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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended
September 28, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-16699
OVERHILL FARMS, INC.
(Exact name of registrant as specified in its charter)
NEVADA 75-2590292
------ -----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2727 EAST VERNON AVENUE
VERNON, CALIFORNIA 90058
------------------ -----
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (323) 582-9977
Securities registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
------------------- -----------------------------------------
Common Stock, par value $0.01 American Stock Exchange
Securities registered under Section 12(g) of the Act: None
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 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. [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 12b-2). Yes [ ] No [X]
The aggregate market value of voting common equity held by non-affiliates
of the registrant, based on the closing price of such stock on the last day of
the registrant's second fiscal quarter ended March 30, 2003 (based on the
closing price on such date on the American Stock Exchange) was approximately
$4.3 million. For purposes of this computation, all executive officers,
directors and 10% beneficial owners of the registrant are deemed to be
affiliates. Such determination should not be deemed an admission that such
executive officers, directors and 10% beneficial owners are affiliates. The
registrant has no non-voting common equity.
There were 14,805,556 shares of common stock outstanding as of December 15,
2003.
Documents Incorporated By Reference: None
TABLE OF CONTENTS
PART I
Item 1 Business 1
Item 2 Properties 3
Item 3 Legal Proceedings 3
Item 4 Submission of Matters to a Vote of Security Holders 3
PART II
Market for Registrant's Common Stock and Related Stockholder Matters and
Item 5 Issuer Purchases of Equity Securities 5
Item 6 Selected Financial Data 7
Management's Discussion and Analysis of Financial Condition and Results
Item 7 of Operations 8
Item 7A Quantitative and Qualitative Disclosures About Market Risk 22
Item 8 Financial Statements and Supplementary Data 22
Changes in and Disagreements With Accountants on Accounting and
Item 9 Financial Disclosure 22
Item 9A Controls and Procedures 22
PART III
Item 10 Directors and Executive Officers of the Registrant 23
Item 11 Executive Compensation 27
Item 12 Security Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters 33
Item 13 Certain Relationships and Related Transactions 35
Item 14 Principal Accountant Fees and Services 38
PART IV
Item 15 Exhibits, Financial Statement Schedules, and Reports on Form 8-K 39
SIGNATURES 47
PART I
ITEM 1. BUSINESS
--------
HISTORY
Overhill Farms, Inc. was formed in 1995 as a Nevada corporation. In May
1995, we acquired all of the operating assets of IBM Foods, Inc. for a cash
payment of $31.3 million, plus the assumption of certain liabilities. While our
business is nationwide, our headquarters are located in Vernon, California.
During August 2000, we purchased the operating assets and trademarks of the
Chicago Brothers food operations from a subsidiary of Schwan's Sales
Enterprises, Inc. for total consideration of $4.2 million, consisting of cash of
$3.3 million and a note payable to the seller for $900,000.
We were a 99% owned subsidiary of TreeCon Resources, Inc., formerly known
as Polyphase Corporation and Overhill Corporation, until the completion of the
spin-off in October 2002. In the spin-off, TreeCon Resources distributed all of
the outstanding shares of our common stock that it owned to the holders of
record of TreeCon Resources common stock as of the close of business on
September 30, 2002.
PRODUCTS AND SERVICES
We are a value-added manufacturer of quality frozen food products including
entrees, plated meals, meal components, soups, sauces, poultry, meat and fish
specialties. We provide custom prepared foods to a number of prominent customers
such as Panda Restaurant Group, Jenny Craig Products, Albertson's, and American
Airlines.
SALES AND MARKETING
We market our products through an internal sales force and outside food
brokers. Historically, we have served four industries: airlines, weight loss,
foodservice and retail. In previous periods, we identified the foodservice and
retail markets as the two segments with the greatest potential for increased
sales. Accordingly, we have realigned our sales force and redirected our
marketing efforts to concentrate on those two areas.
Over two-thirds of our total net sales for the fiscal year ended September
28, 2003 were derived from six customers, Panda Restaurant Group, representing
approximately 24% of total net sales, Jenny Craig Products, representing
approximately 18% of total net sales, and four other customers, each comprising
less than 10% of total net sales. Although our relationships with these
customers continue to remain strong, there can be no assurance that these
relationships will continue. When possible, we make a concerted effort to sign
multi-year supply agreements with our major customers. A decline in sales of our
products to these customers or the loss of, or a significant change in the
relationship between us and any of these key customers, without the acquisition
of replacement business, could have a material adverse effect on our business
and operating results. It is our objective to continue to reduce the reliance on
a small concentration of accounts by further expansion into custom products for
retail and foodservice customers nationwide.
MANUFACTURING AND SOURCING
Our manufacturing operations are located in two facilities in Vernon,
California. This is the result of a consolidation of most of our manufacturing,
together with all of our home office, warehousing, product development,
marketing and quality control into a new facility. We have recently completed
the implementation of programs to improve manufacturing efficiencies, including
the consolidation of facilities and the addition of equipment to improve
freezing capabilities and to automate some operations. In order to consolidate
operations, we entered into a new lease for a facility in Vernon, California,
and we recently closed four facilities, two facilities in the San Diego area,
and two of our Los Angeles area facilities, and have consolidated these
operations and certain related personnel into our new facility.
Our ability to economically produce large quantities of our products, while
at the same time maintaining a high degree of quality, depends on our ability to
procure raw materials on a reasonable basis. We rely on a few large suppliers
for our poultry products and purchase the remaining raw materials from suppliers
in the open market. We do not anticipate any difficulty in acquiring these
materials in the future. Raw materials, packaging for production and finished
goods are stored on site or in public frozen food storage facilities until
shipment.
1
BACKLOG
We typically deliver products directly from finished goods inventory. As a
result, we do not maintain a large backlog of unfilled purchase orders. While at
any given time there may be a small backlog of orders, our backlog is not
material in relation to total sales, nor is it necessarily indicative of trends
in our business. Some orders are subject to changes in quantities or to
cancellation with 30 days' notice without penalties to customers.
COMPETITION
Our food products, consisting primarily of poultry, pasta, beef and
assorted related products, compete with products produced by numerous regional
and national firms. Many of these companies are divisions of larger fully
integrated companies such as Tyson Foods and ConAgra, which may have greater
financial, technical, human and marketing resources than we have. Competition is
intense with most firms producing similar products for the foodservice and
retail industries. Competitive factors include price, product quality,
flexibility, product development, customer service and, on a retail basis, name
recognition. We are competitive in this market by our ability to produce
mid-sized/custom product runs, within a short time frame and on a cost effective
basis. We can give no assurance that we will compete successfully against
existing companies or new entrants to the marketplace.
PRODUCT DEVELOPMENT AND MARKETING
We maintain a comprehensive, fully staffed test kitchen that formulates
recipes and upgrades specific products for current customers and establishes
production and quality standards. We develop products based upon either
customers' specifications, conventional recipes or new product developments. We
are continuously developing recipes as customers' tastes and client requirements
change. We also maintain a quality control department for testing and quality
control.
INTELLECTUAL PROPERTY
We have registered the trademark "Overhill Farms," among others, in the
United States Patent and Trademark Office, and previously acquired other
trademarks including, among others, "Chicago Brothers" and "Florence Pasta and
Cheese." We currently sell products under the "Chicago Brothers" label into
retail stores.
EMPLOYEES
Our total hourly and salaried workforce consisted of approximately 775
employees at September 28, 2003. Most of our operations are labor intensive,
generally requiring semi-skilled employees. The manufacturing employees are
unionized with United Food & Commercial Workers Union, Local 770 under a
three-year contract expiring February 28, 2005. We believe our relations with
the union to be good.
REGULATION
Food manufacturers are subject to strict government regulation,
particularly in the health and environmental areas, by the United States
Department of Agriculture, also called the "USDA," the Food and Drug
Administration, or the "FDA," Occupational Safety and Health Administration, or
"OSHA", and the Environmental Protection Agency, or the "EPA". Our food
processing facilities are subject to on-site examination, inspection and
regulation by the USDA. Compliance with the current applicable federal, state
and local environmental regulations has not had, and we do not believe that in
the future such compliance will have, a material adverse effect on our financial
position, results of operations, expenditures or competitive position. To date,
we have never been required to recall any of our products. Since 1997, we have
used a Hazard Analysis Critical Point Plan to ensure proper handling of all food
items.
2
ITEM 2. PROPERTIES
----------
We lease two manufacturing facilities in the Los Angeles, California area.
We recently entered into a ten-year lease, with an option for a five-year
renewal, for a 147,210 square foot facility in Vernon, California, which we have
expanded to 170,000 square feet by constructing a mezzanine. We have
consolidated our home office, manufacturing and warehousing, product
development, and marketing and quality control facilities into this single
location. Management believes that now that our consolidation plan has been
fully implemented, we should expect to achieve further operating efficiencies as
well as a further reduction in our dependence on outside cold storage
facilities. Plant No.2, a 49,000 square foot manufacturing facility also located
in Vernon, is the only previously operating facility that we continue to
utilize. As part of the consolidation plan, we closed our two facilities in San
Diego, California and two of our Los Angeles area facilities, Plant No. 1 and
Plant No. 3, and consolidated these operations and certain employees into our
new Vernon, California facility. Plant No. 1 was located in Inglewood,
California and had 39,000 square feet of manufacturing area, and Plant No. 3 was
located in Vernon, California and had 27,000 square feet of manufacturing area.
In addition to the manufacturing facilities, we also closed one leased warehouse
facility in Inglewood, California, which consisted of combined dry goods and
frozen storage of 19,800 square feet, and we continue to lease on a
month-to-month basis 11,400 square feet of dry goods storage, also in Inglewood.
Our Chicago Brothers operations were previously conducted in leased facilities
in San Diego, California and consisted of a 33,300 square foot manufacturing
facility and a 9,400 square foot warehouse and administration facility. We
believe that our new facilities are adequate to meet our requirements in the
foreseeable future.
ITEM 3. LEGAL PROCEEDINGS
-----------------
From time to time, we are involved in various lawsuits, claims and
proceedings related to the conduct of our business. Management does not believe
that the disposition of any pending claims is likely to have a material adverse
effect on our financial condition, results of operations, or cash flows.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
---------------------------------------------------
On August 11, 2003, we held our 2003 Annual Meeting of Stockholders. At the
annual meeting, the following matters were considered and voted upon:
o the election of seven nominees to our board of directors;
o the ratification and approval of our 2002 Employee Stock Option Plan;
o the ratification and approval of the issuance of our securities in a
financing transaction; and
o the ratification and approval of an amendment to our amended and
restated articles of incorporation that would permit holders of our
common stock to take action by written consent without a meeting under
certain circumstances and would permit holders of our Series A
Convertible Preferred Stock to take action by written consent
regardless of whether the terms of the Series A Convertible Preferred
Stock expressly permit an action by written consent.
The following table sets forth certain information relating to the voting by
stockholders on the matters referred to above:
3
VOTES CAST VOTES CAST BROKER
FOR AGAINST ABSTENTIONS NON-VOTES
------------- -------------- -------------- --------------
Director Nominees:
James Rudis 6,899,065 - 691,012 -
John L. Steinbrun 7,065,467 - 524,610 -
Richard A. Horvath 7,065,467 - 524,610 -
William E. Shatley 7,065,467 - 524,610 -
Harold Estes 7,023,565 - 566,512 -
Geoffrey A. Gerard 7,065,717 - 524,360 -
John E. McConnaughy, Jr. 7,065,717 - 524,360 -
Approval of 2002 Employee
Stock Option Plan 6,841,115 711,061 37,901 -
Approval of issuance of securities in
a financing transaction 6,851,140 673,461 38,476 -
Approval of amendment to articles of
incorporation 6,842,915 707,610 39,552 -
4
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER
----------------------------------------------------------------
MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
-------------------------------------------------
MARKET INFORMATION, HOLDERS AND DIVIDENDS
Our common stock began trading on the American Stock Exchange ("Amex")
under the symbol "OFI" on November 1, 2002. At December 15, 2003, we had 185
stockholders of record. The following table sets forth the range of high and low
sales prices for our common stock on the Amex for the periods indicated:
Fiscal 2003 High Low
----------- ------------- -------------
Period from November 1, 2002
to December 29, 2002 $ 2.06 $ 1.50
Quarter from December 30, 2002
to March 30, 2003 $ 1.65 $ 0.55
Quarter from March 31, 2003
to June 29, 2003 $ 0.85 $ 0.33
Quarter from June 30, 2003
to September 28, 2003 $ 1.15 $ 0.49
We have never paid cash dividends on our common stock. We currently
anticipate that no cash dividends will be paid on our common stock in the
foreseeable future in order to conserve cash for use in our businesses,
including possible future acquisitions. Our board of directors will periodically
re-evaluate this dividend policy taking into account our operating results,
capital needs, the terms of our financing arrangements and other factors. Also,
our current financing arrangements prohibit us from paying dividends.
RECENT SALES OF UNREGISTERED SECURITIES
To assist us in meeting our liquidity needs, effective as of April 4, 2003,
we entered into amendments to our then-existing securities purchase agreement
with Levine Leichtman Capital Partners II, L.P. ("LLCP"), the note and certain
related agreements, pursuant to which LLCP waived our non-compliance with
certain covenants under the securities purchase agreement and certain other
documents, and LLCP purchased from us a secured senior subordinated bridge note
in the principal amount of $3.0 million, bearing interest at 15% and due and
payable January 30, 2004, thereby providing us with the liquidity we needed to
meet our short-term payment obligations. As part of the bridge financing and in
substantial consideration for LLCP's financial accommodations, we agreed to
issue and sell to LLCP, and LLCP agreed to purchase from us, 2,466,759 shares of
our common stock for a purchase price of $0.01 per share. We were originally
required to issue and sell these shares to LLCP by April 16, 2003, but we were
unable to meet that deadline. In addition, we were required to wind up and
dissolve our subsidiary Overhill L.C. Ventures, Inc. by June 30, 2003, but we
were also unable to meet that deadline. LLCP agreed to extend the issuance date
to April 24, 2003, and then, in consideration of our payment to LLCP of an
amendment fee of $125,000, to July 20, 2003. After completing the bridge
financing and submitting an application to Amex requesting listing of the shares
to be issued to LLCP, Amex advised us that its approval of our listing
application with respect to the issuance and sale of these shares to LLCP would
be subject to approval of our stockholders. We obtained a waiver from LLCP for
our failure to deliver these shares by July 20, 2003, provided that delivery of
these shares be made on or before August 20, 2003. At a meeting of our
stockholders held on August 11, 2003, the stockholders approved the issuance of
these shares to LLCP; and we obtained Amex approval and delivered the shares
prior to the expiration of the waiver.
5
Pursuant to an equity repurchase option agreement with LLCP, we previously
had the right to repurchase from it, in whole but not in part, the shares of our
common stock issuable upon exercise of the warrants and conversion of the shares
of our Series A Convertible Preferred Stock it holds and the shares of our
Series A Convertible Preferred Stock it holds. This agreement was terminated in
connection with the October 2003 refinancing of substantially all our
indebtedness.
