Attached files
| file | filename |
|---|---|
| EX-32.1 - RUBIOS RESTAURANTS INC | v184550_ex32-1.htm |
| EX-32.2 - RUBIOS RESTAURANTS INC | v184550_ex32-2.htm |
| EX-31.2 - RUBIOS RESTAURANTS INC | v184550_ex31-2.htm |
| EX-31.1 - RUBIOS RESTAURANTS INC | v184550_ex31-1.htm |
| EX-10.94 - RUBIOS RESTAURANTS INC | v184550_ex10-94.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-Q
(Mark
One)
x QUARTERLY REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF
1934
For the
quarterly period ended March 28, 2010
OR
o TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE
ACT OF 1934
Commission
File Number: 000-26125
RUBIO'S
RESTAURANTS, INC.
(Exact
Name of Registrant as Specified in Its Charter)
|
DELAWARE
|
33-0100303
|
|
|
(State
or Other Jurisdiction of
|
(I.R.S.
Employer Identification Number)
|
|
|
Incorporation
or Organization)
|
1902
WRIGHT PLACE, SUITE 300, CARLSBAD, CALIFORNIA 92008
(Address
of Principal Executive Offices, Including Zip Code)
(760)
929-8226
(Registrant's
Telephone Number, Including Area Code)
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 website, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this
chapter) during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such
files). Yes ¨
No ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer or a non-accelerated filer, as defined in Rule 12b-2 of
the Exchange Act .
|
Large
accelerated filer o
|
Accelerated
filer o
|
|
Non-accelerated
filer o
|
Smaller
reporting company þ
|
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
As of May
7, 2010, there were 10,035,177 shares of the Registrant's common stock, par
value $0.001 per share, issued and outstanding.
RUBIO’S
RESTAURANTS, INC.
TABLE OF
CONTENTS
|
Page
|
||
|
PART
I
|
FINANCIAL
INFORMATION
|
|
|
Item
1.
|
Condensed
Consolidated Financial Statements
|
|
|
Condensed
Consolidated Balance Sheets (unaudited) at March 28, 2010 and December 27,
2009
|
3
|
|
|
Condensed
Consolidated Statements of Income (unaudited) for the 13 weeks ended March
28, 2010 and March 29, 2009
|
4
|
|
|
Condensed
Consolidated Statements of Cash Flows (unaudited) for the 13 weeks ended
March 28, 2010 and March 29, 2009
|
5
|
|
|
Notes
to Condensed Consolidated Financial Statements (unaudited)
|
6
|
|
|
Item
2.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
|
10
|
|
Item
3.
|
Quantitative
and Qualitative Disclosures About Market Risk
|
13
|
|
Item
4T.
|
Controls
and Procedures
|
14
|
|
PART
II
|
OTHER
INFORMATION
|
|
|
Item
1.
|
Legal
Proceedings
|
15
|
|
Item
1A.
|
Risk
Factors
|
15
|
|
Item
2.
|
Unregistered
Sales of Equity Securities and Use of Proceeds
|
15
|
|
Item
3.
|
Defaults
Upon Senior Securities
|
16
|
|
Item
4.
|
Reserved
|
16
|
|
Item
5.
|
Other
Information
|
16
|
|
Item
6.
|
Exhibits
|
16
|
|
Signatures
|
17
|
PART
I - FINANCIAL INFORMATION
ITEM
1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
RUBIO’S
RESTAURANTS, INC.
CONDENSED
CONSOLIDATED BALANCE SHEETS - UNAUDITED
(In
thousands, except share data)
|
March
28,
2010
|
December
27,
2009
|
|||||||
|
ASSETS
|
||||||||
|
CURRENT
ASSETS:
|
||||||||
|
Cash
and cash equivalents
|
$
|
8,285
|
$
|
9,544
|
||||
|
Other
receivables
|
3,594
|
3,097
|
||||||
|
Inventory
|
1,314
|
1,574
|
||||||
|
Prepaid
expenses
|
1,316
|
1,751
|
||||||
|
Deferred
income taxes
|
2,582
|
3,083
|
||||||
|
Total
current assets
|
17,091
|
19,049
|
||||||
|
PROPERTY,
net
|
43,060
|
43,086
|
||||||
|
GOODWILL
|
519
|
519
|
||||||
|
OTHER
ASSETS
|
3,185
|
3,132
|
||||||
|
DEFERRED
INCOME TAXES
|
9,296
|
8,915
|
||||||
|
TOTAL
|
$
|
73,151
|
$
|
74,701
|
||||
|
CURRENT
LIABILITIES:
|
||||||||
|
Accounts
payable
|
$
|
4,078
|
$
|
4,118
|
||||
|
Accrued
expenses and other liabilities
|
14,647
|
16,829
|
||||||
|
Total
current liabilities
|
18,725
|
20,947
|
||||||
|
DEFERRED
INCOME
|
170
|
179
|
||||||
|
DEFERRED
RENT AND OTHER LIABILITIES
|
6,523
|
6,420
|
||||||
|
Total
liabilities
|
25,418
|
27,546
|
||||||
|
SUBSEQUENT
EVENTS (NOTE 7)
|
||||||||
|
STOCKHOLDERS’
EQUITY:
|
||||||||
|
Preferred
stock, $0.001 par value, 5,000,000 shares authorized, no shares issued or
outstanding
|
—
|
—
|
||||||
|
Common
stock, $0.001 par value, 35,000,000 shares authorized, 10,035,177 issued
and outstanding in 2010, and 10,035,077 issued and outstanding in
2009
|
10
|
10
|
||||||
|
Paid-in
capital
|
54,137
|
53,926
|
||||||
|
Accumulated
deficit
|
(6,414
|
)
|
(6,781
|
)
|
||||
|
Total
stockholders’ equity
|
47,733
|
47,155
|
||||||
|
TOTAL
|
$
|
73,151
|
$
|
74,701
|
||||
See notes
to condensed consolidated financial statements-unaudited.
RUBIO’S
RESTAURANTS, INC.
