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FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
[x] Quarterly report pursuant to Section 13 or 15(d) of the Securities Act of
1934 for the quarterly period ended DECEMBER 26, 2004.
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities Act of
1934 for the transition period from ___________________ to ______________.
Commission File Number 0-3189
NATHAN'S FAMOUS, INC.
---------------------
(Exact name of registrant as specified in its charter)
DELAWARE 11-3166443
-------- ----------
(State or other jurisdiction of (IRS employer
incorporation or organization) identification number)
1400 OLD COUNTRY ROAD, WESTBURY, NEW YORK 11590
-----------------------------------------------
(Address of principal executive offices including zip code)
(516) 338-8500
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
At February 3, 2005, an aggregate of 5,456,332 shares of the registrant's common
stock, par value of $.01, were outstanding.
NATHAN'S FAMOUS, INC. AND SUBSIDIARIES
INDEX
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Page
Number
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PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements (Unaudited) 3
Consolidated Balance Sheets - December 26, 2004 and
March 28, 2004 3
Consolidated Statements of Operations - Thirteen Weeks
Ended December 26, 2004 and December 28, 2003 4
Consolidated Statements of Operations - Thirty-nine Weeks
Ended December 26, 2004 and December 28, 2003 5
Consolidated Statement of Stockholders' Equity -
Thirty-nine Weeks Ended December 26, 2004 6
Consolidated Statements of Cash Flows -Thirty-nine Weeks
Ended December 26, 2004 and December 28, 2003 7
Notes to Consolidated Financial Statements 8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 15
Item 3. Qualitative and Quantitative Disclosures about Market Risk 21
Item 4. Controls and Procedures 22
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 24
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 24
Item 6. Exhibits and Reports on Form 8-K 24
SIGNATURES 25
-2-
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
NATHAN'S FAMOUS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
Dec. 26, March 28,
2004 2004
--------- --------
(Unaudited)
Current assets:
Cash and cash equivalents including restricted cash of $83 $ 3,009 $ 3,449
Marketable securities 10,673 7,477
Notes and accounts receivable, net 3,224 2,352
Inventories 468 743
Assets held for sale 689 507
Prepaid expenses and other current assets 655 463
Deferred income taxes 1,331 1,326
--------- --------
Total current assets 20,049 16,317
Notes receivable, net 157 313
Property and equipment, net 4,761 5,094
Goodwill 95 95
Intangible assets, net 2,866 3,063
Deferred income taxes 2,446 2,452
Other assets, net 248 250
--------- --------
$ 30,622 $ 27,584
======== ========
Current liabilities:
Current maturities of notes payable and capital lease obligations $ 174 $ 173
Accounts payable 1,354 1,950
Accrued expenses and other current liabilities 5,349 4,836
Deferred franchise fees 326 173
--------- --------
Total current liabilities 7,203 7,132
Notes payable and capital lease obligations, less current maturities 736 866
Other liabilities 1,796 2,234
--------- --------
Total liabilities 9,735 10,232
--------- --------
Stockholders' equity:
Common stock, $.01 par value - 30,000,000 shares authorized; 7,297,432
and 7,065,202 shares issued; 5,406,332 and 5,213,901 shares
outstanding at December 26, 2004 and March 28, 2004, respectively 73 71
Additional paid-in capital 42,035 40,746
Accumulated deficit (14,095) (16,611)
Accumulated other comprehensive income 32 67
--------- --------
28,045 24,273
Treasury stock at cost, 1,891,100 and 1,851,301 shares at
December 26, 2004 and March 28, 2004, respectively (7,158) (6,921)
--------- --------
Total stockholders' equity 20,887 17,352
--------- --------
$ 30,622 $ 27,584
======== ========
See accompanying notes to consolidated financial statements.
-3-
NATHAN'S FAMOUS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Thirteen weeks ended December 26, 2004 and December 28, 2003
(In thousands, except per share amounts)
(Unaudited)
2004 2003
------ -------
Sales $4,690 $ 3,841
Franchise fees and royalties 1,749 1,690
License royalties 684 674
Investment and other income 106 46
Interest income 71 39
------ -------
Total revenues 7,300 6,290
------ -------
Costs and expenses:
Cost of sales 3,657 2,902
Restaurant operating expenses 734 720
Depreciation and amortization 220 226
Amortization of intangible assets 65 65
General and administrative expenses 1,959 1,907
Interest expense 12 16
Impairment charge on notes receivable - 44
------ -------
Total costs and expenses 6,647 5,880
------ -------
Income from continuing operations before income taxes 653 410
Provision for income taxes 177 162
------ -------
Income from continuing operations 476 248
------ -------
Discontinued operations
Loss from discontinued operations before income taxes - (18)
Benefit from income taxes - (7)
------ -------
Loss from discontinued operations - (11)
------ -------
Net income $ 476 $ 237
====== =======
PER SHARE INFORMATION
Basic income (loss) per share
Income from continuing operations $ 0.09 $ 0.04
Loss from discontinued operations 0.00 (0.00)
------ -------
Net income $ 0.09 $ 0.04
====== =======
Diluted income (loss) per share
Income from continuing operations $ 0.08 $ 0.04
Loss from discontinued operations 0.00 (0.00)
------ -------
Net income $ 0.08 $ 0.04
====== =======
Weighted average shares used in computing per share information
Basic 5,352 5,286
====== =======
Diluted 6,173 5,742
====== =======
See accompanying notes to consolidated financial statements.
-4-
NATHAN'S FAMOUS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Thirty-nine weeks ended December 26, 2004 and December 28, 2003
(In thousands, except per share amounts)
(Unaudited)
2004 2003
-------- --------
Sales $ 18,269 $ 15,930
Franchise fees and royalties 5,084 4,753
License royalties 2,507 2,330
Investment and other income 435 339
Interest income 169 165
-------- --------
Total revenues 26,464 23,517
-------- --------
Costs and expenses:
Cost of sales 13,181 11,210
Restaurant operating expenses 2,332 2,657
Depreciation and amortization 663 712
Amortization of intangible assets 196 196
General and administrative expenses 6,025 5,523
Interest expense 36 55
Impairment charge on notes receivable - 100
-------- --------
Total costs and expenses 22,433 20,453
-------- --------
Income from continuing operations before income taxes 4,031 3,064
Provision for income taxes 1,506 1,213
-------- --------
Income from continuing operations 2,525 1,851
-------- --------
Discontinued operations
Loss from discontinued operations before income taxes (15) (23)
Benefit from income taxes (6) (9)
-------- --------
Loss from discontinued operations (9) (14)
-------- --------
Net income $ 2,516 $ 1,837
======== ========
PER SHARE INFORMATION
Basic income (loss) per share
Income from continuing operations $ 0.48 $ 0.35
Loss from discontinued operations (0.00) (0.00)
-------- --------
Net income $ 0.48 $ 0.35
======== ========
Diluted income (loss) per share
Income from continuing operations $ 0.42 $ 0.33
Loss from discontinued operations (0.00) (0.00)
-------- --------
Net income $ 0.42 $ 0.33
======== ========
Weighted average shares used in computing per share information
Basic 5,256 5,323
======== ========
Diluted 6,003 5,604
======== ========
See accompanying notes to consolidated financial statements.
-5-
NATHAN'S FAMOUS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
Thirty-nine weeks ended December 26, 2004
(In thousands, except share amounts)
(Unaudited)
Accumulated
Other
Additional Comprehen- Treasury Total
Common Common Paid -in Accumulated sive Treasury Stock, Stockholders'
Shares Stock Capital Deficit Income Shares at cost Equity
--------- ------ ---------- ----------- ---------- --------- -------- ------------
Balance at
March 28, 2004 7,065,202 $ 71 $ 40,746 $ (16,611) $ 67 1,851,301 $ (6,921) $ 17,352
Repurchases of
treasury stock 39,799 (237) (237)
Proceeds received
from the exercise
of warrants 142,855 1 856 857
Proceeds received
from the exercise
of stock options 89,375 1 330 331
Income tax
benefit on stock
option exercises 103 103
Unrealized losses
on available for
sale securities,
net of deferred
income taxes of
$25 (35) (35)
Net income 2,516 2,516
--------- ------ ---------- ---------- ---------- --------- -------- ------------
Balance at
Dec. 26, 2004 7,297,432 $ 73 $ 42,035 $ (14,095) $ 32 1,891,100 $ (7,158) $ 20,887
========= ====== ========== ========== ========== ========= ======== ============
See accompanying notes to consolidated financial statements.
