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EX-32.2 - Chanticleer Holdings, Inc.ex32-2.htm
EX-32.1 - Chanticleer Holdings, Inc.ex32-1.htm
EX-31.2 - Chanticleer Holdings, Inc.ex31-2.htm
EX-31.1 - Chanticleer Holdings, Inc.ex31-1.htm
EX-23.1 - Chanticleer Holdings, Inc.ex23-1.htm
EX-21 - Chanticleer Holdings, Inc.ex21.htm
EX-10.30 - Chanticleer Holdings, Inc.ex10-30.htm
EX-10.29 - Chanticleer Holdings, Inc.ex10-29.htm
EX-10.28 - Chanticleer Holdings, Inc.ex10-28.htm

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES AND EXCHANGE ACT OF 1934

 

For the Fiscal Year Ended December 31, 2016

 

Commission File Number 001-35570

 

CHANTICLEER HOLDINGS, INC.

(Exact name of registrant as specified in the charter)

 

Delaware   20-2932652
(State or other jurisdiction of   (I.R.S. Employer
incorporation or organization)   Identification Number)

 

7621 Little Avenue, Suite 414, Charlotte, NC 28226

(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code: (704) 366-5122

 

Securities registered pursuant to Section 12(g) of the Act:

 

Common Stock, $0.0001 par value

Common Stock Warrants, $5.00 exercise price

(Title of Class)

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. [  ] Yes [X] No.

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. [  ] Yes [X] No.

 

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 past 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. [X] Yes [  ] No.

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). [X] Yes [  ] No.

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X] Yes [  ] No

 

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 definition of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer [  ] Accelerated filer [  ]

Non-accelerated filer [  ] Smaller reporting company [X]

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). [  ] Yes [X] No.

 

The aggregate market value of the voting stock held by non-affiliates was $9.3 million based on the closing sale price of the Company’s Common Stock as reported on the NASDAQ Stock Market on June 30, 2016.

 

Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date. There were 21,999,507 shares of common stock issued and outstanding as of March 23, 2017.

 

 

 

   
  

 

Chanticleer Holdings, Inc.

Form 10-K Index

 

    Page
     
Part I  
     
Item 1: Business 5
Item 1A: Risk Factors 9
Item 2: Properties 21
Item 3: Legal Proceedings 21
Item 4: Mine Safety Disclosures 22
     
Part II    
     
Item 5: Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 22
Item 6: Selected Financial Data 23
Item 7: Management’s Discussion and Analysis of Financial Condition and Results of Operation 23
Item 7A: Quantitative and Qualitative Disclosures about Market Risk 33
Item 8: Financial Statements and Supplementary Data 34
Item 9: Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 35
Item 9A: Controls and Procedures 35
Item 9B: Other Information 37
     
Part III    
     
Item 10: Directors, Executive Officers and Corporate Governance 37
Item 11: Executive Compensation 37
Item 12: Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 37
Item 13: Certain Relationships and Related Transactions, and Director Independence 37
Item 14: Principal Accounting Fees and Services 37
     
Part IV    
     
Item 15: Exhibits and Financial Statement Schedules 38
Signatures 39
Exhibit Index 40

 

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Part I

 

Forward-Looking Statements

 

This Annual Report on Form 10-K contains forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. These statements include projections, predictions, expectations or statements as to beliefs or future events or results or refer to other matters that are not historical facts. Forward-looking statements are subject to known and unknown risks, uncertainties and other factors that could cause the actual results to differ materially from those contemplated by these statements. The forward-looking statements contained in this Annual Report are based on various factors and were derived using numerous assumptions. In some cases, you can identify these forward-looking statements by the words “anticipate”, “estimate”, “plan”, “project”, “continuing”, “ongoing”, “target”, “aim”, “expect”, “believe”, “intend”, “may”, “will”, “should”, “could”, or the negative of those words and other comparable words. You should be aware that those statements reflect only the Company’s predictions. If known or unknown risks or uncertainties should materialize, or if underlying assumptions should prove inaccurate, actual results could differ materially from past results and those anticipated, estimated or projected. You should bear this in mind when reading this Annual Report and not place undue reliance on these forward-looking statements. Factors that might cause such differences include, but are not limited to:

 

 

 

The quality of Company and franchise store operations and changes in sales volume;

 

Our ability to operate our business and generate profits. We have not been profitable to date;

     
  Inherent risks in expansion of operations, including our ability to acquire additional territories, generate profits from new restaurants, find suitable sites and develop and construct locations in a timely and cost-effective way;
     
  Inherent risks associated with acquiring and starting new restaurant concepts and store locations;
     
  General risk factors affecting the restaurant industry, including current economic climate, costs of labor and food prices;
     
  Intensive competition in our industry and competition with national, regional chains and independent restaurant operators;
     
  Our rights to operate and franchise the Hooters-branded restaurants are dependent on the Hooters’ franchise agreements;
     
    Our ability, and our dependence on the ability of our franchisees, to execute on our and their business plans effectively;
     
  Actions of our franchise partners or operating partners which could harm our business;
     
  Failure to protect our intellectual property rights, including the brand image of our restaurants;
     
  Changes in customer preferences and perceptions;
     
  Increases in costs, including food, rent, labor and energy prices;
     
   Our business and the growth of our Company is dependent on the skills and expertise of management and key personnel;
     
  Constraints could affect our ability to maintain competitive cost structure, including, but not limited to labor constraints;

 

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  Work stoppages at our restaurants or supplier facilities or other interruptions of production;
     
  Our food service business and the restaurant industry are subject to extensive government regulation;
     
 

We may be subject to significant foreign currency exchange controls in certain countries in which we operate;

 

  Inherent risk in foreign operations and currency fluctuations;
     
  Unusual expenses associated with our expansion into international markets;
     
  The risks associated with leasing space subject to long-term non-cancelable leases;
     
  We may not attain our target development goals and aggressive development could cannibalize existing sales;
     
  Current conditions in the global financial markets and the distressed economy;
     
  A decline in market share or failure to achieve growth;
     
  Negative publicity about the ingredients we use, or the potential occurrence of food-borne illnesses or other problems at our restaurants;
     
  Breaches of security of confidential consumer information related to our electronic processing of credit and debit card transactions;
     
  Unusual or significant litigation, governmental investigations or adverse publicity, or otherwise;
     
  Our debt financing agreements expose us to interest rate risks, contain obligations that may limit the flexibility of our operations, and may limit our ability to raise additional capital;
     
  Adverse effects on our results from a decrease in or cessation or clawback of government incentives related to investments; and
     
  Adverse effects on our operations resulting from certain geo-political or other events.

 

You should also consider carefully the Risk Factors contained in Item 1A of Part I of this Annual Report, which address additional factors that could cause its actual results to differ from those set forth in the forward-looking statements and could materially and adversely affect the Company’s business, operating results and financial condition. The risks discussed in this Annual Report are factors that, individually or in the aggregate, the Company believes could cause its actual results to differ materially from expected and historical results. You should understand that it is not possible to predict or identify all such factors. Consequently, you should not consider such disclosures to be a complete discussion of all potential risks or uncertainties.

 

The forward-looking statements are based on information available to the Company as of the date hereof, and, except to the extent required by federal securities laws, the Company undertakes no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. In addition, the Company cannot assess the impact of each factor on its business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.

 

 4 
 

 

Item 1: Business

 

Chanticleer Holdings, Inc. (“Chanticleer” or the “Company”) is in the business of owning, operating and franchising fast casual dining concepts domestically and internationally. The Company was organized October 21, 1999, under its original name, Tulvine Systems, Inc., under the laws of the State of Delaware. On April 25, 2005, Tulvine Systems, Inc. formed a wholly owned subsidiary, Chanticleer Holdings, Inc., and on May 2, 2005, Tulvine Systems, Inc. merged with, and changed its name to, Chanticleer Holdings, Inc.

 

The consolidated financial statements include the accounts of Chanticleer Holdings, Inc. and its subsidiaries presented below (collectively referred to as the “Company”):

 

Name  Jurisdiction of Incorporation  Percent Owned   Name  Jurisdiction of Incorporation  Percent Owned 
CHANTICLEER HOLDINGS, INC.  DE, USA   100%           
Burger Business          Just Fresh        
American Roadside Burgers, Inc.  DE, USA   100%  JF Franchising Systems, LLC  NC, USA   56%
ARB Stores          JF Restaurants, LLC  NC, USA   56%
American Burger Ally, LLC  NC, USA   100%           
American Burger Morehead, LLC  NC, USA   100%  West Coast Hooters        
American Roadside McBee, LLC  NC, USA   100%  Jantzen Beach Wings, LLC  OR, USA   100%
American Roadside Southpark LLC  NC, USA   100%  Oregon Owl’s Nest, LLC  OR, USA   100%
American Roadside Burgers Smithtown, Inc.  DE, USA   100%  Tacoma Wings, LLC  WA, USA   100%
American Burger Prosperity, LLC  NC, USA   100%           
BGR Acquisition, LLC  NC, USA   100%  South African Entities        
BGR Franchising, LLC  VA, USA   100%  Chanticleer South Africa (Pty) Ltd.  South Africa   100%
BGR Operations, LLC  VA, USA   100%  Hooters Emperors Palace (Pty.) Ltd.  South Africa   88%
BGR Arlington, LLC  VA, USA   100%  Hooters On The Buzz (Pty) Ltd  South Africa   95%
BGR Cascades, LLC  VA, USA   100%  Hooters PE (Pty) Ltd  South Africa   100%
BGR Dupont, LLC  DC, USA   100%  Hooters Ruimsig (Pty) Ltd.  South Africa   100%
BGR Old Keene Mill, LLC  VA, USA   100%  Hooters SA (Pty) Ltd  South Africa   78%
BGR Old Town, LLC  VA, USA   100%  Hooters Umhlanga (Pty.) Ltd.  South Africa   90%
BGR Potomac, LLC  MD, USA   100%  Hooters Willows Crossing (Pty) Ltd  South Africa   100%
BGR Springfield Mall, LLC  VA, USA   100%           
BGR Tysons, LLC  VA, USA   100%  European Hooters        
BGR Washingtonian, LLC  MD, USA   100%  Chanticleer Holdings Limited  Jersey   100%
Capitol Burger, LLC  MD, USA   100%           
BGR Mosaic, LLC  VA, USA   100%  West End Wings LTD  United Kingdom   100%
BGR Michigan Ave, LLC  DC, USA   100%           
BGR Chevy Chase, LLC  MD, USA   100%           
BGR Acquisition 1, LLC  NC, USA   100%  Inactive Entities        
BT Burger Acquisition, LLC  NC, USA   100%  Hoot Surfers Paradise Pty. Ltd.  Australia   60%
BT's Burgerjoint Biltmore, LLC  NC, USA   100%  Hooters Brazil  Brazil   100%
BT's Burgerjoint Promenade, LLC  NC, USA   100%  DineOut SA Ltd.  England   89%
BT's Burgerjoint Rivergate LLC  NC, USA   100%  Avenel Financial Services, LLC  NV, USA   100%
BT's Burgerjoint Sun Valley, LLC  NC, USA   100%  Avenel Ventures, LLC  NV, USA   100%
LBB Acquisition, LLC  NC, USA   100%  Chanticleer Advisors, LLC  NV, USA   100%
Cuarto LLC  OR, USA   100%  Chanticleer Investment Partners, LLC  NC, USA   100%
LBB Acquisition 1 LLC  OR, USA   100%  Dallas Spoon Beverage, LLC  TX, USA   100%
LBB Green Lake LLC  OR, USA   50%  Dallas Spoon, LLC  TX, USA   100%
LBB Hassalo LLC  OR, USA   80%  American Roadside Cross Hill, LLC  NC, USA   100%
LBB Platform LLC  OR, USA   80%  Chanticleer Finance UK (No. 1) Plc  United Kingdom   100%
LBB Progress Ridge LLC  OR, USA   50%           
Noveno LLC  OR, USA   100%           
Octavo LLC  OR, USA   100%           
Primero LLC  OR, USA   100%           
Quinto LLC  OR, USA   100%           
Segundo LLC  OR, USA   100%           
Septimo LLC  OR, USA   100%           
Sexto LLC  OR, USA   100%           

 

Restaurant Brands

 

Better Burgers Fast Casual

 

We operate and franchise a system-wide total of 39 fast casual restaurants specializing the “Better Burger” category of which 27 are company-owned and 12 are owned and operated by franchisees under franchise agreements.

 

American Burger Company (“ABC”) is a fast-casual dining chain consisting of 9 locations in North Carolina, South Carolina and New York, known for its diverse menu featuring fresh salads, customized burgers, milk shakes, sandwiches, and beer and wine.

 

 5 
 

 

BGR: The Burger Joint (“BGR”) was acquired in March 2015 and consists of 10 company-owned locations in the United States and 12 franchisee-operated locations in the United States and the Middle East.

 

Little Big Burger (“LBB”) was acquired in September 2015 and consists of 8 company-owned locations in the Portland, Oregon area.

 

We plan to accelerate expansion of our better burger business through a combination of company-owned stores, franchising and partnerships primarily in the United States. Within the Burger group, we plan to focus the majority of our resources on growing Little Big Burger, where we are realizing industry-leading margins and returns on capital from our current store locations. We are also considering opportunities to expand the better burger business internationally, primarily focusing on those regions where we operate Hooters restaurants to leverage our local infrastructure and management teams across multiple brands. For our BGR and American Burger Company brands, we intend to open new stores in 2017, albeit at a slower pace than for our Little Big Burger Brand.

 

Just Fresh Fast Casual

 

We operate Just Fresh, our healthier eating fast casual concept with 7 company owned locations in Charlotte, North Carolina. Just Fresh offers fresh-squeezed juices, gourmet coffee, fresh-baked goods and premium-quality, made-to-order sandwiches, salads and soups. We currently hold a 56% controlling interest in Just Fresh.