CONDENSED
CONSOLIDATED STATEMENTS OF INCOME - UNAUDITED
(In
thousands, except per share data)
|
13
Weeks Ended
|
||||||||
|
March 28, 2010
|
March
29, 2009
|
|||||||
|
REVENUES:
|
||||||||
|
Restaurant
sales
|
$
|
46,708
|
$
|
46,308
|
||||
|
Franchise
and licensing revenues
|
25
|
29
|
||||||
|
TOTAL
REVENUES
|
46,733
|
46,337
|
||||||
|
COSTS
AND EXPENSES:
|
||||||||
|
Cost
of sales
|
11,861
|
12,473
|
||||||
|
Restaurant
labor
|
15,667
|
15,252
|
||||||
|
Restaurant
occupancy and other
|
11,433
|
11,295
|
||||||
|
General
and administrative expenses
|
4,595
|
4,137
|
||||||
|
Depreciation
and amortization
|
2,416
|
2,496
|
||||||
|
Pre-opening
expenses
|
94
|
171
|
||||||
|
Loss
on disposal/sale of property
|
108
|
85
|
||||||
|
TOTAL
COSTS AND EXPENSES
|
46,174
|
45,909
|
||||||
|
OPERATING
INCOME
|
559
|
428
|
||||||
|
OTHER
INCOME:
|
||||||||
|
Interest
(expense) income and investment income, net
|
(30
|
)
|
(33
|
)
|
||||
|
INCOME
BEFORE INCOME TAXES
|
529
|
395
|
||||||
|
INCOME
TAX EXPENSE
|
162
|
150
|
||||||
|
NET
INCOME
|
$
|
367
|
$
|
245
|
||||
|
NET
INCOME PER SHARE:
|
||||||||
|
Basic
|
$
|
0.04
|
$
|
0.02
|
||||
|
Diluted
|
$
|
0.04
|
$
|
0.02
|
||||
|
SHARES
USED IN CALCULATING NET INCOME PER SHARE:
|
||||||||
|
Basic
|
10,103
|
9,956
|
||||||
|
Diluted
|
10,332
|
10,024
|
||||||
See notes
to condensed consolidated financial statements-unaudited.
4
RUBIO’S
RESTAURANTS, INC.
CONDENSED
CONSOLIDATED STATEMENTS OF CASH FLOWS - UNAUDITED
(In
thousands)
|
13
weeks Ended
|
||||||||
|
March 28, 2010
|
March 29, 2009
|
|||||||
|
OPERATING
ACTIVITIES:
|
||||||||
|
Net
income
|
$
|
367
|
$
|
245
|
||||
|
Adjustments
to reconcile net income to net cash provided by operating
activities:
|
||||||||
|
Depreciation
and amortization
|
2,416
|
2,496
|
||||||
|
Amortization
of debt issuance costs
|
17
|
17
|
||||||
|
Share-based
compensation expense
|
210
|
226
|
||||||
|
Loss
on disposal/sale of property
|
108
|
85
|
||||||
|
Provision
for deferred income taxes
|
120
|
154
|
||||||
|
Changes
in assets and liabilities:
|
||||||||
|
Other
receivables
|
(497
|
)
|
(326
|
)
|
||||
|
Inventory
|
260
|
(56
|
)
|
|||||
|
Prepaid
expenses
|
418
|
1,756
|
||||||
|
Other
assets
|
(53
|
)
|
(44
|
)
|
||||
|
Accounts
payable
|
(40
|
)
|
(358
|
)
|
||||
|
Accrued
expenses and other liabilities
|
(2,273
|
)
|
(2,781
|
)
|
||||
|
Deferred
income
|
(9
|
)
|
28
|
|||||
|
Deferred
rent and other liabilities
|
103
|
365
|
||||||
|
Net
cash provided by operating activities
|
1,147
|
1,807
|
||||||
|
INVESTING
ACTIVITIES:
|
||||||||
|
Purchases
of property & equipment
|
(1,267
|
)
|
(1,870
|
)
|
||||
|
Purchases
of leasehold improvements
|
(1,140
|
)
|
(970
|
)
|
||||
|
Net
cash used in investing activities
|
(2,407
|
)
|
(2,840
|
)
|
||||
|
FINANCING
ACTIVITIES:
|
||||||||
|
Proceeds
from exercise of common stock options
|
1
|
—
|
||||||
|
Net
cash provided by financing activities
|
1
|
—
|
||||||
|
DECREASE
IN CASH AND CASH EQUIVALENTS
|
(1,259
|
)
|
(1,033
|
)
|
||||
|
CASH
AND CASH EQUIVALENTS AT BEGINNING OF PERIOD
|
9,544
|
5,816
|
||||||
|
CASH
AND CASH EQUIVALENTS AT END OF PERIOD
|
$
|
8,285
|
$
|
4,783
|
||||
|
SUPPLEMENTAL
DISCLOSURES OF CASH FLOW INFORMATION:
|
||||||||
|
Cash
paid for income taxes
|
$
|
40
|
$
|
—
|
||||
|
SUPPLEMENTAL
DISCLOSURES OF NON-CASH OPERATING AND INVESTING
ACTIVITIES:
|
||||||||
|
Net
increase (decrease) in property, purchased and included in accrued
expenses and other liabilities
|
$
|
91
|
$
|
(668)
|
||||
See notes
to condensed consolidated financial statements-unaudited.
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - UNAUDITED
|
1.
|
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES AND RECENT ACCOUNTING
PRONOUNCMENTS
|
Basis of Presentation
The
accompanying condensed consolidated financial information has been prepared by
Rubio’s Restaurants, Inc. and its wholly-owned subsidiaries, Rubio’s Restaurants
of Nevada, Inc. and Rubio’s Incentives, LLC (collectively, the “Company”)
without audit and reflects all adjustments, consisting of normal and recurring
adjustments, which are, in the opinion of management, necessary for a fair
presentation of the financial position and results of operations for the interim
periods. The condensed consolidated financial statements have been prepared in
accordance with U.S. generally accepted accounting principles and in accordance
with the regulations of the Securities and Exchange Commission (“SEC”).
Accordingly, certain information and note disclosures normally included in
complete financial statements prepared in accordance with U.S. generally
accepted accounting principles (“GAAP”) have been condensed or omitted pursuant
to such SEC rules and regulations. These unaudited condensed consolidated
financial statements and related notes should be read in conjunction with the
consolidated financial statements and related notes for the fiscal year ended
December 27, 2009 included in the Company’s Annual Report on Form 10-K and the
review of the Company’s more critical accounting policies identified under the
caption “Critical Accounting Policies” in that report. Results for the interim
periods presented in this report are not necessarily indicative of results which
may be reported for any other interim period or for the entire fiscal year.
Certain reclassifications have been made to
prior year amounts to conform to the current year presentation.