Effective April 16, 2003, Pleasant Street Investors, LLC ("Pleasant
Street"), an affiliate of LLCP, acquired the senior secured loans previously
made to us by Union Bank, and we and Pleasant Street amended and restated the
senior secured loan arrangements on mutually acceptable terms and conditions. As
a result of the repayment of Union Bank, we wrote off unamortized deferred
financing costs of approximately $450,000 related to the arrangements with the
Bank. Under the new amended and restated loan and security agreement with
Pleasant Street, $12.117 million owing to Union Bank on the effective date plus
additional amounts newly advanced to us by Pleasant Street, $1.883 million,
together with the $3.0 million owing to LLCP under the bridge note described
above, were combined into a new $17.0 million Term Loan A bearing interest at no
less than 10%, subject to periodic adjustments, and initially due and payable on
November 30, 2003. An additional $5.0 million advanced by Pleasant Street to us
as of the effective date is evidenced by Term Loan B, initially bearing interest
at 15%, and initially due and payable January 30, 2004. We used $3.0 million of
proceeds from Term Loan A to repay the outstanding principal amounts of the term
note issued to LLCP on April 4, 2003. The senior term loans may be prepaid
without premium or penalty. The amended and restated loan and security agreement
with Pleasant Street contains various covenants, including financial covenants
covering restrictions on capital expenditures, minimum levels of EBITDA and net
worth, and specified debt service and debt to equity ratios. In addition, the
terms of the loan and security agreement prohibit changes in control, including
ownership and certain management personnel, and contain limitations on
indebtedness and liens, making investments, paying dividends and making loans or
advances. The senior notes and all other obligations owing by us to Pleasant
Street are collateralized substantially all of our assets.
The financing arrangements with LLCP and Pleasant Street were subsequently
restructured as described in Part II, Item 7, "Management's Discussion and
Analysis of Financial Condition and Results of Operations-Liquidity and Capital
Resources."
None of the transactions described above involved any underwriters,
underwriting discount or commissions, or any public offering, and we believe
that the transactions were exempt from the registration requirements of the
Securities Act of 1933, as amended, by virtue of Section 4(2) thereof or
Regulation D promulgated thereunder. The investors represented their intentions
to acquire the securities for investment purposes only and not with a view to or
for sale in connection with any distribution thereof, and appropriate legends
were affixed to the instruments issued to them. The investors had adequate
access, through their relationships with us, to information about us.
6
ITEM 6. SELECTED FINANCIAL DATA
-----------------------
The following table sets forth selected historical financial data of
Overhill Farms, Inc. The selected financial data as of and for each of the last
five fiscal years has been derived from the financial statements of Overhill
Farms, Inc., which have been audited by Ernst & Young LLP, independent auditors.
The selected historical statement of operations data set forth below may
not reflect certain changes that have occurred in the operations and
capitalization of our company as a result of the spin-off. Before the spin-off,
we operated as part of TreeCon Resources. Because the prior year data reflect
periods during which we did not operate as an independent public company, the
data may not reflect the results of operations or the financial position that
would have resulted if we had operated as a separate, independent public company
during the periods shown. In addition, the data may not necessarily be
indicative of our future results of operations or financial position. The
historical data should be read in conjunction with sections entitled
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the financial statements and the related notes included
elsewhere in this Form 10-K.
Fiscal Year Ended
-----------------------------------------------------------------------------------------
Income Statement Data (In September 28, September 29, September 30, October 1, September 26,
Thousands Except Per Share
Data): 2003 2002 2001 2000 1999
---- ---- ---- ----- ----
Net Revenues $136,950 $138,901 $162,275 $145,875 $113,632
Operating Income (a) 1,856 7,298 9,483 10,813 7,384
Income (Loss) Before
Extraordinary Items (a) (6,422) 1,030 2,242 3,331 1,002
Net Income (Loss) (a) (6,422) 1,030 2,242 2,492 1,002
Net Income (Loss) Per Share -
Basic (a) (b) $(0.53) $0.11 $0.24 $0.27 $0.11
Net Income (Loss) Per Share -
Diluted (a) (b) $(0.53) $0.09 $0.20 $0.22 $0.08
As of Fiscal Year Ended
-----------------------------------------------------------------------------------------
Balance Sheet Data (In September 28, September 29, September 30, October 1, September 26,
Thousands) 2003 2002 2001 2000 1999
---- ---- ---- ----- ----
Total Assets $56,182 $59,018 $ 54,207 $ 57,946 $ 38,987
Long-Term Debt 44,950 36,242 32,951 40,860 32,355
Total Liabilities 56,521 53,666 50,743 57,602 41,669
Retained Earnings (Deficit)(c) (10,061) 7,842 6,812 4,570 2,078
Stockholders' Equity (339) 5,352 3,464 344 (2,682)
(a) We adopted SFAS No. 142, "Goodwill and Other Intangible Assets" effective
October 1, 2001 and, accordingly, has ceased amortization of goodwill. Had we
been accounting for goodwill under SFAS No. 142 for all periods presented,
operating income would have increased by $850,000 in fiscal 2001 and $650,000 in
each of fiscal 2000 and 1999, income before extraordinary item would have
increased by $548,000 in fiscal 2001 and $429,000 in each of fiscal 2000 and
1999, and net income (loss) would have increased by $548,000 ($0.06 per share
and $0.05 per diluted share) in fiscal 2001, $429,000 ($0.05 per share and $0.04
per diluted share) in fiscal 2000, and $429,000 ($0.05 per share and $0.04 per
diluted share) in fiscal 1999.
(b) Per share data for all periods presented have been retroactively adjusted
for the 12,010-shares-for-1 stock split declared by our board of directors in
October 2002 in connection with the spin-off transaction.
(c) The decline in Retained Earnings from September 29, 2002 to September 28,
2003 of $17,903,000 includes the fiscal year 2003 net loss of $6,422,000 and the
offset against retained earnings of the receivable due from Treecom Resources,
our former Parents in the amount of $11,481,000.
7
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
-----------------------------------------------------------------------
OF OPERATIONS
-------------
OVERVIEW
Overhill Farms is a value-added manufacturer of quality frozen food
products including entrees, plated meals, meal components, soups, sauces,
poultry, meat and fish specialties. We provide custom prepared foods to a number
of prominent customers such as Panda Restaurant Group and Jenny Craig Products,
and several domestic airlines. We manufacture products in the retail and
foodservice areas with branded and private label entrees and components.
Historically, we have served four industries: airlines, weight loss, foodservice
and retail.
In May 1995, we acquired all the operating assets of IBM Foods, Inc., with
headquarters in Culver City, California, for $31.3 million plus the assumption
of certain liabilities of the acquired business. Our headquarters are now
located in Vernon, California. During August 2000, we purchased the operating
assets and trademarks of the Chicago Brothers food operations from a subsidiary
of Schwan's Sales Enterprises, Inc. for $4.2 million, consisting of cash of $3.3
million and a note payable to the seller for $900,000.
We were a 99% owned subsidiary of TreeCon Resources, Inc., formerly known
as Polyphase Corporation and Overhill Corporation, until the completion of our
spin-off in October 2002. After a strategic review initiated in fiscal year
2001, TreeCon Resources concluded that its food group, comprised of our company,
would be able to grow faster and be a stronger competitor as a separate company.
In the spin-off, TreeCon Resources distributed all of the outstanding shares of
our common stock that it owned to the holders of record of TreeCon Resources
common stock as of the close of business on September 30, 2002. We believe the
spin-off, which was completed in October 2002, will enable our business to
expand and grow more quickly and efficiently than in the previous corporate
structure.
Our strategy is to be the leading developer and manufacturer of value-added
food products and provider of custom prepared foods. We intend to create
superior value for our stockholders by continuing to execute our growth and
operating strategies. We employ the following corporate strategies:
o diversify our customer base, focusing on sectors with attractive
growth characteristics, such as foodservice and retail;
o invest in and operate efficient production facilities;
o provide customer service-oriented distribution;
o offer a broad range of products to customers in multiple channels of
distribution; and
o continue to pursue growth through strategic acquisitions and
investments.
RESULTS OF OPERATIONS
FISCAL YEAR ENDED SEPTEMBER 28, 2003 COMPARED TO FISCAL YEAR ENDED SEPTEMBER 29,
2002
NET REVENUES. For the fiscal year ended September 28, 2003, our net
revenues decreased $1,951,000 (1.4%) to $136,950,000 as compared to $138,901,000
for the fiscal year ended September 29, 2002. This revenue decrease is
represented by a decrease in airline sales of $5,879,000 (16.7%) to $29,364,000
and in retail and other sales of $3,472,000 (11.1%) to $27,783,000. These
decreases were substantially offset by increases in weight loss product sales
and foodservice sales of $7,400,000 (10.2%) to $79,803,000.
The tragic events of September 11, 2001 have continued to significantly
impact our sales to airline-related customers. Though the ongoing effect of
these events on the airline industry, airline revenues, and on our business in
particular, cannot be accurately determined at this time, we are estimating that
in the near term, sales to airline customers will experience little to no growth
from 2003 levels. Sales to Pinnacle Foods decreased in mid-year of fiscal year
2003, resulting in a $7.1 million reduction in sales to $9.2 million in fiscal
year 2003 from $16.3 million in fiscal year 2002. Also, subsequent to September
8
28, 2003 the grocery strike in Southern California has reduced our sales to the
grocery chains involved in the labor dispute. Sales of recurring items to
Albertson's in the first eleven weeks of fiscal year 2004, September 29, 2003 to
December 14, 2003, have fallen by $1.0 million to $1.5 million from $2.5 million
during the first eleven weeks of fiscal year 2003, September 30, 2002 to
December 15, 2002. These reductions in sales have been partially offset by
increases in sales to new and existing retail customers.
GROSS PROFIT. Gross profit for the fiscal year ended September 28, 2003
decreased $2,077,000 (10.7%) to $17,371,000 from $19,448,000 for the fiscal year
ended September 29, 2002. Gross profit as a percentage of net revenues for the
fiscal year ended September 28, 2003 was 12.7% compared to 14.0% in the prior
fiscal year. The decrease in gross profit as a percentage of net revenues is due
largely to manufacturing-related inefficiencies encountered in connection with
the start-up of our new plant and the cost of moving our manufacturing
operations into the new facility in fiscal year 2003. Improvements in gross
margins are anticipated as we further realize the cost benefits of the plant
consolidation.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses for the fiscal year ended September 28, 2003 increased
$3,365,000 to $15,515,000 (11.3% of net revenues) from $12,150,000 (8.7% of net
revenues) in the prior fiscal year. Contributing factors to this increase in
SG&A were increases in new product demonstration costs for our Chicago Brothers
brand products for retail customers, professional fees, including accounting,
audit and one time consulting fees related to the April 2003 refinancing,
compensation and related costs and bad debt expense due to the bankruptcy of
United Airlines and certain minor customers during 2003.
We have now completed the consolidation of certain home office,
manufacturing, warehousing, product development, marketing and quality control
functions into a single 170,000 square foot operating facility located in
Vernon, California. We now maintain only two plants, the new site, and an
existing 49,000 square foot cooking facility also located in Vernon, California.
We also lease, on a month-to-month basis, 11,400 square feet of dry goods
storage space in Inglewood, California. Our management believes that we should
expect, as a result of this consolidation, to achieve significant operating
efficiencies as well as a reduction of its dependence on outside cold storage
facilities. We have recently begun to realize the savings from the
consolidation, resulting from reduced cold storage and refrigerant costs, a
lower overall facility lease expense, together with manpower and efficiency
savings.
OTHER EXPENSES. Other expenses for fiscal year 2003 were $11,631,000 as
compared to $5,599,000 in fiscal year 2002, an increase of $6,032,000 (107.7%).
This increase consists primarily of a $2,360,000 increase in interest expense to
$7,011,000, due to an increase in borrowings and borrowing rates during the year
primarily related to the April 2003 refinancing, and a $2,890,000 increase in
amortization of deferred financing costs to $3,539,000, related to the financing
costs incurred in the prior year and the bridge financing and the refinancing of
the bank debt during the current year. Of the $2,360,000 increase in interest
expense, $1,171,000 was non-cash interest related to the amortization of the
original issue discount from the April 2003 financing. The original issue
discount represents the difference of approximately $1,653,000 between the fair
market value of 2,466,759 shares sold to LLCP and the $0.01 per share purchase
price. Another significant component of other expenses was the $662,000 cost of
refurbishing our vacated San Diego facility upon the expiration of the lease.
INCOME TAX PROVISION (BENEFIT). For the fiscal year ended September 28,
2003 we recorded a tax benefit of $3,353,000 as compared to a tax provision of
$668,000 for the fiscal year ended September 29, 2002, representing 34.3% and
39.4% of income (loss) before income taxes, respectively.
Due to operating losses for the year ended September 28, 2003, we have
recorded a tax benefit and a deferred tax asset, classified as other assets on
our accompanying balance sheet, of $3,256,000. We have not recorded a valuation
allowance against any of our deferred tax assets, since we believe that such
assets are more likely than not to be recoverable through estimated future
profitable operations. If we fail to improve margins, grow revenues and/or
reduce future interest costs, and return to profitable operating results in the
near term, we would not realize some or all of our deferred tax assets and we
may be required to record a valuation allowance against some or all of our
deferred tax assets, which could adversely affect our financial position and
results of operations.
NET LOSS. We reported a net loss for the fiscal year ended September 28,
2003 of $6,422,000 (($0.53) per share) as compared to net income of $1,030,000
($0.09 per share, diluted) for the fiscal year ended September 29, 2002.
9
We currently expect to improve on our current operating results, and return
to profitable operations, primarily through (a) improved gross margins achieved
by streamlining additional costs and continuing to leverage our new consolidated
manufacturing and storage facilities to improve manufacturing efficiency, (b)
growing revenues from profitable product lines and (c) reducing future interest
costs on outstanding debt due to the recent refinancing of our long and
short-term debt. As discussed in "Risk Factors to Our Business and
Industry,"included elsewhere herein, we may be unable to improve our operating
results if we suffer a decline in our manufacturing efficiency, the loss of
major customers, further declines in air travel, adverse changes in our
operating costs or raw materials costs or other adverse changes to our business.
FISCAL YEAR ENDED SEPTEMBER 29, 2002 COMPARED TO FISCAL YEAR ENDED SEPTEMBER 30,
2001
NET REVENUES. For the fiscal year ended September 29, 2002, our net
revenues decreased $23,374,000 (14.4%) to $138,901,000 as compared to
$162,275,000 for the fiscal year ended September 30, 2001. This revenue decrease
is substantially the result of a decrease in airline sales during the period. In
fiscal year 2002, sales to airline customers were approximately $35.0 million,
or 25.3% of net revenues, as compared to sales of $54.7 million, or 33.8% of net
revenues in fiscal year 2001.
As noted above, the events of September 11, 2001 significantly impacted our
sales to airline-related customers. Though the ongoing effect of these events on
the airline industry, airline revenues, and on our business in particular,
cannot be accurately determined at this time, we are estimating that in the near
term, sales to airline customers will experience little to no growth from fiscal
year 2002 levels.
GROSS PROFIT. Gross profit for the fiscal year ended September 29, 2002
decreased $5,879,000 (23.2%) to $19,448,000 from $25,327,000 for the fiscal year
ended September 30, 2001. Gross profit as a percentage of net revenues for the
fiscal year ended September 29, 2002 was 14.0% compared to 15.6% in the
comparable prior period. The decrease in gross profit as a percentage of net
revenues is primarily attributable to the significant decrease in sales to
airline-related customers, as well as lower overall margins due to higher
employee insurance costs of approximately $200,000 in fiscal year 2002 as
compared to fiscal year 2001 and competitive pricing, offset somewhat by
increased production and materials cost efficiencies achieved during the current
year.