 

Our plans for Just Fresh include maximizing cash flow from our current locations while we evaluate the optimal growth strategy for the brand. As we have allocated the majority of our current internal and financial resources on growing Little Big Burger, we do not anticipate opening new Just Fresh locations in the near term. However, we believe the Just Fresh tradename and operating model provides significant untapped potential for future growth as a company or franchise model and intend to formalize the longer-term growth strategy for this brand over the coming year.

 

Hooters Full Service

 

Hooters restaurants are casual beach-themed establishments featuring music, sports on large flat screens, and a menu that includes seafood, sandwiches, burgers, salads, and of course, Hooters original chicken wings and the “nearly world famous” Hooters Girls.

 

We own and operate 9 Hooters full service restaurants in the United States, South Africa, and the United Kingdom. Chanticleer started initially as an investor in Hooters of America and, subsequently evolved into a franchisee operator. We continue to hold a minority investment stake in Hooters of America and operate Hooters restaurants in our regions. However, we do not currently intend to invest in growing the Hooters segment and instead plan to utilize the cash flows from this segment to support growth in our other fast casual brands.

 

Restaurant Geographic Locations

 

United States

 

We currently operate ABC, BGR and LBB restaurants in the United States as our Better Burger Group. ABC is located in North Carolina, South Carolina and New York. BGR operates company restaurants in the mid-Atlantic region of the United States, as well as franchise locations in the US and internationally. LBB operates in the Portland and Eugene, Oregon areas.

 

We operate Just Fresh restaurants in the Charlotte, North Carolina area.

 

We operate Hooters restaurants in Tacoma, Washington and Portland, Oregon (“Hooters Pacific NW”). We also operate gaming machines in Portland, Oregon under license from the Oregon Lottery Commission.

 

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South Africa

 

We currently own and operate 6 Hooters locations in South Africa: Durban, Pretoria, Port Elizabeth and Johannesburg (3 locations).

 

Europe

 

We currently own 100% of West End Wings, Ltd, the entity that holds the franchise rights and operates the Hooters restaurant in Nottingham, England (“Hooters Nottingham”).

 

Competition

 

The restaurant industry is extremely competitive. We compete with other restaurants on the taste, quality and price of our food offerings. Additionally, we compete with other restaurants on service, ambience, location and overall customer experience. We believe that we compete primarily with local and regional sports bars and national casual dining and quick casual establishments, and to a lesser extent with quick service restaurants in general. Many of our competitors are well-established national, regional or local chains and many have greater financial and marketing resources than we do. We also compete with other restaurant and retail establishments for site locations and restaurant employees.

 

Proprietary Rights

 

We have trademarks and trade names associated with Just Fresh, American Burger, BGR and Little Big Burger. We believe that the trademarks, service marks and other proprietary rights that we use in our restaurants have significant value and are important to our brand-building efforts and the marketing of our restaurant concepts. Although we believe that we have sufficient rights to all of our trademarks and service marks, we may face claims of infringement that could interfere with our ability to market our restaurants and promote our brand. Any such litigation may be costly and divert resources from our business. Moreover, if we are unable to successfully defend against such claims, we may be prevented from using our trademarks or service marks in the future and may be liable for damages.

 

We also use the “Hooters” mark and certain other service marks and trademarks used in our Hooters restaurants pursuant to our franchise agreements with Hooters of America.

 

Government Regulation

 

Environmental regulation.

 

We are subject to a variety of federal, state and local environmental laws and regulations. Such laws and regulations have not had a significant impact on our capital expenditures, earnings or competitive position.

 

Local regulation.

 

Our locations are subject to licensing and regulation by a number of government authorities, which may include health, sanitation, safety, fire, building and other agencies in the countries, states or municipalities in which the restaurants are located. Opening sites in new areas could be delayed by license and approval processes or by more requirements of local government bodies with respect to zoning, land use and environmental factors. Our agreements with our franchisees require them to comply with all applicable federal, state and local laws and regulations.

 

Each restaurant requires appropriate licenses from regulatory authorities allowing it to sell liquor, beer and wine, and each restaurant requires food service licenses from local health authorities. Our licenses to sell alcoholic beverages may be suspended or revoked at any time for cause, including violation by us or our employees of any law or regulation pertaining to alcoholic beverage control. We are subject to various regulations by foreign governments related to the sale of food and alcoholic beverages and to health, sanitation and fire and safety standards. Compliance with these laws and regulations may lead to increased costs and operational complexity and may increase our exposure to governmental investigations or litigation.

 

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Franchise regulation.

 

We must comply with regulations adopted by the Federal Trade Commission (the “FTC”) and with several state and foreign laws that regulate the offer and sale of franchises. The FTC’s Trade Regulation Rule on Franchising (“FTC Rule”) and certain state and foreign laws require that we furnish prospective franchisees with a franchise disclosure document containing information prescribed by the FTC Rule and applicable state and foreign laws and regulations. We register the disclosure document in domestic and foreign jurisdictions that require registration for the sale of franchises. Our domestic franchise disclosure document complies with FTC Rule and various state disclosure requirements, and our international disclosure documents comply with applicable requirements.

 

We also must comply with a number of state and foreign laws that regulate some substantive aspects of the franchisor-franchisee relationship. These laws may limit a franchisor’s ability to: terminate or not renew a franchise without good cause; interfere with the right of free association among franchisees; disapprove the transfer of a franchise; discriminate among franchisees with regard to charges, royalties and other fees; and place new stores near existing franchises. Bills intended to regulate certain aspects of franchise relationships have been introduced into the United States Congress on several occasions during the last decade, but none have been enacted.

 

Employment regulations.

 

We are subject to state and federal labor laws that govern our relationship with our employees, such as minimum wage requirements, overtime and working conditions and citizenship requirements. Many of our employees are paid at rates which are influenced by changes in the federal and state wage regulations. Accordingly, changes in the wage regulations could increase our labor costs. The work conditions at our facilities are regulated by the Occupational Safety and Health Administration and are subject to periodic inspections by this agency. In addition, the enactment of recent legislation and resulting new government regulation relating to healthcare benefits may result in additional cost increases and other effects in the future.

 

Gaming regulations.

 

We are also subject to regulations in Oregon where we operate gaming machines. Gaming operations are generally highly regulated and conducted under the permission and oversight of the state or local gaming commission, lottery or other government agencies.

 

Other regulations.

 

We are subject to a variety of consumer protection and similar laws and regulations at the federal, state and local level. Failure to comply with these laws and regulations could subject us to financial and other penalties.

 

Seasonality

 

The sales of our restaurants may peak at various times throughout the year due to certain promotional events, weather and holiday related events. For example, our restaurants in South Africa generally peak in our winter months during their summer holidays. In contrast, our domestic fast casual restaurants tend to peak in the Spring, Summer and Fall months when the weather is milder. Quarterly results also may be affected by the timing of the opening of new stores and the closing of existing stores. For these reasons, results for any quarter are not necessarily indicative of the results that may be achieved for the full fiscal year.

 

Corporate Information

 

Our principal executive offices are located at 7621 Little Avenue, Suite 414, Charlotte, NC 28226. Our web site is www.chanticleerholdings.com.

 

Employees

 

At December 31, 2016, our locations had approximately 957 employees, including 306 in South Africa, 48 in the United Kingdom, and 603 in the United States. Approximately 70 of our South African employees are represented by a labor union. We have experienced no work stoppage and believe that our employee relationships are good.

 

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Available information

 

We make available free of charge through our website, www.chanticleerholdings.com, our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements and amendments to those reports and statements filed pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), as soon as reasonably practicable after we file such material with, or furnish it to, the SEC. The public may read and copy any materials we file with or furnish to the Securities and Exchange Commission (“SEC”) at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549, on official business days during the hours of 10:00 am to 3:00 pm. The public may also obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Furthermore, the SEC maintains a free website (www.sec.gov) which includes reports, proxy and information statements, and other information regarding us and other issuers that file electronically with the SEC. Our website and the information contained therein or connected thereto are not intended to be incorporated into this Annual Report on Form 10-K. Additionally, we make available free of charge on our internet website: our Code of Ethics; the charter of our Nominating Committee; the charter of our Compensation Committee; and the charter of our Audit Committee.

 

Item 1A: Risk Factors

 

Investing in our common stock involves risks. Prospective investors in our common stock should carefully consider, among other things, the following risk factors in connection with the other information and financial statements contained in this Report. We have identified the following factors that could cause actual results to differ materially from those projected in any forward looking statements we may make from time to time.

 

We operate in a continually changing business environment in which new risk factors emerge from time to time. We can neither predict these new risk factors, nor can we assess the impact, if any, of these new risk factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those projected in any forward looking statement. If any of these risks, or combination of risks, actually occurs, our business, financial condition and results of operations could be seriously and materially harmed, and the trading price of our common stock could decline. All forward-looking statements in this document are based on information available to us as of the date hereof, and we assume no obligations to update any such forward-looking statements.

 

Risks Related to Our Company and Industry

 

We have not been profitable to date and operating losses could continue.

 

We have incurred operating losses and generated negative cash flows since our inception and have financed our operations principally through equity investments and borrowings. Future profitability is difficult to predict with certainty. Failure to achieve profitability could materially and adversely affect the value of our Company and our ability to effect additional financings. The success of the business depends on our ability to increase revenues to offset expenses. If our revenues fall short of projections or we are unable to reduce operating expenses, our business, financial condition and operating results will be materially adversely affected.

 

Our financial statements have been prepared assuming a going concern.

 

Our financial statements as of December 31, 2016, were prepared under the assumption that we will continue as a going concern for the next twelve months from the date of issuance of these financial statements. Our independent registered public accounting firm has issued a report that includes an explanatory paragraph referring to our losses from operations and expressing substantial doubt in our ability to continue as a going concern without additional capital becoming available. Our ability to continue as a going concern is dependent upon our ability to obtain additional financing, re-negotiate or extend existing indebtedness, obtain further operating efficiencies, reduce expenditures and ultimately, create profitable operations. We may not be able to refinance or extend our debt or obtain additional capital on reasonable terms. Our financial statements do not include adjustments that would result from the outcome of this uncertainty.

 

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The prior year acquisitions, as well as future acquisitions, may have unanticipated consequences that could harm our business and our financial condition.

 

Any acquisition that we pursue, whether or not successfully completed, involves risks, including:

 

  material adverse effects on our operating results, particularly in the fiscal quarters immediately following the acquisition as the acquired restaurants and bar concepts are integrated into our operations;
     
  risks associated with entering into markets or conducting operations where we have no or limited prior experience;
     
  problems retaining key personnel;
     
  potential impairment of tangible and intangible assets and goodwill acquired in the acquisition;
     
  potential unknown liabilities;
     
  difficulties of integration and failure to realize anticipated synergies; and
     
  disruption of our ongoing business, including diversion of management’s attention from other business concerns.

 

Future acquisitions of restaurants or other businesses, which may be accomplished through a cash purchase transaction, the issuance of our equity securities or a combination of both, could result in potentially dilutive issuances of our equity securities, the incurrence of debt and contingent liabilities and impairment charges related to goodwill and other intangible assets, any of which could harm our business and financial condition.

 

There are risks inherent in expansion of operations, including our ability to generate profits from new restaurants, find suitable sites and develop and construct locations in a timely and cost-effective way.

 

We cannot project with certainty the number the number of new restaurants we and our franchisees will open. In addition, our franchise agreements with Hooters of America (“HOA”) provide that we must exercise our option to open additional restaurants within each of our territories by a certain date set forth in the development schedule and that each such restaurant must be open by such date. If we fail to timely exercise any option or if we fail to open any additional restaurant by the required restaurant opening date, all of our rights to develop the rest of the option territory will expire automatically and without further notice.

 

Our failure to effectively develop locations in new territories would adversely affect our ability to execute our business plan by, among other things, reducing our revenues and profits and preventing us from realizing our strategy. Furthermore, we cannot assure you that our new restaurants will generate revenues or profit margins consistent with those currently operated by us.

 

The number of openings and the performance of new locations will depend on various factors, including:

 

  the availability of suitable sites for new locations;
     
  our ability to negotiate acceptable lease or purchase terms for new locations, obtain adequate financing, on favorable terms, required to construct, build-out and operate new locations and meet construction schedules, and hire and train and retain qualified restaurant managers and personnel;
     
  managing construction and development costs of new restaurants at affordable levels;
     
  the establishment of brand awareness in new markets; and
     
  the ability of our Company to manage expansion.

 

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Additionally, competition for suitable restaurant sites in target markets is intense. Restaurants we open in new markets may take longer to reach expected sales and profit levels on a consistent basis and may have higher construction, occupancy or operating costs than restaurants we open in existing markets, thereby affecting our overall profitability.

 

New markets may have competitive conditions, consumer tastes and discretionary spending patterns that are more difficult to predict or satisfy than our existing markets. We may need to make greater investments than we originally planned in advertising and promotional activity in new markets to build brand awareness. We may find it more difficult in new markets to hire, motivate and keep qualified employees who share our vision, passion and culture. We may also incur higher costs from entering new markets if, for example, we assign regional managers to manage comparatively fewer restaurants than in more developed markets.

 

We may not be able to successfully develop critical market presence for our brand in new geographical markets, as we may be unable to find and secure attractive locations, build name recognition or attract new customers. Inability to fully implement or failure to successfully execute our plans to enter new markets could have a material adverse effect on our business, financial condition and results of operations.

 

Not all of these factors are within our control or the control of our partners, and there can be no assurance that we will be able to accelerate our growth or that we will be able to manage the anticipated expansion of our operations effectively.

 

We have debt financing arrangements, some of which are in default, which could have a material adverse effect on our financial health and our ability to obtain financing in the future, and may impair our ability to react quickly to changes in our business.

