 and the three months ended March 31, 2009,
respectively.
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The Company is required by its various BWWI franchise agreements to modernize the restaurants
during the term of the agreement. The individual agreements generally require improvements between
the fifth year and the tenth year
to meet the most current design model that BWWI has approved. The modernization costs can range
from approximately $50,000 to approximately $500,000 depending on the individual restaurants
needs.
The Company is subject to ordinary, routine, legal proceedings, as well as demands, claims and
threatened litigation, which arise in the ordinary course of its business. The ultimate outcome of
any litigation is uncertain. While unfavorable outcomes could have adverse effects on the
Companys business, results of operations, and financial condition, management believes that the
Company is adequately insured and does not believe that any pending or threatened proceedings would
adversely impact the Companys results of operations, cash flows, or financial condition.
12. SUPPLEMENTAL CASH FLOWS INFORMATION
Other Cash Flows Information
Cash paid for interest was $150,283 and $111,307 during the three months ended March 28, 2010 and
the three months ended March 31, 2009, respectively.
Cash paid for income taxes was $94,979 and $0 during the three months ended March 28, 2010 and the
three months ended March 31, 2009, respectively.
Supplemental Schedule of Non-Cash Operating, Investing, and Financing Activities
Capital expenditures of $250,000 were funded by capital lease borrowing during the three months
ended March 28, 2010.
Current assets of $951,745, long-term assets of $4,053,081, current liabilities of $1,695,201,
long-term liabilities of $3,149,907, and equity of $159,718 were assumed in the February 1, 2010
acquisition of nine affiliated BWW restaurants.
13. FAIR VALUE OF FINANCIAL INSTRUMENTS
As of March 28, 2010 and December 27, 2009, our financial instruments consisted of cash
equivalents, accounts receivable, accounts payable and debt. The fair value of cash equivalents,
accounts receivable, accounts payable and short-term debt approximate its carrying value, due to
its short-term nature. Also, the fair value of notes payable related party approximates the
carrying value due to its short-term maturities. As of March 28, 2010, our total debt, less
related party debt, was approximately $8.3 million and had a fair value of approximately $8.7
million. As of December 27, 2009, our total debt was approximately $5.6 million and had a fair
value of approximately $5.7 million. The Company estimates the fair value of its fixed-rate debt
using discounted cash flow analysis based on the Companys incremental borrowing rate.
There was no impact for adoption of FASB ASC 820, Fair Value Measurements and Disclosures (ASC
820), to the consolidated financial statements as of September 30, 2009. ASC 820 requires fair
value measurement to be classified and disclosed in one of the following three categories:
| Level 1: Unadjusted quoted prices in active markets that are accessible at the
measurement date for identical, unrestricted assets or liabilities. |
||
| Level 2: Quoted prices in markets that are not active or inputs which are observable,
either directly or indirectly, for substantially the full term of the asset or liability. |
||
| Level 3: Prices or valuation techniques that require inputs that are both significant to
the fair value measurement and unobservable (i.e., supported by little or no market
activity). |
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Interest rate swaps held by the Company for risk management purposes are not actively traded. The
Company measures the fair value using broker quotes which are generally based on market observable
inputs including yield
curves and the value associated with counterparty credit risk. The interest rate swaps discussed
in Notes 1 and 6 fall into the Level 2 category under the guidance of ASC 820. The fair market
value of the interest rate swaps as of March 28, 2010 was a liability of $214,074, which is
recorded in other liabilities on the consolidated balance sheet. The fair value of the interest
rate swaps at December 27, 2009 was a liability of $167,559. Unrealized loss associated with
interest rate swap positions in existence at March 28, 2010, which are reflected in the statement
of operations, totaled $470 for the three months ended March 28, 2010 and are included in other
income/loss.
14. SUBSEQUENT EVENTS
The Company, together with its wholly-owned subsidiaries, entered into a credit facility (the
Credit Facility) with RBS Citizens, N.A., a national banking association (RBS) on May 5, 2010.