In fiscal year 2002, we had recently begun to consolidate certain of our
home office, manufacturing and warehousing, product development, and marketing
and quality control facilities into a single location. Though we were, at that
time, early in the process of implementing various stages of this plan, we
believed that when the plan is fully implemented, we should expect to achieve
significant operating efficiencies as well as a reduction of our dependence on
outside cold storage facilities.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses for the fiscal year ended September 29, 2002 decreased
$3,694,000 to $12,150,000 (8.7% of net revenues) from $15,844,000 (9.8% of net
revenues) in the year earlier period. SG&A decreased overall primarily due to
lower freight expenses related to the decrease in airline revenues and the
ceasing of goodwill amortization during fiscal year 2002, and additionally on a
percentage basis primarily due to lower travel, advertising and compensation
costs.
INTEREST EXPENSE. Interest expense for 2002 was $4,651,000 as compared to
$5,372,000 in 2001, a decrease of $721,000. This decrease is primarily the
result of lower average interest rates on outstanding borrowings.
INCOME TAX PROVISION. For the fiscal years ended September 29, 2002 and
September 30, 2001, our income tax provision was $668,000 and $1,168,000,
respectively, or 39.4% and 34.3% of income before income taxes, respectively.
The decrease in our income tax provision was a result of the decrease in income
before income taxes.
NET INCOME. Our net income for the fiscal year ended September 29, 2002
amounted to $1,030,000 ($0.09 per share, diluted) as compared to $2,242,000
($0.20 per share, diluted) for the fiscal year ended September 30, 2001.
LIQUIDITY AND CAPITAL RESOURCES
Our principal sources of liquidity are cash flow from operations, cash
balances and additional financing capacity. Our cash and cash equivalents
increased $506,000 to $514,000 as of September 28, 2003 compared to $8,000 at
September 29, 2002.
10
During the fiscal year ended September 28, 2003, our operating activities
provided cash of approximately $1,742,000, as compared to cash provided of
$4,528,000 during fiscal year 2002. The cash provided in the current year is
primarily due to cash favorable changes in accounts receivable, inventories and
accrued liabilities, reduced by uses of cash for a substantial reduction in
accounts payable and an increase in prepaid expenses.
During the fiscal year ended September 28, 2003, our investing activities
resulted in a use of cash of approximately $5,227,000, as compared to $5,041,000
during fiscal year 2002. The use of cash in the current year consisted almost
exclusively of additions to property and equipment, primarily related to the
consolidation of our operations into a new facility in Vernon, California.
During the fiscal year ended September 28, 2003, our financing activities
resulted in cash provided of approximately $3,991,000, as compared to cash
provided of $440,000 during fiscal 2002. The cash provided in the current period
resulted primarily from new short-term borrowings (subsequently refinanced to
long-term as discussed below), offset by the repayment of all amounts
outstanding on our line of credit, principal payments on long-term debt,
additional deferred financing costs and cash payments to and on behalf of our
former parent.
In November 1999, we refinanced substantially all of our existing debt. The
total refinanced debt amounted to $44 million at that time, consisting of a $16
million line of credit provided by Union Bank of California, N.A. (the "Bank")
together with $28 million in the form of a five-year term secured senior
subordinated term loan by Levine Leichtman Capital Partners II, L.P. ("LLCP" or
the "Senior Subordinated Lender"). Both of these agreements were subsequently
amended on multiple occasions as described further below and in our previous
filings with the Securities and Exchange Commission. Additionally, we issued a
term note in the amount of $2.4 million payable to Union Bank in connection with
an acquisition that occurred in August 2000. At March 30, 2003, amounts
outstanding under these arrangements were $12.6 million on the revolving line of
credit and $850,000 on term loans payable to Union Bank, and $24.7 million
payable to LLCP on a term note.
Our revolving line of credit, senior subordinated term note payable and
term loan agreements all contain or contained various covenants, including
financial covenants covering restrictions on capital expenditures, minimum
levels of EBITDA and net worth and specified debt service and debt-to-equity
ratios. In addition, the terms of the agreements prohibit changes in control,
including ownership and certain management personnel and contain customary
limitations on indebtedness and liens, making investments, paying dividends and
making loans or advances. As of March 30, 2003, we were experiencing liquidity
shortfalls and were not in compliance with certain financial covenants with
respect to our financing arrangements with both Union Bank and LLCP.
To assist us in meeting our liquidity needs, effective as of April 4, 2003,
we entered into amendments to our then-existing securities purchase agreement
with LLCP, the secured senior subordinated note initially due October 31, 2004
to LLCP and certain related agreements, pursuant to which LLCP waived our
non-compliance with certain covenants under the securities purchase agreement
and certain other documents, and LLCP purchased from us a secured senior
subordinated bridge note in the principal amount of $3.0 million, bearing
interest at 15%, which was initially due and payable January 30, 2004, thereby
providing us with the liquidity we needed to meet out short-term payment
obligations. In a related transaction, LLCP, through an LLCP affiliate, acquired
Union Bank's senior secured loans to us. Finally, as part of the bridge
financing and in substantial consideration for LLCP's financial accommodations,
we agreed to issue and sell to LLCP, and LLCP agreed to purchase from us,
2,466,759 shares of our common stock for a purchase price of $0.01 per share. We
were originally required to issue and sell these shares to LLCP by April 16,
2003, but we were unable to meet that deadline. In addition, we were required to
wind up and dissolve our subsidiary Overhill L.C. Ventures, Inc. by June 30,
2003, but we were also unable to meet that deadline. LLCP extended the issuance
date to April 24, 2003, and then, in consideration of the payment by us to LLCP
of an amendment fee of $125,000, to July 20, 2003. As discussed below, this
deadline was further extended to August 20, 2003.
After completing the bridge financing and submitting an application to Amex
requesting listing of the shares to be issued to LLCP, Amex advised us that its
approval of our listing application with respect to the issuance and sale of
these shares to LLCP would be subject to approval of our stockholders. We
obtained a waiver from LLCP for our failure to deliver these shares by July 20,
2003, provided that delivery of these shares be made on or before August 20,
2003. At a meeting of our stockholders held on August 11, 2003, the stockholders
approved the issuance of these shares to LLCP; and we obtained Amex approval and
delivered the shares prior to the expiration of the waiver. In connection with
this transaction, a debt discount of approximately $1.65 million was recorded
and was being amortized over the remaining life of the debt.
11
Effective April 16, 2003, Pleasant Street, an affiliate of LLCP, acquired
the senior secured loans previously made to us by Union Bank, and we and
Pleasant Street amended and restated the senior secured loan arrangements on
mutually acceptable terms and conditions. As a result of the repayment of Union
Bank, we wrote off unamortized deferred financing costs of approximately
$450,000 related to the arrangements with Union Bank. Under the new amended and
restated loan and security agreement with Pleasant Street, $12.117 million owing
to Union Bank on the effective date plus additional amounts newly advanced to us
by Pleasant Street, $1.883 million, together with the $3.0 million owing to LLCP
under the bridge note described above, were combined into a new $17.0 million
Term A Loan, bearing interest at no less than 10%, subject to periodic
adjustments, and due and payable on November 30, 2003. An additional $5.0
million advanced by Pleasant Street to us as of the effective date is evidenced
by a Term B Loan, initially bearing interest at 15% and initially due and
payable January 30, 2004. We used $3.0 million of proceeds from Term Loan A to
repay the outstanding principal amounts of the term note issued to LLCP on April
4, 2003. The senior term loans may be prepaid without premium or penalty. The
amended and restated loan and security agreement with Pleasant Street contains
various covenants, including financial covenants covering restrictions on
capital expenditures, minimum levels of EBITDA and net worth, and specified debt
service and debt to equity ratios. In addition, the terms of the loan and
security prohibit changes in control, including ownership and certain management
personnel, and contain customary limitations on indebtedness and liens, making
investments, paying dividends and making loans or advances. The senior notes and
all other obligations owing by us to Pleasant Street are collateralized by
substantially all of our assets.
At September 28, 2003, we were not in compliance with certain of the
financial and other covenants of our agreements with LLCP and Pleasant Street,
including, among other things, our failure to observe the limitations on
indebtedness relating to trade accounts payable, failure to comply with certain
payment plans and our failure to liquidate Overhill Ventures before August 20,
2003. Subsequent to September 28, 2003, we reached agreement with each of LLCP
and Pleasant Street wherein the lenders waived specified events of default by us
under the then existing agreements and further agreed to a refinancing of all
indebtedness owing by us to LLCP and Pleasant Street as described below.
On October 31, 2003, we entered into refinancing arrangements with LLCP and
Pleasant Street in order (1) to obtain an aggregate of $5,000,000 of additional
funds to finance our accounts receivable, to build up our inventory levels and
for other working capital purposes, (2) to reduce the base rates of interest on
and extend the maturity dates of the note held by LLCP and the loans made by
Pleasant Street, (3) to amend the financial covenants and certain other
provisions contained in the relevant investment documents with respect to LLCP
and the relevant loan documents with respect to Pleasant Street and (4) to
obtain waivers of specified events of default under then existing agreements
with LLCP and Pleasant Street.
As part of the October 31, 2003 refinancing, we and LLCP amended our
existing securities purchase agreement to, among other things, amend the
financial covenants and certain event of default and other provisions. In
addition, LLCP waived certain specified events of default. We issued to LLCP a
second amended and restated secured senior subordinated note due October 31,
2006 in the stated principal amount of $28.858 million in exchange for the
surrender by LLCP of the existing $24.658 million senior subordinated note and
$4.2 million in additional cash funds. The replacement note has a base rate of
interest that was reduced from 15% to 13.5%, subject to increase upon the
occurrence of an interest rate event, as defined, or event of default, and an
extended maturity date from October 31, 2003 to October 31, 2006. We agreed to
pay LLCP amendment and new capital fees in the aggregate amount of $352,800.
Also as part of the October 31, 2003 refinancing, Pleasant Street and we
amended our existing loan and security agreement to amend the financial
covenants and various other provisions. Pleasant Street waived certain specified
events of default. In addition, Pleasant Street made an additional term loan to
us in the principal amount of $800,000 and surrendered the note evidencing the
existing Term A Loan in exchange for a second amended and restated senior Term A
note in the principal amount of $17.8 million. The annual interest rate on the
in-formula portion of the Term A Loan was reduced from 10% to 5.5%. The annual
interest rate on the $5.0 million Term B Loan was reduced from 15% to 12%. The
interest rates on the Term A Loan and Term B Loan are subject to increase upon
the occurrence of any interest rate event, as defined, or event of default as
provided in the notes that evidence those loans. The maturity dates of the Term
A Loan and the Term B Loan were extended to October 31, 2006 from November 30,
2003 and January 30, 2004, respectively. The Term B Loan was modified to be a
monthly amortizing term loan. The prepayment terms of the Term A Loan and the
Term B Loan were modified to provide, among other things, that we will make
mandatory prepayments of annual excess cash flow, if any. We agreed to pay
Pleasant Street amendment and new capital fees in the aggregate amount of
$67,200.
12
In conjunction with the October 31, 2003 refinancing, we, James Rudis and
LLCP amended an investor rights agreement among us pursuant to which we granted
to LLCP the right to designate for nomination and election up to three members
of our board of directors, together with the right to fill the next available
vacancy created on the board of directors after October 31, 2003, which could
result in LLCP having up to four LLCP representatives on the board at any time.
In addition, among other things, the parties extended to October 31, 2006 the
time period during which annual consulting fees of $180,000 will be payable to
LLCP.
On October 31, 2003, we and LLCP also terminated our equity repurchase
option that provided that, among other things, we had the right, under certain
conditions, to repurchase from LLCP, in whole but not in part, all shares of our
common stock owned by LLCP or issuable to LLCP upon the exercise of warrants or
conversion of preferred stock. In addition, we entered into amended employment
arrangements with Mr. Rudis and Mr. John Steinbrun pursuant to which salaries
were adjusted and the terms of the agreements extended. Also, LLCP and Pleasant
Street amended their intercreditor and subordination agreement with respect to
the indebtedness, liabilities and obligations owed by us to each.
As of October 31, 2003, we were in compliance with all of our amended
financial covenants. As of October 26, 2003, the last day of fiscal October, we
were not in compliance with one of our financial covenants, but LLCP and
Pleasant Street waived the event of non-compliance as of October 26, 2003. We
currently believe, based upon forecasted performance, that it is probable that
we will be in compliance with all of our revised financial and other covenant
requirements. Accordingly, and as a result of the refinancing of the obligations
described above, all principal amounts payable to LLCP and to Pleasant Street,
other than currently scheduled principal payments, have been classified as
long-term liabilities in the accompanying balance sheet as of September 28,
2003. In the future, our failure to achieve certain revenue, expense and
profitability levels could result in a violation of the amended financial
covenants under our financing arrangements, which would cause the interest rates
on the above loans to increase substantially and could have a material adverse
effect on our financial condition, results of operations or cash flows.
Following is a summarization of our contractual obligations at September
28, 2003, after giving effect to the debt refinancing described above.
MATURITIES OF CONTRACTUAL OBLIGATIONS AT SEPTEMBER 28, 2003:
Fiscal Year
-----------
2004 $ 1,424,902
2005 1,418,323
2006 1,191,809
2007 44,250,231
-------------
Total 48,285,265
Less unamortized debt discount (1,048,677)
-------------
$ 47,236,588
=============
13
FUTURE MINIMUM LEASE PAYMENTS AT SEPTEMBER 28, 2003:
Fiscal Year
-----------
2004 $ 2,508,593
2005 1,468,144
2006 1,026,457
2007 977,116
2008 and thereafter 6,949,158
-------------
$ 12,929,468
=============
In January 2002, we entered into a lease for a 170,000 square foot facility
in Vernon, California, and we have consolidated certain of our home office,
manufacturing and warehousing, product development, and marketing and quality
control facilities into a single location. See "Business-Manufacturing and
Sourcing" in Part I, Item 1 of this report.
From time to time, we made advances to TreeCon Resources for various
purposes in the context of our parent-subsidiary relationship. Additionally, we
have netted accumulated federal income tax liabilities payable to TreeCon
Resources against amounts owed from TreeCon Resources to us. We had
approximately $10.5 million in net receivables from TreeCon Resources as of
September 29, 2002. During the fiscal years ended September 28, 2003, September
29, 2002 and September 30, 2001, we made cash payments to, or on behalf of,
TreeCon Resources of approximately $950,000, $1.2 million and $500,000,
respectively for various purposes including tax payments, expense reimbursement
and other corporate purposes. In connection with the spin-off, after giving
effect to the netting of federal income tax liabilities payable to TreeCon
Resources against our receivable from TreeCon Resources, the remaining net
intercompany balance of approximately $11.5 million payable to us by TreeCon
Resources was cancelled as described below. Also in connection with the
spin-off, TreeCon Resources transferred to us two promissory notes made in the
amounts of $207,375 and $184,875, made by Mr. Rudis and Mr. Shatley,
respectively. These notes became due and payable on September 24, 2003 and are
collateralized solely by the common stock of TreeCon Resources. Based on our
assessment of the collectibility of these notes, including the value of the
subject collateral, we assigned no value to the notes upon their receipt, and
the notes continued to have no recorded value at September 28, 2003. Future
amounts ultimately realized, if any, on these notes will be recorded as an
adjustment to shareholders' equity at the time such amounts are realized. In
connection with the spin-off, TreeCon Resources agreed to indemnify us with
respect to any current or future tax liabilities for which we might otherwise be
liable resulting from the operations of any entity other than us. We agreed with
TreeCon Resources to cancel any remaining amounts owed to us by TreeCon
Resources, or owed to TreeCon Resources by us, as of the effective date of the
spin-off, after obtaining the appropriate consents under our financing
arrangements.