During
the quarter ended March 28, 2010, the Company identified immaterial errors in
its previously presented statements of cash flows. The errors relate
to the cash used in investing activities related to the purchases of leasehold
improvements which remain unpaid and included in accrued expenses and other
liabilities at period end and a corresponding effect on cash provided by
operating activities. The effects of the immaterial error correction
on the condensed consolidated statement of cash flows for the thirteen weeks
ended March 29, 2009 were to increase cash provided by operating activities and
cash used in investing activities from $199,000 and ($1,232,000), respectively,
as previously reported to $1,807,000 and ($2,840,000),
respectively. The Company will revise its historical financial
statements for fiscal 2009, 2008 and the remaining quarters within fiscal 2009,
when those periods are presented in future filings. In future
filings, the correction of the immaterial errors will increase cash provided by
operating activities and cash used in investing activities by $1,608,000 for the
interim and annual periods of fiscal year 2009 and $904,000 for fiscal
2008.
Accounting
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 contingencies at the date of the
consolidated financial statements and the reported amounts of revenues and
expenses during the year. Actual results may differ from those
estimates.
Condensed
Consolidated Balance Sheets detail as of March 28, 2010 and December 27, 2009,
respectively (in thousands) are as follows:
|
March 28,
2010
|
December 27,
2009
|
|||||||
|
OTHER
RECEIVABLES:
|
||||||||
|
Tenant
improvement receivables
|
$
|
564
|
$
|
424
|
||||
|
Beverage
usage receivables
|
271
|
314
|
||||||
|
Credit
cards
|
1,718
|
1,417
|
||||||
|
Income
taxes
|
499
|
486
|
||||||
|
Other
|
668
|
582
|
||||||
|
Allowance
for doubtful accounts
|
(126
|
)
|
(126
|
)
|
||||
|
Total
|
$
|
3,594
|
$
|
3,097
|
||||
6
|
PROPERTY
& EQUIPMENT - at cost:
|
||||||||
|
Building
and leasehold improvements
|
$
|
71,777
|
$
|
70,845
|
||||
|
Equipment
and furniture
|
48,820
|
48,559
|
||||||
|
Construction
in process
|
2,179
|
1,488
|
||||||
|
122,776
|
120,892
|
|||||||
|
Less:
accumulated depreciation and amortization
|
(79,716
|
)
|
(77,806
|
)
|
||||
|
Total
|
$
|
43,060
|
$
|
43,086
|
||||
|
ACCRUED
EXPENSES AND OTHER LIABILITIES:
|
||||||||
|
Compensation
|
$
|
2,472
|
$
|
5,141
|
||||
|
Workers’
compensation
|
1,613
|
1,443
|
||||||
|
Sales
taxes
|
1,684
|
1,468
|
||||||
|
Vacation
pay
|
1,213
|
1,168
|
||||||
|
Advertising
|
145
|
202
|
||||||
|
Gift
cards
|
469
|
805
|
||||||
|
Occupancy
|
629
|
736
|
||||||
|
Legal
and settlement fees regarding class action litigation (Note
3)
|
2,793
|
2,774
|
||||||
|
Construction
in process
|
672
|
581
|
||||||
|
Store
closure accrual
|
20
|
32
|
||||||
|
Other
|
2,937
|
2,479
|
||||||
|
Total
|
$
|
14,647
|
$
|
16,829
|
||||
|
DEFERRED
RENT AND OTHER LIABILITIES:
|
||||||||
|
Deferred
rent
|
$
|
2,788
|
$
|
2,722
|
||||
|
Deferred
tenant improvement allowances
|
2,817
|
2,704
|
||||||
|
Uncertain
income tax position liability (Note 5)
|
373
|
353
|
||||||
|
Other
|
545
|
641
|
||||||
|
Total
|
$
|
6,523
|
$
|
6,420
|
3.
COMMITMENTS AND CONTINGENCIES
Litigation
In March
2007, the Company reached an agreement to settle a class action
lawsuit related to how it classified certain employees under California
overtime laws. The settlement agreement, which was approved by the
court in June 2007, provides for a settlement payment of $7.5
million payable in three installments. The first $2.5 million installment was
distributed on August 31, 2007 and the second $2.5 million installment was paid
into a qualified settlement fund on December 29, 2008. The third and final
installment of $2.5 million is due on or before June 28, 2010. As of March 28,
2010, the remaining balance of $2.5 million, plus accrued interest of $293,000,
was accrued in “Accrued expenses and other liabilities”. The Company learned
that 140 current and former employees who qualified to participate as class
members in this class action settlement were not included in the settlement list
approved by the court. The Company filed a motion requesting the court to
include these individuals in the approved settlement and to provide that their
claims are payable out of the aggregate settlement payment, as the Company
believes the parties intended when they reached a settlement. On April 30, 2010,
the California Superior Court issued a ruling in favor of the
Company. Pursuant to the ruling, the 140 individuals at
issue are covered by the settlement and must be provided notice
thereof giving them the opportunity to participate in, object to or opt out of
the settlement. The plaintiffs might seek reconsideration of the
April 30 ruling or appeal it to the California Court of Appeal;
however, it is possible that the California Court of Appeals could
determine that the ruling is not immediately appealable.
On March
24, 2005, a former employee of the Company filed a California state
court action alleging that the Company failed to provide the former employee
with certain meal and rest period breaks and overtime pay. The parties moved the
matter into arbitration, and the former employee amended the complaint
to claim that the former employee represents a class of potential
plaintiffs. The amended complaint alleges that current and former shift leaders
who worked in the Company's California restaurants during specified time
periods worked off the clock and missed meal and rest breaks. This case is still
in the pre-class certification discovery and briefing stage, and
no class has been certified. Holden, a former employee, seeks penalties
under California's Private Attorney General Act of 2004, separate
and apart from her certification of a class of shift leaders. The Company
denies the former employee’s claims, and intends to continue to vigorously
defend this action. A recent decision by the California Court of Appeals in
Brinker
Restaurant Corporation v. Superior Court (Hohnbaum) last year held
that employers do not need to affirmatively ensure employees actually take
their meal and rest breaks but need only make meal and rest breaks “available”
to employees. The Brinker case was recently taken up for review by the
California Supreme Court. At this time, the Company has no assurances of
how the California Supreme Court will rule in the Brinker case and is
unable to estimate a range of loss, if any. Regardless of merit or eventual
outcome, this arbitration may cause a diversion of the Company’s management’s
time and attention and the expenditure of legal fees and expenses.