The Credit Facility consists of a $6 million development line of credit (DLOC) and a $9 million
senior secured term loan (Senior Secured Term Loan). The Credit Facility is secured by a senior
lien on all Company assets. The Company plans to use the DLOC to
increase its number of BWW franchise restaurant locations in the states of Michigan and Florida and to develop
additional Bagger Daves restaurant locations. The DLOC is for a term of 18 months (the
Draw Period) and amounts borrowed bear interest at 4% over LIBOR as adjusted monthly. During the
Draw Period, the Company may make interest-only payments on the amounts borrowed. The Company may
convert amounts borrowed during the Draw Period into one or more term loans bearing interest at 4%
over LIBOR as adjusted monthly, with principal and interest amortized over seven years and with a
maturity date of May 5, 2017. Any amounts borrowed by the Company during the Draw Period that are
not converted into a term loan by November 5, 2011, will automatically be converted to a term loan
on the same terms as outlined above. The DLOC includes a carrying cost of .25% per year of any
available but undrawn amounts. The Company plans to use approximately $8.7 million of the Senior
Secured Term Loan to repay substantially all of its outstanding senior debt and early repayment
fees owed to unrelated parties and the remaining $0.3 million as working capital. The Company
expects to realize approximately $1 million in debt service savings over the next 12 months through
this refinancing. The Senior Secured Term Loan is for a term of seven years and, through a
fixed-rate swap arrangement, bears interest at a fixed rate of 7.10%. Principal and interest
payments are amortized over seven years, with monthly payments of $136,275.
The Company evaluated subsequent events for potential recognition and/or disclosure through May 12,
2010, the date the interim consolidated financial statements were issued.
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Item 2.
Managements Discussion and Analysis of Financial Condition and
Results of Operations.
(The following discussion and analysis of our financial condition and results of operations should
be read in conjunction with our consolidated interim financial statements and related notes
included in Item 1 of Part 1 of this Quarterly Report and the audited consolidated financial
statements and related notes and Managements Discussion and Analysis of Financial Condition and
Results from Operations contained in our Form 10-K for the fiscal year ended December 27, 2009.)
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
Statements contained in this Quarterly Report on Form 10-Q may contain information that includes
or is based upon certain forward-looking statements relating to our business. These
forward-looking statements represent managements current judgment and assumptions, and can be
identified by the fact that they do not relate strictly to historical or current facts.
Forward-looking statements are frequently accompanied by the use of such words as anticipates,
plans, believes, expects, projects, intends, and similar expressions. Such
forward-looking statements involve known and unknown risks, uncertainties, and other factors,
including, but not limited to, those relating to our ability to secure the additional financing
adequate to execute our business plan, our ability to locate and start up new restaurants,
acceptance of our restaurant concepts in new market places, and the cost of food and other raw
materials. Any one of these or other risks, uncertainties, other factors, or inaccurate
assumptions may cause actual results to be materially different from those described herein or
elsewhere by us. We caution readers not to place undue reliance on any such forward-looking
statements, which speak only as of the date they were made. Certain of these risks, uncertainties,
and other factors may be described in greater detail in our filings from time to time with the
Securities and Exchange Commission, which we strongly urge you to read and consider. Subsequent
written and oral forward-looking statements attributable to us or to persons acting on our behalf
are expressly qualified in their entirety by the cautionary statements set forth above and
elsewhere in our reports filed with the Securities and Exchange Commission. We expressly disclaim
any intent or obligation to update any forward-looking statements.
OVERVIEW
Diversified Restaurant Holdings, Inc. (DRH or the Company) is a leading Buffalo Wild
Wings® (BWW) franchisee that is rapidly expanding through organic growth and
acquisitions. It operates 16 BWW restaurants; 11 in Michigan and five in Florida. DRH also
created its own unique, full-service restaurant concept: Bagger Daves Legendary Burgers and
Fries®,
which falls within the full service, ultra casual dining segment and was launched in January
2008. As of March 28, 2010, we owned and operated three Bagger Daves® restaurants in Southeast
Michigan with the most recent store opening on February 21, 2010. We also plan to franchise our
Bagger Daves concept. To that end, we have cleared Franchise Disclosure Documents in Michigan,
Indiana and Ohio, while our filing in Illinois remains pending review by the pertinent authorities.