 

Our exposure to debt financing could limit our ability to satisfy our obligations, limit our ability to operate our business and impair our competitive position. For example, it could:

 

  increase our vulnerability to adverse economic and industry conditions, including interest rate fluctuations, because a portion of our borrowings are at variable rates of interest;
     
  require us to dedicate future cash flows to the repayment of debt, reducing the availability of cash to fund working capital, capital expenditures or other general corporate purposes;
     
  limit our flexibility in planning for, or reacting to, changes in our business and industry; and
     
  limit our ability to obtain additional debt or equity financing due to applicable financial and restrictive covenants contained in our debt agreements.

 

We may also incur additional indebtedness in the future, which could materially increase the impact of these risks on our financial condition and results of operations.

 

We may not be able to refinance our current debt obligations which are currently due and in default. Failure to successfully recapitalize the business could have a material adverse effect on our business, financial condition and results of operations.

 

Litigation and unfavorable publicity could negatively affect our results of operations as well as our future business.

 

We are subject to potential for litigation and other customer complaints concerning our food safety, service and/or other operational factors. Guests may file formal litigation complaints that we are required to defend, whether or not we believe them to be true. Substantial, complex or extended litigation could have an adverse effect on our results of operations if we incur substantial defense costs and our management is distracted. Employees may also, from time to time, bring lawsuits against us regarding injury, discrimination, wage and hour, and other employment issues. Additionally, potential disputes could subject us to litigation alleging non-compliance with franchise, development, support service, or other agreements. Additionally, we are subject to the risk of litigation by our stockholders as a result of factors including, but not limited to, performance of our stock price.

 

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In certain states we are subject to “dram shop” statutes, which generally allow a person injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages to the intoxicated person. Some dram shop litigation against restaurant companies has resulted in significant judgments, including punitive damages. We carry liquor liability coverage as part of our existing comprehensive general liability insurance, but we cannot provide assurance that this insurance will be adequate in the event we are found liable in a dram shop case.

 

In recent years there has been an increase in the use of social media platforms and similar devices that allow individuals’ access to a broad audience of consumers and other interested persons. The availability of information on social media platforms is virtually immediate in its impact. A variety of risks are associated with the use of social media, including the improper disclosure of proprietary information, negative comments about our Company, exposure of personally identifiable information, fraud or outdated information. The inappropriate use of social media platforms by our guests, employees or other individuals could increase our costs, lead to litigation, or result in negative publicity that could damage our reputation. If we are unable to quickly and effectively respond, we may suffer declines in guest traffic, which could materially affect our financial condition and results of operations.

 

Food safety and foodborne illness concerns could have an adverse effect on our business.

 

We cannot guarantee that our internal controls and training will be fully effective in preventing all food safety issues at our restaurants, including any occurrences of foodborne illnesses such as salmonella, E. coli and hepatitis A. In addition, there is no guarantee that our franchise restaurants will maintain the high levels of internal controls and training we require at our company-operated restaurants.

 

Furthermore, we and our franchisees rely on third-party vendors, making it difficult to monitor food safety compliance and increasing the risk that foodborne illness would affect multiple locations rather than a single restaurant. Some foodborne illness incidents could be caused by third-party vendors and transporters outside of our control. New illnesses resistant to our current precautions may develop in the future, or diseases with long incubation periods could arise, that could give rise to claims or allegations on a retroactive basis. One or more instances of foodborne illness in any of our restaurants or markets or related to food products we sell could negatively affect our restaurant revenue nationwide if highly publicized on national media outlets or through social media.

 

This risk exists even if it were later determined that the illness was wrongly attributed to us or one of our restaurants. A number of other restaurant chains have experienced incidents related to foodborne illnesses that have had a material adverse effect on their operations. The occurrence of a similar incident at one or more of our restaurants, or negative publicity or public speculation about an incident, could have a material adverse effect on our business, financial condition and results of operations.

 

We operate in the highly competitive restaurant industry. If we are not able to compete effectively, it will have a material adverse effect on our business, financial condition and results of operations.

 

We face significant competition from restaurants in the fast casual dining and traditional fast food segments of the restaurant industry. These segments are highly competitive with respect to, among other things, taste, price, food quality and presentation, service, location and the ambience and condition of each restaurant. Our competition includes a variety of locally owned restaurants and national and regional chains offering dine-in, carry-out, delivery and catering services. Many of our competitors have existed longer and have a more established market presence with substantially greater financial, marketing, personnel and other resources than we do. Among our competitors are a number of multi-unit, multi-market, fast casual restaurant concepts, some of which are expanding nationally. As we expand, we will face competition from these restaurant concepts as well as new competitors that strive to compete with our market segments. These competitors may have, among other things, lower operating costs, better locations, better facilities, better management, more effective marketing and more efficient operations. Additionally, we face the risk that new or existing competitors will copy our business model, menu options, presentation or ambience, among other things.

 

Any inability to successfully compete with the restaurants in our markets and other restaurant segments will place downward pressure on our customer traffic and may prevent us from increasing or sustaining our revenue and profitability. Consumer tastes, nutritional and dietary trends, traffic patterns and the type, number and location of competing restaurants often affect the restaurant business, and our competitors may react more efficiently and effectively to those conditions. Several of our competitors compete by offering menu items that are specifically identified as low in carbohydrates, gluten-free or healthier for consumers. In addition, many of our traditional fast food restaurant competitors offer lower-priced menu options or meal packages, or have loyalty programs. Our sales could decline due to changes in popular tastes, “fad” food regimens, such as low carbohydrate diets, and media attention on new restaurants. If we are unable to continue to compete effectively, our traffic, sales and restaurant contribution could decline which would have a material adverse effect on our business, financial condition and results of operations.

 

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Our rights to operate and franchise Hooters-branded restaurants are dependent on the Hooters’ franchise agreements.

 

Our rights to operate and franchise Hooters-branded restaurants, and our ability to conduct our business are derived principally from the rights granted or to be granted to us by Hooters in our franchise agreements. As a result, our ability to continue operating in our current capacity is dependent on the continuation and renewal of our contractual relationship with Hooters.

 

In the event Hooters does not grant us franchises to acquire additional locations or terminates our existing franchise agreements, we would be unable to operate and/or expand our Hooters-branded restaurants, identify our business with Hooters or use any of Hooters’ intellectual property. As the Hooters brand and our relationship with Hooters are among our competitive strengths, the failure to grant or the expiration or termination of the franchise agreements would materially and adversely affect our business, results of operations, financial condition and prospects.

 

Our business depends on our relationship with Hooters and changes in this relationship may adversely affect our business, results of operations and financial condition.

 

Pursuant to the franchise agreements, Hooters has the ability to exercise substantial influence over the conduct of our business. We must comply with Hooters’ high quality standards. We cannot transfer the equity interests of our subsidiaries without Hooters’ consent, and Hooters has the right to control many of the locations’ daily operations.

 

Notwithstanding the foregoing, Hooters has no obligation to fund our operations. In addition, Hooters does not guarantee any of our financial obligations, including trade payables or outstanding indebtedness, and has no obligation to do so. If the terms of the franchise agreements excessively restrict our ability to operate our business or if we are unable to satisfy our obligations under the franchise agreements, our business, results of operations and financial condition would be materially and adversely affected.

 

We do not have full operational control over the businesses where we control less than 100% ownership.

 

We are and will be dependent on our partners to maintain quality, service and cleanliness standards, and their failure to do so could materially affect our brands and harm our future growth. We do not presently have formal written agreements in place with any of our partners regarding these types of matters. Although we intend to exercise significant control over partners through written agreements in the future, our partners will continue to have some flexibility in the operations, including the ability to set prices for our products in their restaurants, hire employees and select certain service providers. In addition, it is possible that some partners may not operate their restaurants in accordance with our quality, service and cleanliness, health or product standards. Although we intend to take corrective measures if partners fail to maintain high quality service and cleanliness standards, we may not be able to identify and rectify problems with sufficient speed and, as a result, our image and operating results may be negatively affected.

 

A failure by Hooters to protect its intellectual property rights, including its brand image, could harm our results of operations.

 

The profitability of our Hooters business depends in part on consumers’ perception of the strength of the Hooters brand. Under the terms of our franchise agreements, we are required to assist Hooters with protecting its intellectual property rights in our jurisdictions. Nevertheless, any failure by Hooters to protect its proprietary rights in the world could harm its brand image, which could affect our competitive position and our results of operations.

 

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Our business could be adversely affected by declines in discretionary spending and may be affected by changes in consumer preferences.

 

Our success depends, in part, upon the popularity of our food products. Shifts in consumer preferences away from our restaurants or cuisine could harm our business. Also, our success depends to a significant extent on discretionary consumer spending, which is influenced by general economic conditions and the availability of discretionary income. Accordingly, we may experience declines in sales during economic downturns or during periods of uncertainty. A continuing decline in the amount of discretionary spending could have a material adverse effect on our sales, results of operations, and business and financial condition.

 

Increases in costs, including food, labor and energy prices, will adversely affect our results of operations.

 

Our profitability is dependent on our ability to anticipate and react to changes in our operating costs, including food, labor, occupancy (including utilities and energy), insurance and supplies costs. Various factors beyond our control, including climatic changes and government regulations, may affect food costs. Specifically, our dependence on frequent, timely deliveries of fresh meat and produce subject us to the risks of possible shortages or interruptions in supply caused by adverse weather or other conditions which could adversely affect the availability and cost of any such items. In the past, we have been able to recover some of our higher operating costs through increased menu prices. There have been, and there may be in the future, delays in implementing such menu price increases, and competitive pressures may limit our ability to recover such cost increases in their entirety.

 

Our ability to maintain consistent price and quality throughout our restaurants depends in part upon our ability to acquire specified food products and supplies in sufficient quantities from third-party vendors, suppliers and distributors at a reasonable cost. We do not control the businesses of our vendors, suppliers and distributors, and our efforts to specify and monitor the standards under which they perform may not be successful. If any of our vendors or other suppliers are unable to fulfill their obligations to our standards, or if we are unable to find replacement providers in the event of a supply or service disruption, we could encounter supply shortages and incur higher costs to secure adequate supplies, which would have a material adverse effect on our business, financial condition and results of operations.

 

Furthermore, if our current vendors or other suppliers are unable to support our expansion into new markets, or if we are unable to find vendors to meet our supply specifications or service needs as we expand, we could likewise encounter supply shortages and incur higher costs to secure adequate supplies, which could have a material adverse effect on our business, financial condition and results of operations.

 

Changes in employment laws and minimum wage standards may adversely affect our business.

 

Labor is a primary component in the cost of operating our restaurants. If we face labor shortages or increased labor costs because of increased competition for employees, higher employee turnover rates, increases in the federal, state or local minimum wage or other employee benefits costs (including costs associated with health insurance coverage), our operating expenses could increase and our growth could be negatively impacted.

 

In addition, our success depends in part upon our ability to attract, motivate and retain a sufficient number of well-qualified restaurant operators and management personnel, as well as a sufficient number of other qualified employees, including customer service and kitchen staff, to keep pace with our expansion schedule. In addition, restaurants have traditionally experienced relatively high employee turnover rates. Although we have not yet experienced significant problems in recruiting or retaining employees, our ability to recruit and retain such individuals may delay the planned openings of new restaurants or result in higher employee turnover in existing restaurants, which could have a material adverse effect on our business, financial condition and results of operations.

 

Various federal and state labor laws govern the relationship with our employees and impact operating costs. These laws include employee classification as exempt or non-exempt for overtime and other purposes, minimum wage requirements, unemployment tax rates, workers’ compensation rates, immigration status and other wage and benefit requirements. Significant additional government-imposed increases in the following areas could have a material adverse effect on our business, financial condition and results of operations:

 

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  minimum wages;
     
  mandatory health benefits;
     
  vacation accruals;
     
  paid leaves of absence, including paid sick leave; and
     
  tax reporting.

 

We could also become subject to fines, penalties and other costs related to claims that we did not fully comply with all recordkeeping obligations of federal and state immigration compliance laws. These factors could have a material adverse effect on our business, financial condition and results of operations.

 

We are subject to all of the risks associated with leasing space subject to long-term non-cancelable leases.

 

We lease substantially all of the real property and we expect the new restaurants we open in the future will also be leased. We are obligated under non-cancelable leases for our restaurants and our corporate headquarters. Our restaurant leases generally require us to pay a proportionate share of real estate taxes, insurance, common area maintenance charges and other operating costs. Some restaurant leases provide for contingent rental payments based on sales thresholds, although we generally do not expect to pay significant contingent rent on these properties based on the thresholds in those leases. Additional sites that we lease are likely to be subject to similar long-term non-cancelable leases.

 

If an existing or future restaurant is not profitable, and we decide to close it, we may nonetheless be committed to perform our obligations under the applicable lease including, among other things, paying the base rent for the balance of the lease term. In addition, as each of our leases expires, we may fail to negotiate renewals, either on commercially acceptable terms or at all, which could cause us to pay increased occupancy costs or to close restaurants in desirable locations. These potential increased occupancy costs and closed restaurants could have a material adverse effect on our business, financial condition and results of operations.

 

Our business and the growth of our Company are dependent on the skills and expertise of management and key personnel.

 

During the upcoming stages of our Company’s anticipated growth, we will be entirely dependent upon the management skills and expertise of our management and key personnel, including Michael Pruitt, our current Chairman and Chief Executive Officer. Mr. Pruitt also sits on HOA’s board of directors. The loss of services of Mr. Pruitt or other executive officers would dramatically affect our business prospects. Certain of our employees are particularly valuable to us because:

 

  they have specialized knowledge about our company and operations;
     
  they have specialized skills that are important to our operations; or
     
  they would be particularly difficult to replace.

 

In the event that the services of Mr. Pruitt or any key management personnel ceased to be available to us, our growth prospects or future operating results may be adversely impacted.

 

Our food service business, gaming revenues and the restaurant industry are subject to extensive government regulation.