-6-
NATHAN'S FAMOUS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Thirty-nine weeks ended December 26, 2004 and December 28, 2003
(In thousands)
(Unaudited)
2004 2003
------- -------
Cash flows from operating activities:
Net income $ 2,516 $ 1,837
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 663 749
Amortization of intangible assets 196 196
Amortization of bond premium 105 92
Provision for doubtful accounts 11 25
Gain on sale of available for sale securities - (12)
Gain on disposal of property and equipment (67) (149)
Impairment charge on notes receivable - 100
Deferred income taxes 27 1,198
Changes in operating assets and liabilities:
Notes and accounts receivable, net (959) 141
Inventories 275 45
Prepaid expenses and other current assets (192) 70
Accounts payable and accrued expenses 20 (675)
Deferred franchise fees 153 78
Other assets, net 3 8
Other non current liabilities (383) 132
------- -------
Net cash provided by operating activities 2,368 3,835
------- -------
Cash flows from investing activities:
Proceeds from sale of available for sale securities 900 1,322
Purchase of available for sale securities (4,261) (4,168)
Purchase of property and equipment (515) (307)
Proceeds from sale of restaurants, net - 583
Proceeds from sale of property and equipment 14 6
Payments received on notes receivable 232 603
------- -------
Net cash used in investing activities (3,630) (1,961)
------- -------
Cash flows from financing activities:
Repurchases of common stock (237) (553)
Proceeds received from the exercise of stock options and warrants 1,188 -
Principal repayment of borrowings and obligations under capital leases (129) (144)
------- -------
Net cash provided by (used in) financing activities 822 (697)
------- -------
Net decrease in cash and cash equivalents (440) 1,177
Cash and cash equivalents, beginning of period 3,449 1,415
------- -------
Cash and cash equivalents, end of period $ 3,009 $ 2,592
======= =======
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for income taxes $ 512 $ 266
======= =======
Cash paid during the period for interest $ 36 $ 59
======= =======
NONCASH FINANCING ACTIVITIES:
Loan to franchisees in connection with sale of restaurants $ - $ 600
======= =======
See accompanying notes to consolidated financial statements.
-7-
NATHAN'S FAMOUS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 26, 2004
(Unaudited)
NOTE A - BASIS OF PRESENTATION
The accompanying consolidated financial statements of Nathan's Famous,
Inc. and subsidiaries (collectively "Nathan's" or the "Company") for the
thirteen and thirty-nine week periods ended December 26, 2004 and December 28,
2003 have been prepared in accordance with accounting principles generally
accepted in the United States of America. The unaudited financial statements
include all adjustments (consisting of normal recurring adjustments) which, in
the opinion of management, were necessary for a fair presentation of financial
condition, results of operations and cash flows for such periods presented.
However, these results are not necessarily indicative of results for any other
interim period or the full year.
Certain information and footnote disclosures normally included in
financial statements in accordance with accounting principles generally accepted
in the United States of America have been omitted pursuant to the requirements
of the Securities and Exchange Commission. Management believes that the
disclosures included in the accompanying interim financial statements and
footnotes are adequate to make the information not misleading, but should be
read in conjunction with the consolidated financial statements and notes thereto
included in Nathan's Annual Report on Form 10-K for the fiscal year ended March
28, 2004.
NOTE B - ADOPTION OF NEW ACCOUNTING PRONOUNCEMENTS
In December 2003, the FASB issued a revision to FASB Interpretation No.
46, "Consolidation of Variable Interest Entities, an Interpretation of ARB No.
51" ("FIN No. 46(R)" or the "Interpretation"). FIN No. 46(R) clarifies the
application of ARB No. 51, "Consolidated Financial Statements," to certain
entities in which equity investors do not have the characteristics of a
controlling financial interest or do not have sufficient equity at risk for the
entity to finance its activities without additional subordinated financial
support. FIN No. 46(R) requires the consolidation of these entities, known as
variable interest entities, by the primary beneficiary of the entity. The
primary beneficiary is the entity, if any, that will absorb a majority of the
entity's expected losses, receive a majority of the entity's expected residual
returns, or both.
The revisions of FIN No. 46(R) (a) clarified some requirements of the
original FIN No. 46, which had been issued in January 2003, (b) simplified some
of the implementation problems, and (c) added new scope exceptions. FIN No.
46(R) delayed the effective date of the FIN No. 46 for public companies, to the
end of the first reporting period ending after March 15, 2004, except that all
public companies must at a minimum apply the unmodified provisions of FIN No.
46(R) to entities that were previously considered "special-purpose entities" in
practice and under the FASB literature prior to the issuance of FIN No. 46(R) by
the end of the first reporting period ending after December 15, 2003.
FIN No. 46(R) added several new scope exceptions, including one which
states that companies are not required to apply the provisions to an entity that
meets the criteria to be considered a "business" as defined in FIN No. 46(R)
unless one or more of four named conditions exist.
The Company has no equity ownership interests in its franchisees, and has
not consolidated any of these entities in the Company's financial statements.
The Company does not provide more than half of the equity, subordinated debt or
other subordinated financial support to any franchise entity. The Company has
further concluded that the franchise entities were not designed such that
substantially all of their activities either involve or are conducted on behalf
of Nathan's. As such, the Company has not consolidated any franchised entity in
the financial statements. If, at some future date, Nathan's does provide more
than half of the subordinated financial support to a franchise entity,
consolidation would not be automatic. The franchise entity would then be subject
to further testing under the guidelines of FIN No.46(R). The Company will
continue to monitor developments regarding the Interpretation as they occur. The
Company adopted the provisions of FIN No. 46(R) in its fourth fiscal quarter of
2004.The adoption of FIN No. 46(R) did not have a material impact on the
Company's financial position and results of operations.
-8-
NOTE C - INCOME FROM CONTINUING OPERATIONS PER SHARE
Basic income from continuing operations per common share is calculated by
dividing income from continuing operations by the weighted-average number of
common shares outstanding and excludes any dilutive effect of stock options or
warrants. Diluted income from continuing operations per common share gives
effect to all potentially dilutive common shares that were outstanding during
the period. Dilutive common shares used in the computation of diluted income
from continuing operations per common share result from the assumed exercise of
stock options and warrants, using the treasury stock method.
The following chart provides a reconciliation of information used in
calculating the per share amounts for the thirteen and thirty-nine week periods
ended December 26, 2004 and December 28, 2003, respectively.
THIRTEEN WEEKS
Income from Income from
Continuing Operations Number of Shares Continuing Operations
(In thousands) (In thousands) Per Share
--------------------- ---------------- ---------------------
2004 2003 2004 2003 2004 2003
-------- -------- ----- ----- -------- -------
Basic EPS
Basic calculation $ 476 $ 248 5,352 5,286 $ 0.09 $ 0.04
Effect of dilutive employee stock
options and warrants - - 821 456 (0.01) -
-------- -------- ----- ----- -------- -------
Diluted EPS
Diluted calculation $ 476 $ 248 6,173 5,742 $ 0.08 $ 0.04
======== ======== ===== ===== ======== =======
THIRTY-NINE WEEKS
Income from Income from
Continuing Operations Number of Shares Continuing Operations
(In thousands) (In thousands) Per Share
--------------------- ---------------- ---------------------
2004 2003 2004 2003 2004 2003
------- -------- ----- ----- ------- --------
Basic EPS
Basic calculation $ 2,525 $ 1,851 5,256 5,323 $ 0.48 $ 0.35
Effect of dilutive employee stock
options and warrants - - 747 281 (0.06) (0.02)
------- -------- ----- ----- ------- --------
Diluted EPS
Diluted calculation $ 2,525 $ 1,851 6,003 5,604 $ 0.42 $ 0.33
======= ======== ===== ===== ======= ========
Options and warrants to purchase 19,500 and 249,753 shares of common stock in
both the thirteen and thirty-nine week periods ended December 26, 2004 and
December 28, 2003, respectively, were not included in the computation of diluted
EPS because the exercise prices exceeded the average market price of common
shares during the respective periods. These options and warrants were still
outstanding at the end of the respective periods.
NOTE D - STOCK BASED COMPENSATION
At December 26, 2004, the Company had five stock-based employee
compensation plans. The Company accounts for stock-based compensation using the
intrinsic value method in accordance with Accounting Principles Board Opinion
No. 25, "Accounting for Stock Issued to Employees," and related Interpretations
("APB No. 25") and has adopted the disclosure provisions of Statement of
Financial Accounting Standards ("SFAS")No. 148 "Accounting for Stock-Based
Compensation-Transition and Disclosure." Under APB No. 25, when the exercise
price of the Company's employee stock options equals or exceeds the market price
of the underlying stock on the date of grant, no compensation expense is
recognized. No compensation expense has been recognized in the consolidated
financial statements in connection with employee stock option grants.
-9-
The following table illustrates the effect on net income and earnings per
share had the Company applied the fair value recognition provisions of SFAS No.
123, "Accounting for Stock-Based Compensation," to stock-based employee
compensation.