7
The
Company is involved in various other claims and legal actions arising in the
ordinary course of business. As of the date of this Quarterly Report,
management does not believe that the ultimate disposition of these other matters
will have a material adverse effect on the Company’s consolidated financial
position, results of operations, or liquidity.
4.
NET INCOME PER SHARE
A
reconciliation of basic and diluted income per share, is as follows (in
thousands, except per share data):
|
13
Weeks Ended
|
||||||||
|
March
28, 2010
|
March
29, 2009
|
|||||||
|
Numerator
|
||||||||
|
Net
income
|
$
|
367
|
$
|
245
|
||||
|
Denominator
|
||||||||
|
Basic:
|
||||||||
|
Weighted
average common shares outstanding
|
10,103
|
9,956
|
||||||
|
Diluted:
|
||||||||
|
Effect
of dilutive securities:
|
||||||||
|
Common
stock options
|
229
|
68
|
||||||
|
Total
weighted average common and potential common shares
outstanding
|
10,332
|
10,024
|
||||||
|
Net
income per share:
|
||||||||
|
Basic
|
$
|
0.04
|
$
|
0.02
|
||||
|
Diluted
|
$
|
0.04
|
$
|
0.02
|
||||
For the 13 weeks ended
March 28, 2010 and March 29, 2009, common stock options of 1,284,739 and
1,875,657, respectively, were not included in the computation of diluted
earnings per share as their impact would have been anti-dilutive.
5.
INCOME TAXES
During
the first quarter of 2010, the Company began the formal appeals process with the
IRS in connection with an examination of the Company’s 2006 and 2007 tax years.
During 2009, the IRS proposed an adjustment related to inventory capitalization
with a tax impact of $321,000. The Company subsequently submitted an additional
revision to the calculation with a tax impact of $161,000. The IRS reviewed the
revised calculation but did not agree with the Company’s position. The Company
believes that its position more accurately reflects existing tax
law.
The
Company has recorded an unrecognized tax benefit of $161,000 related to the IRS
proposed adjustment. It has also recorded unrecognized tax benefits for the
impact of the uncertain income tax position on inventory capitalization on other
years following the examination period and on the Company’s filings in states
where the Company does business. The Company expects to resolve the uncertain
income tax position on inventory capitalization with the IRS and other taxing
jurisdictions within the next twelve months and may result in a reduction of
unrecognized tax benefits by up to $247,000.
The
Company’s total balance of unrecognized tax benefits as March 28, 2010 was
$615,000. The Company’s 2008 and 2009 federal tax years and 2005 through 2009
state tax years are not currently under examination but remain open to potential
examination by taxing authorities. Based on the status of the Company’s current
federal examination and the absence of any other open examinations, the Company
is not aware of any other events that might significantly impact the balance of
unrecognized tax benefits during the next twelve months.
8
The
Company classifies interest expense and penalties from income tax liabilities
and interest income from income tax refunds as additional income tax expense or
benefit, respectively. During the first quarter of fiscal 2010, the Company
incurred interest expense of $5,000. The balance of the Company’s accrued
interest expense at the end of the first quarter was $74,000.
6.
CREDIT FACILITY
On May 4,
2010, the Company entered into a Change in Terms Agreement with the Bank to
extend the term of the revolving line of credit through August 31,
2011. The revolving line of credit, as amended, calls for monthly
interest payments beginning March 31, 2010 at a variable interest rate based on
the prime rate plus 0.25%, resulting in an initial rate of 3.50%. All
outstanding principal plus accrued unpaid interest on the revolving line of
credit is due August 31, 2011. At March 28, 2010, the Company had
$4.9 million of availability under the revolving line of credit, net of $33,000
for an outstanding letter of credit.
Both
lines are collateralized by all assets of the Company and guaranteed by its
subsidiaries. In addition, both lines require the Company to maintain its
primary depository relationship with the Bank and the related accounts are
subject to the right of offset for amounts due under the lines. Both lines are
subject to certain financial and non-financial debt covenants and include a
restriction on the payment of dividends without prior consent of the
Bank.
On April
30, 2010 the California Superior Court issued a ruling in favor of the
Company in relation to a previously disclosed class action lawsuit related
to how the Company classified certain employees under California overtime
laws. Pursuant to the ruling, the 140 individuals at
issue are covered by the original settlement, which was expensed in
2006, and must be provided notice thereof giving them the opportunity to
participate in, object to or opt out of the settlement. See Note 3 for
additional information.
On May 4, 2010 the Company entered into
a Change in Terms Agreement with the Bank to extend the term of the revolving
line of credit through August 31, 2011. See Note 6 for additional
information.
On May 9,
2010 the Company signed a definitive merger agreement under which an entity
controlled by Mill Road Capital, L.P., a Connecticut-based private investment
firm, will acquire all of the Company’s outstanding shares in a cash merger
transaction. Pursuant to the terms of the definitive merger agreement, the
outstanding shares of common stock of the Company will be acquired for $8.70 per
share. The aggregate transaction value is approximately $91 million. The
acquisition is subject to certain closing conditions specified in the definitive
merger agreement, including regulatory approvals and the approval of the
Company’s stockholders. The transaction is expected to close in the third
quarter of 2010.
9
Item 2. MANAGEMENT'S DISCUSSION AND
ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Forward-Looking
Statements May Prove Inaccurate
This
report on Form 10-Q and the documents incorporated herein by reference contain
forward-looking statements based on our current beliefs, expectations, estimates
and projections about our business and our industry. In some cases, you can
identify forward-looking statements by terms such as believes, anticipates,
estimates, expects, projections, may, potential, plan, continue or the negative
of these terms or words of similar import. The forward-looking statements
contained in this report involve known and unknown risks, uncertainties and
other factors, including those listed under “Risk Factors” in Items 1A of Part
II below and elsewhere in this report, and the other documents we file with the
SEC, including our most recent reports on Form 8-K and our Annual Report on Form
10-K for the year ended December 27, 2009. As a result of these risks and
uncertainties, our actual results or performance may differ materially from any
future results or performance expressed or implied by the forward-looking
statements. These forward-looking statements represent beliefs and assumptions
only as of the date of this report. We undertake no obligation to release
publicly the results of any revisions or updates to these forward-looking
statements to reflect events or circumstances arising after the date of this
report that may cause our actual results to be materially different from those
expressed in or implied by these statements.