ACQUISITION
Results for the first quarter include two months of financial results associated with the
acquisition, on February 1, 2010, of nine BWW Grill & Bar locations in Michigan and
Florida from affiliates of the Company. The acquisition was valued at $3.1 million (the
Affiliates Acquisition). Previously, DRH had a service agreement between AMC Group, Inc. and
Stallion, LLC, our affiliated restaurants cooperative management company, to manage and operate
the nine affiliated BWW restaurants. The Service Agreement called for AMC Group, Inc. to collect,
from Stallion, LLC, a service fee up to 8.00% of the gross revenue of each restaurant under
management. We received the right to exercise the purchase option as part of our initial public
offering in August 2008. The Affiliates Acquisition was financed through six-year subordinated
promissory notes that bear interest at 6% per year issued by the Company in favor of the sellers.
The acquired BWW Michigan stores are in Sterling Heights, Fenton, Novi, Clinton Township, Ferndale
and Warren, while the Florida stores are in Brandon, Fish Hawk Ranch, and Sarasota. The stores
range in age from four to 10 years. In 2009, these restaurants generated $24.4 million in revenue,
and we received management and advertising
fee revenue of $1.7 million. The Affiliates Acquisition allows us to more fully capture the
potential economic benefits associated with these nine BWW stores in 2010 and beyond.
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RESULTS OF OPERATIONS
For the three months ended March 28, 2010, revenue was generated from the operations of 16 BWW
restaurants (nine of which were acquired on February 1, 2010 through the Affiliates Acquisition),
the operations of three Bagger Daves Legendary Burgers and Fries (Bagger Daves) restaurants
(with the newest location in Novi, MI recently opened on February 21, 2010), and the collection for
the month of January 2010 of management and advertising fees from service agreements with the
nine affiliated BWW restaurants acquired on February 1, 2010. For the three months ended March 31,
2009, revenue was generated from the operations of six BWW restaurants, the operations of two
Bagger Daves restaurants, and the collection of management and advertising fees from service
agreements with the then affiliated and managed nine BWW restaurants.
Three Months ended March 28, 2010 Compared With Three Months Ended March 31, 2009
March 28 | March 31 | $ | % | |||||||||||||
2010 | 2009 | Change | Change | |||||||||||||
Revenue |
||||||||||||||||
Food and beverage sales |
$ | 8,642,001 | $ | 4,135,010 | $ | 4,506,991 | 109.0 | % | ||||||||
Management and advertising fees |
165,886 | 456,529 | (290,653 | ) | (63.7) | % | ||||||||||
Total revenue |
$ | 8,807,887 | $ | 4,591,539 | $ | 4,216,348 | 91.8 | % | ||||||||
Total revenue increased 91.8% to $8.8 million as food and beverage sales growth of $4.5 million, or
109.0%, more than offset the decline in management and advertising fees of $290,653, or 63.7%. The
increase in food and beverage sales and the decrease in management and advertising fees were
primarily due to the Affiliates Acquisition. Refer to Note 2 in the interim consolidated
financial statements for more details.
% | % | |||||||||||||||||||||||
March 28 | March 31 | $ | % | revenue | revenue | |||||||||||||||||||
2010 | 2009 | Change | Change | 2010 | 2009 | |||||||||||||||||||
Operating expenses |
||||||||||||||||||||||||
Compensation costs |
$ | 2,586,812 | $ | 1,359,207 | $ | 1,227,605 | 90.3 | % | 29.4 | % | 29.6 | % | ||||||||||||
Food and beverage costs |
2,672,548 | 1,281,996 | 1,390,502 | 108.5 | % | 30.3 | % | 27.9 | % | |||||||||||||||
General and administrative |
2,157,855 | 1,108,472 | 1,049,383 | 94.7 | % | 24.5 | % | 24.1 | % | |||||||||||||||
Occupancy |
610,166 | 274,397 | 335,769 | 122.4 | % | 6.9 | % | 6.0 | % | |||||||||||||||
Depreciation and amortization |
522,560 | 346,405 | 176,155 | 50.9 | % | 5.9 | % | 7.5 | % | |||||||||||||||
Total operating expenses |
$ | 8,549,941 | $ | 4,370,477 | $ | 4,179,464 | 95.6 | % | 97.1 | % | 95.2 | % | ||||||||||||
Total operating expenses increased as a direct result of the Affiliates Acquisition (refer to Note
2 in the interim consolidated financial statements for more details). Further explanations for
fluctuations in the percentage of revenue are detailed below.