Thirteen Weeks Ended Thirty-nine Weeks Ended
(In thousands) (In thousands)
Dec.26, Dec.28, Dec.26, Dec.28,
2004 2003 2004 2003
----------- --------- ---------- ---------
Net income, as reported $ 476 $ 237 $ 2,516 $ 1,837
Deduct: Total stock-based employee
compensation expense determined under
fair value-based method for all awards (51) (46) (153) (128)
----------- --------- ---------- ---------
Pro forma net income $ 425 $ 191 $ 2,363 $ 1,709
=========== ========= ========== =========
Earnings per Share
Basic - as reported $ 0.09 $ 0.04 $ 0.48 $ 0.35
=========== ========= ========== =========
Diluted - as reported $ 0.08 $ 0.04 $ 0.42 $ 0.33
=========== ========= ========== =========
Basic - pro forma $ 0.08 $ 0.04 $ 0.45 $ 0.32
=========== ========= ========== =========
Diluted - pro forma $ 0.07 $ 0.03 $ 0.39 $ 0.30
=========== ========= ========== =========
Pro forma compensation expense may not be indicative of pro forma expense
in future years. For purposes of estimating the fair value of each option on the
date of grant, the Company utilized the Black-Scholes option-pricing model.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options, which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions, including the expected stock price
volatility. Because the Company's employee stock options have characteristics
significantly different from those of traded options and because changes in the
subjective input assumptions can materially affect the fair value estimate, in
management's opinion, the existing models do not necessarily provide a reliable
single measure of the fair value of its employee stock options.
During the thirty-nine weeks ended December 26, 2004 and December 28,
2003, the Company granted 95,000 and 65,000 options having exercise prices of
$5.62 and $4.03 per share, respectively. During the thirteen weeks ended
December 28, 2003, the Company granted 25,000 options at an exercise price of
$4.38 per share. No options were granted during the thirteen weeks ended
December 26, 2004. All of the options granted are vested as follows: 33 1/3% on
the first anniversary of the date of grant, 66 2/3% on the second anniversary of
the date of grant and 100% on the third anniversary of the date of grant. All
options have an expiration date of ten years from the date of grant.
The weighted average option fair values and the assumptions used to
estimate these values are as follows:
Thirty-nine Weeks Ended
Dec. 26, Dec. 28,
2004 2003
--------- ---------
Option fair values $ 2.87 $ 1.60
Expected life (years) 7.0 7.0
Interest rate 4.50% 3.85%
Volatility 29.9% 30.6%
Dividend yield 0.0% 0.0%
NOTE E - SALES OF RESTAURANTS
The Company observes the provisions of SFAS No. 66, "Accounting for Sales
of Real Estate," which establishes accounting standards for recognizing profit
or loss on sales of real estate. SFAS No. 66 provides for profit recognition by
the full accrual method, provided (a) the profit is determinable, that is, the
collectibility of the sales price is reasonably assured or the amount that will
not be collectible can be estimated, and (b) the earnings process is virtually
complete, that is, the seller is not obligated to perform significant activities
after the sale to earn the profit. Unless both conditions exist, recognition of
all or part of the profit shall be postponed and
-10-
other methods of profit recognition shall be followed. In accordance with SFAS
No. 66, the Company recognizes profit on sales of restaurants under both the
installment method and the deposit method, depending on the specific terms of
each sale. The Company continues to record depreciation expense on the property
subject to the sales contracts that are accounted for under the deposit method
and records any principal payments received as a deposit until such time that
the transaction meets the sales criteria of SFAS No. 66.
During the thirty-nine weeks ended December 28, 2003, the Company sold
three Company-owned restaurants for total consideration of $1,083,000 and
entered into two management agreements with franchisees to operate two
Company-owned restaurants. As the Company expects to have a continuing stream of
cash flows from these restaurants, the results of operations for these
Company-operated restaurants are included in "Income from continuing operations"
in the accompanying consolidated statements of operations for the thirteen and
thirty-nine week periods ended December 28, 2003 through the date of sale. There
have been no sales of Company-owned restaurants during the thirty-nine weeks
ended December 26, 2004.
The results of operations for these Company-owned restaurants for the
thirteen and thirty-nine week periods ended December 28, 2003 are as follows (in
thousands):
Thirteen Weeks Ended Thirty-nine Weeks Ended
Dec. 28, 2003 Dec. 28, 2003
------------- -------------
Sales $ - $ 1,237
============= =============
Loss from continuing operations before income taxes $ - $ (124)
============= =============
NOTE F - DISCONTINUED OPERATIONS
On September 12, 2004, the Company ceased operating one of its
Company-operated restaurants pursuant to the expiration and non-renewal of its
lease. The results of operations of this restaurant have been restated as
discontinued operations in the accompanying consolidated statements of
operations in accordance with SFAS No. 144, "Accounting for the Impairment or
Disposal of Long-Lived Assets."
Following is a summary of the results of operations for this restaurant
for the thirteen and thirty-nine week periods ended December 26, 2004 and
December 28, 2003 (in thousands):
Thirteen Weeks Ended Thirty-nine Weeks Ended
Dec. 26, Dec. 28, Dec. 26, Dec. 28,
2004 2003 2004 2003
---- ---- ---- ----
Sales $ - $ 222 $ 415 $ 688
==== ===== ===== =====
Loss from operations before income taxes $ - $ (18) $ (15) $ (23)
==== ===== ===== =====
NOTE G - STOCK REPURCHASE PROGRAM
On September 14, 2001, Nathan's was authorized to purchase up to one
million shares of its common stock. Pursuant to its stock repurchase program, it
repurchased one million shares of common stock in open market transactions and a
private transaction at a total cost of $3,670,000 through the quarter ended
September 29, 2002. On October 7, 2002, Nathan's was authorized to purchase up
to one million additional shares of its common stock. Through December 26, 2004,
Nathan's purchased 891,100 shares of common stock at a cost of approximately
$3,488,000 which includes the repurchase of 39,799 shares during the thirty-nine
weeks ended December 26, 2004 at a cost of $237,000. As of December 26, 2004,
Nathan's has purchased a total of 1,891,100 shares of common stock at a cost of
approximately $7,158,000. Nathan's expects to make additional purchases of stock
from time to time, depending on market conditions, in open market or in
privately negotiated transactions, at prices deemed appropriate by management.
There is no set time limit on the purchases. Nathan's expects to fund these
stock repurchases from its operating cash flow.
NOTE H - EXERCISE OF WARRANTS AND STOCK OPTIONS
In connection with the acquisition of Miami Subs Corporation ("Miami
Subs"), which was concluded during fiscal 2000, Nathan's issued 579,040 warrants
to purchase Nathans stock at $6.00 per share to the former shareholders of Miami
Subs. These warrants had an expiration date of September 29, 2004. During the
thirty-nine week period ended December 26, 2004,Nathan's
-11-
received approximately $857,000 in connection with the exercise of 142,855
warrants in addition to the six warrants which were exercised prior to the
beginning of the fiscal year. The remaining 436,179 warrants expired unexercised
on September 29, 2004. During the thirty-nine weeks ended December 26, 2004,
Nathan's also received approximately $331,000 in connection with the exercise of
89,375 employee stock options.
NOTE I - COMPREHENSIVE INCOME
The components of comprehensive income are as follows (in thousands):
Thirteen Weeks Ended Thirty-nine Weeks Ended
Dec. 26, Dec. 28, Dec. 26, Dec. 28,
2004 2003 2004 2003
-------- -------- -------- -------
Net income $ 476 $ 237 $ 2,516 $ 1,837
Unrealized gain (loss) on available-for-sale securities,
net of tax (benefit) provision of ($7), $1, ($25),
$2, respectively (11) 2 (35) 3
-------- -------- -------- -------
Comprehensive income $ 465 $ 239 $ 2,481 $ 1,840
======== ======== ======== =======
Accumulated other comprehensive income at December 26, 2004 and March 28, 2004
consists entirely of unrealized gains and (losses) on available-for-sale
securities, net of deferred taxes.
NOTE J - COMMITMENTS AND CONTINGENCIES
1. CONTINGENCIES
An action was commenced, in the Circuit Court of the Fifteenth Judicial
Circuit, Palm Beach County, Florida in September 2001 against Miami Subs and
EKFD Corporation, a Miami Subs franchisee (the "franchisee") claiming negligence
in connection with a slip and fall which allegedly occurred on the premises of
the franchisee for unspecified damages. Pursuant to the terms of the Miami Subs
Franchise Agreement, the franchisee is obligated to indemnify Miami Subs and
hold it harmless against claims asserted and procure an insurance policy which
names Miami Subs as an additional insured. Miami Subs has denied any liability
to plaintiffs and the franchisee's insurer has agreed to indemnify and defend
Miami Subs and has assumed the defense of this action for Miami Subs.