Overview
We opened
our first restaurant under the name “Rubio’s, Home of the Fish Taco” in 1983. As
of March 28, 2010, we have grown to 200 restaurants, including 196
company-operated, one licensed and three franchised locations. We position our
restaurants in the high-quality, fresh and distinctive fast-casual Mexican
cuisine segment of the restaurant industry. In the near term, we will focus on
building units in our current markets. In the longer term, our vision is to be
widely-recognized as the favorite national restaurant concept serving delicious
and unique Baja-inspired food. Our primary strategic objective is to
become a leading brand in the growing fast-casual industry segment.
First
Quarter 2010 Highlights
Revenue Growth.
Revenues for the quarter increased 0.9% to $46.7 million in 2010,
compared to $46.3 million in 2009. Comparable store sales decreased 1.8%, due
primarily to a 4.0% decrease in transactions offset by a 2.3% higher check
average. We believe the decrease in transactions is in large part due to the
loss of price-sensitive customers, resulting from general and market-specific
economic conditions, including high levels of unemployment and home foreclosure
rates. Our average unit volume for stores opened at least twelve periods
decreased to $988,000 as of March 28, 2010, compared to $1,008,000 as of March
29, 2009, due to comparable store sales decreases in 2010.
Restaurant Development.
We opened three company-owned restaurants in the first quarter of
2010 and had one more under construction at the end of the quarter. We currently
plan to open 15 to 20 company-owned restaurants in fiscal 2010 in our existing
geographic markets. The current slow down in housing, combined with the weak
economy, has caused us to focus exclusively on sites located in mature trade
areas, where we will look for attractive long-term opportunities in the soft
real estate market. This narrower focus could limit our growth potential in 2010
and 2011. Our three-year expansion plan includes an annual unit growth rate of
approximately 10% compounded annually beginning in 2010. We intend to
tailor our expansion plan during 2010 based on economic conditions, our
financial results and our ability to continue to satisfy the covenants contained
in our credit facility. If our financial results drop below our expectations,
availability of attractive sites is limited or our planned rate of expansion
limits our ability to comply with the covenants in our credit facility, we will
slow or curtail our expansion.
Restaurant Profitability.
Restaurant operating margins in the first quarter of 2010 improved
to 16.6% of restaurant sales compared to 15.7% in the first quarter of
2009. On a quarter-over-quarter basis, cost of sales as a percentage
of restaurant sales decreased to 25.4% from 26.9%, while restaurant labor
cost increased to 33.5% from 32.9% and restaurant occupancy and other increased
to 24.5% from 24.4%.
General and Administrative
Expenses. General and administrative expenses were $4.6
million and 9.8% of revenues in the first quarter of 2010 compared to $4.1
million and 8.9% of revenues in the first quarter of 2009. The increase in the
2010 quarter is primarily due to an increase in wages and wage-related expenses,
legal and professional fees.
10
Results
of Operations
All
comparisons in the following section between 2010 and 2009 refer to the 13-week
quarters ended March 28, 2010 and March 29, 2009, respectively, unless otherwise
indicated.
The
following table sets forth our operating results, expressed as a percentage of
total revenues, except where noted, with respect to certain items included in
our statements of operations.
|
13
Weeks Ended
|
||||||||
|
March 28,
2010
|
March 29, 2009
|
|||||||
|
Total
revenues
|
100.0
|
%
|
100.0
|
%
|
||||
|
Costs
and expenses:
|
||||||||
|
Cost
of sales (1)
|
25.4
|
26.9
|
||||||
|
Restaurant
labor (1)
|
33.5
|
32.9
|
||||||
|
Restaurant
occupancy and other (1)
|
24.5
|
24.4
|
||||||
|
General
and administrative expenses
|
9.8
|
8.9
|
||||||
|
Depreciation
and amortization
|
5.2
|
5.4
|
||||||
|
Pre-opening
expenses
|
0.2
|
0.4
|
||||||
|
Loss
on disposal/sale of property
|
0.2
|
0.2
|
||||||
|
Operating
income
|
1.2
|
0.9
|
||||||
|
Other
(expense) income
|
(0.1
|
)
|
(0.1
|
)
|
||||
|
Income
before income taxes
|
1.1
|
0.9
|
||||||
|
Income
tax expense
|
0.3
|
0.3
|
||||||
|
Net
income
|
0.8
|
0.5
|
||||||
(1) As a
percentage of restaurant sales
The
following table summarizes the number of restaurants:
|
March 28, 2010
|
March 29, 2009
|
|||||||
|
Company-operated
|
196
|
190
|
||||||
|
Franchised
|
1
|
2
|
||||||
|
Licensed
|
3
|
3
|
||||||
|
Total
|
200
|
195
|
||||||
Revenues
Total
revenues were $46.7 million in the first quarter of 2010 as compared to $46.3
million in the first quarter of 2009. The quarter-over-quarter increase in
revenue of $396,000 was primarily the result of sales for new stores opened in
fiscal 2009 and 2010, which contributed sales of $1.6 million, offset by stores
closed during fiscal 2009 which decreased sales by $402,000 and a decrease in
comparable store sales of $803,000. The first quarter comparable store sales
decrease was due to a decrease in transactions of 4.0% offset by an increase in
average check size of 2.3%.
Costs
and Expenses
Cost of
sales as a percentage of restaurant sales decreased to 25.4% in the first
quarter of 2010 from 26.9% in the first quarter of 2009. The
improvement in cost of sales was due primarily to menu engineering efforts and
lower ingredient costs, which resulted in lower chicken, cheese and fish
costs. Tighter food cost management also contributed to the
quarter-over-quarter reduction.
Restaurant
labor cost as a percentage of restaurant sales increased to 33.5% in the first
quarter of 2010 from 32.9% in the first quarter of 2009. The increase
in restaurant labor was primarily attributable to increased workers’
compensation cost, as we experienced an increase in major claims which made it
necessary to increase our claim reserves.
Restaurant
occupancy and other costs as a percentage of restaurant sales increased to 24.5%
in the first quarter of 2010 compared to 24.4% in the first quarter 2009. The
increase as a percentage of revenues is primarily due to higher rent and common
area maintenance charges.