As previously mentioned herein, the events of September 11, 2001 have
significantly impacted our sales to airline-related customers. The effect of
these events have been widely publicized, and have included, among other things,
a decreased demand for air travel to due a variety of factors and increased
costs and reduced operations by airlines, including meal services. Most of our
larger airline customers have announced meal service reductions as part of cost
efficiency programs. Though the ongoing effect of these events on the airline
industry, airline revenues, and on our business in particular, cannot be
accurately determined at this time, we are estimating that in the near term,
sales to airline customers will experience little to no growth from 2003 levels.
In 2003, sales to airline customers were approximately $29.4 million, or 21.4%
of total net sales as compared to sales of $35.0 million, or 25.3% of total net
sales in 2002. Future adverse events in the airline industry, including
additional terrorist attacks or other safety issues, additional regulation,
significant bankruptcies, or significant continued cost reduction initiatives
that further reduce the meal requirements of our larger airline customers, could
negatively impact our financial position, results of operations or cash flows.
See "Risk Factors Related to Our Business and Industry-Decline in air travel may
negatively impact our revenues and costs" below and "Business-Sales and
Marketing" in Part I, Item 1 of this report.
We believe that the funds available to us from operations and existing
capital resources will be adequate for our capital requirements for at least the
next twelve months.
14
RECENT ACCOUNTING PRONOUNCEMENTS
In January 2003, the Financial Accounting Standards Board (FASB) issued
Interpretation No. 46, "Consolidation of Variable Interest Entities." Under
previous practices, certain entities were included in consolidated financial
statements based upon controlling voting interests or in other special
situations. Under Interpretation No. 46, certain previously unconsolidated
entities will be required to be included in consolidated financial statements of
the primary beneficiary, as defined. For variable interest entities, often
referred to as special purpose entities, created after January 31, 2003,
Interpretation No. 46 is effective immediately. Portions of Interpretation No.
46 have been delayed. The Company does not expect the adoption of Interpretation
No. 46 to have a material impact on its financial statements.
In December 2002, the FASB issued Interpretation No. 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, Including Indirect
Guarantees of Indebtedness of Others." Interpretation No. 45 clarifies the
requirement for recognition of a liability by a guarantor at the inception of
the guarantee, based on the fair value of a non-contingent obligation to
perform. Interpretation No. 45 must be applied prospectively to guarantees
entered into or modified after December 31, 2002. The adoption of Interpretation
No. 45 did not have a material effect on our financial statements.
On July 30, 2002, the FASB issued Statement No. 146, "Accounting for Costs
Associated with Exit or Disposal Activities" (SFAS 146), which addresses
financial accounting and reporting for costs associated with exit or disposal
activities. These rules supersede EITF 94-3, "Liability Recognition for Certain
Employee Termination Benefits and Other Costs to Exit an Activity." SFAS 146
requires that costs related to an exit or disposal activity can only be accrued
when a liability is actually incurred, rather than at the date of commitment to
an exit or disposal plan. SFAS 146 is required to be adopted for exit or
disposal activities occurring after December 31, 2002. The adoption of SFAS 146
did not have a material effect on our financial position, results of operations
or cash flows.
In June 2001, the FASB issued Statement No. 142, "Goodwill and Other
Intangible Assets" (SFAS 142), which requires that goodwill no longer be
amortized but instead be tested at least annually for impairment. We adopted
SFAS 142 as of October 1, 2001 and no impairment of goodwill was recorded upon
adoption. Had we been accounting for goodwill under SFAS 142 for all periods
presented, our income before income taxes would have increased by $830,000 for
fiscal year 2001, and our net income would have increased by $548,000 ($0.06 per
share and $0.05 per diluted share) for fiscal year 2001.
CRITICAL ACCOUNTING POLICIES
Management's discussion and analysis of our financial condition and results
of operations are based upon our financial statements, which have been prepared
in accordance with accounting principles generally accepted in the United
States. The preparation of these financial statements requires management to
make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates. See Note 2 to the financial statements contained elsewhere in this
report. Management believes the following critical accounting policies are
related to its more significant estimates and assumptions used in the
preparation of our financial statements.
CONCENTRATIONS OF CREDIT RISK. Our financial instruments that are exposed
to concentrations of credit risk consist primarily of trade receivables. We
perform ongoing credit evaluations of our customers' financial condition and
generally require no collateral from our customers. Our allowance for doubtful
accounts is calculated based primarily upon historical bad debt experience and
current market conditions. Until fiscal 2003, bad debt expense and accounts
receivable write-offs, net of recoveries, have historically been immaterial as
we generally transact the substantial portion of our business with large,
established food or service related businesses. However, a bankruptcy or other
significant financial deterioration of any significant customers could impact
their future ability to satisfy their receivables with us.
Our financial instruments that are exposed to concentrations of credit risk
consist primarily of trade receivables. We perform ongoing credit evaluations of
our customers' financial condition and generally require no collateral from our
customers.
15
For the fiscal years ended September 28, 2003, September 29, 2002 and
September 30, 2001, revenues from airline-related customers accounted for
approximately 21.4%, 25.3%, and 33.7% of total net revenues, respectively.
Additionally, accounts receivable from airline-related customers accounted for
approximately 33.1% and 30.8% of the total accounts receivable balance at
September 28, 2003 and September 29, 2002, respectively.
For the fiscal years ended September 28, 2003, September 29, 2002 and
September 30, 2001, our largest airline customer, American Airlines, accounted
for approximately 8.1%, 9.3% and 10.0% of total net revenues, respectively.
Additionally, accounts receivable from American Airlines accounted for
approximately 18% and 10% of the total accounts receivable at September 28, 2003
and September 29, 2002, respectively. The events of September 11, 2001 have
significantly impacted our sales to airlines. The ongoing effect of these events
on the airline industry, airline revenues, and on our business in particular,
still cannot be accurately determined. These events have resulted in a decreased
demand for air travel and a reduction in the number of meals served as a result
of airlines' cost savings measures. These effects, depending upon their scope
and duration, could negatively impact our financial position, results of
operations or cash flows.
In December 2002, United Airlines filed a petition for bankruptcy
reorganization. As of the date of United Airlines' bankruptcy filing, our
outstanding receivable balance from United Airlines was approximately $180,000.
We will continue to pursue collection of these pre-bankruptcy receivables
through the normal course of the bankruptcy proceedings. However, as of
September 28, 2003, we have written off all of our pre-bankruptcy receivables
from United Airlines due to uncertainty with respect to their ultimate
collectibility. We no longer do business with United Airlines.
We continue to do business with American Airlines. We will evaluate our
business relationship with American Airlines on an ongoing basis to determine
the manner in which our relationship should be continued.
INVENTORIES. Inventories, which include material, labor and manufacturing
overhead, are stated at the lower of cost, which approximates the first-in,
first-out (FIFO) method, or market. We use a standard costing system to estimate
our FIFO cost of inventory at the end of each reporting period. Historically,
standard costs have been materially consistent with actual costs. We determine
the market value of our raw ingredients, finished product and packaging
inventories based upon references to current market prices for such items as of
the end of each reporting period and record a write-down of inventory standard
cost to market, when applicable. We periodically review our inventory for excess
items, and we establish a valuation reserve based upon the age of specific items
in inventory and the expected recovery from the disposition of the items.
A reserve is established for the estimated aged surplus, spoiled or damaged
products, and discontinued inventory items and components. The amount of the
reserve is determined by analyzing inventory composition, expected usage,
historical and projected sales information, and other factors. Changes in sales
volume due to unexpected economic or competitive conditions are among the
factors that could result in materially different amounts for this item.
EXCESS OF COST OVER FAIR VALUE OF NET ASSETS ACQUIRED. The excess of cost
over fair value of net assets acquired (goodwill) is evaluated annually for
impairment in accordance with SFAS 142. We have one reporting unit and estimate
fair value based on a variety of market factors, including discounted cash flow
analysis, market capitalization, and other market-based data. No impairment of
goodwill was recorded during fiscal year 2003. At September 28, 2003, we had
goodwill of $12.2 million. A continued deterioration of our operating results
and the related cash flow effect could decrease the estimated fair value of our
business and, thus, cause our goodwill to become impaired and cause us to record
a charge against operations in an amount representing the impairment.
INCOME TAXES. For the one-month period from September 30, 2002 to October
29, 2002, the effective date of the spin-off, and for the years ended September
29, 2002 and September 30, 2001, we were included in the consolidated federal
tax return of our former parent and have provided for federal taxes on a
separate company basis in accordance with SFAS No. 109, "Accounting for Income
Taxes." Historically, with respect to state income taxes, primarily in
California, we have been able to reduce our tax liability by offsetting
otherwise taxable income with other losses under the parent entity. On a
separate company basis, we would have an approximate effective state tax rate of
6%. For periods following the completion of the spin-off, our tax returns will
be filed on a stand-alone basis.
16
Due to operating losses for the year ended September 28, 2003, we have
recorded tax benefits and a deferred tax asset, classified as other assets on
our accompanying balance sheet, of $3,256,000. We have not recorded a valuation
allowance against any of our deferred tax assets, since we believe that such
assets are more likely than not to be recoverable through estimated future
profitable operations. If we fail to improve margins, grow revenues and/or
reduce future interest costs, and return to profitable operating results in the
near term, we would not realize some or all of our deferred tax assets and we
may be required to record a valuation allowance against some or all of such
assets, which could adversely affect our financial position and results of
operations.
FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. These forward-looking
statements are based on current expectations or beliefs, including, but not
limited to, statements concerning our operations and financial performance and
condition. For this purpose, statements of historical fact may be deemed to be
forward-looking statements. Forward-looking statements include statements which
are predictive in nature, which depend upon or refer to future events or
conditions, which include words such as "expects," "anticipates," "intends,"
"plans," "believes," "estimates," or similar expressions. In addition, any
statements concerning future financial performance (including future revenues,
earnings or growth rates), ongoing business strategies or prospects, and
possible future company actions, which may be provided by management, are also
forward-looking statements. We caution that these statements by their nature
involve risks and uncertainties, and actual results may differ materially
depending on a variety of important factors, including, among others:
o the impact of competitive products and pricing;
o market conditions and weather patterns that may affect the cost of raw
material as well as the market for our products;
o changes in our business environment, including actions of competitors
and changes in customer preferences, as well as disruptions to our
customers' businesses, such as the southern California grocery strike
that began in October 2003;
o the occurrence of acts of terrorism, such as the events of September
11, 2001, or acts of war;
o changes in governmental laws and regulations, including income taxes;
o market demand for new and existing products; and
o other factors as may be discussed in this report, including those
factors described under "Risk Factors Related to Our Business and
Industry," and other reports we file with the Securities and Exchange
Commission.
RISK FACTORS RELATED TO OUR BUSINESS AND INDUSTRY
OUR ABILITY TO COMPETE EFFECTIVELY IN THE HIGHLY COMPETITIVE FOOD INDUSTRY MAY
AFFECT OUR OPERATIONAL PERFORMANCE AND FINANCIAL RESULTS.
The food industry is highly competitive, and our continued success depends
in part on our ability to be an efficient producer in a highly competitive
industry. We face competition in all of our markets from large, national
companies and smaller, regional operators. Some of our competitors, including
other diversified food companies, are larger and may have greater financial
resources than we do. From time to time we experience price pressure in certain
of our markets as a result of competitors' promotional pricing practices as well
as market conditions generally. Our ability to reduce costs is limited to the
extent efficiencies have already been achieved. Our failure to reduce costs
through productivity gains or by eliminating redundant costs resulting from any
acquisitions would weaken our competitive position. Competition is based on
product quality, distribution effectiveness, brand loyalty, price, effective
promotional activities and the ability to identify and satisfy emerging consumer
preferences. We may not be able to effectively compete with these larger, more
diversified companies.
17
THE LOSS OR CONSOLIDATION OF ANY OF OUR KEY CUSTOMERS COULD HAVE A SIGNIFICANT
NEGATIVE IMPACT ON OUR FINANCIAL RESULTS.
The largest purchasers of our products, Panda Restaurant Group and Jenny
Craig Products accounted for approximately 24% and 18%, respectively, of our
total net sales during the fiscal year ended September 28, 2003. We expect that
our sales to these customers will continue to constitute a significant
percentage of our net revenues. The loss of either of these customers as an
outlet for our products could significantly harm our competitive position and
operating results. Sales to Pinnacle Foods declined in mid-year of fiscal year
2003, resulting in a $7.1 million reduction in sales to $9.2 million in fiscal
year 2003 from $16.3 million in fiscal year 2002. Also, subsequent to September
28, 2003 the grocery strike in Southern California has reduced our sales to the
grocery chains involved in the labor dispute. Sales of recurring items to
Albertson's in the first eleven weeks of fiscal year 2004, September 29, 2003 to
December 14, 2003, have fallen by $1.0 million to $1.5 million from $2.5 million
during the first eleven weeks of fiscal year 2003, September 30, 2002 to
December 15, 2002. These reductions in sales have been partially offset by
increases in sales to new and existing retail customers.
In addition, the acquisition of one of our customers by a third party could
have an adverse impact on our financial results if the resulting company chose
to terminate their relationship with us and purchase products from our
competitors. Additionally, if our customers consolidate and grow larger, our
customers may demand lower pricing and more favorable terms. Further, these
customers may reduce inventories and increase their use of other suppliers. If
we fail to use our sales, marketing and manufacturing expertise to respond to
these trends, our sales volume could be impacted or we may need to lower our
prices or increase promotional support of our products, any of which would
adversely affect our profitability.
FURTHER DECLINES IN AIR TRAVEL MAY NEGATIVELY IMPACT OUR REVENUES, COSTS AND
COLLECTIONS.
A significant portion of our business is derived from the airline industry.
In 2003, sales to airline customers were approximately $29.4 million, or 21.4%
of total net sales, as compared to sales of $35.0 million in 2002 and $54.7
million in 2001, representing 25.3% and 33.8% of total net sales in 2002 and
2001, respectively. Additionally, accounts receivable from airline-related
customers accounted for approximately 33.1% and 30.8% of the total accounts
receivable balance at September 28, 2003 and September 29, 2002, respectively.
The events of September 11, 2001 have significantly adversely impacted our sales
to airline-related customers. Though the long-term effect of these events on the
airline industry, airline revenues, and on our business in particular, cannot be
accurately determined at this time, we estimate that in the near term, sales to
airline customers will experience little to no growth from 2003 levels. The
total impacts that these events may have on the airline industry in general, and
on our business in particular, are not known at this time. The effects of these
events have included, among other things, a decreased demand for air travel due
to a variety of factors and increased costs and reduced operations by airlines,
including meal services. Most of our larger airline customers have announced
meal service reductions as part of cost efficiency programs. A significant
portion of our business focuses on the airline industry, and these effects,
depending on their scope and duration, which we cannot predict at this time,
could further negatively impact our financial position, results of operations or
cash flows by, among other things, decreasing our sales to and making it more
difficult to collect receivables from airline customers.
WE ARE SUBJECT TO COST FLUCTUATIONS IN OUR OPERATIONS THAT MAY ADVERSELY AFFECT
OUR PROFITABILITY.