Compensation costs increased 90.3% for the three months ended March 28, 2010 when compared with the
three months ended March 31, 2009 due to the Affiliates Acquisition. As a percentage of revenue,
compensation costs remained fairly consistent at 29.4% and 29.6% for the three months ended March
28, 2010 and March 31, 2009, respectively.
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Food and beverage costs increased over 108.5% for the three months ended March 28, 2010 when
compared with the three months ended March 31, 2009 due to the Affiliates Acquisition. As a
percentage of revenue, food and
beverage costs for the three months ended March 28, 2010 increased to 30.3%, compared with 27.9%,
for the three months ended March 31, 2009, primarily due to the higher chicken wing costs.
General and administrative costs increased by 94.7% for the three months ended March 28, 2010 when
compared with the three months ended March 31, 2009 due to the Affiliates Acquisition. As a
percentage of revenue, the general and administrative costs remained fairly consistent at 24.5% and
24.1%, for the three months ended March 28, 2010 and March 31, 2009, respectively.
Occupancy costs increased over 122% for the three months ended March 28, 2010 when compared with
the three months ended March 31, 2009 due to the Affiliates Acquisition. As a percentage of
revenue, occupancy costs for the three months ended March 28, 2010 were 6.9% compared with
occupancy costs of 6.0% for the three months ended March 31, 2009, due to a higher average
occupancy cost and lower year-over-year revenue at the acquired restaurants.
Depreciation and amortization costs increased by 50.9% for the three months ended March 28, 2010
when compared with the three months ended March 31, 2009 due to the Affiliates Acquisition. As a
percentage of revenue, depreciation and amortization costs decreased to 5.9% from 7.5% for the
three months ended March 28, 2010 and March 31, 2009, respectively. Amortization costs remained
fairly consistent for both periods, while depreciation costs decreased as the acquired stores have
been in operation for many years and have a lower cost basis than the stores owned by the Company
before the acquisition.
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LIQUIDITY AND CAPITAL RESOURCES; EXPANSION PLANS
Our current consolidated interim cash flow from operations for the three months ended March 28,
2010 was $1,266,154 compared with $502,561 for the three months ended March 31, 2009. On April 16,
2010, DRH committed to a credit facility with Charter One, a division of RBS Citizens, N.A. The
new $15 million credit facility became effective on May 5, 2010. This facility will refinance all
existing senior debt used to finance the building of our existing stores over the years as well as
make available a $6 million development line of credit for future borrowings. In 2010, we
anticipate drawing on the new development line of credit for the following new restaurants:
| Marquette, Michigan BWW currently under construction with a target
opening date in early June of 2010. The estimated cost of construction
is approximately $1,037,000. We anticipate borrowing up to 70% of the
necessary funds and paying the remaining balance through cash from
operations. |
||
| Chesterfield, Michigan BWW construction expected to begin in the
second quarter of 2010 with an estimated opening in the third quarter
of 2010. The estimated cost of construction is approximately $950,000.
We anticipate borrowing up to 70% of the necessary funds and paying
the remaining balance through cash from operations. |
In addition, we are evaluating the potential opening of our fourth Bagger Daves store as well as
our 19th BWW location. Should we decide to move forward with either of these new stores, we
anticipate drawing on the new development line of credit to fund the cost of construction, which
may begin this year.
Refer to our 8-K filing of May 10, 2010 for further details surrounding our new credit facility.
Despite the new development line of credit, there are no assurances that we will be successful in
our efforts to draw on this facility for new store openings due to covenant restrictions.
Management believes that emphasis on prime locations is now more critical than ever to create
stronger store openings and earlier positive cash flows to decrease our dependency on third-party
financing.
OFF BALANCE SHEET ARRANGEMENTS
The Company assumed, from a related entity, an Area Development Agreement with BWW to open 23 BWW
restaurants by October 1, 2016 within the designated development territory, as defined by the
agreement. Failure to develop restaurants in accordance with the schedule detailed in the agreement
could lead to potential penalties of $50,000 for each undeveloped restaurant and loss of rights to
the development territory.
On December 10, 2008, DRH, through its wholly-owned subsidiary, AMC Wings, Inc., entered into an
amendment to the Area Development Agreement (the Amended Agreement) with BWW. The Amended
Agreement expanded our exclusive franchise territory in Michigan and extended, by one year, the
time frame for completion of our obligations under the initial terms of the Area Development
Agreement.