11
General
and administrative expenses were $4.6 million and 9.8% of revenues in the first
quarter of 2010 compared to $4.1 million and 8.9% of revenues in the first
quarter of 2009. The increase in the 2010 quarter is primarily due to an
increase in wages and wage-related expenses, legal and professional fees. Legal
and professional fees included $146K in expenses associated with the ongoing
process of evaluation of strategic alternatives.
Depreciation
and amortization was $2.4 million in the first quarter of 2010 compared to $2.5
million in the first quarter of 2009. The decrease in 2010 is due to impairment
charges recorded the fourth quarter of fiscal 2009 related to eleven
underperforming stores which decreases depreciation expense in future periods,
offset by our continued expansion efforts, which included the addition of 10
restaurants throughout 2009 and three in the first quarter of 2010.
Pre-opening
expenses decreased to $94,000 in the first quarter of 2010, compared to $171,000
in the first quarter of 2009. The decline in pre-opening expenses in 2010
includes an overall decline in pre-opening expenditures on a per store basis.
This per store reduction is primarily due to the shifting of certain marketing
related costs to post-opening.
Loss on
disposal/sale of property increased to $108,000 in the first quarter of 2010,
compared to $85,000 in the first quarter of 2009. The loss on disposal in the
2010 and 2009 quarters consists of normal disposal costs associated with the
ordinary course of our business.
Other
(expense) income, net, primarily interest, decreased to an expense of $30,000 in
the first quarter of 2010, compared to expense of $33,000 in the first quarter
of 2009. The interest expense in 2010 and 2009 consisted of interest accruals
related to our class action settlement in addition to the amortization of debt
issuance costs incurred in conjunction with the credit facility we secured
during fiscal 2008.
The 2010
income tax provision reflects the projected annual tax rate of 29.9%. The 2009
income tax provision reflects the projected annual tax rate of 37.2%. Our 2010
projected annual tax rate reflects a decrease from the statutory rate and from
the 2009 annual rate primarily as the result of improved efforts to generate
additional federal employment tax credits. We report interest accruals for
uncertain tax positions as additional income tax expense and, in the first
quarter, we accrued $5,000 of additional interest. This accrual increased the
quarterly rate to 30.6%. The final 2010 annual tax rate cannot be determined
until the end of the fiscal year. As a result, the actual rate could differ from
our current estimate.
Liquidity
and Capital Resources
Since we
became public in 1999, we have funded our capital requirements primarily through
cash flows from operations. We generated $1.1 million in cash flows from
operating activities for the 13 weeks ended March 28, 2010, and generated $1.8
million for the 13 weeks ended March 29, 2009. The decrease in cash
flow from operating activities for the 13 weeks ended March 28, 2010 is due to
changes in operating assets and liabilities, but was primarily due to the first
quarter of 2009 benefiting from January 2009 rent paid in advance during 2008 of
approximately $1.8 million. In addition, cash flow from operations for the first
quarter of 2009 was negatively impacted by the second of three $2.5 million
installment payments associated with the 2007 settlement of a class action
lawsuit.
Net cash
used in investing activities was $2.4 million for the 13 weeks ended March 28,
2010 compared to $2.8 million for the 13 weeks ended March 29, 2009. The
quarter-over-quarter decrease in cash used for investing was driven by decreased
new store development activity.
Net cash
provided by financing activities was $1,000 during the 13 weeks ended March 28,
2010 and consisted of proceeds from the exercise of common stock options. There
was no financing activity for the 13 weeks ended March 29, 2009.
On May
13, 2008, the Company entered into a $15.0 million non-revolving line of credit
and a $5.0 million revolving line of credit (the “Credit Facility”) with Pacific
Western Bank (the “Bank”). The non-revolving line of credit calls for
each advance to be evidenced by a separate note. Each advance shall have a
maximum term of 57 months with an interest rate based on the prime rate plus
0.25%. Payments on advances shall be interest only for the first nine months,
then principal and interest payments monthly. As of March 28, 2010,
there were no outstanding borrowings under the non-revolving line of credit. The
non-revolving line of credit terminates in accordance with its terms on May 13,
2010.
On May 4,
2010, the Company entered into a Change in Terms Agreement with the Bank to
extend the term of the revolving line of credit through August 31,
2011. The revolving line of credit, as amended, calls for monthly
interest payments beginning March 31, 2010 at a variable interest rate based on
the prime rate plus 0.25%, resulting in an initial rate of 3.50%. All
outstanding principal plus accrued unpaid interest on the revolving line of
credit is due August 31, 2011. At March 28, 2010, the Company had
$4.9 million of availability under the revolving line of credit, net of $33,000
for an outstanding letter of credit.
12
Both
lines are collateralized by all assets of the Company and guaranteed by its
subsidiaries. In addition, both lines require the Company to maintain its
primary depository relationship with the Bank and the related accounts are
subject to the right of offset for amounts due under the lines. Both lines are
subject to certain financial and non-financial debt covenants and include a
restriction on the payment of dividends without prior consent of the
Bank.
We
currently expect total capital expenditures in 2010 to be approximately $9
million to $15 million for restaurant openings, restaurant re-imaging,
maintenance, and for corporate and information technology. We currently expect
that future locations will generally cost approximately $500,000 to $600,000 per
unit, net of tenant improvement allowance and excluding pre-opening
expenses. Some units may exceed this range due to the area in which they are
built and the specific requirements of the project. Pre-opening expenses are
expected to average between $50,000 and $60,000 per restaurant, which includes
approximately $15,000 to $25,000 of non-cash rent expense during the build-out
period.
We
believe that the anticipated cash flows from operations and the availability on
our revolving line of credit agreement, combined with our cash and cash
equivalents of $8.3 million as of March 28, 2010 will be sufficient to satisfy
our working capital needs, required capital expenditures and class action
settlement obligations for the next 12 months. We intend to tailor our expansion
plan during 2010 based on economic conditions, our financial results and our
ability to continue to satisfy the covenants contained in the Credit Facility.
If our financial results drop below our expectations or we are unable to comply
with the covenants in the Credit Facility, we will slow or curtail our expansion
plan. Nevertheless, changes in our operating plans, lower than anticipated
sales, increased expenses, potential acquisitions or other events may cause us
to seek additional or alternative financing sooner than anticipated. Additional
or alternative financing may not be available on acceptable terms, or at all.
Failure to obtain additional or alternative financing as needed could have a
material adverse effect on our business and results of operations.