Our business operations may experience operating cost volatility caused by
external conditions, market fluctuations and changes in governmental policies.
For example, increases in our manufacturing costs and a decrease in our gross
profits and operating income in fiscal year 2003 as compared to fiscal year 2002
were attributable in part to increased worker's compensation insurance premiums.
Any substantial fluctuation in our manufacturing or operating costs, if not
offset by product price increases, hedging activities or improved efficiencies,
may have an adverse impact on our operating performance, business and financial
condition.
18
WE ARE MAJOR PURCHASERS OF MANY COMMODITIES THAT WE USE FOR RAW MATERIALS AND
PACKAGING, AND PRICE CHANGES FOR THE COMMODITIES WE DEPEND ON MAY ADVERSELY
AFFECT OUR PROFITABILITY.
The raw materials used in our business are largely commodities that
experience price volatility caused by external conditions, commodity market
fluctuations, currency fluctuations and changes in governmental agricultural
programs. Commodity price changes may result in unexpected increases in raw
material and packaging costs, and we may be unable to increase our prices to
offset these increased costs without suffering reduced volume, revenue and
income. Any substantial fluctuation in the prices of raw materials, if not
offset by increases in our sales prices, could have an adverse impact on our
profitability.
We attempt to recover our commodity cost increases by increasing prices,
promoting a higher-margin product mix and obtaining additional operating
efficiencies. We may not be able to continue to offset raw material price
increases to the same extent in the future. We enter into contracts for the
purchase of raw materials at fixed prices, which are designed to protect us
against raw material price increases during their term. We also use paper
products, such as corrugated cardboard, aluminum products, and films and
plastics to package our products. Substantial fluctuations in prices of
packaging materials or continued higher prices of our raw materials could
adversely affect our operating performance and financial results.
CONCERNS WITH THE SAFETY AND QUALITY OF FOOD PRODUCTS COULD CAUSE CUSTOMERS TO
AVOID OUR PRODUCTS.
We could be adversely affected if our customers and their customers lose
confidence in the safety and quality of certain food products. Adverse publicity
about these types of concerns, like the publicity about genetically modified
organisms, "mad cow disease" and foot and mouth disease in Europe, whether or
not valid, may discourage our customers from buying our products or cause
production and delivery disruptions. Any negative change in customer perceptions
about the safety and quality of our products could adversely affect our business
and financial condition.
IF OUR FOOD PRODUCTS BECOME ADULTERATED OR MISBRANDED, WE WOULD NEED TO RECALL
THOSE ITEMS AND MAY EXPERIENCE PRODUCT LIABILITY CLAIMS IF CONSUMERS ARE INJURED
AS A RESULT.
Food products occasionally contain contaminants due to inherent defects in
those products or improper storage or handling. We have never been required to
recall any of our products. Under adverse circumstances, food manufacturers may
need to recall some of their products if they become adulterated or misbranded
and may also be liable if the consumption of any of their products causes
injury. A widespread product recall or a significant product liability judgment
against us could cause products to be unavailable for a period of time and a
loss of customer confidence in our food products and could have a material
adverse effect on our business. If we are required to defend against a product
liability claim, whether or not we are found liable under such a claim, we could
incur substantial costs, our reputation could suffer and our customers might
substantially reduce their existing or future orders from us. While we maintain
insurance that we believe is adequate to cover this type of loss, liability of
this sort could require us to implement measures to reduce our exposure to this
liability, which may require us, among other things, to expend substantial
resources or to modify our product offerings or to make changes to one or more
of our business processes.
ANY ACQUISITIONS THAT WE UNDERTAKE COULD BE DIFFICULT TO INTEGRATE, DISRUPT OUR
BUSINESS, DILUTE OUR STOCKHOLDER VALUE AND ADVERSELY AFFECT OUR OPERATING
RESULTS.
Although we have no currently identified acquisition plans, we intend to
acquire or make investments in complementary businesses, technologies, services
or products from time to time as part of our long-term business strategy.
Expansion of our operations in this manner would require significant additional
expenses and resources. Expansion also could strain our management, financial
and operational resources. If we acquire a company, we could have difficulty in
assimilating that company's personnel, operations, technology and software. In
addition, the key personnel of the acquired company may decide not to work for
us. We could also have to incur indebtedness to pay for any future acquisitions.
We also may issue equity securities to pay for any future acquisitions, which
could be dilutive to our existing stockholders.
19
OUR BUSINESS IS SUBJECT TO FEDERAL, STATE AND LOCAL GOVERNMENT REGULATIONS THAT
COULD NEGATIVELY IMPACT OUR BUSINESS AND FINANCIAL POSITION.
Food manufacturing operations are subject to regulation by various federal,
state and local government entities and agencies. As a producer of food products
for human consumption, our operations are subject to stringent production,
packaging, quality, labeling and distribution standards, including regulations
mandated by the Federal Food and Drug Act. We cannot predict whether future
regulation by various federal, state and local governmental entities and
agencies would harm our business and financial results.
In addition, our business operations and the past and present ownership and
operation of our properties are subject to extensive and changing federal, state
and local environmental laws and regulations pertaining to the discharge of
materials into the environment, the handling and disposition of wastes
(including solid and hazardous wastes) or otherwise relating to protection of
the environment. We cannot assure you that additional environmental issues
relating to presently known matters or identified sites or to other matters or
sites will not require additional, currently unanticipated investigation,
assessment or expenditures.
WE MAY NOT BE ABLE TO PROTECT OUR INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS,
WHICH COULD HARM OUR COMPETITIVE POSITION, RESULTING IN DECREASED REVENUE.
We believe that our trademarks and other proprietary rights are important
to our success and competitive position. Accordingly, we devote what we believe
are adequate resources to the establishment and protection of our trademarks and
proprietary rights. We have taken actions to establish and protect our
trademarks and other proprietary rights. However, these actions may be
inadequate to prevent imitation of our products by others or to prevent others
from claiming violations of their trademarks and proprietary rights by us.
From time to time we license content from third parties. While we generally
require adequate indemnifications, it is possible that in the future we could
face infringement actions based upon the content licensed from these third
parties. If any of these claims are proved valid, through litigation or
otherwise, we may be required to do any of the following, which could adversely
affect our business:
o cease using the third party trademarks;
o acquire other licenses;
o develop our own proprietary marks; or
o pay financial damages.
SOME OF OUR SIGNIFICANT CUSTOMER AND SUPPLIER CONTRACTS ARE SHORT-TERM.
Some of our customers and suppliers operate through purchase orders or
short-term contracts. Though we have long-term business relationships with many
of our customers and suppliers, we cannot assure you that any of these customers
or suppliers will continue to do business with us on the same basis.
Additionally, though we try to renew these contracts as they come due, there can
be no assurance that these customers or suppliers will renew the contracts on
terms that are favorable to us, if at all. The termination of any number of
these contracts may adversely affect our business and prospects, including our
financial performance and results of operations.
OUR COMMON STOCK PRICE IS SUBJECT TO SIGNIFICANT VOLATILITY, WHICH COULD RESULT
IN SUBSTANTIAL LOSSES FOR INVESTORS AND IN LITIGATION AGAINST US.
Our common stock began trading on Amex under the symbol "OFI" on November
1, 2002. During the 52-week period ended December 12, 2003, the high and low
closing sales prices of our common stock were $1.99 per share and $0.35 per
share, respectively. Prices for our shares are determined in the marketplace and
may accordingly be influenced by many factors, including, but not limited to:
o the depth and liquidity of the market for the shares;
o quarter-to-quarter variations in our operating results;
20
o announcements about our performance as well as the announcements of
our competitors about the performance of their business;
o investors' evaluations of our future prospects and the food industry
generally;
o changes in earnings estimates by, or failure to meet the expectations
of, securities analysts;
o our dividend policy; and
o general economic and market conditions.
In addition, the stock market often experiences significant price
fluctuations that are unrelated to the operating performance of the specific
companies whose stock is traded. These market fluctuations could have a material
adverse effect on the trading price of our shares.
In the past, securities class action litigation often has been brought
against a company following periods of volatility in the market price of its
securities. We may in the future be the target of similar litigation. Securities
litigation could result in substantial costs and liabilities and could divert
management's attention and resources. Consequently, the price at which investors
purchase shares of our common stock may not be indicative of the price that will
prevail in the trading market. Investors may be unable to sell their shares of
common stock at or above their purchase price, which may result in substantial
losses.
THE LOSS OF CERTAIN OF OUR EXECUTIVE OFFICERS WOULD CONSTITUTE A CHANGE IN
CONTROL AND, THEREFORE, AN EVENT OF DEFAULT UNDER OUR SECURITIES PURCHASE AND
LOAN AGREEMENTS AND WOULD LIKELY HAVE AN ADVERSE EFFECT ON OUR FINANCIAL
CONDITION.
Our future success depends to a significant extent on the continued
services of our senior management, particularly James Rudis, our President and
Chief Executive Officer, John L. Steinbrun, our Senior Vice President and Chief
Financial Officer. Though we have employment agreements with Mr. Rudis and Mr.
Steinbrun, each of these agreements provides for voluntary resignation prior to
the end of the term of the agreement.
The loss of the services of Mr. Rudis or Mr. Steinbrun would likely have an
adverse effect on our business, results of operations and financial condition.
In addition, our securities purchase and loan agreements with LLCP, our senior
subordinated creditor, and Pleasant Street, our senior secured creditor, provide
that a change in control would occur if Mr. Rudis or Mr. Steinbrun ceases to
have certain management responsibilities in our business, or if Mr. Rudis does
not continue to hold a minimum number of shares of our common stock. The
occurrence of a change in control would permit LLCP to accelerate all
indebtedness owing under the senior subordinated note we issued to it and
constitute an event of default under the securities purchase agreement. LLCP
would then have the right to require us to immediately repay all of our
obligations then owing to it. We may not have sufficient funds to repay this
indebtedness upon an event of default. Accordingly, the occurrence of a change
in control could have a material adverse effect on our financial condition,
results of operations or cash flows.
OUR FAILURE TO ATTRACT AND RETAIN KEY MANAGEMENT PERSONNEL COULD HARM OUR
BUSINESS.
Our business requires managerial, financial and operational expertise and
our future success depends upon the continued service of key personnel. As a
value-added manufacturer of quality frozen food products and customer prepared
foods, we operate in a specialized industry. Our key personnel have experience
and skills specific to this industry, and there are a limited number of
individuals with the relevant experience and skills. Though we have employment
agreements with Mr. Rudis and Mr. Steinbrun, each of these agreements provides
for voluntary resignation on the part of the executive prior to the end of the
term of the agreement. If we lose any of our key personnel, our business
operations could suffer.
A SMALL GROUP OF STOCKHOLDERS CONTROLS A SIGNIFICANT AMOUNT OF OUR COMMON STOCK.
After giving effect to the shares of our common stock issuable upon the
exercise of options and warrants and conversion of shares of our Series A
Convertible Preferred Stock described below, our executive officers and
directors and stockholders who own greater than 5% of our common stock would
own, in the aggregate, approximately 61% of our outstanding common stock. These
stockholders, if acting together, could be able to significantly influence
matters requiring approval by the stockholders, including the election of
directors and the approval of mergers or other business combination
transactions.
21
In addition, our amended investor rights agreement with LLCP provides that
LLCP has the right to designate for nomination and election up to three members
of our board of directors, together with the right to fill the next available
vacancy created on the board of directors after October 31, 2003, which could
result in LLCP having up to four representatives on the board at any time.
OUR ARTICLES OF INCORPORATION, OUR BYLAWS AND PROVISIONS OF NEVADA LAW COULD
MAKE IT MORE DIFFICULT FOR A THIRD PARTY TO ACQUIRE US, EVEN IF DOING SO COULD
BE IN OUR STOCKHOLDERS' INTEREST.
Provisions of our articles of incorporation and bylaws could make it more
difficult for a third party to acquire us, even if doing so might be in the best
interest of our stockholders. It could be difficult for a potential bidder to
acquire us because our articles of incorporation and bylaws contain provisions,
which may discourage takeover attempts. These provisions may limit stockholders'
ability to approve a transaction that stockholders may think is in their best
interests. These provisions include a requirement that certain procedures must
be followed before matters can be proposed for consideration at meetings of our
stockholders and the ability of our board of directors to fix the rights and
preferences of an issue of shares of preferred stock without stockholder action.
Provisions of Nevada's business combinations statute also restrict certain
business combinations with interested stockholders. We have elected not to be
governed by these provisions in our amended and restated articles of
incorporation. However, this election is not effective until 18 months after the
approval of our amended and restated articles of incorporation in September 2002
and may not be effective at that time unless we meet certain conditions under
the Nevada statute.
The provisions of our articles of incorporation, bylaws and Nevada law are
intended to encourage potential acquirers to negotiate with us and allow the
board of directors the opportunity to consider alternative proposals in the
interest of maximizing stockholder value. However, such provisions may also
discourage acquisition proposals or delay or prevent a change in control.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
----------------------------------------------------------
INTEREST RATE RISK - OBLIGATIONS. We are currently subject to interest rate
risk on variable interest rate obligations. A hypothetical 10% increase in
average market interest rates would increase annual interest expense on
currently outstanding debt by approximately $94,000. We are also subject to
interest rate risk on our fixed interest rate obligations. Based upon
outstanding amounts of fixed rate obligations as of September 28, 2003, a
hypothetical 10% decrease in average market interest rates would increase the
fair value of outstanding fixed rate debt by approximately $320,000.
We do not own, nor do we have an interest in, any other market risk
sensitive instruments. See Part I, Item 1 "Description of Business."
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
-------------------------------------------
See Index to Financial Statements included in Part IV, Item 15.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
---------------------------------------------------------------
FINANCIAL DISCLOSURE
--------------------
None.
ITEM 9A. CONTROLS AND PROCEDURES
-----------------------
Our Chief Executive Officer and Chief Financial Officer (our principal
executive officer and principal financial officer, respectively) have concluded,
based on their evaluation as of September 28, 2003, that the design and
operation of our "disclosure controls and procedures" (as defined in Rule
13a-15(e) under the Securities Exchange Act of 1934, as amended ("Exchange
Act")) are effective to ensure that information required to be disclosed by us
in the reports filed or submitted by us under the Exchange Act is accumulated,
recorded, processed, summarized and reported to our management, including our
Chief Executive Officer and Chief Financial Officer, as appropriate to allow
timely decisions regarding whether or not disclosure is required.
During the quarter ended September 28, 2003, there were no changes in our
"internal controls over financial reporting" (as defined in Rule 13a-15(f) under
the Exchange Act) that have materially affected, or are reasonably likely to
materially affect, our internal controls over financial reporting.
22
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
--------------------------------------------------
The following table sets forth certain information regarding our current
directors and executive officers.