Miami Subs has received a claim from a landlord for a franchised location
that Miami Subs owes the landlord $150,000 in connection with the construction
of the leased premises. Miami Subs has been the primary tenant at the location
since 1993, when the lease was assigned to Miami Subs by the initial tenant
under the lease, the party to whom the construction loan was made. To date, the
landlord has not commenced legal action. Miami Subs intends to continue to
dispute its liability for the construction loan and to vigorously defend any
legal action.
Ismael Rodriguez commenced an action, in the Supreme Court of the State of
New York, Kings County, in May 2004 against Nathan's Famous, Inc. seeking
damages of $1,000,000 for claims of age discrimination in connection with the
termination of Mr. Rodriguez's employment. Mr. Rodriguez was terminated from his
position in connection with his repeated violation of company policies and
failure to follow company-mandated procedures. Initial discoveries and
depositions have commenced. Nathan's has denied any liability and intends to
continue to defend this action vigorously. Nathan's has submitted this claim to
its insurance carrier and expects that it will not incur any material liability
that is not covered by its employment practices liability insurance policy.
An employee of a Miami Subs franchised restaurant commenced an action for
unspecified damages in the United States District Court, Southern District of
Florida in September 2004 against Miami Subs Corporation, Miami Subs USA, Inc.,
and three Miami Subs franchisees, FMJ Subs Corporation, NEESA Subs Corp. and
Muhammad Amin, (the "franchisees"), claiming that she was not paid overtime when
she worked in excess of 40 hours per week, in violation of the Fair Labor
Standards Act. The action also seeks damages for any other employees of the
defendants who would be similarly entitled to overtime. Pursuant to the terms of
the Miami Subs Franchise Agreement, the franchisees are obligated to operate
their Miami Subs franchises in compliance with the law, including all labor
laws. Miami Subs intends to assert that it is not an appropriate party to this
litigation, to deny any liability to plaintiff and defend against this action
vigorously.
-12-
The Company is involved in various other litigation in the normal course
of business, none of which, in the opinion of management, will have a
significant adverse impact on its financial position or results of operations.
2. GUARANTEES
The Company guarantees certain equipment financing for franchisees with a
third-party lender. The Company's maximum obligation, should the franchisees
default on the required monthly payments to the third-party lender, for loans
funded by the lender, as of December 26, 2004 was approximately $128,000. The
equipment financing expires at various dates through fiscal 2008.
The Company also guarantees a franchisee's note payable with a bank. The
note payable matures in April 2007. The Company's maximum obligation, should the
franchisee default on the required monthly payments to the bank, for loans
funded by the lender, as of December 26, 2004, was approximately $234,000.
3. COMMITMENTS
We entered into a new employment agreement with Howard M. Lorber, our
Chairman and Chief Executive Officer, effective as of January 1, 2005. The
agreement expires December 31, 2009. Pursuant to the agreement, Mr. Lorber
receives a base salary of $250,000 and an annual bonus equal to 5 percent of our
consolidated pre-tax earnings over $5,000,000 for each fiscal year. The
agreement further provides for a three-year consulting period after the
termination of employment during which Mr. Lorber will receive a consulting
payment of $225,000 per year. The employment agreement also provides for life
insurance and for the continuation of certain benefits following death or
disability. In connection with the agreement, we issued to Mr. Lorber 50,000
shares of restricted common stock which vest ratably over the 5-year term of the
employment agreement.
In the event that Mr. Lorber's officer's employment is terminated without
cause, he is entitled to receive his salary and bonus for the remainder of the
contract term. The employment agreement further provides that in the event there
is a change in the control, as defined in the agreement, Mr. Lorber has the
option, exercisable within one year after such event, to terminate his
employment agreement. Upon such termination, he has the right to receive a lump
sum cash payment equal to the greater of (A) his salary and annual bonuses for
the remainder of the employment term (including a prorated bonus for any partial
fiscal year), which bonus shall be equal to the average of the annual bonuses
awarded to him during the three fiscal years preceding the fiscal year of
termination; or (B) 2.99 times his salary and annual bonus for the fiscal year
immediately preceding the fiscal year of termination, as well as a lump sum cash
payment equal to the difference between the exercise price of any exercisable
options having an exercise price of less than the then current market price of
our common stock and such then current market price. In addition, we will
provide Mr. Lorber with a tax gross-up payment to cover any excise tax due. In
the event of termination of employment due to Mr. Lorber's death or disability,
he is entitled to receive an amount equal to his salary and annual bonuses for a
three-year period, which bonus shall be equal to the average of the annual
bonuses awarded to him during the three fiscal years preceding the fiscal year
of termination.
NOTE K - RELATED PARTY TRANSACTIONS
An accounting firm of which Charles Raich, who joined Nathan's Board of
Directors on June 15, 2004, serves as Managing Partner, received ordinary tax
preparation and other consulting fees of $105,000 during the thirty-nine weeks
ended December 26, 2004.
NOTE L - RECLASSIFICATIONS
Certain reclassifications of prior period balances have been made to
conform to the December 26, 2004 presentation.
NOTE M - NEW ACCOUNTING PRONOUNCEMENTS NOT YET ADOPTED
In November 2004, the FASB issued FASB Statement No. 151, "Inventory
Costs--an amendment of ARB No. 43" ("FAS 151"), which is the result of its
efforts to converge U.S. accounting standards for inventories with International
Accounting Standards. FAS No. 151 requires idle facility expenses, freight,
handling costs, and wasted material (spoilage) costs to be recognized as
current-period charges. It also requires that allocation of fixed production
overheads to the costs of conversion be based on the normal capacity of the
production facilities. FAS No. 151 will be effective for inventory costs
incurred during fiscal years beginning after June 15, 2005. We are evaluating
the impact of this standard on our consolidated financial statements.
-13-
In December 2004, the FASB issued SFAS No. 123 (Revised 2004)
"Share-Based Payment" (SFAS No. 123R"). SFAS No. 123R addresses all forms of
share-based payment ("SBP") awards, including shares issued under employee stock
purchase plans, stock options, stock purchase plans, restricted stock and stock
appreciation rights. SFAS No. 123R will require Nathan's to expense SBP awards
with compensation cost for SBP transactions measured at fair value. The FASB
originally stated a preference for a lattice model because it believed that a
lattice model more fully captures the unique characteristics of employee stock
options in the estimate of fair value, as compared to the Black-Scholes model
which Nathan's currently uses for its footnote disclosure. The FASB decided to
remove its explicit preference for a lattice model and not require a single
valuation methodology. SFAS No. 123R requires Nathan's to adopt the new
accounting provisions beginning in our second quarter of 2005. Nathan's has not
yet determined the impact of applying the various provisions of SFAS No. 123R.
-14-
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
INTRODUCTION
As used in this Report, the terms "we", "us", "our", "Nathan's" and the
"Company" mean Nathan's Famous, Inc. and its subsidiaries (unless the context
indicates a different meaning).
During the fiscal year ended March 26, 2000, we completed two acquisitions
that provided us with two highly recognized brands. On April 1, 1999, we became
the franchisor of the Kenny Rogers Roasters restaurant system by acquiring the
intellectual property rights, including trademarks, recipes and franchise
agreements of Roasters Corp. and Roasters Franchise Corp. On September 30, 1999,
we acquired the remaining 70% of the outstanding common stock of Miami Subs
Corporation we did not already own. Our revenues are generated primarily from
operating Company-owned restaurants, selling products under Nathan's Branded
Product Program, franchising the Nathan's, Miami Subs and Kenny Rogers
restaurant concepts and licensing agreements for the sale of Nathan's products
within supermarkets. The Branded Product Program enables foodservice operators
to offer Nathans' hot dogs and other proprietary items for sale within their
facilities. In conjunction with this program, foodservice operators are granted
a limited use of the Nathans' trademark with respect to the sale of hot dogs and
certain other proprietary food items and paper goods.
In addition to plans for expansion through our Branded Product Program and
franchising, Nathan's continues to co-brand within its existing restaurant
system and in new units that open. Currently, the Arthur Treacher's brand is
being sold within 114 Nathan's, Kenny Rogers Roasters and Miami Subs
restaurants, the Nathan's brand is included on the menu of 64 Miami Subs and
Kenny Rogers restaurants, while the Kenny Rogers Roasters brand is being sold
within 90 Miami Subs and Nathan's restaurants.
At December 26, 2004, our combined system consisted of 352 franchised or
licensed units, six Company-owned units and over 4,800 Nathan's Branded Product
points of sale that feature Nathan's world famous all-beef hot dogs, located in
46 states, the District of Columbia and 13 foreign countries. At December 26,
2004, our Company-owned restaurant system included six Nathan's units, as
compared to seven Nathan's units at December 28, 2003.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Our consolidated financial statements and the notes to our consolidated
financial statements contain information that is pertinent to management's
discussion and analysis. The preparation of financial statements in conformity
with accounting principles generally accepted in the United States requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosures of contingent assets and liabilities. We
believe the following critical accounting policies involve additional management
judgement due to the sensitivity of the methods, assumptions and estimates
necessary in determining the related asset and liability amounts.