 

We are subject to extensive and varied country, federal, state and local government regulation, including regulations relating to public health, gambling, safety and zoning codes. We operate each of our locations in accordance with standards and procedures designed to comply with applicable codes and regulations. However, if we could not obtain or retain food or other licenses, it would adversely affect our operations. Although we have not experienced, and do not anticipate experiencing any significant difficulties, delays or failures in obtaining required licenses, permits or approvals, any such problem could delay or prevent the opening of, or adversely impact the viability of, a particular location or group of restaurants.

 

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We may be subject to significant foreign currency exchange controls in certain countries in which we operate.

 

Certain foreign economies have experienced shortages in foreign currency reserves and their respective governments have adopted restrictions on the ability to transfer funds out of the country and convert local currencies into U.S. dollars. This may increase our costs and limit our ability to convert local currency into U.S. dollars and transfer funds out of certain countries. Any shortages or restrictions may impede our ability to convert these currencies into U.S. dollars and to transfer funds, including for the payment of dividends or interest or principal on our outstanding debt. In the event that any of our subsidiaries are unable to transfer funds to us due to currency restrictions, we are responsible for any resulting shortfall.

 

Our foreign operations subject us to risks that could negatively affect our business.

 

Most of our Hooters restaurants and some of our franchisee-owned restaurants operate in foreign countries and territories outside of the U.S. As a result, our business is exposed to risks inherent in foreign operations. These risks, which can vary substantially by market, include political instability, corruption, social and ethnic unrest, changes in economic conditions (including wage and commodity inflation, consumer spending and unemployment levels), the regulatory environment, tax rates and laws and consumer preferences as well as changes in the laws and policies that govern foreign investment in countries where our restaurants are operated.

 

In addition, our results of operations and the value of our foreign assets are affected by fluctuations in foreign currency exchange rates, which may adversely affect reported earnings. More specifically, an increase in the value of the United States Dollar relative to other currencies, such as the British Pound and the South African Rand could have an adverse effect on our reported earnings. There can be no assurance as to the future effect of any such changes on our results of operations, financial condition or cash flows.

 

We may not attain our target development goals and aggressive development could cannibalize existing sales.

 

Our growth strategy depends in large part on our ability to increase our net restaurant count. The successful development of new units will depend in large part on our ability and the ability of our franchisees to open new restaurants and to operate these restaurants on a profitable basis. We cannot guarantee that we, or our franchisees, will be able to achieve our expansion goals or that new restaurants will be operated profitably. Further, there is no assurance that any new restaurant will produce operating results similar to those of our existing restaurants. Other risks that could impact our ability to increase our net restaurant count include prevailing economic conditions and our, or our franchisees’/partners’, ability to obtain suitable restaurant locations, obtain required permits and approvals in a timely manner and hire and train qualified personnel.

 

Our franchisee operators also frequently depend upon financing from banks and other financial institutions in order to construct and open new restaurants. If it becomes more difficult or expensive for our franchisees/partners to obtain financing to develop new restaurants, our planned growth could slow and our future revenue and cash flows could be adversely impacted.

 

In addition, the new restaurants could impact the sales of our existing restaurants nearby. It is not our intention to open new restaurants that materially cannibalize the sales of our existing restaurants. However, as with most growing retail and restaurant operations, there can be no assurance that sales cannibalization will not occur or become more significant in the future as we increase our presence in existing markets over time.

 

Changing conditions in the global economy and financial markets may materially adversely affect our business, results of operations and ability to raise capital.

 

Our business and results of operations may be materially affected by conditions in the financial markets and the economy generally. The demand for our products could be adversely affected in an economic downturn and our revenues may decline under such circumstances. In addition, we may find it difficult, or we may not be able, to access the credit or equity markets, or we may experience higher funding costs in the event of adverse market conditions. Future instability in these markets could limit our ability to access the capital we require to fund and grow our business.

 

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Changes to accounting rules or regulations may adversely affect the reporting of our results of operations.

 

Changes to existing accounting rules or regulations may impact the reporting of our future results of operations or cause the perception that we are more highly leveraged. Other new accounting rules or regulations and varying interpretations of existing accounting rules or regulations have occurred and may occur in the future. For instance, accounting regulatory authorities have indicated that they will require lessees to capitalize operating leases in their financial statements. Such a change would require us to record significant lease obligations on our balance sheet and make other changes to our financial statements. This and other future changes to accounting rules or regulations could have a material adverse effect on the reporting of our business, financial condition and results of operations. In addition, many existing accounting standards require management to make subjective assumptions, such as those required for stock compensation, tax matters, franchise accounting, acquisitions, litigation, and asset impairment calculations. Changes in accounting standards or changes in underlying assumptions, estimates and judgments by our management could significantly change our reported or expected financial performance.

 

We may not be able to adequately protect our intellectual property, which could harm the value of our brand and have a material adverse effect on our business, financial condition and results of operations.

 

Our intellectual property is material to the conduct of our business. Our ability to implement our business plan successfully depends in part on our ability to further build brand recognition using our trademarks, service marks, trade dress and other proprietary intellectual property, including our name and logos and the unique ambience of our restaurants. While it is our policy to protect and defend vigorously our rights to our intellectual property, we cannot predict whether steps taken by us to protect our intellectual property rights will be adequate to prevent misappropriation of these rights or the use by others of restaurant features based upon, or otherwise similar to, our restaurant concept. It may be difficult for us to prevent others from copying elements of our concept and any litigation to enforce our rights will likely be costly and may not be successful. Although we believe that we have sufficient rights to all of our trademarks and service marks, we may face claims of infringement that could interfere with our ability to market our restaurants and promote our brand. Any such litigation may be costly and could divert resources from our business. Moreover, if we are unable to successfully defend against such claims, we may be prevented from using our trademarks or service marks in the future and may be liable for damages, which in turn could have a material adverse effect on our business, financial condition and results of operations.

 

In addition, we license certain of our proprietary intellectual property, including our name and logos, to third parties. For example, we grant our franchisees and licensees a right to use certain of our trademarks in connection with their operation of the applicable restaurant. If a franchisee or other licensee fails to maintain the quality of the restaurant operations associated with the licensed trademarks, our rights to, and the value of, our trademarks could potentially be harmed. Negative publicity relating to the franchisee or licensee could also be incorrectly associated with us, which could harm our business. Failure to maintain, control and protect our trademarks and other proprietary intellectual property would likely have a material adverse effect on our business, financial condition and results of operations and on our ability to enter into new franchise agreements.

 

We may incur costs resulting from breaches of security of confidential consumer information related to our electronic processing of credit and debit card transactions.

 

The majority of our restaurant sales are by credit or debit cards. Other restaurants and retailers have experienced security breaches in which credit and debit card information has been stolen. We may in the future become subject to claims for purportedly fraudulent transactions arising out of the actual or alleged theft of credit or debit card information, and we may also be subject to lawsuits or other proceedings relating to these types of incidents. In addition, most states have enacted legislation requiring notification of security breaches involving personal information, including credit and debit card information. Any such claim or proceeding could cause us to incur significant unplanned expenses, which could have a material adverse effect on our business, financial condition and results of operations. Further, adverse publicity resulting from these allegations may have a material adverse effect on our business and results of operations.

 

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We rely heavily on information technology, and any material failure, weakness, interruption or breach of security could prevent us from effectively operating our business.

 

We rely heavily on information systems, including point-of-sale processing in our restaurants, for management of our supply chain, payment of obligations, collection of cash, credit and debit card transactions and other processes and procedures. Our ability to efficiently and effectively manage our business depends significantly on the reliability and capacity of these systems. Our operations depend upon our ability to protect our computer equipment and systems against damage from physical theft, fire, power loss, telecommunications failure or other catastrophic events, as well as from internal and external security breaches, viruses and other disruptive problems. The failure of these systems to operate effectively, maintenance problems, upgrading or transitioning to new platforms, or a breach in security of these systems could result in delays in customer service and reduce efficiency in our operations. Remediation of such problems could result in significant, unplanned capital investments.

 

Adverse weather conditions could affect our sales.

 

Adverse weather conditions, such as regional winter storms, floods, severe thunderstorms and hurricanes, could affect our sales at restaurants in locations that experience these weather conditions, which could materially adversely affect our business, financial condition or results of operations.

 

The uncertainty surrounding the implementation and effect of Brexit may impact our UK operations.

 

The uncertainty surrounding the implementation and effect of Brexit, including the commencement of the exit negotiation period, the terms and conditions of such exit, the uncertainty in relation to the legal and regulatory framework that would apply to the UK and its relationship with the remaining members of the EU (including, in relation to trade) during a withdrawal process and after any Brexit is effected, has caused and is likely to cause increased economic volatility and market uncertainty globally. It is too early to ascertain the long term effects. To date, the only measurable impact is attributable to the decline in the pound sterling as measured against the U.S. dollar.

 

Negative publicity could reduce sales at some or all of our restaurants.

 

We may, from time to time, be faced with negative publicity relating to food quality and integrity, the safety, sanitation and welfare of our restaurant facilities, customer complaints or litigation alleging illness or injury, health inspection scores, integrity of our or our suppliers’ food processing and other policies, practices and procedures, employee relationships and welfare or other matters at one or more of our restaurants. Negative publicity may adversely affect us, regardless of whether the allegations are valid or whether we are held to be responsible. The risk of negative publicity is particularly great with respect to our franchised restaurants because we are limited in the manner in which we can regulate them, especially on a real-time basis and negative publicity from our franchised restaurants may also significantly impact company-operated restaurants. A similar risk exists with respect to food service businesses unrelated to us, if customers mistakenly associate such unrelated businesses with our operations. Employee claims against us based on, among other things, wage and hour violations, discrimination, harassment or wrongful termination may also create not only legal and financial liability but negative publicity that could adversely affect us and divert our financial and management resources that would otherwise be used to benefit the future performance of our operations. These types of employee claims could also be asserted against us, on a co-employer theory, by employees of our franchisees. A significant increase in the number of these claims or an increase in the number of successful claims could materially adversely affect our business, financial condition, results of operations and cash flows.

 

The interests of our franchisees may conflict with ours or yours in the future and we could face liability from our franchisees or related to our relationship with our franchisees.

 

Franchisees, as independent business operators, may from time to time disagree with us and our strategies regarding the business or our interpretation of our respective rights and obligations under the franchise agreement and the terms and conditions of the franchisee/franchisor relationship or have interests adverse to ours. This may lead to disputes with our franchisees and we expect such disputes to occur from time to time in the future as we continue to offer franchises. Such disputes may result in legal action against us. To the extent we have such disputes, the attention, time and financial resources of our management and our franchisees will be diverted from our restaurants, which could have a material adverse effect on our business, financial condition, results of operations and cash flows even if we have a successful outcome in the dispute.

 

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In addition, various state and federal laws govern our relationship with our franchisees and our potential sale of a franchise. A franchisee and/or a government agency may bring legal action against us based on the franchisee/franchisor relationships that could result in the award of damages to franchisees and/or the imposition of fines or other penalties against us.

 

We are in default under certain of our notes payable and convertible debt obligations. Our ability to operate as a going concern are contingent upon successfully obtaining additional financing and renegotiating terms of existing indebtedness in the near future. Failure to do so would adversely affect our ability to continue operations.

 

If capital is not available or we are not able to agree on reasonable terms with our lenders, we may then need to scale back or freeze our organic growth plans, sell assets under unfavorable terms, reduce expenses, and/or curtail future acquisition plans to manage our liquidity and capital resources. We may not be able refinance or otherwise extend or repay our current obligations which could impact our ability to continue to operate as a going concern

 

Risks Related to Our Common Stock

 

Our stock price has experienced price fluctuations and may continue to do so, resulting in a substantial loss in your investment.

 

The current market for our common stock has been characterized by volatile prices. As a result, investors in our common stock may experience a decrease in the value of their securities, including decreases unrelated to our operating performance or prospects. The market price of our common stock is likely to be highly unpredictable and subject to wide fluctuations in response to various factors, many of which are beyond our control. These factors include:

 

  quarterly variations in our operating results and achievement of key business metrics;
     
  changes in the global economy and in the local economies in which we operate;
     
  our ability to obtain working capital financing, if necessary;
     
  the departure of any of our key executive officers and directors;
     
  changes in the federal, state, and local laws and regulations to which we are subject;
     
  changes in earnings estimates by securities analysts, if any;
     
  any differences between reported results and securities analysts’ published or unpublished expectations;
     
  market reaction to any acquisitions, joint ventures or strategic investments announced by us or our competitors;
     
  future sales of our securities;
     
  announcements or press releases relating to the casual dining restaurant sector or to our own business or prospects;
     
  regulatory, legislative, or other developments affecting us or the restaurant industry generally; and
     
  market conditions specific to casual dining restaurant, the restaurant industry and the stock market generally.

 

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Our common stock could be further diluted as the result of the issuance of additional shares of common stock, convertible securities, warrants or options.

 

In the past, we have issued common stock, convertible securities (such as convertible notes) and warrants in order to raise capital. We have also issued common stock as compensation for services and incentive compensation for our employees and directors. We have shares of common stock reserved for issuance upon the exercise of certain of these securities and may increase the shares reserved for these purposes in the future. Our issuance of additional common stock, convertible securities, options and warrants could affect the rights of our stockholders, could reduce the market price of our common stock or could result in adjustments to exercise prices of outstanding warrants (resulting in these securities becoming exercisable for, as the case may be, a greater number of shares of our common stock), or could obligate us to issue additional shares of common stock to certain of our stockholders.

 

Shares eligible for future sale may adversely affect the market.

 

From time to time, certain of our stockholders may be eligible to sell all or some of their shares of common stock by means of ordinary brokerage transactions in the open market pursuant to Rule 144 promulgated under the Securities Act, subject to certain limitations. In general, pursuant to Rule 144, stockholders who have been non-affiliates for the preceding three months may sell shares of our common stock freely after six months subject only to the current public information requirement. Affiliates may sell shares of our common stock after six months subject to the Rule 144 volume, manner of sale, current public information and notice requirements. Any substantial sales of our common stock pursuant to Rule 144 may have a material adverse effect on the market price of our common stock.