Critical
Accounting Policies
Our
discussion and analysis of our financial condition and results of operations is
based upon our condensed consolidated financial statements, which are prepared
in accordance with U.S. generally accepted accounting principles (“GAAP”). The
preparation of these financial statements in accordance with GAAP requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and the disclosure of contingencies at the date of the
financial statements as well as the reported amounts of revenues and expenses
during the reporting period.
Management
evaluates these estimates and assumptions, which include those relating to
impairment of assets, restructuring charges, contingencies and litigation, and
estimates related to our uncertain income tax position liability, on an ongoing
basis. Our estimates and assumptions have been prepared on the basis of the most
current available information, and actual results could differ from these
estimates under different assumptions and conditions.
We have
several critical accounting policies, which were discussed in our 2009 Annual
Report on Form 10-K, that are both important to the portrayal of our financial
condition and results of operations and require management’s most difficult,
subjective and complex judgments. Typically, the circumstances that make these
judgments complex and difficult have to do with making estimates about the
effect of matters that are inherently uncertain.
Item
3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Our
market risk exposures are related to our cash and cash equivalents. We invest
our excess cash in highly liquid short-term investments with maturities of less
than one year. The portfolio consists primarily of money market instruments. As
of March 28, 2010, we had no investments with maturities in excess of one year.
These investments are not held for trading or other speculative purposes.
Changes in interest rates affect the investment income we earn on our
investments and, therefore, impact our cash flows and results of operations. Due
to the types of our investments, a 10% change in period-end interest rates or a
hypothetical 100-basis-point adverse change in interest rates would not have a
significant negative effect on our financial results.
We are
exposed to market risk from changes in interest rates on debt. Our exposure to
interest rate fluctuations is limited to our outstanding bank debt, which
includes a $15.0 million non-revolving line of credit and a $5.0 million
revolving line of credit with the Bank. At March 28, 2010, there were no amounts
outstanding under our revolving line of credit, which terminates in accordance
with its terms on May 13, 2010. On May 4, 2010, the Company entered into a
Change in Terms Agreement with the Bank to extend the term of the revolving line
of credit through August 31, 2011. The revolving line of credit, as
amended, calls for monthly interest payments beginning March 31, 2010 at a
variable interest rate based on the prime rate plus 0.25%, resulting in an
initial rate of 3.50%. All outstanding principal plus accrued unpaid interest on
the revolving line of credit is due August 31, 2011. At March 28,
2010, the Company had $4.9 million of availability under the revolving line of
credit, net of $33,000 for an outstanding letter of credit.
13
Interest
expense incurred during the 13 weeks ended March 28, 2010 was primarily due to
interest accruals related to our class action settlement in addition to the
amortization of debt issuance costs incurred in conjunction with the new credit
facility we secured during fiscal 2008.
Many of
the prices of food products purchased by us are affected by changes in weather,
production, availability, seasonality, fuel and energy costs, and other factors
outside our control. In an effort to control some of this risk, we have entered
into some fixed price purchase commitments with terms of one year or less. We do
not believe that these purchase commitments are material to our operations as a
whole. In addition, we believe that almost all of our food and supplies are
available from several sources.
Impact
of Inflation
The
primary areas of our operations affected by inflation are food, supplies, labor,
fuel, lease, utility, insurance costs and materials used in the construction of
our restaurants. Substantial increases in costs and expenses, particularly food,
supplies, labor, fuel and operating expenses could have a significant impact on
our operating results to the extent that such increases cannot be passed through
to our guests. Our leases require us to pay taxes, maintenance, repairs,
insurance and utilities, all of which are subject to inflationary increases. We
believe inflation with respect to food, labor, insurance and utility expense has
had a material impact on our results of operations in both the first quarter of
2010 and first quarter of 2009.
Item
4T. CONTROLS AND PROCEDURES
Conclusion
Regarding the Effectiveness of Disclosure Controls and Procedures:
We
maintain disclosure controls and procedures that are designed to ensure that
information required to be disclosed in the reports that we file or submit under
the Securities Exchange Act of 1934, as amended, is recorded, processed,
summarized, and reported within the time periods specified in the rules of the
Securities and Exchange Commission, and that such information is accumulated and
communicated to management, including our Chief Executive Officer and Chief
Financial Officer, as appropriate, to allow timely decisions regarding required
disclosures.
Under the
supervision and with the participation of our management, including our
principal executive officer and principal financial officer, we evaluated the
effectiveness of our disclosure controls and procedures, as such term is defined
under Securities and Exchange Act Rules 13a-15(e). Based on this
evaluation, our principal executive officer and principal financial officer
concluded that our disclosure controls and procedures were effective as of the
end of the period covered by this quarterly report.
Changes
in Internal Control over Financial Reporting:
There
have been no significant changes in the Company’s internal control over
financial reporting that occurred during the Company’s fiscal quarter ended
March 28, 2010 that have materially affected, or are reasonably likely to
materially affect, the Company’s internal control over financial
reporting.
Inherent
Limitations on Effectiveness of Controls:
Our
management, including our chief executive officer and our chief financial
officer, do not expect that our disclosure controls or our internal control over
financial reporting will prevent or detect all error and all fraud. A control
system, no matter how well designed and operated, can provide only reasonable,
not absolute, assurance that the control system’s objectives will be met. The
design of a control system must reflect the fact that there are resource
constraints, and the benefits of controls must be considered relative to their
costs. Further, because of the inherent limitations in all control systems, no
evaluation of controls can provide absolute assurance that misstatements due to
error or fraud will not occur or that all control issues and instances of fraud,
if any, have been detected. These inherent limitations include the realities
that judgments in decision-making can be faulty and that breakdowns can occur
because of simple error or mistake. Controls can also be circumvented by the
individual acts of some persons, by collusion of two or more people, or by
management override of the controls. The design of any system of controls is
based in part on certain assumptions about the likelihood of future events, and
there can be no assurance that any design will succeed in achieving its stated
goals under all potential future conditions. Projections of any evaluation of
controls effectiveness to future periods are subject to risks. Over time,
controls may become inadequate because of changes in conditions or deterioration
in the degree of compliance with policies or procedures.