Impairment of Goodwill and Other Intangible Assets
Statement of Financial Accounting Standards No. 142, "Goodwill and Other
Intangible Assets," ("SFAS No. 142") requires that goodwill and intangible
assets with indefinite lives will no longer be amortized but will be reviewed
annually (or more frequently if impairment indicators arise) for impairment. The
most significant assumptions which are used in this test are estimates of future
cash flows. We typically use the same assumptions for this test as we use in the
development of our business plans. If these assumptions differ significantly
from actual results, additional impairment expenses may be required. No goodwill
or other intangible assets were determined to be impaired during the thirty-nine
weeks ended December 26, 2004.
Impairment of Long-Lived Assets
Statement of Financial Accounting Standards No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets," ("SFAS No. 144") requires
management judgements regarding the future operating and disposition plans for
underperforming assets, and estimates of expected realizable values for assets
to be sold. The application of SFAS No. 144 has affected the amounts and timing
of charges to operating results in recent years. We evaluate possible impairment
of each restaurant individually and record an impairment charge whenever we
determine that impairment factors exist. We consider a history of restaurant
operating losses to be the primary indicator of potential impairment of a
restaurant's carrying value. No restaurants were determined to be impaired
during the thirty-nine weeks ended December 26, 2004.
-15-
Impairment of Notes Receivable
Statement of Financial Accounting Standards No. 114, "Accounting by
Creditors for Impairment of a Loan," requires management judgements regarding
the future collectibility of notes receivable and the underlying fair market
value of collateral. We consider the following factors when evaluating a note
for impairment: a) indications that the borrower is experiencing business
problems, such as operating losses, marginal working capital, inadequate cash
flow or business interruptions; b) whether the loan is secured by collateral
that is not readily marketable; or c) whether the collateral is susceptible to
deterioration in realizable value. When determining possible impairment, we also
assess our future intention to extend certain leases beyond the minimum lease
term and the debtor's ability to meet its obligation over that extended term. No
notes receivable were determined to be impaired during the thirty-nine weeks
ended December 26, 2004.
Revenue Recognition
Sales by Company-owned restaurants, which are typically paid in cash by
the customer, are recognized upon the performance of services.
In connection with its franchising operations, the Company receives
initial franchise fees, development fees, royalties, contributions to marketing
funds, and in certain cases, revenue from sub-leasing restaurant properties to
franchisees.
Franchise and area development fees, which are typically received prior to
completion of the revenue recognition process, are recorded as deferred revenue.
Initial franchise fees are recognized as income when substantially all services
to be performed by Nathan's and conditions relating to the sale of the franchise
have been performed or satisfied, which generally occurs when the franchised
restaurant commences operations.
Development fees are non-refundable and the related agreements require the
franchisee to open a specified number of restaurants in the development area
within a specified time period or the agreements may be canceled by the Company.
Revenue from development agreements is deferred and recognized as restaurants in
the development area commence operations on a pro rata basis to the minimum
number of restaurants required to be open, or at the time the development
agreement is effectively canceled.
Nathan's recognizes franchise royalties when they are earned and deemed
collectible. Franchise fees and royalties that are not deemed to be collectible
are not recognized as revenue until paid by the franchisee. The number of
non-performing units are determined by analyzing the number of months that
royalties have been paid during a period. When royalties have been paid for less
then the majority of the time frame reported such location is deemed
non-performing. Accordingly, the number of non-performing units may differ
between the quarterly results and year to date results. Revenue from sub-leasing
properties is recognized as income as the revenue is earned and becomes
receivable and deemed collectible. Sub-lease rental income is presented net of
associated lease costs in the accompanying consolidated statements of
operations.
Nathan's recognizes revenue from the Branded Product Program when it is
determined by the manufacturer that the products have been delivered via third
party common carrier to Nathans' customers. The purchase of the product by the
Company is recorded simultaneously with the revenue.
In the normal course of business, we extend credit to franchisees for the
payment of ongoing royalties and to trade customers of our Branded Product
Program. Notes and accounts receivable, net, as shown on our consolidated
balance sheets are net of allowances for doubtful accounts. An allowance for
doubtful accounts is determined through analysis of the aging of accounts
receivable at the date of the financial statements, assessment of collectibility
based upon historical trends and an evaluation of the impact of current and
projected economic conditions. In the event that the collectibility of a
receivable is doubtful, the associated revenue is not recorded until the facts
and circumstances change in accordance with Staff Accounting Bulletin ("SAB")
No. 104, "Revenue Recognition."
Self-insurance Liabilities
We are self-insured for portions of our general liability coverage. As
part of our risk management strategy, our insurance programs include deductibles
for each incident and in the aggregate for a policy year. As such, we accrue
estimates of our ultimate self insurance costs throughout the policy year. These
estimates have been developed based upon our historical trends, however, the
final cost of many of these claims may not be known for five years or longer.
Accordingly, our annual self insurance costs may be subject to adjustment from
previous estimates as facts and circumstances change.
-16-
RESULTS OF OPERATIONS
THIRTEEN WEEKS ENDED DECEMBER 26, 2004 COMPARED TO THIRTEEN WEEKS ENDED DECEMBER
28, 2003
Revenues from Continuing Operations
Total sales increased by $849,000 or 22.1% to $4,690,000 for the thirteen
weeks ended December 26, 2004 ("third quarter fiscal 2005") as compared to
$3,841,000 for the thirteen weeks ended December 28, 2003 ("third quarter fiscal
2004"). Sales from the Branded Product Program increased by 48.6% to $2,543,000
for the third quarter fiscal 2005 as compared to sales of $1,711,000 in the
third quarter fiscal 2004. This increase was attributable to a volume increase
of approximately 42.0% and the impact of price increases implemented in the
second half of fiscal 2004 in response to commodity cost increases.
Company-owned restaurant sales increased by $21,000 or 1.0% to $2,046,000 from
$2,025,000 primarily due to higher sales from the five comparable Company-owned
Nathan's restaurants (excluding one seasonal location) as compared to the prior
fiscal year. During the third quarter fiscal 2005, we realized sales of $101,000
as compared to $105,000 in the third quarter fiscal 2004 in connection with our
QVC marketing program.
Franchise fees and royalties increased by $59,000 or 3.5% to $1,749,000 in
the third quarter fiscal 2005 compared to $1,690,000 in the third quarter fiscal
2004. Franchise royalties increased by $106,000 or 7.3% to $1,564,000 in the
third quarter fiscal 2005 as compared to $1,458,000 in the third quarter fiscal
2004. This increase is due primarily to improved royalty collections and higher
domestic franchise sales. Domestic franchise restaurant sales increased by 1.5%
to $41,306,000 in the third quarter fiscal 2005 as compared to $40,706,000 in
the third quarter fiscal 2004. Comparable domestic franchise sales (consisting
of 179 restaurants) increased by $2,299,000 or 7.1% to $34,695,000 in the third
quarter fiscal 2005 as compared to $32,396,000 in the third quarter fiscal 2004.
At December 26, 2004, 352 domestic and international franchised or licensed
restaurants were operating as compared to 341 domestic and international
franchised or licensed restaurants at December 28, 2003. During the thirteen
weeks ended December 26, 2004, royalty income from 21 domestic franchised
locations has been deemed unrealizable and, as a result, has not been recognized
as revenue by the Company as compared to 34 domestic franchised locations during
the thirteen weeks ended December 28, 2003. Domestic franchise fee income was
$74,000 in the third quarter fiscal 2005 as compared to $91,000 in the third
quarter fiscal 2004. During the third quarter fiscal 2005, ten new franchised
units opened as compared to opening five new franchised units during the third
quarter fiscal 2004. Seven of the new units that opened during the third quarter
fiscal 2005 were non-traditional stores whereby lower franchise fees are earned
as compared to two non-traditional units during the third quarter fiscal 2004.
During the third quarter fiscal 2005, Nathan's also recognized $51,000 in
connection with two forfeited franchise fees. International franchise fee income
was $60,000 in the third quarter fiscal 2005 as compared to $141,000 during the
third quarter fiscal 2004. During the third quarter fiscal 2005, three new
international units were opened. During the third quarter fiscal 2004, we
received approximately $75,000 of previously unrealized fees from the
international Master Franchisor of the Kenny Rogers Brand.
License royalties were $684,000 in the third quarter fiscal 2005 as
compared to $674,000 in the third quarter fiscal 2004. During the third quarter
fiscal 2005, higher royalties were earned from the sale of Nathan's frankfurters
within supermarkets and club stores, our license agreement for Nathan's french
fries, and other smaller license agreements which were substantially offset by
lower royalties earned from Nathan's non-food items. During the third quarter
fiscal 2004, we marketed the Nathan's "griddle" via infomercial and retailers
during the Christmas 2003 season.