 

While our public warrants are outstanding, it may be more difficult to raise additional equity capital.

 

We have warrants that are publicly traded on NASDAQ under the symbol “HOTRW”. During the term that the public warrants are outstanding, the holders of the public warrants will be given the opportunity to profit from a rise in the market price of our common stock. We may find it more difficult to raise additional capital while these public warrants are outstanding. At any time during which these public warrants are likely to be exercised, we may be able to obtain additional capital on more favorable terms from other sources. These warrants expire in June 2017.

 

We do not expect to pay cash dividends in the foreseeable future and therefore investors should not anticipate cash dividends on their investment.

 

Our board of directors does not intend to pay cash dividends in the foreseeable future but instead intends to retain any and all earnings to finance the growth of the business. To date, we have not paid any cash dividends and there can be no assurance that cash dividends will ever be paid on our common stock.

 

We may issue additional shares of our common stock, which could depress the market price of our common stock and dilute your ownership.

 

Market sales of large amounts of our common stock, or the potential for those sales even if they do not actually occur, may have the effect of depressing the market price of our common stock. In addition, if our future financing needs require us to issue additional shares of common stock or securities convertible into common stock, the amount of common stock available for resale could be increased which could stimulate trading activity and cause the market price of our common stock to drop, even if our business is doing well. Furthermore, the issuance of any additional shares of our common stock, or securities convertible into our common stock could be substantially dilutive to holders of our common stock.

 

Director and officer liability is limited.

 

As permitted by Delaware law, our bylaws limit the liability of our directors for monetary damages for breach of a director’s fiduciary duty except for liability in certain instances. As a result of our bylaw provisions and Delaware law, stockholders may have limited rights to recover against directors for breach of fiduciary duty.

 

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Failure to establish and maintain effective internal controls in accordance with Section 404 of the Sarbanes-Oxley Act could have a material adverse effect on our business and stock price.

 

As a publicly traded company, we are required to comply with the SEC’s rules implementing Sections 302 and 404 of the Sarbanes-Oxley Act, which requires management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of controls over financial reporting. We have identified internal control weaknesses and may need to undertake various actions, such as implementing new internal controls, new systems and procedures and hiring additional accounting or internal audit staff, which could increase our operating expenses. In addition, we may identify additional deficiencies in our internal control over financial reporting as part of that process.

 

In addition, if we are unable to resolve internal control deficiencies in a timely manner, investors could lose confidence in the accuracy and completeness of our financial reports and the market price of our common stock could be negatively affected.

 

We have been notified by NASDAQ of its intent to delist our Common Shares. We intend to implement a reverse stock split of our common stock in order to regain compliance with Nasdaq’s continued listing requirements.

 

The Nasdaq Listing Qualifications Department (“Staff”) notified us on February 18, 2016 that the bid price of our common stock had closed at less than $1 per share over the previous 30 consecutive business days, and, as a result, did not comply with Listing Rule 5550(a)(2). Therefore, in accordance with Listing Rule 5810(c)(3)(A), we were provided 180 calendar days, or until August 16, 2016, to regain compliance with the Rule. Subsequently, on August 17, 2016, we were provided an additional 180 calendar day compliance period, or until February 13, 2017, to demonstrate compliance.

 

We did not regain compliance with Listing Rule 5550(a)(2) and received a delisting determination from Nasdaq on February 14, 2017. We appealed the Staff’s determination to a Hearings Panel (the “Panel”), pursuant to the procedures set forth in the Nasdaq Listing Rule 5800 Series. The hearing request stayed the suspension of our securities and the filing of the Form 25-NSE (which Form would remove our securities from listing and registration on The Nasdaq Stock Market) pending the Panel’s decision. As part of its plan to regain compliance, our Board of Directors has approved an anticipated reverse stock split at a ratio of up to 1-for-10, which will be placed on the proxy for vote at the Company’s upcoming shareholder meeting expected in May.

 

Item 2: Properties

 

The Company, through its subsidiaries, leases the land and buildings for our five restaurants in South Africa, one restaurant in Nottingham, United Kingdom, and thirty-six restaurants in the U.S. The terms for our leases vary from two to twenty years and have options to extend. We lease some of our restaurant facilities under “triple net” leases that require us to pay minimum rent, real estate taxes, maintenance costs and insurance premiums and, in some instances, percentage rent based on sales in excess of specified amounts. We also lease our corporate office space in Charlotte, North Carolina.

 

We own one commercial real estate property in Port Elizabeth, South Africa.

 

Our office and restaurant facilities are suitable and adequate for our business as it is presently conducted.

 

Item 3: Legal proceedings

 

On March 26, 2013, our South African operations received Notice of Motion filed inn the Kwazulu-Natal High Court, Durban, Republic of South Africa, filed against Rolalor (PTY) LTD (“Rolalor”) and Labyrinth Trading 18 (PTY) LTD (“Labyrinth”) by Jennifer Catherine Mary Shaw (“Shaw”). Rolalor and Labyrinth were the original entities formed to operate the Johannesburg and Durban locations, respectively. On September 9, 2011, the assets and the then-disclosed liabilities of these entities were transferred to Tundraspex (PTY) LTD (“Tundraspex”) and Dimaflo (PTY) LTD (“Dimaflo”), respectively. The current entities, Tundraspex and Dimaflo are not parties in the lawsuit. Shaw is requesting that the Respondents, Rolalor and Labyrinth, be wound up in satisfaction of an alleged debt owed in the total amount of R4,082,636 (approximately $480,000). The two Notices were defended and argued in the High Court of South Africa (Durban) on January 31, 2014. Madam Justice Steryi dismissed the action with costs on May 5, 2014. Ms. Shaw appealed this decision and in December 2016, the Court dismissed the Labyrinth case with costs payable to the Company, and allowed the Rolalor case to proceed to liquidation. The Company did not object to the proposed liquidation of Rolalor as the entity has no assets and the Company does not expect there to be any material impact on the Company. No amounts have been accrued as of December 31, 2016 or 2015 in the accompanying consolidated balance sheets.

 

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On January 28, 2016, our Just Fresh subsidiary was notified that it had been served with a copyright infringement complaint, Kevin Chelko Photography, Inc. f. JF Restaurants, LLC, Case No. 3:13-CV-60-GCM (W.D. N.C.). The claim was filed in the United States District Court for the Western District of North Carolina Charlotte Division and seeks unspecified damages related to the use of certain photographic assets allegedly in violation of the United States copyright laws. On January 19, 2017, the case was dismissed with no damages being awarded and no amounts have been reflected in the accompanying consolidated balance sheets as of December 31, 2016, or December 31, 2015.

 

Prior to the Company’s acquisition of Little Big Burger, a class action lawsuit was filed in Oregon by certain current and former employees of Little Big Burger asserting that the former owners of Little Big Burger failed to compensate employees for overtime hours and also that an employee had been wrongfully terminated. The plaintiffs and defendants agreed to enter into a settlement agreement pursuant to which the former owners of Little Big Burger will pay a gross settlement of up to $675,000, inclusive of plaintiffs’ attorney’s fees of $225,000. This settlement was approved by the court and all settlement payments were distributed by the sellers and this matter closed prior to September 30, 2016.

 

In connection with our acquisition of Little Big Burger, the sellers agreed that the 1,619,646 shares of the Company’s common stock certain of the sellers received from the Company and an additional $200,000 in cash would be held in escrow until such time as the litigation was fully resolved. The Company reflected the $675,000 settlement amount in accrued liabilities, with an offsetting asset in other current assets, in the accompanying consolidated balance sheets as of December 31, 2015. As of December 31 2016, the lawsuit had been fully resolved and all amounts paid by the sellers. Accordingly, no amounts are reflected in the Company’s balance sheet as of December 31, 2016.

 

From time to time, the Company may be involved in legal proceedings and claims that have arisen in the ordinary course of business.

 

Item 4: mine safety disclosures

 

Not applicable.

 

PART II

 

Item 5: Market for Registrant’s Common Equity, Related Stockholder Matters AND ISSUER PURCHASES OF EQUITY SECURITIES

 

Our common stock is listed on the NASDAQ Capital Market under the symbol “HOTR”.

 

The market high and low prices on the NASDAQ for the years ending December 31, 2016 and 2015 are as follows:

 

QUARTER ENDED   HIGH   LOW 
          
December 31, 2016   $0.90   $0.38 
September 30, 2016   $0.64   $0.36 
June 30, 2016   $0.64   $0.41 
March 31, 2016   $1.02   $0.64 
            
December 31, 2015   $1.32   $0.75 
September 30, 2015   $2.73   $1.03 
June 30, 2015   $4.18   $2.17 
March 31, 2015   $3.07   $1.65 

 

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Number of Shareholders and Total Outstanding Shares

 

As of March 20, 2017, there were 21,999,507 shares issued and outstanding, respectively, held by approximately 185 shareholders of record.

 

Reverse Split

 

Our Board of Directors has approved an anticipated reverse stock split at a ratio of up to 1-for-10, which will be placed on the proxy for vote at the Company’s upcoming shareholder meeting expected in May 2017. If a reverse split is implemented as anticipated, the number of outstanding shares will be reduced by the split ratio (up to 1-for 10). All information contained in this Annual Report has been presented on a historical basis without adjustment to reflect a potential reverse split.

 

Dividends on Common Stock

 

We have not previously declared a cash dividend on our common stock and we do not anticipate the payment of dividends in the near future.

 

Recent Sales of Unregistered Securities

 

Sales of our common stock during the first three quarters of 2016 were reported in Item 2 of Part II of the Form 10-Q filed for each quarter. There were no sales of common stock during the fourth quarter of 2016 to be reported.

 

The Company believes that the foregoing transactions were exempt from the registration requirements under Rule 506 of Regulation D promulgated under the Securities Act of 1933, as amended (the “1933 Act”) or Section 4(2) under the 1933 Act, based on the following facts: in each case, there was no general solicitation, there was a limited number of investors, each of whom was an “accredited investor” (within the meaning of Regulation D under the 1933 Act, as amended) and/or was (either alone or with his/her purchaser representative) sophisticated about business and financial matters, each such investor had the opportunity to ask questions of our management and to review our filings with the Securities and Exchange Commission, and all securities issued were subject to restrictions on transfer, so as to take reasonable steps to assure that the purchasers were not underwriters within the meaning of Section 2(11) under the 1933 Act.

 

Item 6: Selected Financial Data

 

Not applicable.

 

Item 7: Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

You should read the following discussion of our results of operations and financial condition together with the Selected Financial Data and our audited consolidated financial statements as of and for the year ended December 31, 2016 including the notes thereto, included in this Report. The discussion below contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to, those described in Item 1A. “Risk Factors”. Actual results may differ materially from those contained in any forward-looking statements. Forward-looking statements speak only as of the date they are made. We undertake no obligation to update or revise such statements to reflect new circumstances or unanticipated events as they occur, and you are urged to review and consider disclosures that we make in this and other reports that discuss factors germane to our business.

 

Management’s Analysis of Business

 

We are in the business of owning, operating and franchising fast casual and full service dining concepts in the United States and internationally.

 

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We own, operate and franchise a system-wide total of 39 fast casual restaurants specializing the “Better Burger” category of which 27 are company-owned and 12 are operated by franchisees under franchise agreements. American Burger Company (“ABC”) is a fast casual dining chain consisting of nine locations in New York and the Carolinas, known for its diverse menu featuring, customized burgers, milk shakes, sandwiches, fresh salads and beer and wine. BGR: The Burger Joint (“BGR”), consists of 10 company-owned locations in the United States and 12 franchisee-operated locations in the United States and the Middle East. Little Big Burger (“LBB”) consists of 8 locations in Oregon.

 

We also own and operate Just Fresh, our healthier eating fast casual concept with 7 company owned locations in Charlotte, North Carolina. Just Fresh offers fresh-squeezed juices, gourmet coffee, fresh-baked goods and premium-quality, made-to-order sandwiches, salads and soups.

 

We own and operate 9 Hooters full service restaurants in the United States, South Africa, and the United Kingdom. Hooters restaurants are casual beach-themed establishments featuring music, sports on large flat screens, and a menu that includes seafood, sandwiches, burgers, salads, and of course, Hooters original chicken wings and the “nearly world famous” Hooters Girls.

 

As of December, 31, 2016, our system-wide store count totaled 55 locations, consisting of 43 company-owned locations and 12 franchisee-operated locations.

 

RESULTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2016 COMPARED TO THE YEAR ENDED DECEMBER 31, 2015

 

Our results of operations are summarized below:

 

   Year Ended     
   December 31, 2016   December 31, 2015     
   Amount   % of Revenue*   Amount   % of Revenue*   % Change 
                     
Restaurant sales, net  $40,640,159        $34,201,668         18.8%
Gaming income, net   441,620         367,666         20.1%
Management fee income   100,000         424,829         -76.5%
Franchise income   520,222         359,424         44.7%
Total revenue   41,702,001         35,353,587         18.0%
                          
Expenses:                         
Restaurant cost of sales   13,392,078    33.0%   11,754,515    34.4%   13.9%
Restaurant operating expenses   22,641,951    55.7%   19,677,617    57.5%   15.1%
Restaurant pre-opening and closing expenses   145,130    0.4%   505,098    1.5%   -71.3%
General and administrative   5,801,033    13.9%   6,798,642    19.2%   -14.7%
Depreciation and amortization   2,341,697    5.6%   1,697,514    4.8%   37.9%
Total expenses   44,321,889    106.3%   40,433,386    114.4%   9.6%
Operating loss from continuing operations  $(2,619,888)       $(5,079,799)        -48.4%

 

* Restaurant cost of sales, operating expenses and pre-opening and closing expense percentages are based on restaurant sales, net .

 

Other percentages are based on total revenue.