14
PART
II - OTHER INFORMATION
Item
1. LEGAL PROCEEDINGS
In March
2007, the Company reached an agreement to settle a class action
lawsuit related to how it classified certain employees under California
overtime laws. The settlement agreement, which was approved by the
court in June 2007, provides for a settlement payment of $7.5
million payable in three installments. The first $2.5 million installment was
distributed on August 31, 2007 and the second $2.5 million installment was paid
into a qualified settlement fund on December 29, 2008. The third and final
installment of $2.5 million is due on or before June 28, 2010. As of March 28,
2010, the remaining balance of $2.5 million, plus accrued interest of $293,000,
was accrued in “Accrued expenses and other liabilities”. The Company learned
that 140 current and former employees who qualified to participate as class
members in this class action settlement were not included in the settlement list
approved by the court. The Company filed a motion requesting the court to
include these individuals in the approved settlement and to provide that their
claims are payable out of the aggregate settlement payment, as the Company
believes the parties intended when they reached a settlement. On April 30, 2010,
the California Superior Court issued a ruling in favor of the
Company. Pursuant to the ruling, the 140 individuals at
issue are covered by the settlement and must be provided notice
thereof giving them the opportunity to participate in, object to or opt out of
the settlement. The plaintiffs might seek reconsideration of the
April 30 ruling or appeal it to the California Court of Appeal;
however, it is possible that the California Court of Appeals could
determine that the ruling is not immediately appealable.
On March
24, 2005, a former employee of the Company filed a California state
court action alleging that the Company failed to provide the former employee
with certain meal and rest period breaks and overtime pay. The parties moved the
matter into arbitration, and the former employee amended the complaint
to claim that the former employee represents a class of potential
plaintiffs. The amended complaint alleges that current and former shift leaders
who worked in the Company's California restaurants during specified time
periods worked off the clock and missed meal and rest breaks. This case is still
in the pre-class certification discovery and briefing stage, and
no class has been certified. Holden, a former employee, seeks penalties
under California's Private Attorney General Act of 2004, separate
and apart from her certification of a class of shift leaders. The Company
denies the former employee’s claims, and intends to continue to vigorously
defend this action. A recent decision by the California Court of Appeals in
Brinker
Restaurant Corporation v. Superior Court (Hohnbaum) last year held
that employers do not need to affirmatively ensure employees actually take
their meal and rest breaks but need only make meal and rest breaks “available”
to employees. The Brinker case was recently taken up for review by the
California Supreme Court. At this time, the Company has no assurances of
how the California Supreme Court will rule in the Brinker case. Regardless
of merit or eventual outcome, this arbitration may cause a diversion of the
Company’s management’s time and attention and the expenditure of legal fees and
expenses.
The
Company is involved in various other claims and legal actions arising in the
ordinary course of business. In the opinion of management, the ultimate
disposition of these other matters will not have a material adverse effect on
the Company’s consolidated financial position, results of operations, or
liquidity.
Item
1A. RISK FACTORS
An
investment in our common stock involves a high degree of risk. You should
consider carefully the risks and uncertainties described under Item 1A of
Part I of our Annual Report on Form 10-K for the year ended
December 27, 2009, which we filed with the SEC on March 26, 2010, together
with all other information contained or incorporated by reference in this report
before you decide to invest in our common stock. The risks described in our
annual report have not materially changed. If any of the risks described in our
annual report actually occurs, our business, financial condition, results of
operations and our future growth prospects could be materially and adversely
affected. Under these circumstances, the trading price of our common stock could
decline, and you may lose all or part of your investment.
15
Item
3: DEFAULTS UPON SENIOR SECURITIES
Not
applicable
Item
4. RESERVED
Item
5. OTHER INFORMATION
On
May 4, 2010, the Company entered into a Change in Terms Agreement with the Bank
to extend the term of the revolving line of credit through August 31,
2011. The revolving line of credit, as amended, calls for monthly
interest payments beginning March 31, 2010 at a variable interest rate based on
the prime rate plus 0.25%, resulting in an initial rate of 3.50%. All
outstanding principal plus accrued unpaid interest on the revolving line of
credit is due August 31, 2011. The Change in Terms Agreement is
attached to this Quarterly Report as Exhibit 10.94.
Item
6. EXHIBITS
Set forth
below is a list of the exhibits included as part of this quarterly
report.
|
Exhibit No.
|
Description
|
|
|
3.1(1)
|
Third
Amended and Restated Certificate of Incorporation.
|
|
|
3.2(2)
|
Restated
Bylaws (Exhibit 3.4).
|
|
|
3.4(3)
|
Certificate
of Amendment of the Bylaws (Exhibit 3.4).
|
|
|
4.1(2)
|
Specimen
common stock certificate (Exhibit 4.1).
|
|
|
10.94
|
Change
in Terms Agreement, dated May 4, 2010, by and between the Company and
Pacific Western Bank.
|
|
|
31.1
|
Certification
of Chief Executive Officer under Section 302 of the Sarbanes-Oxley Act of
2002
|
|
|
31.2
|
Certification
of Chief Financial Officer under Section 302 of the Sarbanes-Oxley Act of
2002
|
|
|
32.1*
|
Certification
of Chief Executive Officer under Section 906 of the Sarbanes-Oxley Act of
2002
|
|
|
32.2*
|
Certification
of Chief Financial Officer under Section 906 of the Sarbanes-Oxley Act of
2002
|
|
(1)
|
Incorporated
by reference to our annual report on Form 10-K filed with the SEC on April
8, 2005.
|
|
|
(2)
|
Incorporated
by reference to the above noted exhibit to our registration statement on
Form S-1 (333-75087) filed with the SEC on March 26, 1999, as
amended.
|
|
|
(3)
|
Incorporated
by reference to our annual report on Form 10-K filed with the SEC on April
2, 2001.
|
_______________________________________
|
*
|
These
certifications are being furnished solely to accompany this quarterly
report pursuant to 18 U.S.C. Section 1350, and are not being filed for
purposes of Section 18 of the Securities Exchange Act of 1934 and are not
to be incorporated by reference into any filing of Rubio’s Restaurants,
Inc., whether made before or after the date hereof, regardless of any
general incorporation language in such
filing.
|
_______________________________________
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
RUBIO'S
RESTAURANTS, INC.
|
Dated:
May 12, 2010
|
||
|
/s/
Dan Pittard
|
||
|
Dan
Pittard
|
||
|
President
and Chief Executive Officer
|
||
|
(principal
executive officer)
|
||
|
Dated:
May 12, 2010
|
||
|
/s/
Frank Henigman
|
||
|
Frank
Henigman
|
||
|
Chief
Financial Officer
|
||
|
(principal
financial and accounting officer)
|
17