Investment and other income was $106,000 in the third quarter fiscal 2005
versus $46,000 in the third quarter fiscal 2004. During the third quarter fiscal
2005, income from subleasing activities and other income was approximately
$80,000 higher than the third quarter fiscal 2004 primarily due to the
termination of unprofitable leases which was partially offset by lower
amortization of deferred income and other income.
Interest income was $71,000 in the third quarter fiscal 2005 versus
$39,000 in the third quarter fiscal 2004 due primarily to earning higher
interest income from the higher balances invested in marketable investment
securities.
Costs and Expenses from Continuing Operations
Cost of sales increased by $755,000 to $3,657,000 in the third quarter
fiscal 2005 from $2,902,000 in the third quarter fiscal 2004. Higher costs of
approximately $719,000 were incurred primarily in connection with the growth of
our Branded Product Program, and higher commodity costs during the third quarter
fiscal 2005. During the third quarter fiscal 2005, restaurant cost of sales were
higher than the third quarter fiscal 2004 by approximately $36,000. The cost of
restaurant sales at our comparable units as a percentage of restaurant sales was
66.1% in the third quarter fiscal 2005 as compared to 65.2% in the third quarter
fiscal 2004. This increase was the result of higher food and labor costs. The
cost of our beef products has continued to increase since the beginning of
fiscal 2004. The
-17-
cost of hot dogs was approximately 3.6% higher during the third quarter fiscal
2005 than the third quarter fiscal 2004. During the third quarter fiscal 2004,
the average cost of hot dogs was approximately 5.7% higher than the average cost
during the first six months of fiscal 2004. Since then, cost of hot dogs has
remained at exceptionally high levels. In response to the cost increases,
Nathan's increased selling prices within its Branded Product Program where
possible to offset some of the margin pressure during the second half of fiscal
2004. Nathan's had previously increased menu prices in its company-operated
restaurants due to these rising costs.
Restaurant operating expenses increased by $14,000 to $734,000 in the
third quarter fiscal 2005 from $720,000 in the third quarter fiscal 2004. This
increase is due primarily to higher occupancy and marketing costs which were
partly offset by lower utility and insurance costs.
Depreciation and amortization was $220,000 in the third quarter fiscal
2005 as compared to $226,000 in the third quarter fiscal 2004.
Amortization of intangible assets was $65,000 in both the third quarter
fiscal 2005 and the third quarter fiscal 2004.
General and administrative expenses increased by $52,000 to $1,959,000 in
the third quarter fiscal 2005 as compared to $1,907,000 in the third quarter
fiscal 2004. The increase in general and administrative expenses was due
primarily to higher personnel and incentive compensation expenses of
approximately $102,000 which was partly offset by lower corporate insurance
expense and professional fees of approximately $64,000.
Interest expense was $12,000 during the third quarter fiscal 2005 as
compared to $16,000 during the third quarter fiscal 2004. The reduction in
interest expense relates primarily to the repayment of outstanding loans between
the two periods.
No notes receivable were determined to be impaired during the third
quarter fiscal 2005. Impairment charge on notes receivable of $44,000 during the
third quarter fiscal 2004 represents the write-down of one non-performing note
receivable.
Provision for Income Taxes from Continuing Operations
In the third quarter fiscal 2005, the income tax provision was $177,000 or
27.1% of income from continuing operations before income taxes as compared to
$162,000 or 39.5% of income from continuing operations before income taxes in
the third quarter fiscal 2004. During the third quarter fiscal 2005, Nathan's
received a refund of prior years' state income taxes, which, net of applicable
federal income tax, was approximately $81,000, lowering the effective tax rate
by 12.4% during the third quarter fiscal 2005.
Discontinued operations
The third quarter fiscal 2004 includes the results of one restaurant that
was closed pursuant to its lease expiration on September 12, 2004. Revenues and
loss before income taxes from this restaurant during the third quarter fiscal
2004 were $222,000 and $18,000, respectively.
THIRTY-NINE WEEKS ENDED DECEMBER 26, 2004 COMPARED TO THIRTY-NINE WEEKS ENDED
DECEMBER 28, 2003
Revenues from Continuing Operations
Total sales increased by $2,339,000 or 14.7% to $18,269,000 for the
thirty-nine weeks ended December 26, 2004 ("fiscal 2005 period") as compared to
$15,930,000 for the thirty-nine weeks ended December 28, 2003 ("fiscal 2004
period"). Sales from the Branded Product Program increased by 36.8% to
$7,939,000 for the fiscal 2005 period as compared to sales of $5,803,000 in the
fiscal 2004 period. This increase was attributable to a volume increase of
approximately 29% and the impact of price increases implemented in the second
half of fiscal 2004 in response to commodity cost increases. Company-owned
restaurant sales decreased by $688,000 or 7.0% to $9,189,000 from $9,877,000
primarily due to the operation of five fewer Company-owned stores as compared to
the prior fiscal year, which was partly offset by a 6.4% sales increase at our
comparable restaurants (consisting of six Nathan's, including one seasonal
location). The reduction in Company-owned stores is the result of our
franchising three restaurants and entering into two management agreements during
the fiscal 2004 period. The financial impact associated with these five
restaurants lowered restaurant sales by $1,237,000 and improved restaurant
operating profits by $125,000 versus the fiscal 2004 period. During the fiscal
2005 period we realized sales of $1,141,000 as compared to $250,000 in the
fiscal 2004 period in connection with our QVC marketing program which was
introduced in September 2003. Much of the sales generated by QVC during the
fiscal 2005 period were in connection with the "Today's Special Value" program
held on May 20, 2004 featuring Nathan's hot dogs.
-18-
Franchise fees and royalties increased by $331,000 or 7.0% to $5,084,000
in the fiscal 2005 period compared to $4,753,000 in the fiscal 2004 period.
Franchise royalties increased by $291,000 or 6.8% to $4,589,000 in the fiscal
2005 period as compared to $4,298,000 in the fiscal 2004 period. This increase
is due primarily to improved contract compliance and higher domestic franchise
sales. Domestic sales increased by 2.2% to $124,324,000 in the fiscal 2005
period as compared to $121,625,000 in the fiscal 2004 period. Comparable
domestic franchise sales (consisting of 176 restaurants) increased by $5,811,000
or 6.1% to $100,931,000 in the fiscal 2005 period as compared to $95,120,000 in
the fiscal 2004 period. At December 26, 2004, 352 domestic and international
franchised or licensed restaurants were operating as compared to 341 domestic
and international franchised or licensed restaurants at December 28, 2003.
During the thirty-nine weeks ended December 26, 2004, royalty income from 25
domestic franchised locations have been deemed unrealizable as compared to 34
domestic franchised locations during the thirty-nine weeks ended December 28,
2003. Domestic franchise fee income was $260,000 in the fiscal 2005 period as
compared to $291,000 in the fiscal 2004 period. During the fiscal 2005 period,
22 new domestic franchised units opened as compared to opening 16 new franchised
units and franchising three Company-owned restaurants during the fiscal 2004
period. Fourteen of the new units that opened during the fiscal 2005 period were
non-traditional stores whereby lower franchise fees are earned as compared to
eight non-traditional units during the fiscal 2004 period. Nathan's also
recognized $51,000 in connection with two forfeited domestic franchise fees.
International franchise fee income was $184,000 in the fiscal 2005 period as
compared to $141,000 during the fiscal 2004 period. During the fiscal 2005
period, six new international units were opened.
License royalties were $2,507,000 in the fiscal 2005 period as compared to
$2,330,000 in the fiscal 2004 period. This increase is primarily attributable to
higher royalties earned from the sale of Nathan's frankfurters within
supermarkets and club stores and from our license agreements for Nathan's french
fries and condiments which were partly offset by lower royalties earned from the
sale of the Nathan's "griddle" that was marketed via infomercial and retailers
during the Christmas 2003 season.
Investment and other income was $435,000 in the fiscal 2005 period versus
$339,000 in the fiscal 2004 period. During the fiscal 2005 period, income from
subleasing activities and other income was approximately $227,000 higher than
the fiscal 2004 period primarily due to the termination of unprofitable leases
which was partially offset by lower investment income and amortized deferred
income. Gains associated with the sale of fixed assets were approximately
$82,000 lower during the fiscal 2005 period than during the fiscal 2004 period.
In the fiscal 2004 period net gains of $149,000 were realized, primarily in
connection with the sale of two Company-owned restaurants to franchisees.
Interest income was $169,000 in the fiscal 2005 period versus $165,000 in
the fiscal 2004 period due primarily to earning higher interest income from our
marketable investment securities and lower interest income on notes receivable
which were determined to be impaired during the fiscal year ended March 28,
2004.