 

Revenue

 

Total revenue increased 18.0% to $42.0 million for the year ended December 31, 2016 from $35.4 million for the year ended December 31, 2015.

 

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Revenues by concept, revenue type and store count are summarized below for each period:

 

   Year Ended December 31, 2016   Store Count, end of period 
Revenue  Restaurant   Gaming   Franchise   Mgmt Fee   Total   % of Total   Company   Franchise   Total 
Better Burgers Fast Casual  $22,068,336   $-   $520,222   $-   $22,588,558    54.2%   27    12    39 
Just Fresh Fast Casual   5,684,635    -    -    -    5,684,635    13.6%   7    -    7 
Hooters Full Service   12,887,188    441,620    -    -    13,328,808    32.0%   9    -    9 
Corporate and Other   -    -    -    100,000    100,000    0.2%   -    -    - 
Total Revenue  $40,640,159   $441,620   $520,222   $100,000   $41,702,001    100.0%   43    12    55 

 

   Year Ended December 31, 2015   Store Count, end of period 
Revenue  Restaurant   Gaming   Franchise   Mgmt Fee   Total   % of Total   Company   Franchise   Total 
Better Burgers Fast Casual  $14,182,670   $-   $359,424   $-   $14,542,094    41.1%   27    13    40 
Just Fresh Fast Casual   5,498,790    -    -    -    5,498,790    15.6%   7         7 
Hooters Full Service   14,520,208    367,666    -    -    14,887,874    42.1%   9         9 
Corporate and Other   -    -    -    424,829    424,829    1.2%   -    -    - 
Total Revenue  $34,201,668   $367,666   $359,424   $424,829   $35,353,587    100.0%   43    13    56 

 

   % Change in Revenues Year over Year 
Revenue  Restaurant   Gaming   Franchise   Mgmt Fee   Total 
Better Burgers Fast Casual   55.6%   -    44.7%   -    55.3%
Just Fresh Fast Casual   3.4%   -    -    -    3.4%
Hooters Full Service   -11.2%   20.1%   -    -    -10.5%
Corporate and Other   -    -    -    -76.5%   -76.5%
Total Revenue   18.8%   20.1%   44.7%   -76.5%   18.0%

 

Total restaurant revenues increased 18.0% to $40.6 million for the year ended December 31, 2016 from $34.2 million for the year ended December 31, 2015. Revenue increased primarily due the inclusion of operations acquired during 2015 for a full year in 2016 as compared to partial year revenues from those acquired operations in 2015. The increase in revenue from acquisitions was partially offset by the unfavorable impact of a stronger US dollar on the translation of the South Africa and United Kingdom local currency results into US dollars for financial reporting.

 

Revenue from the Company’s Better Burger Group increased 55.3% to $22.6 million for the year ended December 31, 2016 from $14.5 million for the year ended December 31, 2015. The growth in our Better Burger Group was primarily due to the 2015 acquisitions of Little Big Burger, BGR The Burger Joint and BT’s Burger Joint which generated a full 12 months of revenue in 2016. In addition, same store revenues from American Burger locations open in both periods increased 4.0% and the Company opened one new BGR location at Springfield Mall in Virginia and closed one American Burger location in Colombia, South Carolina during mid-2015.

 

Revenue from the Company’s Just Fresh Group increased 3.4% to $5.7 million for the year ended December 31, 2016 from $5.5 million for the year ended December 31, 2015. Revenue growth resulted from primarily the addition of one new location in early 2016, partially offset by a decrease in same store revenue of 0.7%

 

Revenue from the Company’s Hooter’s restaurants decreased 10.5% to $13.3 million for the year ended December 31, 2016 from $14.8 million for the year ended December 31, 2015. The decline in Hooters revenue was largely the result of fluctuations in foreign currency rates on the translation of local currency results to US dollars for financial reporting. Revenue declined 14.1 % in United Kingdom on a US dollar basis (as compared with 3.1% on a local currency basis), and were negatively impacted by economic and currency rate trends following the recent “Brexit” vote in that region. Excluding Port Elizabeth which opened in 2016, same store sales at our South Africa locations decreased 19.1% on a US dollar basis currency basis (as compared with 6.8% on a local currency basis) and were impacted by soft local economic conditions which effected local consumer spending and exchange rates.

 

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Gaming revenue increased 20.1% to $442 thousand for the year ended December 31, 2016 from $368 thousand for the year ended December 31, 2015 due to increased play resulting from upgrades to the gaming equipment and furniture in late 2015 and early 2016.

 

Management fee income decreased 76.5% to $100 thousand for the year ended December 31, 2016 from $425 thousand for the year ended December 31, 2015. The Company derives management fee income from serving as general partner for its investment in HOA LLC and as compensation for the Company’s CEO serving on the board of Hooters of America In the current year, the Company recognized $0.1 million in management fees from HOA board fees and did not receive distribution from Hooters of America. In the prior year, the Company received a cash distribution totaling $0.5 million on its interest in HOA LLC, of which $0.3 million was reflected in management fee income (along with $0.1 million in board fees from HOA) and $0.2 million was reflected in interest and other income.

 

Franchise income increased 44.7% to $0.5 million for the year ended December 31, 2016 from $0.4 million for the year ended December 31, 2015. The Company commenced its franchise operations in March 2015 with the acquisition of BGR and recognized a full year of franchise income in 2016 as compared with a partial year in 2015.

 

Restaurant cost of sales

 

Restaurant cost of sales increased 13.9% to $13.4 million for the year ended December 31, 2016 from $11.8 million for the year ended December 31, 2015. By comparison, related restaurant revenues increased by 18.8% over the same period.

 

   Year Ended     
   December 31, 2016   December 31, 2015     
Cost of Restaurant Sales  Amount   % of Restaurant Net Sales   Amount   % of Restaurant Net Sales   % Change 
Better Burgers Fast Casual  $7,126,736    32.3%  $4,770,460    33.6%   49.4%
Just Fresh Fast Casual   1,980,099    34.8%   1,946,550    35.4%   1.7%
Hooters Full Service   4,285,243    33.3%   5,037,505    34.7%   -14.9%
   $13,392,078    33.0%  $11,754,515    34.4%   13.9%

 

As a percentage of restaurant sales, net, restaurant cost of sales decreased to 33.0% for the year ended December 31, 2016 from 34.4% for the year ended December 31, 2015.

 

Cost of sales improved in all three operating segments with the Better Burger group improving from 33.6% to 32.3%, Hooters improving from 34.7% to 33.3% and Just Fresh improving from 35.4% to 34.8%. These improvements are attributable to several factors, including price reductions and other efficiencies as a result of our increased scale and purchasing power, menu price increases which have been implemented at most locations during the first half of 2016, and the favorable impact of reductions in beef and other commodity prices during the past year.

 

Restaurant operating expenses

 

Restaurant operating expenses increased 15.1% to $22.6 million for the year ended December 31, 2016 from $19.7 million for the year ended December 31, 2015.

 

Our restaurant operating expenses as well as the percentage of cost of restaurant sales to restaurant revenues for each region of operations is included in the following table:

 

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   Year Ended     
   December 31, 2016   December 31, 2015     
Operating Expenses  Amount   % of Restaurant Net Sales   Amount   % of Restaurant Net Sales   % Change 
Better Burgers Fast Casual  $12,176,518    55.2%  $8,272,412    58.3%   47.2%
Just Fresh Fast Casual   2,959,597    52.1%   2,975,085    54.1%   -0.5%
Hooters Full Service   7,505,836    58.2%   8,430,120    58.1%   -11.0%
   $22,641,951    55.7%  $19,677,617    57.5%   15.1%

 

As a percent of restaurant revenues, operating expenses improved to 55.7% for the year ended December 31, 2016 from 57.5% for the year ended December 31, 2015. Operating expenses as a percent of revenue improved in the Better Burger group from 58.3% to 55.2%, and in the Just Fresh business from 54.1% to 52.1%. Operating expenses in our Hooters group remained consistent at 58.2% from 58.1%.

 

The most significant driver of improved overall operating expenses was in our Better Burger group, where lower operating costs inherent in Little Big Burger’s more efficient operating model created improved operating leverage for the overall group. Operating expense comparisons also benefited from the closure of the American Burger Company’s Columbia South Carolina location in 2015 which carried higher fixed operating costs than our other stores. Just Fresh improved due to increased focus on controlling costs.

 

Restaurant pre-opening and closing expenses

 

Restaurant pre-opening and closing expenses decreased 71.3% to $0.1 million for the year ended December 31, 2016 compared with $0.5 million for the year ended December 31, 2015. During 2015, the Company incurred costs related to closure of the American Burger Company Colombia, South Carolina location and the opening of the Hooters Port Elizabeth location in South Africa. During 2016, the Company incurred costs related to three Little Big Burger stores that are currently under construction and expected to open in early 2017.

 

General and Administrative Expense (“G&A”)

 

G&A decreased 14.7% to $5.8 million for the year ended December 31, 2016 from $6.8 million for the year ended December 31, 2015. Significant components of G&A are summarized as follows:

 

   Year Ended 
   December 31, 2016   December 31, 2015 
Audit, legal and other professional services  $1,004,429   $1,399,072 
Salary and benefits   2,798,247    2,499,450 
Consulting and other fees   370,631    1,459,532 
Travel and entertainment   337,944    342,025 
Shareholder services and fees   80,291    85,960 
Advertising, Insurance and other   1,209,491    1,012,603 
Total G&A Expenses  $5,801,033   $6,798,642 

 

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As a percentage of total restaurant revenue, G&A decreased to 13.9% for the year ended December 31, 2016 from 19.2% for the year ended December 31, 2015.

 

For the current year, approximately $2.8 million, or 48% of total G&A, is attributable to the cost of operating our Corporate office, including salaries, travel, audit, legal and other public company and transaction related costs. Approximately $3.0 million, or 52% of total G&A, is attributable to managing the operations of our restaurants, including regional management, franchising operations, marketing and advertising within the Better Burger group, Hooters, and Just Fresh.

 

In the prior year, approximately $4.1 million, or 61% of total G&A, was attributable to Corporate and public company costs, while approximately $2.7 million, or 39% of total G&A, was attributable to regional management, franchising operations, marketing and advertising within the Better Burger group, Hooters, and Just Fresh.

 

The improvement in overall G&A expense is primarily due reduced audit, legal, professional and consulting fees at the corporate level. Fees paid to third party professionals were a significant portion of the Company’s expenses in 2015 due to the nature of the acquisition and financing transactions occurring last year. During the current period, the Company did not incur significant fees related to acquisitions or financing initiatives. In addition, the Company reduced its public company and corporate operating costs from prior levels through increased focus on cost reduction and rationalization of back office operations, while also leveraging the Company’s overhead over a larger business which favorably impacted G&A as a percent of revenue.

 

These reductions were partially offset by increased G&A and marketing expenses in our regional company store and franchising operations.

 

Depreciation and amortization

 

Depreciation and amortization expense increased 37.9% to $2.3 million for the year ended December 31, 2016 from $1.7 million for the year ended December 31, 2015. The increase in depreciation and amortization is due to increased depreciable property and equipment and intangible assets associated with acquired and newly opened restaurants.

 

Other income (expense)

 

Other income (expense) consisted of the following:

 

   Year Ended 
Other Income (Expense)  December 31, 2016   December 31, 2015   % Change 
Interest expense  $(2,347,019)  $(3,466,554)   -32.3%
Change in fair value of derivative liabilities   1,231,608    868,592    41.8%
Loss on extinguishment of debt   -    (315,923)   0.0%
Other income (Expense)   (412,272)   99,399    -514.8%
Total Other Income (Expense)  $(1,527,683)  $(2,814,486)   -45.7%

 

Other expense, net decreased to $1.5 million for the year ended December 31, 2016 from $2.8 million for the year ended December 31, 2015.

 

The decrease in other expenses, net was primarily due to favorable changes in non-cash interest amortization, derivative liability adjustments and other largely non-cash charges arising from our convertible and other debt obligations.

 

Interest expense decreased 32.3% to $2.4 million for the year ended December 31, 2016 from $3.5 million for the year ended December 31, 2015. The reduction in interest are primarily due to lower average outstanding debt balances due to debt conversions occurring in 2015, combined with lower amortization of debt discount. This reduction was partially offset by higher interest rates on certain of our debt obligations that were in default and accrued interest at higher effective rates in the current year.

 

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The Company recognized changes in the fair value of derivative liabilities totaling $1.2 million for the year ended December 31, 2016 as compared with $0.9 million for the year ended December 31, 2015. The liability is a non-cash income or expense associated with our convertible debt and is adjusted quarterly based on the change in the fair value of the price of the Company’s common stock.

 

Loss on extinguishment of debt was zero in the current period and $0.3 million for the year ended December 31, 2015. During 2015, several of the Company’s convertible notes and one of the Company’s term debt instruments were converted by the holders into shares of the Company’s common stock. In connection with the conversions, the Company recognized a loss on extinguishment of convertible debt, related accrued interest, penalties and derivative liabilities. The Company did not have any debt conversions or loss on extinguishments in the current year.

 

Other expense was $0.4 million for the year ended December 31, 2016 compared to income of $0.1 million for the prior year period. In the current year, the Company wrote down certain marketable securities and investments included in other loss.

 

LIQUIDITY, CAPITAL RESOURCES AND GOING CONCERN

 

As of December 31, 2016, our cash balance was $0.3 million, our working capital was negative $10 million and we have significant near term obligations. The level of additional cash needed to fund operations and our ability to conduct business for the next twelve months will be influenced primarily by the following factors:

 

 

our ability to access the capital and debt markets to satisfy current obligations and operate the business;

     
  our ability to obtain waivers and refinance or otherwise extend maturities of current debt obligations;
   
  the level of investment in acquisition of new restaurant businesses and entering new markets;
     
  our ability to manage our operating expenses and maintain gross margins as we grow:
     
  popularity of and demand for our fast-casual dining concepts; and
     
  general economic conditions and changes in consumer discretionary income.