The Amended Agreement includes the right to develop an additional nine (9) BWW Restaurants, which
increases the total number of BWW Restaurants we have a right to develop to thirty two (32). Under
the Amended Agreement, we paid Buffalo Wild Wings, Inc., as Franchisor, a development fee of
$31,250. Franchise fees for the nine (9) additional restaurants will be $12,500 each. We have
until November 1, 2017 to complete our development obligations under the Amended Agreement. As of
March 28, 2010, ten (10) of these restaurants had been opened for business under the Amended
Agreement and twenty-two remain. Another six (6) restaurants were opened prior to the Area
Development Agreement which, assuming that we are successful at fulfilling our Area Development
Agreement, will bring DRHs total BWW restaurant count to 38 by November 1, 2017.
The Company is a guarantor of debt of two entities that are affiliated through common ownership and
management control. Under the terms of the guarantees, the Companys maximum liability is equal to
the unpaid principal and any unpaid interest. There are currently no separate agreements that
provide recourse for the Company to recover any amounts from third parties should the Company be
required to pay any amounts or otherwise perform under the guarantees and there are no assets held
either as collateral or by third parties, that, under the guarantees, the Company could liquidate to
recover all or a portion of any amounts required to be paid under the guarantees. The event or
circumstance that would require the Company to perform under the
guarantees is an event of
default. An event of default is defined in the related note agreements principally as a)
default of any liability, obligation, or covenant with a bank, including failure to pay, b) failure
to maintain adequate collateral security value, or c) default of any material liability or
obligation to another party. As of March 28, 2010 and December 27, 2009, the carrying amount of
the underlying debt obligation of the related entity was approximately $1,473,000 and 2,938,000,
respectively. The Companys guarantees extend for the full term of the debt agreements, which
expire in 2019. This amount is also the maximum potential amount of future payments the Company
could be required to make under the guarantees. As noted above, the Company, and the related entities
for which it has provided the guarantees, operates under common ownership and management control
and, in accordance with FASB ASC 460 (ASC 460), Guarantees, the initial recognition and
measurement provisions of ASC 460 do not apply. At March 28, 2010, payments on the debt obligation
were current.
The Company is required by its various BWWI franchise agreements to modernize the restaurants
during the term of the agreement. The individual agreements generally require improvements between
the fifth year and the tenth year
to meet the most current design model that BWWI has approved. The modernization costs can range
from approximately $50,000 to approximately $500,000 depending on the individual restaurants
needs.
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EXERCISE OF OPTION TO PURCHASE
We exercised an option to purchase, for $3,134,790, nine affiliated BWW restaurants we previously
managed, which are listed below. We closed on the acquisition on February 1, 2010, six months prior
to the options expiration date of August 1, 2010 (the two-year anniversary date of the completion
of the Initial Public Offering). The acquisition was financed by the sellers. A promissory note
was issued to each selling shareholder, bearing interest at 6% per year, maturing on February 1,
2016, and payable in quarterly installments with principal and interest fully amortized over six
years.
Subsidiary Name | Restaurant Opening Date | |
Flyer Enterprises, Inc. (Sterling Heights, MI)
|
December 1999 | |
Anker, Inc. (Fenton, MI)
|
April 2001 | |
TMA Enterprises of Novi, Inc. (Novi, MI)
|
June 2002 | |
Bearcat Enterprises, Inc. (Clinton Township, MI)
|
December 2003 | |
MCA Enterprises Brandon, Inc. (Brandon, FL)
|
June 2004 | |
TMA Enterprises of Ferndale, Inc. (Ferndale, MI)
|
March 2005 | |
Buckeye Group, LLC (Riverview, FL)
|
September 2005 | |
Buckeye Group II, LLC (Sarasota, FL)
|
March 2006 | |
AMC Warren, LLC (Warren, MI)
|
July 2006 |
The impact of the acquisition to our interim financial statements is reflected in the consolidated
interim balance sheets, statements of operations, statement of stockholders equity, cash flows,
and notes to the consolidated interim financial statements.
CRITICAL ACCOUNTING POLICIES AND USE OF ESTIMATES
In the ordinary course of business, we have made a number of estimates and assumptions in the
preparation of our financial statements in conformity with accounting principles generally accepted
in the United States of America. Actual results could differ significantly from those estimates
under different assumptions and conditions. We frequently reevaluate these significant factors and
make adjustments where facts and circumstances dictate.