Costs and Expenses from Continuing Operations
Cost of sales increased by $1,971,000 to $13,181,000 in the fiscal 2005
period from $11,210,000 in the fiscal 2004 period. Higher costs of approximately
$2,634,000 were incurred primarily in connection with the growth of our Branded
Product Program. Increased costs were also incurred in connection with our QVC
marketing program and higher commodity costs of both programs during the fiscal
2005 period. During the fiscal 2005 period, restaurant cost of sales were lower
than the fiscal 2004 period by approximately $663,000. Restaurant cost of sales
were lower by approximately $899,000 as a result of operating five fewer
Company-owned restaurants during the fiscal 2005 period. The cost of restaurant
sales at our comparable units as a percentage of restaurant sales was 58.6% in
the fiscal 2005 period as compared to 59.5% in the fiscal 2004 period. This
decrease was the result of lower labor related costs which were partly offset by
higher food costs. The cost of beef products has continued to increase since the
beginning of fiscal 2004. The cost of hot dogs was approximately 7.8% higher
during the fiscal 2005 period than the fiscal 2004 period. In response to last
year's cost increases, Nathan's increased selling prices within its Branded
Product Program where possible to offset some of the margin pressure during the
second half of fiscal 2004. Nathan's had previously increased menu prices in its
company-operated restaurants due to these rising costs.
Restaurant operating expenses decreased by $325,000 to $2,332,000 in the
fiscal 2005 period from $2,657,000 in the fiscal 2004 period. Restaurant
operating expenses were lower by $464,000 as a result of operating five fewer
restaurants which were partly offset by higher marketing, insurance and
occupancy costs.
Depreciation and amortization decreased by $49,000 to $663,000 in the
fiscal 2005 period from $712,000 in the fiscal 2004 period. Depreciation expense
was lower by approximately $25,000 as a result of operating five fewer
Company-owned restaurants.
Amortization of intangible assets was $196,000 in both the fiscal 2005
period and the fiscal 2004 period.
-19-
General and administrative expenses increased by $502,000 to $6,025,000 in
the fiscal 2005 period as compared to $5,523,000 in the fiscal 2004 period. The
increase in general and administrative expenses was due primarily to higher
personnel and incentive compensation expenses of approximately $370,000 and
higher corporate insurance expense of approximately $95,000. During the fiscal
2004 period, Nathan's recorded an expense reversal of approximately $50,000 from
the settlement of a disputed claim.
Interest expense was $36,000 during the fiscal 2005 period as compared to
$55,000 during the fiscal 2004 period. The reduction in interest expense relates
primarily to the repayment of outstanding loans between the two periods.
No notes receivable were determined to be impaired during the fiscal 2005
period. Impairment charge on notes receivable of $100,000 during the fiscal 2004
period represents the write-down of one non-performing note receivable.
Provision for Income Taxes
In the fiscal 2005 period, the income tax provision was $1,506,000 or
37.4% of income from continuing operations before income taxes as compared to
$1,213,000 or 39.6% of income from continuing operations before income taxes in
the fiscal 2004 period. During the third quarter fiscal 2005, Nathan's received
a refund of prior years' state income taxes, which, net of applicable federal
income tax, was approximately $81,000, lowering the effective tax rate by 2.0%
for the fiscal 2005 period.
Discontinued operations
The fiscal 2005 and fiscal 2004 periods include the results of one
restaurant that was closed pursuant to its lease expiration on September 12,
2004. Revenues generated by this restaurant were $415,000 and $688,000 during
the fiscal 2005 and 2004 periods, respectively. Losses before income taxes from
this restaurant were $15,000 and $23,000 during the fiscal 2005 and 2004
periods, respectively.
OFF-BALANCE SHEET ARRANGEMENTS
We are not a party to any off-balance sheet arrangements.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents at December 26, 2004 aggregated $3,009,000,
decreasing by $440,000 during the fiscal 2005 period. At December 26, 2004,
marketable securities increased by $3,196,000 from March 28, 2004 to $10,673,000
and net working capital increased to $12,743,000 from $9,185,000 at March 28,
2004.
Cash provided by operations of $2,368,000 in the fiscal 2005 period is due
primarily to net income of $2,516,000 and non-cash expenses of $1,002,000 which
was partly reduced by increased accounts receivable of $959,000 resulting
primarily from higher Branded Product sales and increased royalties.
Cash used in investing activities of $3,630,000 is comprised primarily of
the net purchase of available for sale securities of $3,361,000 and capital
expenditures of $515,000 which were partially offset by repayments on notes
receivable of $232,000 and proceeds from the sale of other fixed assets of
$14,000.
Cash provided by financing activities of $822,000 is comprised of proceeds
received from the exercise of warrants and employee stock options of $1,188,000
which was partially offset by the repurchase of 39,799 shares of common stock of
$237,000 and $129,000 for repayments of notes payable.
On September 14, 2001, Nathan's was authorized to purchase up to one
million shares of its common stock. Pursuant to its stock repurchase program, it
repurchased one million shares of common stock in open market transactions and a
private transaction at a total cost of $3,670,000 through the quarter ended
September 29, 2002. On October 7, 2002, Nathan's was authorized to purchase up
to one million additional shares of its common stock. Through December 26, 2004,
Nathan's purchased 891,100 shares of common stock at a cost of approximately
$3,488,000 which includes the repurchase of 39,799 shares during the thirty-nine
weeks ended December 26, 2004 at a cost of $237,000. As of December 26, 2004,
Nathan's has purchased a total of 1,891,100 shares of common stock at a cost of
approximately $7,158,000. Nathan's expects to make additional purchases of stock
from time to time, depending on market conditions, in open market or in
privately negotiated transactions, at prices deemed appropriate by management.
There is no set time limit on the purchases. Nathan's expects to fund these
stock repurchases from its operating cash flow.
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We expect that we will make additional investments in certain existing
restaurants and support the growth of the Branded Product Program in the future
and to fund those investments from our operating cash flow. We may incur
additional capital expenditures in connection with the replacement of a
Company-owned restaurant whose lease expired in September 2004.
There are currently 28 properties that we either own or lease from third
parties which we lease or sublease to franchisees, operating managers and
non-franchisees. Additionally, there is currently one leased vacant property
which was previously sublet to a franchisee. We remain contingently liable for
all costs associated with these properties including: rent, property taxes and
insurance. Additionally, we guaranteed financing on behalf of certain
franchisees with two third-party lenders. Our maximum obligation for loans
funded by the lenders as of December 26, 2004 was approximately $362,000.
The following schedules represent Nathan's cash contractual obligations
and the expiration of other contractual commitments by maturity (in thousands):
Payments Due by Period
-------------------------------
Less than
Cash Contractual Obligations Total 1 Year 1 - 3 Years 4-5 Years After 5 Years
- ---------------------------- ------- ------- ----------- --------- --------------
Long-Term Debt $ 861 $ 167 $ 333 $ 333 $ 28
Capital Lease Obligations 49 7 16 20 6
Employment Agreements 1,696 696 500 500 -
Operating Leases 15,779 3,632 6,526 3,592 2,029
------- ------- ------- ------- -------
Gross Cash Contractual Obligations 18,385 4,502 7,375 4,445 2,063
Sublease Income 9,021 1,999 3,546 2,036 1,440
------- ------- ------- ------- -------
Net Cash Contractual Obligations $ 9,364 $ 2,503 $ 3,829 $ 2,409 $ 623
======= ======= ======= ======= =======
Amount of Commitment Expiration Per Period
Total ---------------------------------------------
Amounts Less than
Other Contractual Commitments Committed 1 Year 1 - 3 Years 4-5 Years After 5 Years
- ----------------------------- --------- ------ ----------- --------- -------------
Loan Guarantees $362 $138 $224 $ - -
---- ---- ---- ----- ----
Total Commercial Commitments $362 $138 $224 $ - -
==== ==== ==== ===== ====
Management believes that available cash, marketable investment securities,
and internally generated funds should provide sufficient capital to finance our
operations for at least the next twelve months. As of October 1, 2004, we
maintained a $7,500,000 uncommitted bank line of credit and have never borrowed
any funds under the company's lines of credit.
Item 3. Qualitative and Quantitative Disclosures About Market Risk
CASH AND CASH EQUIVALENTS
We have historically invested our cash and cash equivalents in short term,
fixed rate, highly rated and highly liquid instruments which are reinvested when
they mature throughout the year. Although our existing investments are not
considered at risk with respect to changes in interest rates or markets for
these instruments, our rate of return on short-term investments could be
affected at the time of reinvestment as a result of intervening events. As of
December 26, 2004, Nathans' cash and cash equivalents aggregated $3,009,000.