 

We have typically funded our operating costs, acquisition activities, working capital requirements and capital expenditures with proceeds from the issuances of our common stock and other financing arrangements, including convertible debt, lines of credit, notes payable, capital leases, and other forms of external financing.

 

Our operating plans for the next twelve months contemplate moderate organic growth, opening 6-10 new stores within our current markets and restaurant concepts, the majority of which will be funded by funds already committed from outside investors. As we execute our growth plans over the next 12 months, we intend to carefully monitor the impact of growth on our working capital needs and cash balances relative to the availability of cost-effective debt and equity financing.

 

We have obligations that are currently past due or otherwise payable within the next twelve months from date of issuance of these financial statements. In the event that capital is not available or we are unable to refinance our debt obligations or obtain waivers, we may then have to scale back or freeze our organic growth plans, sell assets on less than favorable terms, reduce expenses, and/or curtail future acquisition plans to manage our liquidity and capital resources. We may also incur financial penalties or other negative actions from our lenders if we are not able to refinance or otherwise extend or repay our current obligations or obtain waivers.

 

In addition, our business is subject to additional risks and uncertainties, including, but not limited to, those described in Item 1A. “Risk Factors”.

 

 29 
 

 

RECENT ACCOUNTING PRONOUNCEMENTS

 

In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-09 “Revenue from Contracts with Customers” which provides a single, comprehensive accounting model for revenue arising from contracts with customers. This guidance supersedes most of the existing revenue recognition guidance, including industry-specific guidance. Under this model, revenue is recognized at an amount that a company expects to be entitled to upon transferring control of goods or services to a customer. The new guidance also requires additional disclosures about the nature, timing and uncertainty of revenue and cash flow arising from customer contracts, including significant judgments and changes in judgments. The new guidance will be effective for the Company beginning in calendar 2018 and may be applied retrospectively to all prior periods presented or through a cumulative adjustment to the opening retained earnings balance in the year of adoption. The Company is currently evaluating the effect of this update on its consolidated financial statements, but believes this will not have a material impact on operations.

 

In April 2015, FASB issued ASU No. 2015-03 “Simplifying the Presentation of Debt Issuance Costs” which requires that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability consistent with the presentation of debt discounts, however debt issuance costs related to revolving credit agreements may be presented in the balance sheet as an asset. This guidance was adopted in the first quarter of 2016 and had no effect on the Company’s consolidated financial statements.

 

In November 2015, the FASB issued ASU No. 2015-07 “Income Taxes (Topic 740): Balance Sheet Classification of Deferred Taxes” related to the presentation of deferred income taxes. The guidance requires that deferred tax assets and liabilities be classified as non-current in a consolidated balance sheet. This guidance is effective for us in the first quarter of 2017 and is not expected to materially affect the Company’s consolidated financial statements.

 

In February 2016, the FASB issued ASU No. 2016-02 “Leases,” which supersedes ASC 840 “Leases” and creates a new topic, ASC 842 “Leases.” This update requires lessees to recognize a lease liability and a lease asset for all leases, including operating leases, with a term greater than 12 months on its balance sheet. The update also expands the required quantitative and qualitative disclosures surrounding leases. This update is effective for fiscal years beginning after December 15, 2018 and interim periods within those fiscal years, with earlier adoption permitted. This update will be applied using a modified retrospective transition approach for leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements. The Company has not completed its evaluation of effect of this update will have on its consolidated financial statements, but does expect there could be a material increase in both assets and liabilities reflect on its consolidated balance sheets as a result of adoption.

 

In March 2016, the FASB issued ASU No. 2016-09 “Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting”. The amendments in this update simplify several aspects of the accounting for employee share-based payment transactions, including the accounting for income taxes, forfeitures and statutory tax withholding requirements, as well as classification in the statement of cash flows. This update will be effective for the Company in fiscal year 2017, but early adoption is permitted. The Company is currently evaluating the effect of this update on its consolidated financial statements.

 

In January 2017, the FASB issued ASU No. 2017-04 “Intangibles—Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment.” The new guidance simplifies the test for goodwill impairment. Currently, the fair value of the reporting unit is compared with the carrying value of the reporting unit (identified as “Step 1”). If the fair value of the reporting unit is lower than its carrying amount then, the implied fair value of goodwill is calculated. If the implied fair value of goodwill is lower than the carrying value of goodwill an impairment is recognized (identified as “Step 2”). The new standard eliminates Step 2 from the impairment test; therefore, a goodwill impairment will be recognized as the difference of the fair value and the carrying value of the reporting unit. The new standard becomes effective on January 1, 2020 with early adoption permitted. The Company is currently evaluating the effect of this update on its consolidated financial statements.

 

There are several other new accounting pronouncements issued by FASB, which are not yet effective. Each of these pronouncements has been or will be adopted, as applicable, by the Company. At December 31, 2016, other than the adoption of ASU No. 2016-02 “Leases,” none of these pronouncements are expected to have a material effect on the financial position, results of operations or cash flows of the Company.

 

 30 
 

 

Critical Accounting Policies

 

The preparation of consolidated financial statements requires management to use judgment and estimates. The level of uncertainty in estimates and assumptions increases with the length of time until the underlying transactions are completed. Significant estimates include deferred tax asset valuation allowances, valuing options and warrants, goodwill and intangible asset valuations and useful lives, depreciation and uncollectible accounts and reserves. Actual results could differ from those estimates. The accounting policies that are most critical in the preparation of our consolidated financial statements are those that are both important to the presentation of our financial condition and results of operations and require significant judgment and estimates on the part of management. The methods, estimates and judgments we use in applying this accounting policy has a significant impact on the results we report in our financial statements. Our critical accounting policies are reviewed periodically with the Audit Committee of the Board of Directors.

 

Revenue recognition

 

Revenue is recognized when all of the following criteria have been satisfied:

 

  Persuasive evidence of an arrangement exists;
     
  Delivery has occurred or services have been rendered;
     
  The seller’s price to the buyer is fixed or determinable; and
     
  Collectability is reasonably assured.

 

Restaurant Net Sales and Food and Beverage Costs

 

The Company records revenue from restaurant sales at the time of sale, net of discounts, coupons, employee meals, and complimentary meals and gift cards. Sales, value added tax (“VAT”) and goods and services tax (“GST”) collected from customers and remitted to governmental authorities are presented on a net basis within sales in our consolidated statements of operations. Restaurant cost of sales primarily includes the cost of food, beverages, and merchandise and disposable paper and plastic goods used in preparing and selling our menu items, and exclude depreciation and amortization. Vendor allowances received in connection with the purchase of a vendor’s products are recognized as a reduction of the related food and beverage costs as earned.

 

Management Fee Income

 

The Company receives revenue from management fees from certain non-affiliated companies, including from managing its investment in Hooters of America.

 

Gaming Income

 

The Company receives revenue from operating a gaming facility adjacent to its Hooters restaurant in Jantzen Beach, Oregon. The Company also previously received gaming revenue from gaming machines located in Sydney, Australia. Revenue from gaming is recognized as earned from gaming activities, net of taxes and other government fees.

 

Franchise Income

 

The Company accounts for initial franchisee fees in accordance with FASB ASC 952, Franchisors. The Company grants franchises to operators in exchange for initial franchise license fees and continuing royalty payments. Franchise license fees are deferred when received and recognized as revenue when the Company has performed substantially all initial services required by the franchise or license agreement, which is generally upon the opening of a store. Continuing fees, which are based upon a percentage of franchisee revenues, are recognized on the accrual basis as those sales occur.

 

 31 
 

 

Leases

 

Restaurant Operations lease certain properties under operating leases. Many of these lease agreements contain rent holidays, rent escalation clauses, and/or contingent rent provisions. Rent expense is recognized on a straight-line basis over the expected lease term, including cancelable option periods when failure to exercise such options would result in an economic penalty. We use a time period for straight-line rent expense calculation that equals or exceeds the time period used for depreciation. In addition, the rent commencement date of the lease term is the earlier of the date when they become legally obligated for the rent payments or the date when they take access to the grounds for build out. Accounting for leases involves significant management judgment.

 

Intangible Assets

 

Goodwill and indefinite lived intangibles

 

Generally accepted accounting principles in the United States require the Company to perform goodwill and indefinite lived intangible asset impairment tests annually and more frequently when negative conditions or a triggering event arise. In September 2011, the FASB issued amended guidance that simplified how entities test goodwill for impairment. After an assessment of certain qualitative factors, if it is determined to be more likely than not that the fair value of a reporting unit is less than its carrying amount, entities must perform the quantitative analysis of the goodwill impairment test. Otherwise, the quantitative test(s) become optional. As allowed under the amended guidance, the Company chose not to assess the qualitative factors of its reporting units and, instead, performed the quantitative tests.

 

Trade name/trademark

 

The fair value of trade name/trademarks are estimated and compared to the carrying value. The Company estimates the fair value of trademarks using the relief-from-royalty method, which requires assumptions related to projected sales from its annual long-range plan; assumed royalty rates that could be payable if the Company did not own the trademarks; and a discount rate. The Company recognizes an impairment loss when the estimated fair value of the trade name/trademarks is less than its carrying value.

 

Franchise Cost

 

Intangible assets are recorded for the initial franchise fees for our Hooters restaurants. The Company amortizes these amounts over a 20-year period, which is the life of the franchise agreement.

 

COMMITMENTS AND CONTINGENCIES

 

The Company, through its subsidiaries, leases the land and buildings for our 6 restaurants in South Africa, 1 restaurant in Nottingham, United Kingdom, and 36 restaurants in the U.S. The terms for our restaurant leases vary from two to twenty years and have options to extend. We lease some of our restaurant facilities under “triple net” leases that require us to pay minimum rent, real estate taxes, maintenance costs and insurance premiums and, in some instances, percentage rent based on sales in excess of specified amounts.

 

We also lease our corporate office space in Charlotte, North Carolina.

 

 32 
 

 

TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS

 

The following table presents a summary of our contractual operating lease obligations, long-term debt and other contractual commitments as of December 31, 2016:

 

Contractual Obligations  Total   Less than 1 year   1-3 years   3-5 years   More than 5 years 
Long-Term Debt Obligations  $6,459,094   $6,171,649   $157,524   $16,799   $113,122 
Convertible Debt Obligations   3,678,064    -    3,678,064    -    - 
Operating Lease Obligations   25,890,003    3,887,253    7,464,567    5,950,967    8,587,216 
Capital Lease Obligations   18,449    18,449    -    -    - 
Purchase Obligations   1,746,479    1,746,479    -    -    - 
Total  $37,792,089   $11,823,830   $11,300,155   $5,967,766   $8,700,338 

 

Item 7A: Quantitative and Qualitative Disclosures About Market Risk

 

Not applicable.

 

 33 
 

 

Item 8: Financial Statements and Supplementary Data

 

CHANTICLEER HOLDINGS, INC. AND SUBSIDIARIES

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

  Page
Report of Independent Registered Public Accounting Firm F-1
Consolidated Balance Sheets at December 31, 2016 and 2015 F-2
Consolidated Statements of Operations and Comprehensive Loss for the Years Ended December 31, 2016 and 2015 F-3
Consolidated Statements of Stockholders’ Equity at December 31, 2016 and 2015 F-4
Consolidated Statements of Cash Flows for the Years Ended December 31, 2016 and 2015 F-5
Notes to Consolidated Financial Statements F-7

 

 34 
 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Audit Committee of the

Board of Directors and Shareholders

of Chanticleer Holdings, Inc.and Subsidiaries

 

We have audited the accompanying consolidated balance sheets of Chanticleer Holdings, Inc. and Subsidiaries (the “Company”) as of December 31, 2016 and 2015 and the related consolidated statements of operations and comprehensive loss, stockholders’ equity and cash flows for the years then ended. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

 

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Chanticleer Holdings, Inc. and Subsidiaries, as of December 31, 2016 and 2015 and the results of their operations and their cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.

 

The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the Company incurred net losses during the year ended December 31, 2016 and 2015 of approximately $9.4 million and $14.5 million and the Company has working capital deficits of approximately $10.3 million and $12.4 million as of December 31, 2016 and 2015, respectively. These conditions raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are described in Note 1. The consolidated financial statements do not include any adjustments with respect to the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities that might result from the outcome of this uncertainty.