PRESENT
OFFICE(S) HELD DIRECTOR
NAME AGE IN THE COMPANY SINCE
---- --- -------------- -----
James Rudis................................. 54 President, Chief Executive Officer and 1995
Chairman of the Board of Directors
John L. Steinbrun........................... 40 Senior Vice President, Chief Financial 2003
Officer and Director
Richard A. Horvath.......................... 57 Senior Vice President, Secretary and 1999
Director
William E. Shatley.......................... 57 Senior Vice President, Treasurer and 1998
Director
Harold Estes (1) (2)........................ 63 Director 2002
Geoffrey A. Gerard (1) (2).................. 58 Director 2002
John E. McConnaughy, Jr.(1) (2)............. 74 Director 2002
- -----------
(1) Member of audit committee
(2) Member of compensation committee
The following information regarding the principal occupations and other
employment of our directors during the past five years and their directorships
in certain companies is as reported by the respective directors:
James Rudis was elected to our board of directors in April 1995 and has
served as President since June 1997. He has also served as a director of TreeCon
Resources since December 1992, President of TreeCon Resources since July 1997
and Chairman and Chief Executive Officer of TreeCon Resources since February
1998. He served as Executive Vice President of TreeCon Resources from March 1994
until July 1997. Mr. Rudis has committed to resign from his directorship and his
offices of Chairman and Chief Executive Officer of TreeCon Resources, and he did
timely resign, no later than December 31, 2003. Prior to his employment with us
and with TreeCon Resources, Mr. Rudis was President of Quorum Corporation, a
private consulting firm involved in acquisitions and market development. From
1970 until 1984, he held various executive positions in CIT Financial
Corporation, including Vice President and Regional Manager of that company's
Commercial Finance Division.
John L. Steinbrun was elected to our board of directors in August 2003 and
has served as our Senior Vice President and Chief Financial officer since April
2003. Mr. Steinbrun has been president of The Steinbrun Group, a business and
financial consulting firm, since April 2000. He served as chief financial
officer and chief operating officer of Metropolitan Provisions LLC, a
foodservice distribution company, from November 2000 to June 2001. From
September 1996 to March 2000, Mr. Steinbrun was chief financial officer and vice
president of operations of Ancra International LLC, an aerospace and
transportation equipment manufacturer. From February 1992 to August 1996, he was
director of finance and operations for Davis Wire Corporation, a manufacturer of
steel wire and wire products. Mr. Steinbrun, a certified public accountant,
served as a senior accountant with Touche Ross and Co. from 1985 to 1988. He
holds a B.S. in Accounting from Loyola Marymount University and an M.B.A. in
Finance from The University of Chicago.
23
Richard A. Horvath was elected to our board of directors in November 1999
and has served as our Senior Vice President and Secretary since November 1997.
Mr. Horvath also served as our Chief Financial Officer from November 1997
through March 2003. Mr. Horvath has been in the food industry for almost 30
years. Prior to his employment at Overhill Farms, Mr. Horvath served as the
Chief Financial Officer of Martino's. During the period of 1973 to 1996, he held
various positions with the Carnation Company, Star Kist Foods, and Mission
Foods.
William E. Shatley was elected to our board of directors and was named as
our Senior Vice President and Treasurer in February 1998. Mr. Shatley served as
Senior Vice President of TreeCon Resources from March 1994 until October 2002
and as a director of TreeCon Resources from February 1998 until October 2002. He
joined TreeCon Resources in an executive capacity in October 1993, having
previously served on an advisory basis since the relocation of its corporate
offices to Texas in 1992. Mr. Shatley, a certified public accountant since 1970,
previously conducted his own consulting and accounting practice from 1982 to
1993, after having served as Vice President and Chief Financial Officer of a
communications security equipment manufacturer from 1977 to 1982 and in an
executive capacity with a national accounting firm from 1968 to 1977.
Harold Estes was appointed to our board of directors in October 2002. Mr.
Estes is the President of Texas Timberjack, Inc. ("TTI"), a wholly-owned
subsidiary of TreeCon Resources. He was elected as a director of TreeCon
Resources in February 1996 and resigned from the TreeCon Resources board of
directors in April 1997. TTI is a distributor of industrial and commercial
timber and logging equipment and is also engaged in certain related timber and
sawmill operations. Mr. Estes has been President of TTI since 1984, when he
acquired TTI from Eaton Corporation. Mr. Estes previously served as a director
of Newton Bancshares, Inc., the parent of First National Bank of Newton (Texas)
for approximately ten years until the sale of the bank in October 2001.
Geoffrey A. Gerard was elected to our board of directors in February 2002.
Mr. Gerard served as Secretary and General Counsel of Equivest, Inc. from 1975
to 1977. Mr. Gerard then served as Secretary and General Counsel for two
privately held oil and gas exploration companies until 1978. Mr. Gerard has been
in the private practice of law in Dallas County, Texas since 1978, specializing
in business transactions. Mr. Gerard received his B.S. in Business-Finance and
his J.D. from Indiana University.
John E. McConnaughy, Jr. was appointed to our board of directors in October
2002. Mr. McConnaughy has served as Chairman and Chief Executive Officer of JEMC
Corporation, a personal holding company, since he founded it in 1985. His career
includes positions of management with Westinghouse Electric and the Singer
Company, as well as service as a director of numerous public and private
companies. In addition, he previously served as Chairman and Chief Executive
Officer of Peabody International Corp. and Chairman and Chief Executive Officer
of GEO International Corp. He retired from Peabody in February 1986 and GEO in
October 1992. Mr. McConnaughy served as Chairman of Excellence Group, LLC, which
filed a petition for bankruptcy under Chapter 11 in January 1999, and currently
serves on the boards of five other public companies (Wave Systems Corp., Mego
Financial Corp., Riddell Sports, Inc., Levcor International, Inc., and DeVlieg
Bullard, Inc.), and one private company (PetsChoice, Ltd.). He also serves on
the Board of Trustees and Executive Committee of the Strang Cancer Prevention
Center and as Chairman of the Board for the Harlem School of the Arts. Mr.
McConnaughy holds a B.A. in Economics from Denison University, and an M.B.A. in
Marketing and Finance from the Harvard Graduate School of Business
Administration.
TERM OF OFFICE AND FAMILY RELATIONSHIPS
Our directors are elected at each annual stockholders' meeting or at such
other times as reasonably determined by our board of directors. Each of our
directors is to hold office until his successor is elected and qualified or
until his earlier death, resignation or removal. Each of our executive officers
serves at the discretion of our board of directors. There are no family
relationships among our executive officers and directors.
BOARD OF DIRECTORS AND COMMITTEES
During the fiscal year ended September 28, 2003, our board of directors
held one meeting and took action by unanimous written consent on five occasions.
During fiscal year 2003, no incumbent director attended fewer than 75% of the
aggregate of: (1) the total number of meetings of the board of directors (held
during the period for which he has been a director); and (2) the total number of
meetings held by all committees of the board on which he served (during the
periods that he served).
24
Our board of directors has standing audit and compensation committees, but
does not have a nominating committee. In practice, our entire board of directors
performs the functions of a nominating committee. In addition, our bylaws
provide that stockholders may also nominate persons for election to our board of
directors. Also, as discussed elsewhere herein, LLCP has the right to designate
up to four nominees to our board of directors, and Mr. Rudis has agreed to vote
his shares of our common stock in favor of the election of their nominee(s). To
date, LLCP has chosen not to designate a nominee for election.
AUDIT COMMITTEE
Effective as of October 29, 2002, the date of the spin-off, we formed the
audit committee to be composed of three non-employee directors. The audit
committee initially was composed of Messrs. Gerard and McConnaughy and
then-director Mr. Robert W. Schleizer. Since April 2003, the audit committee has
been composed of Messrs. Gerard, McConnaughy and Estes, with Mr. McConnaughy
serving as the committee chairman. Four audit committee meetings were held
during the fiscal year ended September 28, 2003.
Our board has determined that Mr. McConnaughy is an audit committee
financial expert. Messrs. Gerard and McConnaughy are "independent" as defined in
Section 121(A) of the listing standards of Amex. Mr. Estes is the president of
Texas Timberjack, Inc., a wholly-owned subsidiary of our former parent, TreeCon
Resources, and therefore is not considered independent under Section 121(A) of
the Amex listing standards. However, Mr. Estes is not a current employee or
immediate family member of a current employee of our company, and our board of
directors has determined that Mr. Estes' membership on the audit committee is in
the best interests of our company and stockholders because of Mr. Estes'
background and business experience and his familiarity with our company, and
because it is desirable to have three, rather than two, members on our audit
committee.
The audit committee operates pursuant to a charter approved by our board of
directors, according to the rules and regulations of the Securities and Exchange
Commission ("Commission") and Amex. A copy of the charter is attached as Exhibit
A to our proxy statement filed with the Securities and Exchange Commission with
regard to our annual meeting of stockholders held August 11, 2003. The
committee's principal functions are to monitor our financial reporting process
and internal control system, review and appraise the audit efforts of our
independent auditors, and provide an avenue of communication among our
independent accountants, financial and senior management and board of directors.
COMPENSATION COMMITTEE
Effective as of October 29, 2002, we formed the compensation committee to
be composed entirely of disinterested non-employee directors. The compensation
committee initially was composed of Messrs. Gerard and McConnaughy and
then-director Mr. Schleizer. Since April 2003, the compensation committee has
been composed of Messrs. Gerard, McConnaughy and Estes, with Mr. McConnaughy
serving as the committee chairman. One compensation committee meeting was held
during the fiscal year ended September 28, 2003. The compensation committee's
primary functions are to administer our employee stock option plans, approve
grants of stock options and approve compensation for executive officers.
DIRECTORS' COMPENSATION
Prior to October 2002, directors received no cash compensation for serving
on our board of directors or any committee, although directors were and continue
to be reimbursed for expenses incurred in attending board of directors and
committee meetings. Effective October 2002, non-employee directors are entitled
to $2,500 per month in consideration for their service on our board of
directors. We may also periodically award options to our directors under our
existing stock option plan or otherwise. During fiscal year 2003, we have
granted options to purchase an aggregate of 672,000 shares of our common stock
to our directors and executive officers.
25
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and the regulations thereunder require the directors, executive officers
and persons who beneficially own more than 10% of a registered class of our
equity securities ("reporting persons") to file with the Commission initial
reports of ownership and reports of changes in ownership of our common stock and
other equity securities, and to furnish us with copies of all reports that they
file. The following reports were not timely filed: John L. Steinbrun, Senior
Vice President, Chief Financial officer and director, did not timely file a Form
3 reporting the fact that he had become a reporting person when he was appointed
Chief Financial Officer of the Company, and reporting a grant of 50,000 options
that he received on April 1, 2003; Mr. Steinbrun also did not timely file a Form
4 to report two purchases of common stock on the open market; directors John
McConnaughy, Geoff Gerard, and Harold Estes did not timely file Forms 4 to
report grants of 50,000 options each granted May 29, 2003; and Mr. Estes did not
timely file a Form 4 to report purchases of common stock on the open market.
CODE OF ETHICS
Amex rules that were approved by the Securities and Exchange Commission on
December 1, 2003 require, among other things, that we adopt one or more codes of
conduct and ethics no later than six months after that date. The codes of
conduct and ethics must be applicable to all of our directors, officers and
employees, meet the definition of a "code of ethics" as set forth in Item 406(b)
of Regulation S-K of the Securities and Exchange Commission, and otherwise
comply with Amex rules.
Our employee handbook has for many years included various provisions
designed to assure the honest and ethical conduct of our officers and employees.
However, we do not consider our employee handbook to comprise a code of conduct
and ethics as contemplated by Amex and the Securities and Exchange Commission.
We have not yet had an opportunity to prepare such a code of conduct and ethics.
However, we intend to adopt as soon as practicable one or more codes of
conduct and ethics that meet the newly finalized Amex and Securities and
Exchange Commission requirements. Once adopted, we will make our codes of
conduct and ethics and information regarding waivers or amendments to the code
publicly available as required by applicable rules and regulations and will
provide a copy of the codes of conduct and ethics to any person without charge,
upon written request to Overhill Farms, Inc., Attention: Investor Relations,
2727 East Vernon Avenue, Vernon, California 90058.
26
ITEM 11. EXECUTIVE COMPENSATION
----------------------
SUMMARY COMPENSATION TABLE
The following table sets forth for fiscal years 2003, 2002 and 2001
compensation awarded or paid to Mr. James Rudis, our Chairman, Chief Executive
Officer and President, and Mr. William E. Shatley, our Senior Vice President and
Treasurer, for services rendered to TreeCon Resources and its subsidiaries
(including Overhill Farms, Inc.). Mr. Rudis and Mr. Shatley are the only
individuals who served as executive officers of TreeCon Resources during the
year ended September 30, 2003 who also served as Overhill Farms, Inc. executive
officers. The following table also sets forth for fiscal years 2003, 2002 and
2001 compensation awarded to Mr. John L. Steinbrun, our Senior Vice President
and Chief Financial Officer, and Mr. Richard A. Horvath, our Senior Vice
President and Secretary, for services rendered to Overhill Farms, Inc. The
compensation described in this table for Mr. Rudis and Mr. Shatley was paid by
TreeCon Resources and/or Overhill Farms. Mr. Rudis, Mr. Shatley, Mr. Steinbrun
and Mr. Horvath are also referred to in this section as "named executive
officers." Other than as indicated in the table below, none of our executive
officers received salary plus bonus in excess of $100,000 for fiscal year 2003.
LONG-TERM
COMPENSATION
ANNUAL COMPENSATION AWARDS
------------------- ------
OTHER SECURITIES
NAME AND ANNUAL UNDERLYING ALL OTHER
PRINCIPAL POSITIONS YEAR SALARY BONUS COMPENSATION OPTIONS COMPENSATION
------------------- ---- ------ ----- ------------ ------- ------------
(1) (5)
James Rudis, 2003 $230,000 -- -- 300,000 --
Chief Executive 2002 $230,000 -- -- -- --
Officer And 2001 $230,000 $40,000 -- -- --
President
John L. Steinbrun, 2003 $115,235 (2) -- -- 50,000 --
Senior Vice 2002 -- -- -- -- --
President And 2001 -- -- -- -- --
And Chief Financial
Officer
Richard A. Horvath, 2003 $136,816 (3)(4) -- -- 20,000 --
Senior Vice 2002 $140,000 -- -- -- --
President, 2001 $140,000 $20,000 -- -- --
Secretary and Former
Chief Financial
Officer
William E. Shatley, 2003 $141,431 (3) -- -- 150,000 --
Senior Vice 2002 $168,000 -- -- -- --
President 2001 $168,000 $15,000 -- -- --
And Treasurer
- ------------
(1) The named executive officers each received certain perquisites and other
personal benefits from Overhill Farms and/or TreeCon Resources during
fiscal years 2003, 2002 and 2001. These perquisites and other personal
benefits, however, did not equal or exceed 10% of the named executive
officers' salary and bonus during fiscal years 2003, 2002 or 2001.
(2) Mr. Steinbrun's employment with our company commenced April 1, 2003.
(3) Excludes salaries for which payment has been deferred as discussed below.
(4) Mr. Horvath served as our Chief Financial Officer until March 31, 2003.
(5) Stock options granted during the fiscal year ended September 28, 2003.
27
OPTION GRANTS IN LAST FISCAL YEAR
The following table provides information regarding options granted in
fiscal year 2003 to the named executive officers. We did not grant any stock
appreciation rights in fiscal year 2003. This information includes hypothetical
potential gains from stock options granted in fiscal year 2003. These
hypothetical gains are based entirely on assumed annual growth rates of 5% and
10% in the value of our common stock price over the 10-year life of the stock
options granted in fiscal year 2003. These assumed rates of growth were selected
by the Securities and Exchange Commission for illustrative purposes only and are
not intended to predict future stock prices, which will depend upon market
conditions and our future performance and prospects.