Earnings on these cash and cash equivalents would increase or decrease by
approximately $7,500 per annum for each 0.25% change in interest rates.
MARKETABLE INVESTMENT SECURITIES
We have invested our marketable investment securities in intermediate
term, fixed rate, highly rated and highly liquid instruments. These investments
are subject to fluctuations in interest rates. As of December 26, 2004, the
market value of Nathans' marketable investment securities aggregated
$10,673,000. Interest income on these marketable investment securities would
increase
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or decrease by approximately $26,700 per annum for each 0.25% change in interest
rates. The following chart presents the hypothetical changes in the fair value
of the marketable investment securities held at December 26, 2004 that are
sensitive to interest rate fluctuations (in thousands):
Valuation of securities Valuation of securities
Given an interest rate Given an interest rate
Decrease of X Basis points Fair Increase of X Basis points
--------------------------- Value ---------------------------
(150BPS) (100BPS) (50BPS) +50BPS +100BPS +150BPS
Municipal notes and bonds $11,205 $11,023 $10,846 $10,673 $10,504 $10,337 $10,173
======= ======= ======= ======= ======= ======= =======
BORROWINGS
The interest rate on our borrowings is generally determined based upon the
prime rate and may be subject to market fluctuation as the prime rate changes as
determined within each specific agreement. We do not anticipate entering into
interest rate swaps or other financial instruments to hedge our borrowings. At
December 26, 2004, total outstanding debt, including capital leases, aggregated
$910,000 of which $861,000 is at risk due to changes in interest rates. The
current interest rate is 4.50% per annum and will adjust in January 2006 and
January 2009 to prime plus 0.25%. Nathan's also maintains a $7,500,000 credit
line at the prime rate (5.25% as of December 14, 2004). The Company has never
borrowed any funds under its credit lines. Accordingly, the Company does not
believe that fluctuations in interest rates would have a material impact on its
financial results.
COMMODITY COSTS
The cost of commodities are subject to market fluctuation. We have not
attempted to hedge against fluctuations in the prices of the commodities we
purchase using future, forward, option or other instruments. As a result, our
future commodities purchases are subject to changes in the prices of such
commodities. Generally, we attempt to pass through permanent increases in our
commodity prices to our customers, thereby reducing the impact of long-term
increases on our financial results. A short term increase or decrease of 10% in
the cost of our food and paper products for the thirty-nine weeks ended December
26, 2004 would have increased or decreased cost of sales by approximately
$958,000.
FOREIGN CURRENCIES
Foreign franchisees generally conduct business with us and make payments
in United States dollars, reducing the risks inherent with changes in the values
of foreign currencies. As a result, we have not purchased future contracts,
options or other instruments to hedge against changes in values of foreign
currencies and we do not believe fluctuations in the value of foreign currencies
would have a material impact on our financial results.
Item 4. Controls and Procedures
EVALUATION AND DISCLOSURE CONTROLS AND PROCEDURES
Our management, with the participation of our chief executive officer,
Chief Operating Officer and Chief Financial Officer, conducted an evaluation of
the effectiveness of the design and operation of our disclosure controls and
procedures as of the end of the period covered by this quarterly report on form
10-Q as required by exchange act rule 13a-15. Based on that evaluation, the
Chief Executive Officer, Chief Operating Officer and Chief Financial Officer
have concluded that our disclosure controls and procedures were effective to
ensure that information required to be disclosed by us in the reports that we
file or submit under the exchange act is recorded, processed, summarized and
reported within the time periods specified by the SEC's rules and forms.
CHANGES IN INTERNAL CONTROLS
There were no significant changes in our internal controls over financial
reporting that occurred during the quarter ended December 26, 2004 that have
materially affected, or are reasonably likely to materially affect, our internal
control over financial reporting.
LIMITATIONS ON THE EFFECTIVENESS OF CONTROLS
We believe that a control system, no matter how well designed and
operated, cannot provide absolute assurance that the objectives of the control
system are met, and no evaluation of controls can provide absolute assurance
that all control issues and
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instances of fraud, if any, within a company have been detected. Our disclosure
controls and procedures are designed to provide reasonable assurance of
achieving their objectives and our Chief Executive Officer, Chief Operating
Officer and Chief Financial Officer have concluded that such controls and
procedures are effective at the reasonable assurance level.
FORWARD LOOKING STATEMENTs
Certain statements contained in this report are forward-looking
statements. Forward-looking statements represent our current judgment regarding
future events. Although we would not make forward-looking statements unless we
believe we have a reasonable basis for doing so, we cannot guarantee their
accuracy and actual results may differ materially from those we anticipated due
to a number of uncertainties, many of which we are not aware. These risks and
uncertainties, many of which are not within our control, include, but are not
limited to: the future effects of the first case of bovine spongiform
encephalopathy, BSE, identified in the United States on December 23, 2003;
economic, weather, legislative and business conditions; the collectibility of
receivables; the availability of suitable restaurant sites on reasonable rental
terms; changes in consumer tastes; the ability to continue to attract
franchisees; the ability to purchase our primary food and paper products at
reasonable prices; no material increases in the minimum wage; and our ability to
attract competent restaurant and managerial personnel. We generally identify
forward-looking statements with the words "believe," "intend," "plan," "expect,"
"anticipate," "estimate," "will," "should" and similar expressions.
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PART II. OTHER INFORMATION
ITEM 1: LEGAL PROCEEDINGS
We and our subsidiaries are from time to time involved in ordinary and
routine litigation. We are also involved in the following litigation:
An action has been commenced, in the Circuit Court of the Fifteenth
Judicial Circuit, Palm Beach County, Florida in September 2001 against Miami
Subs and EKFD Corporation, a Miami Subs franchisee (the "franchisee") claiming
negligence in connection with a slip and fall which allegedly occurred on the
premises of the franchisee for unspecified damages. Pursuant to the terms of the
Miami Subs Franchise Agreement, the franchisee is obligated to indemnify Miami
Subs and hold it harmless against claims asserted and procure an insurance
policy which names Miami Subs as an additional insured. Miami Subs has denied
any liability to plaintiffs and the franchisee's insurer has agreed to indemnify
and defend Miami Subs and has assumed the defense of this action for Miami Subs.
Ismael Rodriguez commenced an action, in the Supreme Court of the State of
New York, Kings County, in May 2004 against Nathan's Famous, Inc. seeking
damages of $1,000,000 for claims of age discrimination in connection with the
termination of Mr. Rodriguez's employment. Mr. Rodriguez was terminated from his
position in connection with his repeated violation of company policies and
failure to follow company-mandated procedures. Initial discoveries and
depositions have commenced. Nathan's has denied any liability and intends to
continue to defend this action vigorously. Nathan's has submitted this claim to
its insurance carrier and expects that it will not incur any material liability
that is not covered by its employment practices liability insurance policy.
An employee of a Miami Subs franchised restaurant commenced an action for
unspecified damages in the United States District Court, Southern District of
Florida in September 2004 against Miami Subs Corporation, Miami Subs USA, Inc.,
and three Miami Subs franchisees, FMJ Subs Corporation, NEESA Subs Corp. and
Muhammad Amin, (the "franchisees"), claiming that she was not paid overtime when
she worked in excess of 40 hours per week, in violation of the Fair Labor
Standards Act. The action also seeks damages for any other employees of the
defendants who would be similarly entitled to overtime. Pursuant to the terms of
the Miami Subs Franchise Agreement, the franchisees are obligated to operate
their Miami Subs franchises in compliance with the law, including all labor
laws. Miami Subs intends to assert that it is not an appropriate party to this
litigation, to deny any liability to plaintiff and defend against this action
vigorously.
ITEM 2: UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
(e) The Company has not repurchased any equity securities during the
quarter ended December 26, 2004.
ITEM 6: EXHIBITS
10.1 Employment Agreement between the Company and Howard Lorber dated as
of January 1, 2005.
31.1 Certification of the Chief Executive Officer pursuant to Section 302
of the Sarbanes-Oxley Act of 2002.
31.2 Certification of the Chief Operating Officer pursuant to Section 302
of the Sarbanes-Oxley Act of 2002.
31.3 Certification of the Chief Financial Officer pursuant to Section 302
of the Sarbanes-Oxley Act of 2002.
32.1 Certification by Howard M. Lorber, CEO, Nathan's Famous, Inc.,
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
32.2 Certification by Ronald G. DeVos, CFO, Nathan's Famous, Inc.,
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATHAN'S FAMOUS, INC.
Date: February 8, 2005 By: /s/Wayne Norbitz
-------------------------------------------
Wayne Norbitz
President and Chief Operating Officer
(Principal Executive Officer)
Date: February 8, 2005 By /s/ Ronald G. DeVos
-------------------------------------------
Ronald G. DeVos
Vice President - Finance
and Chief Financial Officer
(Principal Financial and Accounting Officer)
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