 

/s/ Cherry Bekaert LLP

 

Charlotte. North Carolina

March 31, 2017

 

 F-1 
 

 

Chanticleer Holdings, Inc. and Subsidiaries

Consolidated Balance Sheets

 

    December 31, 2016     December 31, 2015  
ASSETS            
Current assets:                
Cash   $ 268,575     $ 1,224,415  
Accounts and other receivables     524,481       862,935  
Inventories     539,550       569,545  
Prepaid expenses and other current assets     461,074       568,251  
Assets of discontinued operations, current     -       593,430  
TOTAL CURRENT ASSETS     1,793,680       3,818,576  
Property and equipment, net     11,513,693       12,144,064  
Goodwill     12,405,770       12,702,139  
Intangible assets, net     6,530,243       6,776,936  
Investments     800,000       800,000  
Deposits and other assets     442,737       574,192  
Assets of discontinued operations     -       5,389,300  
TOTAL ASSETS   $ 33,486,123     $ 42,205,207  
                 
LIABILITIES AND STOCKHOLDERS' EQUITY                
Current liabilities:                
Accounts payable and accrued expenses   $ 5,553,068     $ 4,740,131  
Current maturities of long-term debt and notes payable, net of discount of of $0 and $171,868, respectively     6,171,649       5,383,003  
Current maturities of convertible notes payable, net of debt discount of $0 and $914,724, respectively     -       2,810,276  
Current maturities of capital leases payable     18,449       39,303  
Due to related parties     194,350       12,963  
Deferred rent     173,775       683,793  
Derivative liabilities     -       1,231,608  
Liabilities of discontinued operations, current     -       1,279,955  
TOTAL CURRENT LIABILITIES     12,111,291       16,181,032  
Long-term debt, less current portion     287,445       1,098,641  
Convertible notes payable, net of debt discount
of $46,936 and $0, respectively
    3,678,064       -  
Redeemable preferred stock: no par value, 19,050 shares and 0 issued and outstanding, respectively     257,175       -  
Capital leases payable, less current maturities     -       15,969  
Deferred rent     1,961,751       1,740,012  
Liabilities of discontinued operations     -       58,648  
Deferred tax liabilities     1,485,554       1,353,771  
TOTAL LIABILITIES     19,781,280       20,448,073  
Commitments and contingencies (Note 15)                
Common stock subject to repurchase obligation, 562,900 shares issued and outstanding     349,000       -  
Stockholders' equity:                
Preferred stock: no par value; authorized 5,000,000 shares; 19,050 and 0 issued and outstanding, respectively     -       -  
Common stock: $0.0001 par value; authorized 45,000,000 shares; issued and outstanding 21,394,247 and 21,337,247 shares, respectively     2,140       2,134  
Additional paid in capital     55,924,269       55,365,597  
Accumulated other comprehensive loss     (1,155,658 )     (987,695 )
Accumulated deficit     (42,206,325 )     (33,012,712 )
Total Chanticleer Holdings, Inc, Stockholder's Equity     12,564,426       21,367,324  
Non-Controlling Interests     791,417       389,810  
TOTAL STOCKHOLDERS' EQUITY     13,355,843       21,757,134  
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY   $ 33,486,123     $ 42,205,207  

 

See accompanying notes to consolidated financial statements

 

 F-2 
 

 

Chanticleer Holdings, Inc. and Subsidiaries

Consolidated Statements of Operations and Comprehensive Loss

 

    Year Ended  
    December 31, 2016     December 31, 2015  
Revenue:                
Restaurant sales, net   $ 40,640,159     $ 34,201,668  
Gaming income, net     441,620       367,666  
Management fee income     100,000       424,829  
Franchise income     520,222       359,424  
Total revenue     41,702,001       35,353,587  
Expenses:                
Restaurant cost of sales     13,392,078       11,754,515  
Restaurant operating expenses     22,641,951       19,677,617  
Restaurant pre-opening and closing expenses     145,130       505,098  
General and administrative expenses     5,801,033       6,798,642  
Depreciation and amortization     2,341,697       1,697,514  
Total expenses     44,321,889       40,433,386  
Operating loss from continuing operations     (2,619,888 )     (5,079,799 )
Other (expense) income                
Interest expense     (2,347,019 )     (3,466,554 )
Change in fair value of derivative liabilities     1,231,608       868,592  
Loss on extinguishment of debt     -       (315,923 )
Other income (expense)     (412,272 )     99,399  
Total other (expense) income     (1,527,683 )     (2,814,486 )
Loss from continuing operations before income taxes     (4,147,571 )     (7,894,285 )
Income tax expense     (198,463 )     (187,568 )
Loss from continuing operations     (4,346,034 )     (8,081,853 )
Discontinued operations                
Loss from operation of discontinued operations, net of tax     (1,304,627 )     (1,884,747 )
Loss on write down of net assets, net of tax     (3,762,253 )     (4,489,043 )
Consolidated net loss     (9,412,914 )     (14,455,643 )
Less: Net loss (income) attributable to non-controlling interest of continuing operations     75,417       (9,088 )
Less: Net loss (income) attributable to non-controlling interest of discontinued operations     260,925       2,328,206  
Net loss attributable to Chanticleer Holdings, Inc.   $ (9,076,572 )   $ (12,136,525 )
                 
Net loss attributable to Chanticleer Holdings, Inc.:                
Loss from continuing operations   $ (4,270,617 )   $ (8,090,941 )
Loss from discontinued operations     (4,805,955 )     (4,045,584 )
Net loss attributable to Chanticleer Holdings, Inc.   $ (9,076,572 )   $ (12,136,525 )
                 
Other comprehensive loss:                
Unrealized loss on available-for-sale securities, net of tax   $ (24,501 )   $ (4,039 )
Reclassification of loss on available-for-sale securities recognized in net loss, net of tax     223,743       -  
Foreign currency translation     (271,452 )     (963,528 )
Total other comprehensive loss     (72,210 )     (967,567 )
Comprehensive loss   $ (9,148,782 )   $ (13,104,092 )
                 
Net loss attributable to Chanticleer Holdings, Inc. per common share, basic and diluted:                
Continuing operations attributable to common stockholders, basic and diluted   $ (0.20 )   $ (0.57 )
Discontinued operations attributable to common stockholders, basic and diluted   $ (0.22 )   $ (0.28 )
Weighted average shares outstanding, basic and diluted     21,695,030       14,245,437  

 

See accompanying notes to consolidated financial statements

 

 F-3 
 

 

Chanticleer Holdings, Inc. and Subsidiaries

Consolidated Statements of Stockholders' Equity

 

                      Accumulated                    
                Additional     Other     Non-              
    Common Stock     Paid-in     Comprehensive     Controlling     Accumulated        
    Shares     Amount     Capital     Loss     Interest     Deficit     Total  
                                           
Balance, January 1, 2015     7,249,442     $ 725     $ 32,601,400     $ (1,657,908 )   $ 4,904,471     $ (20,876,187 )   $ 14,972,501  
Common stock and warrants issued for:                                                        
Cash proceeds, net     9,508,659       951       14,920,952       -       -       -       14,921,903  
Business combinations     2,985,600       299       4,062,018       -       -       -       4,062,317  
Consulting services     104,000       11       279,351       -       -       -       279,362  
Convertible debt     1,389,546       138       2,658,395       -       -       -       2,658,533  
Settlement of long-term debt     100,000       10       194,990       -       -       -       195,000  
Warrants issued in connection with convertible debt     -       -       1,002,688       -       -       -       1,002,688  
Adjustment related to discontinued operations     -       -       (376,572 )     -       -       -       (376,572 )
Amortization of warrants     -       -       22,375       -       -       -       22,375  
Foreign currency translation                             (963,528 )                     (963,528 )
Available-for-sale securities     -       -       -       (4,039 )     -       -       (4,039 )
Reclassifications related to Australia transactions     -       -       -       1,637,780       (2,543,653 )     -       (905,873 )
Non-controlling interest contribution     -       -       -       -       348,109       -       348,109  
Net loss     -       -       -       -       (2,319,117 )     (12,136,525 )     (14,455,642 )
                                                         
Balance, December 31, 2015     21,337,247     $ 2,134     $ 55,365,597     $ (987,695 )   $ 389,810     $ (33,012,712 )   $ 21,757,134  
Common stock and warrants issued for:                                                        
Consulting services     57,000       6       24,505       -       -       -       24,511  
Interest     562,900       56       348,944       -       -       -       349,000  
Share based compensation     -       -       9,167       -       -       -       9,167  
Foreign currency translation     -       -       -       (271,452 )     -       -       (271,452 )
Available-for-sale securities     -       -       -       199,242       -       -       199,242  
Reclassifications related to discontinued operations     -       -       -       (95,753 )     335,979       -       240,226  
Reclassification of shares subject to redemption     (562,900 )     (56 )     (348,944 )     -       -       -       (349,000 )
Non-controlling interest contribution     -       -       525,000       -       401,970       (117,041 )     809,929  
Net loss     -       -       -       -       (336,342 )     (9,076,572 )     (9,412,914 )
                                                         
Balance, December 31, 2016     21,394,247     $ 2,140     $ 55,924,269     $ (1,155,658 )   $ 791,417     $ (42,206,325 )   $ 13,355,843  

 

See accompanying notes to consolidated financial statements

  

 F-4 
 

 

Chanticleer Holdings, Inc. and Subsidiaries

Consolidated Statements of Cash Flows

 

    December 31, 2016     December 31, 2015  
Cash flows from operating activities:                
Net loss   $ (9,412,914 )   $ (14,455,643 )
Net loss from discontinued operations     5,066,880       6,373,790  
Net loss from continuing operations     (4,346,034 )     (8,081,853 )
Adjustments to reconcile net loss from continuing operations to net cash used in operating activities:                
Depreciation and amortization     2,341,697       1,697,514  
Loss on extinguishment of debt     -       315,923  
Loss on disposal of property and equipment     -       514,522  
Loss (gain) on sales of investments     -       169,639  
Common stock and warrants issued for services     24,510       279,362  
Common stock and warrants issued for interest     349,000       -  
Amortization of debt discount     1,039,656       2,379,951  
Amortization of warrants     -       22,375  
Change in assets and liabilities:                
Accounts and other receivables     (336,546 )     96,261  
Prepaid and other assets     113,633       (78,236 )
Inventory     33,217       6,016  
Accounts payable and accrued liabilities     1,540,463       (235,283 )
Change in amounts payable to related parties     194,350       (198,669 )
Derivative liabilities     (1,231,608 )     (868,592 )
Deferred income taxes     131,783       94,527  
Deferred rent     (288,279 )     (300,259 )
Net cash used in operating activities from continuing operations     (434,158 )     (4,186,802 )
Net cash used in operating activities from discontinued operations     (75,000 )     (1,064,363 )
Net cash used in operating activities     (509,158 )     (5,251,165 )
                 
Cash flows from investing activities:                
Purchase of property and equipment     (1,191,174 )     (1,798,221 )
Cash paid for acquisitions, net of cash acquired     (72,215 )     (9,022,791 )
Proceeds from sale of investments     8,902       330,361  
Net cash used in investing activities from continuing operations     (1,254,487 )     (10,490,651 )
                 
Cash flows from financing activities:                
Proceeds from sale of common stock and warrants     -       14,921,903  
Proceeds from sale of preferred stock     257,175       -  
Loan proceeds     275,000       2,813,074  
Loan repayments     (513,523 )     (891,529 )
Capital lease payments     (40,636 )     (52,807 )
Contribution of non-controlling interest     823,671       -  
Net cash provided by financing activities from continuing operations     801,687       16,790,641  
Effect of exchange rate changes on cash     6,118       (4,944 )
Net increase (decrease) in cash     (955,840 )     1,043,881  
Cash, beginning of period     1,224,415       180,534  
Cash, end of period   $ 268,575     $ 1,224,415  

 

See accompanying notes to consolidated financial statements

 

 F-5 
 

 

Chanticleer Holdings, Inc. and Subsidiaries

Consolidated Statements of Cash Flows, continued

 

    December 31, 2016     December 31, 2015  
             
Supplemental cash flow information:                
Cash paid for interest and income taxes:                
Interest   $ 581,072     $ 1,068,383  
Income taxes     51,100       79,228  
                 
Non-cash investing and financing activities:                
Purchase of equipment using capital leases   $ -     $ 50,087  
Issuance of stock in connection with business combinations     -       4,062,317  
Debt discount for fair value of warrants and conversion feature issued in connection with debt     -       1,781,588  
Convertible debt settled through issuance of common stock     -       2,275,000  
Long-term debt settled through issuance of common stock     -       100,000  
                 
Purchases of businesses:                
Current assets excluding cash   $ 1,611     $ 1,148,334  
Property and equipment     -       5,387,283  
Goodwill     70,604       4,579,666  
Trade name/trademarks/franchise fees     -       4,300,000  
Liabilities assumed     -       (2,330,175 )
Common stock issued     -       (4,062,317 )
Cash acquired     -       253,638  
Cash paid for acquisitions   $ 72,215     $ 9,276,429  

 

See accompanying notes to consolidated financial statements

 

 F-6 
 

 

Chanticleer Holdings, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

 

1. Nature of Business

 

Organization

 

Chanticleer Holdings, Inc. (the “Company”) is in the business of owning, operating and franchising fast casual dining concepts domestically and internationally. The Company was organized October 21, 1999, under its original name, Tulvine Systems, Inc., under the laws of the State of Delaware. On April 25, 2005, Tulvine Systems, Inc. formed a wholly owned subsidiary, Chanticleer Holdings, Inc., and on May 2, 2005, Tulvine Systems, Inc. merged with, and changed its name to, Chanticleer Holdings, Inc.

 

The consolidated financial statements include the accounts of Chanticleer Holdings, Inc. and its subsidiaries presented below (collectively referred to as the “Company”):

 

Name   Jurisdiction of Incorporation   Percent Owned   Name   Jurisdiction of Incorporation   Percent Owned
CHANTICLEER HOLDINGS, INC.   DE, USA   100%            
Burger Business           Just Fresh        
American Roadside Burgers, Inc.   DE, USA   100%   JF Franchising Systems, LLC   NC, USA   56%
ARB Stores           JF Restaurants, LLC   NC, USA   56%
American Burger Ally, LLC   NC, USA   100%            
American Burger Morehead, LLC   NC, USA   100%   West Coast Hooters        
American Roadside McBee, LLC   NC, USA   100%   Jantzen Beach Wings, LLC   OR, USA   100%
American Roadside Southpark LLC   NC, USA   100%   Oregon Owl’s Nest, LLC   OR, USA   100%
American Roadside Burgers Smithtown, Inc.   DE, USA   100%   Tacoma Wings, LLC   WA, USA   100%
American Burger Prosperity, LLC   NC, USA   100%            
BGR Acquisition, LLC   NC, USA   100%   South African Entities        
BGR Franchising, LLC   VA, USA   100%   Chanticleer South Africa (Pty) Ltd.   South Africa   100%
BGR Operations, LLC   VA, USA   100%   Hooters Emperors Palace (Pty.) Ltd.   South Africa   88%
BGR Arlington, LLC   VA, USA   100%   Hooters On The Buzz (Pty) Ltd   South Africa   95%
BGR Cascades, LLC   VA, USA   100%   Hooters PE (Pty) Ltd   South Africa   100%
BGR Dupont, LLC   DC, USA   100%