INDIVIDUAL GRANTS
-----------------
PERCENT
OF TOTAL
OPTIONS POTENTIAL REALIZABLE VALUE
NUMBER OF GRANTED TO AT ASSUMED ANNUAL RATES OF STOCK PRICE
SECURITIES EMPLOYEES EXERCISE APPRECIATION FOR OPTION TERM (2)
GRANT UNDERLYING IN FISCAL PRICE PER EXPIRATION --------------------------------
NAME DATE OPTIONS GRANTED YEAR (1) SHARE DATE 5% 10%
- ---- ------- ---------------- ---------- --------- ---------- ----------- ------------
James Rudis........ 10/01/02 300,000 (3) 57.7% $1.60 09/30/12 $303,000 $765,000
John L. Steinbrun... 04/01/03 50,000 (3) 9.6% $0.70 03/31/08 $9,500 $21,500
Richard A. Horvath.. 10/01/02 20,000 (3) 3.8% $1.60 09/30/12 $20,200 $51,000
William E. Shatley.. 10/01/02 150,000 (3) 28.9% $1.60 09/30/12 $151,500 $382,500
- ------------
(1) Based on options to purchase 520,000 shares granted to our employees during
fiscal year 2003.
(2) Calculated using the potential realizable value of each grant.
(3) The options vested and became exercisable at the date of grant.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL
YEAR-END OPTION VALUES
The following table provides information regarding the number of shares of
common stock underlying exercisable held by the named executive officers at
September 28, 2003. An option is in-the-money if the fair market value for the
underlying securities exceeds the exercise price of the option. None of the
options were in-the-money at September 28, 2003, and no options were exercised
by the named executive officers during fiscal year 2003.
NUMBER OF
SECURITIES UNDERLYING VALUE OF UNEXERCISED
UNEXERCISED OPTIONS AT IN-THE-MONEY OPTIONS AT
SHARES SEPTEMBER 28, 2003 SEPTEMBER 28, 2003 (1)
ACQUIRED VALUE --------------------------------- ----------------------------------
NAME ON EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---- ------------- ----------- ---------------- --------------- ---------------- ---------------
James Rudis......... -- -- 300,000 -- -- --
John L. Steinbrun... -- -- 50,000 -- -- --
Richard A. Horvath.. -- -- 20,000 -- -- --
William E. Shatley.. -- -- 150,000 -- -- --
- ------------
(1) Based on the last reported sale price of our common stock of $0.57 on
September 26, 2003 (the last trading day during fiscal year 2003) as
reported by the American Stock Exchange, minus the exercise price of the
options.
28
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND CHANGE-IN-CONTROL
ARRANGEMENTS
We are a party to employment agreements with James Rudis, our Chief
Executive Officer and President, William E. Shatley, our Senior Vice President
and Treasurer, and John L. Steinbrun, our Senior Vice President and Chief
Financial Officer. We do not maintain employment agreements with any of our
other personnel.
JAMES RUDIS AND WILLIAM E. SHATLEY EMPLOYMENT AGREEMENTS
Mr. Rudis' and Mr. Shatley's initial employment agreements entered into
with TreeCon Resources and us each have an initial term of five years,
commencing November 1, 1999, automatically renewing from year to year thereafter
unless terminated by either party. These agreements provide that we will review
their compensation annually and may increase it in a percentage not less than
that of the annual increase in the cost of living. Each employment agreement
contains a covenant by the executive not to compete with us during the term of
his employment and for a period of one year thereafter. We have agreed to make
available at our expense for each of the executives a $1 million life insurance
policy payable to a beneficiary of his choice and to pay to each of the
executives up to $800 per month for an automobile lease and to reimburse each of
them for all operating expenses relating to the leased automobile.
These employment agreements also provide that if the executive is
terminated by reason of his death or disability, he or his estate is entitled to
receive:
o his base salary through date of termination, which is the last day of
the month in which his death occurs or the earlier of the date that is
six months after he becomes disabled or the date that he is eligible
to receive long-term disability benefits;
o all bonuses earned through the date of termination, paid in accordance
with the terms of the bonus plan pursuant to which the bonus was
earned;
o accrued but unused vacation and sick leave pay;
o reimbursement for reasonable and necessary business expenses incurred
before termination;
o all rights to which he is granted under our life insurance policy; and
o all amounts to which he is entitled under any profit sharing plan of
our company.
If the executive voluntarily resigns prior to the end of the term, he is
entitled to receive all amounts that he would receive if he was terminated as a
result of death or disability, and accrued but unused personal business days
paid at a per diem rate equivalent to the executive's then current salary,
provided, however, that he will not be entitled to receive any bonus payments.
If the executive is terminated for cause, he is entitled to receive all
amounts that he would receive if he was terminated as a result of death or
disability, except that he is not entitled to receive any reimbursement of
business expenses. If he is terminated other than for cause, he is entitled to
receive all amounts that he would receive if he was terminated as a result of
death or disability, his salary for the remainder of the term of the agreement,
any bonus earned through the date of termination, paid in accordance with the
terms of the bonus plan pursuant to which any bonus may have been earned,
accrued but unused personal business days paid at a per diem rate equivalent to
the executive's then current salary, and monthly payments for one year equal to
the monthly premium required to maintain his life and health insurance benefits
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 under our
group insurance plan. If he is terminated other than for cause, he is also
entitled to have all indebtedness by him to us forgiven and to use the car
provided to him in his employment agreement for one year following the date of
termination.
29
Effective as of October 30, 2003, we amended Mr. Rudis' employment contract
with us to provide, among other things, for an increase in his annual
compensation to $275,000 from $230,000. This amendment also provided that the
term of his employment agreement with us be extended to end on October 31, 2006
and shall continue to extend from year to year thereafter unless terminated by
us upon giving minimum notice of at least ninety days prior to the expiration of
the initial term or the anniversary or renewal date of the beginning of the next
annual extension period.
Effective as of May 1, 2003, we restructured the payment of Mr. Shatley's
salary. Pursuant to the terms of his employment agreement, he was then entitled
to a monthly salary of $15,000. We agreed with Mr. Shatley that his salary will
be paid at the monthly rate of $7,500 through the term of his employment
agreement, which expires on October 31, 2004, and the remaining balance of the
$15,000 monthly salary will be paid in four quarterly installments, the first of
which will be payable upon the expiration of the employment agreement. If we
reach satisfactory terms for continued employment, any offer by us of continued
employment will take into consideration this deferment.
RICHARD A. HORVATH EMPLOYMENT AGREEMENT
Mr. Horvath's employment agreement, which included a covenant not to compete
with us during the term of his employment and for a period of one year
thereafter, expired on October 31, 2003. Mr. Horvath's employment is continuing
on an at-will basis at an annual salary of $140,000. He is entitled to an
automobile allowance consistent with our usual practice.
JOHN L. STEINBRUN EMPLOYMENT AGREEMENT
Mr. Steinbrun's employment agreement initially provided for a term of one
year, commencing April 1, 2003, a total salary of $225,000 and a discretionary
bonus based on performance, as determined by our board of directors. Mr.
Steinbrun received an immediately vested and exercisable five-year option to
purchase up to 50,000 shares of common stock at an exercise price of $0.70 per
share under our 2002 Employee Stock Option Plan.
Effective as of November 1, 2003, we amended the employment agreement with
Mr. Steinbrun to provide for an increase in his annual compensation to $250,000,
and for an extension of the term of the employment agreement through April 30,
2005. We may elect to terminate Mr. Steinbrun's employment without cause prior
to the expiration of the term through prior written notice, provided that we pay
to Mr. Steinbrun upon termination the entire balance of the salary that he
otherwise would have earned during the remainder of the term.
Mr. Steinbrun is entitled to an automobile allowance of $600 per month.
Upon termination of his employment, he will be entitled to receive all accrued
compensation as of the date of termination, accrued but unused vacation and sick
leave pay, any reimbursement owed to him for reasonable and necessary business
expenses previously incurred and all amounts vested as of the date of
termination pursuant to any company profit sharing plan.
2002 EMPLOYEE STOCK OPTION PLAN OF OVERHILL FARMS, INC.
Our board of directors adopted the 2002 Employee Stock Option Plan of
Overhill Farms, Inc. and it became effective after the spin-off, and our
stockholders approved the plan at our annual meeting of stockholders held in
August 2003. We have reserved 800,000 shares of our common stock for issuance
under the plan. The plan is intended to advance our best interests to attract,
retain and motivate directors, officers, key employees and consultants by
providing them with additional incentives through the award of incentive stock
options and non-qualified stock options.
ELIGIBILITY
Our employees, directors, consultants and advisors are eligible to be
granted awards under the plan. However, only our employees will be eligible to
receive incentive stock options.
30
ADMINISTRATION
The plan is administered by the Compensation Committee of our board of
directors or another committee appointed by our board of directors composed of
outside directors. The committee will have the discretion and the authority to
adopt rules and regulations for carrying out the purposes of the plan.
STOCK OPTIONS
The stock option plan provides for the grant of both options intended to
qualify as "incentive stock options" under Section 422 of the Internal Revenue
Code, as well as non-qualified stock options. The maximum term of a stock option
granted under the stock option plan is ten years, except that with respect to
incentive stock options granted to a person who beneficially owns stock having
more than 10% of the voting power of our stock, the term of an option shall not
exceed five years.
Options will be issued at an exercise price determined by the committee
except that the exercise price of incentive stock options granted under the
stock option plan must be at least equal to the fair market value of our common
stock on the date of the grant. However, for any optionee who beneficially owns
stock possessing more than 10% of the voting power of our stock, the exercise
price for incentive stock options must be at least 110% of the fair market value
of our common stock on the date of the grant. The exercise price of
non-qualified stock options will be determined by the committee and may be less
than, equal to or greater than the fair market value of our common stock on the
date of the grant. The aggregate fair market value on the date of grant of the
common stock for which incentive stock options are exercisable by an optionee
during any calendar year may not exceed $100,000.
Options granted under the stock option plan may be exercised in whole or in
part as specifically set forth in the option agreement, and, except as provided
by law, no incentive stock options may be transferred except by will or by the
laws of descent and distribution. The committee may provide in an agreement
granting non-qualified options that the non-qualified options are transferable
and the extent to which the non-qualified options are transferable. The board of
directors may terminate the stock option plan after its adoption in whole or in
part at any time and may amend the stock option plan after its adoption from
time to time without stockholder approval so long as no stock option award is
revoked or altered in a manner unfavorable to the holder and subject to
applicable federal and stock exchange rules. The stock option plan is expected
to terminate on the tenth anniversary of the effective date of the stock option
plan, unless terminated earlier by the board of directors.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Effective as of October 29, 2002, we established a compensation committee
that was composed of Messrs. Gerard and McConnaughy and then-director Mr.
Schleizer, who resigned in March 2003. Since April 2003, our compensation
committee has been composed of Messrs. Gerard, McConnaughy and Estes.
No member of the compensation committee is an officer or employee of our
company or has had any relationship requiring disclosure pursuant to Item 404 of
Regulation S-K under the Securities Act of 1933, as amended ("Securities Act").
None of our executive officers serves as a member of a compensation committee of
another corporation (or other board committee of such company performing similar
functions or, in the absence of any such committee, the entire board of
directors of such corporation), one of whose executive officers serves on our
compensation committee. None of our executive officers serves as a director of
another corporation, one of whose executive officers served on our compensation
committee. None of our executive officers serves as a member of a compensation
committee of another corporation (or other board committee of such corporation
performing similar functions or, in the absence of any such committee, the
entire board of directors), one of whose executive officers serves as one of our
directors.
DIRECTOR COMPENSATION
Directors who are also employees of the company receive no additional
compensation for services as directors. Nonemployee directors are entitled to
$2,500 per month in consideration for their service on our board of directors.
We may also periodically award options to our directors under our existing stock
option plan or otherwise. To date we have granted options to purchase an
aggregate of 672,000 shares of our common stock to our directors and to
executive officers that also serve as directors.
31
BOARD AUDIT COMMITTEE REPORT
The audit committee of our board of directors reviewed and discussed with
the independent auditors all matters required by generally accepted auditing
standards, including those described in Statement on Auditing Standards No. 61,
as amended, "Communication with Audit Committees," and reviewed and discussed
our audited financial statements, both with and without management present. In
addition, the audit committee obtained from the independent auditors a formal
written statement describing all relationships between the auditors and us that
might bear on the auditors' independence consistent with Independence Standards
Board Standard No. 1, "Independence Discussions with Audit Committees," and
discussed with the auditors any relationships that may impact their objectivity
and independence and satisfied itself as to the auditors' independence.
Based upon the audit committee's review and discussions with management and
the independent auditors, the audit committee recommended to our board of
directors that our audited financial statements be included in our annual report
on Form 10-K for fiscal year 2003, for filing with the Commission.
AUDIT COMMITTEE:
John E. McConnaughy, Jr., Chairman
Geoffrey A. Gerard
Harold Estes
32
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
------------------------------------------------------------------
RELATED STOCKHOLDER MATTERS
---------------------------
As of December 15, 2003, a total of 14,805,556 shares of our common stock
and 23.57 shares of our Series A Convertible Preferred Stock (currently
convertible into 283,076 shares of our common stock) were outstanding. The
following table sets forth certain information with respect to beneficial
ownership of our voting stock as of December 15, 2003, by:
o each of our directors;
o each of our named executive officers;
o all of our directors and executive officers as a group; and
o each person known by us to beneficially own more than 5% of the
outstanding shares of any class of our voting stock as of the date of
the table.
Beneficial ownership is determined in accordance with Rule 13d-3
promulgated by the Commission, and generally includes voting or investment power
with respect to securities. Except as indicated below, we believe each holder
possesses sole voting and investment power with respect to all of the shares of
voting stock owned by that holder, subject to community property laws where
applicable. In computing the number of shares beneficially owned by a holder and
the percentage ownership of that holder, shares of common stock subject to
options or warrants or underlying convertible notes or convertible preferred
stock held by that holder that are currently exercisable or convertible or are
exercisable or convertible within 60 days after the date of the table are deemed
outstanding. Those shares, however, are not deemed outstanding for the purpose
of computing the percentage ownership of any other person or group.
The inclusion of shares in this table as beneficially owned is not an
admission of beneficial ownership. Except as indicated below, the address for
each named beneficial owner is the same as ours.
Shares Beneficially Owned
-------------------------
Name of Beneficial Owner Number Percentage of Class
------------------------ ------ -------------------
James Rudis (1).................................. 578,950 3.8
John L. Steinbrun (2)............................ 126,900 *
Richard A. Horvath (3)........................... 25,750 *
William E. Shatley (4) .......................... 352,350 2.4
Harold Estes (5)................................. 2,184,150 14.7
Geoffrey A. Gerard (6)........................... 52,000 *
John E. McConnaughy, Jr. (7)..................... 660,300 4.4
Levine Leichtman Capital Partners II, L.P........
Common Stock.............................. 5,688,022(8) 37.7
Series A Convertible Preferred Stock...... 23.57 100.0
All directors and officers as a group
(7 persons)(9)................................ 3,980,400 25.7
- ---------------------------------------------------------------------
* Indicates beneficial ownership of less than 1% of our common stock.
(1) Includes options to purchase 300,000 shares of common stock.
(2) Includes options to purchase 50,000 shares of common stock.
(3) Includes options to purchase 20,000 shares of common stock.
(4) Includes options to purchase 150,000 shares of common stock and 79,100
shares that Mr. Shatley may be deemed to beneficially own as a general
partner in a family limited partnership.
33
(5) Includes options to purchase 50,000 shares of common stock. Mr. Estes'
address is 6004 South U.S. Highway 59, Lufkin, Texas 75901.