We
discuss our significant accounting policies in Note 1 to the
Companys consolidated interim financial statements, including
those policies that do not require management to make difficult,
subjective or complex judgments or estimates. These policies are also
described in Item 7 (Managements Discussion and Analysis of
Financial Condition and Results of Operation) of our Annual Report on
Form 10-K for the year ended December 27, 2009. We have not
materially changed these policies from those reported in our Annual
Report on Form 10-K for the year ended December 27, 2009.
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Item 3.
Quantitative and Qualitative Disclosure About Market Risks
Not Applicable.
Item 4.
Controls and Procedures
As of March 28, 2010, an evaluation was performed under the supervision of and with the
participation of our management, including our principal executive and principal financial
officers, of the effectiveness of the design and operation of our disclosure controls and
procedures. Based on that evaluation, our management, including our
principal executive and principal financial officers, concluded that our disclosure controls and
procedures were effective as of March 28, 2010.
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There were no changes in the Companys internal control over financial reporting during the quarter
ended March 28, 2010 that have materially affected, or are reasonably likely to materially affect
the Companys internal control over financial reporting.
PART II OTHER INFORMATION
Item 1. Legal Proceedings
Occasionally, we are a defendant in litigation arising in the ordinary course of our business,
including claims arising from personal injuries, contract claims, dram shop claims, employment
related claims and claims from guests or employees alleging injury, illness or other food quality,
health or operational concerns. To date, none of these types of litigation, most of which are
typically covered by insurance, has had a material effect on us. We have insured and continue to
insure against most of these types of claims. A judgment on any claim not covered by or in excess
of our insurance coverage could adversely affect our financial condition or results of operations.
Item 1A. Risk Factors
There have been no material changes in our risk factors from those previously disclosed in our
annual report on Form 10-K for the year ended December 27, 2009.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
The six warrant holders listed below exercised warrants to purchase the Companys common stock
during the reporting period. The warrants were originally granted in connection with a private
placement made by the Company in November 2006 prior to the Initial Public Offering. The exercise
of these warrant was similarly conducted pursuant to a private placement exemption from
registration. Each of the warrants was exercised at the exercise price of $1.00 per share of our
common stock for the consideration and on the date listed below:
Shares of Common | ||||||||||
Investor | Date of Purchase | Stock Acquired | Consideration Paid | |||||||
John Bowling |
December 30, 2009 | 100,000 | $100,000 cash | |||||||
John R. Burke |
December 30, 2009 | 50,000 | $50,000 cash | |||||||
Kenneth Bush |
December 30, 2009 | 25,000 | $25,000 cash | |||||||
John Eric Bush |
December 30, 2009 | 25,000 | $25,000 cash | |||||||
Steve Waddle |
December 30, 2009 | 25,000 | $25,000 cash | |||||||
Larry Timmons |
December 30, 2009 | 25,000 | $25,000 cash |
Item 3. Defaults Upon Senior Securities
None.
Item 5. Other Information
None.
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Item 6. Exhibits
(a) Exhibits:
*3.1 | Certificate of Incorporation. |
|||
*3.2 | By-Laws. |
|||
31.1 | Certification pursuant to Section 302 of Sarbanes Oxley Act of 2002. |
|||
31.2 | Certification pursuant to Section 302 of Sarbanes Oxley Act of 2002. |
|||
32.1 | Certification pursuant to Section 906 of Sarbanes Oxley Act of 2002. |
|||
32.2 | Certification pursuant to Section 906 of Sarbanes Oxley Act of 2002. |
* | Filed as an exhibit to the Companys Registration Statement on Form S-1, as filed with the
Securities and Exchange Commission on August 10, 2007, and incorporated herein by this reference. |
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SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant caused this report to be
signed on its behalf by the undersigned, there unto duly authorized.
Dated: May 12, 2010 | DIVERSIFIED RESTAURANT HOLDINGS, INC. |
|||
By: | /s/ T. Michael Ansley | |||
T. Michael Ansley | ||||
President, Principal Executive Officer and Director | ||||
By: | /s/ David G. Burke | |||
David G. Burke | ||||
Principal Financial Officer and Director |
33