(6) Consists of options to purchase 52,000 shares of common stock.
(7) Includes options to purchase 50,000 shares of common stock. Mr.
McConnaughy's address is 3 Parklands Drive, Darien, Connecticut 06820.
(8) Includes (a) 200 shares of common stock issuable upon exercise of two
warrants owned by Levine Leichtman Capital Partners II, L.P. ("LLCP") and
(b) 283,076 shares of common stock, issuable upon conversion of 23.57
shares of our Series A Convertible Preferred Stock owned by LLCP. LLCP
California Equity Partners II, L.P., a California limited partnership, is
the sole general partner of LLCP. Levine Leichtman Capital Partners, Inc.,
a California corporation, is the sole general partner of the LLCP
California Equity Partners II, L.P. Arthur E. Levine is a director, the
President and a shareholder of Levine Leichtman Capital Partners, Inc.
Lauren B. Leichtman is a director, the Chief Executive Officer and a
shareholder of Levine Leichtman Capital Partners, Inc. The address of each
of LLCP, LLCP California Equity Partners II, L.P., Levine Leichtman Capital
Partners, Inc., Mr. Levine and Ms. Leichtman is c/o Levine Leichtman
Capital Partners II, L.P., 335 North Maple Drive, Suite 240, Beverly Hills,
California 90210.
(9) Includes 672,000 shares of common stock underlying options and 79,100
shares of common stock that Mr. Shatley may be deemed to beneficially own
as a general partner in a family limited partnership.
EQUITY COMPENSATION PLAN INFORMATION
The following table gives information about our common stock that may be
issued upon the exercise of options, warrants and rights under all of our
existing equity compensation plans as of September 28, 2003.
NUMBER OF SECURITIES
REMAINING AVAILABLE FOR
NUMBER OF SECURITIES TO WEIGHTED-AVERAGE FUTURE ISSUANCE UNDER
BE ISSUED UPON EXERCISE EXERCISE PRICE EQUITY COMPENSATION
OF OUTSTANDING OF OUTSTANDING OPTIONS, PLANS (EXCLUDING
OPTIONS, WARRANTS WARRANTS SECURITIES REFLECTED
PLAN CATEGORY AND RIGHTS AND RIGHTS IN COLUMN (a))
------------- ---------- ---------- --------------
(a) (b) (c)
Equity compensation plans approved
by security holders 672,000 (1) $1.28 128,000 (2)
Equity compensation plans not
approved by security holders -- -- --
Total 672,000 $1.28 128,000
- -----------------------
(1) Represents shares of common stock underlying options granted under our
2002 Employee Stock Option Plan.
(2) Represents shares of common stock authorized for issuance under our
2002 Employee Stock Option Plan, which plan was adopted by our board of
directors and then sole stockholder on September 25, 2002, to be
effective as of October 29, 2002. Our 2002 Employee Stock Option Plan
provides that if, at any time while that plan is in effect or
unexercised options granted under that plan are outstanding, there is
an increase or decrease in the number of issued and outstanding shares
of common stock of our company through the declaration of a stock
dividend or through a recapitalization that results in a stock split,
combination or exchange of shares, then appropriate adjustment shall be
made in the maximum number of shares authorized for issuance under that
plan so that the same proportion of our issued and outstanding shares
of common stock will continue to be subject to being optioned under
that plan, and appropriate adjustment will be made in the number of
shares and the exercise price per share then subject to outstanding
options so that the same proportion of our issued and outstanding
shares will remain subject to purchase at the same aggregate exercise
price.
34
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
----------------------------------------------
From time to time, we made advances to TreeCon Resources for various
purposes in the context of our parent-subsidiary relationship. Additionally, we
netted accumulated federal income tax liabilities payable to TreeCon Resources
against amounts owed from TreeCon Resources to us. We had approximately $10.5
million in net receivables from TreeCon Resources as of September 29, 2002.
During the fiscal years ended September 28, 2003, September 29, 2002 and
September 30, 2001, we made cash payments to, or on behalf of, TreeCon Resources
of approximately $950,000, $1.2 million and $500,000, respectively for various
purposes including tax payments, expense reimbursement and other corporate
purposes. In connection with the spin-off, after giving effect to the netting of
federal income tax liabilities payable to TreeCon Resources against our
receivable from TreeCon Resources, the remaining net intercompany balance of
approximately $11.5 million payable to us by TreeCon Resources was cancelled as
described below. Also in connection with the spin-off, TreeCon Resources
transferred to us two promissory notes made in the amounts of $207,375 and
$184,875, made by Mr. Rudis and Mr. Shatley, respectively. These notes became
due and payable on September 24, 2003 and are collateralized solely by the
common stock of TreeCon Resources. Based on our assessment of the collectibility
of these notes, including the value of the subject collateral, we assigned no
value to the notes upon their receipt, and the notes continued to have no
recorded value at September 28, 2003. In connection with the spin-off, TreeCon
Resources agreed to indemnify us with respect to any current or future tax
liabilities for which we might otherwise be liable resulting from the operations
of any entity other than us. We agreed with TreeCon Resources to cancel the
remaining net intercompany amounts owed to us of approximately $11.5 million by
TreeCon Resources as of October 29, 2002 after obtaining the appropriate
consents under our financing arrangements.
Following the spin-off, Mr. Rudis has remained as a director of TreeCon
Resources to facilitate the transition of TreeCon Resources and Overhill Farms,
Inc. into two separate companies. Mr. Rudis has agreed to resign all positions
with TreeCon Resources, and did timely resign, prior to December 31, 2003. Among
our outside directors we appointed to our board of directors in connection with
the spin-off, Harold Estes was appointed to our board of directors. Mr. Estes is
the President of Texas Timberjack, Inc., a wholly owned subsidiary of TreeCon
Resources. He was elected as a director of TreeCon Resources in February 1996
and resigned from the TreeCon Resources board of directors in April 1997. Mr.
Estes has been President of Texas Timberjack, Inc. since 1984, when he acquired
Texas Timberjack, Inc. from Eaton Corporation.
LLCP, our senior subordinated creditor, is the holder of a secured senior
subordinated note, which it purchased from us in November 1999 pursuant to a
securities purchase agreement. We have amended and restated the securities
purchase agreement, the note and various related agreements on several
occasions, the latest of which was completed effective October 31, 2003. The
second amended and restated secured senior note has a stated principal amount of
$28.858 million, bears interest payable monthly at a base rate of 13.5% per
annum, subject to increase upon the occurrence of an interest rate event, as
defined, or even of default and a maturity date extended to October 31, 2006.
The securities purchase agreement contains various covenants, including
financial covenants covering restrictions on capital expenditures, minimum
EBITDA and net worth levels, and specified debt service and debt to equity
ratios. In addition, the terms of the securities purchase agreement prohibit
changes in control, including ownership and management personnel, and contains
customary restrictions on incurring indebtedness and liens, making investments,
paying dividends and making loans or advances. The note and all other
obligations owing by us to LLCP are secured by subordinated liens on
substantially all of our assets. The agreement requires us to pay LLCP, during
each January, annual consulting fees of $180,000.
In connection with the original securities purchase agreement in 1999, we
issued to LLCP a warrant to purchase 166.04 shares of our common stock
exercisable immediately at an exercise price of $0.01 per share. The warrant
became exercisable for 1,994,141 shares of our common stock at an exercise price
of $0.0000008 per share after giving effect to the 12,010-shares-for-1 stock
split declared in connection with the spin-off. This warrant was exercised as to
1,994,040 shares in December 2002, with one share being surrendered and
cancelled in a cashless exercise, and remains exercisable as to 100 shares. At
the date of issuance, this warrant was estimated to have a fair value of $2.37
million.
In 2002 and 2003, we entered into various amendments to our securities
purchase agreement with LLCP with respect to, among other things, the
consolidation of our facilities and amendments to our financial covenants with
it. In exchange for LLCP's consent and agreement to amend the securities
purchase agreement and other investment documents and certain other
consideration, in January 2002 we issued to it 23.57 shares of our Series A
Convertible Preferred Stock valued at $750,000, and in September 2002 we issued
35
to it a warrant to purchase 57.57 shares of our common stock valued at $1.1
million and agreed to pay a refinancing fee in an aggregate amount of $423,000
payable in three installments ending in March 2003. After giving effect to the
12,010-shares-for-1 stock split declared in connection with the spin-off, the
shares of Series A Convertible Preferred Stock are convertible into 283,076
shares of our common stock, and the warrant was exercisable for 691,416 shares
of our common stock at an exercise price of $0.0000008 per share. This warrant
was exercised as to 691,315 shares in December 2002, with one share being
surrendered and cancelled in a cashless exercise, and remains exercisable as to
100 shares. The designations for the Series A Convertible Preferred Stock
provide the holder with, among other things, a liquidation preference per share
of $31,820.11, plus declared and unpaid dividends, voting rights along with
holders of common stock, protective provisions, conversion rights and
anti-dilution protection.
Our original securities purchase agreement with LLCP provided that,
immediately following the spin-off, the creditor was entitled to anti-dilution
protection so that the shares of common stock issuable upon exercise of its
warrants and conversion of its shares of our Series A Convertible Preferred
Stock would represent in the aggregate not less than 24.0% of our outstanding
shares of capital stock, determined on a fully diluted basis and including the
reservation of shares of common stock for issuance under our 2002 Employee Stock
Option Plan. In November 2002, we issued 252,632 shares of our common stock to
LLCP representing all shares issuable pursuant to the anti-dilution protection.
We are party to an amended and restated investor rights agreement with
LLCP, as the holder of our equity securities. Under the agreement as amended on
October 31, 2003:
o the holder has the right to designate up to four nominees to our board
of directors, and Mr. Rudis is obligated to vote his shares of our
common stock for those nominee(s);
o the holder has co-sale rights with respect to shares of our common
stock owned by Mr. Rudis such that the holder may either reduce the
number of shares that Mr. Rudis can sell to a proposed purchaser so
that the holder can sell some of the holder's shares to the proposed
purchaser, or the holder may require Mr. Rudis to purchase some of the
holder's shares if the purchaser purchases shares only from Mr. Rudis
and not from the holder;
o Mr. Rudis is permitted to sell up to 50,000 shares of our common stock
in open market transactions during any fiscal year without complying
with the co-sale procedures, but a change in control will occur if Mr.
Rudis does not continue directly or beneficially to own or hold
300,000 shares;
o the holder has a right of first refusal to purchase its pro rata share
of certain issuances of our capital stock;
o we will continue to pay to the holder, or one of its affiliates, an
annual consulting fee of $180,000 in each January, through 2006, for
its review and analysis of financial matters and participation in an
informal operating committee that reviews our budgets, operating plans
and related matters. The consulting fees are subject to acceleration
in the event of a change in control or the payment in full of all of
our obligations under the senior subordinated note we issued to the
holder;
o the agreement contains certain restrictions regarding our ability to
grant options to our directors, executive officers, consultants and
key employees and to amend any existing stock option plans or adopt or
approve any new stock option or stock purchase plans;
o LLCP has the right to pursue remedies against us and/or Mr. Rudis if
there is a breach of Mr. Rudis' liabilities and obligations under the
agreement; and
o Mr. Rudis was obligated to resign, and did timely resign, from all of
his positions at TreeCon Resources, Inc., our former parent, no later
than December 31, 2003.
On October 31, 2003, we agreed to terminate the equity repurchase option
agreement with LLCP, whereby we had the right, under certain circumstances, to
repurchase from it the shares of our common stock issuable upon exercise of the
warrants and conversion of the shares of our Series A Convertible Preferred
Stock it holds.
36
In connection with our financing arrangements with LLCP, we entered into an
amended and restated registration rights agreement with it, as the holder of the
warrant we issued to it, whereby we agreed to register under the Securities Act
of 1933, as amended, shares of our common stock it holds or acquires, which
includes shares of our common stock it acquires upon exercise of its warrants to
purchase our common stock, conversion of its shares of our Series A Convertible
Preferred Stock and any other acquisition of our common stock. In addition, we
agreed under certain circumstances, upon the request of the holder, to include
its shares of our common stock in a securities registration that we undertake on
our behalf or on behalf of others.
To assist us in meeting our liquidity needs, effective as of April 4, 2003,
we entered into amendments to our then-existing securities purchase agreement
with LLCP, the note and certain related agreements, pursuant to which LLCP
waived our non-compliance with certain covenants under the securities purchase
agreement and certain other documents, and LLCP purchased from us a secured
senior subordinated bridge note in the principal amount of $3.0 million, bearing
interest at 15% and initially was due and payable January 30, 2004, thereby
providing us with the liquidity we needed to meet out short-term payment
obligations. In a related transaction, LLCP also agreed with Union Bank that it
or an LLCP affiliate would acquire Union Bank's senior secured loans to us.
Finally, as part of the bridge financing and in substantial consideration for
LLCP's financial accommodations, we agreed to issue and sell to LLCP, and LLCP
agreed to purchase from us, 2,466,759 shares of our common stock for a purchase
price of $0.01 per share. We were originally required to issue and sell these
shares to LLCP by April 16, 2003, but we were unable to meet that deadline. In
addition, we were required to wind up and dissolve our subsidiary Overhill L.C.
Ventures, Inc. by June 30, 2003, but we were also unable to meet that deadline.
LLCP agreed to extend the issuance date to April 24, 2003, and then, in
consideration of the payment by us to LLCP of an amendment fee of $125,000, to
July 20, 2003. As discussed below, this deadline was further extended to August
20, 2003.
After completing the bridge financing and submitting an application to Amex
requesting listing of the shares to be issued to LLCP, Amex advised us that its
approval of our listing application with respect to the issuance and sale of
these shares to LLCP would be subject to approval of our stockholders. We
obtained a waiver from LLCP for our failure to deliver these shares by July 20,
2003, provided that delivery of these shares be made on or before August 20,
2003. At a meeting of our stockholders held on August 11, 2003, the stockholders
approved the issuance of these shares to LLCP; and we obtained Amex approval and
delivered the shares prior to the expiration of the waiver. In connection with
this transaction, a debt discount of approximately $1.65 million was recorded
and is being amortized over a 10-month period ending in January 2004.
Effective April 16, 2003, Pleasant Street, an affiliate of LLCP, acquired
the senior secured loans previously made to us by Union Bank, and we and
Pleasant Street amended and restated the senior secured loan arrangements on
mutually acceptable terms and conditions. As a result of the repayment of Union
Bank, we wrote off unamortized deferred financing costs of approximately
$450,000 related to the arrangements with Union Bank. Under the new amended and
restated loan and security agreement with Pleasant Street, $12.117 million owing
to Union Bank on the effective date plus additional amounts newly advanced to us
by Pleasant Street, $1.883 million, together with the $3.0 million owing to LLCP
under the bridge note described above, were combined into a new $17.0 million
Term A Loan, bearing interest at no less than 10%, subject to periodic
adjustments, and due and payable on November 30, 2003. An additional $5.0
million advanced by Pleasant Street to us as of the effective date is evidenced
by a Term B Loan, bearing interest at 15%, and initially was due and payable
January 30, 2004. We used $3.0 million of proceeds from Term Loan A to repay the
outstanding principal amounts of the term note issued to LLCP on April 4, 2003.
The senior term loans may be prepaid without premium or penalty. The amended and
restated loan and security agreement with Pleasant Street contains various
covenants, including financial covenants covering restrictions on capital
expenditures, minimum levels of EBITDA and net worth, and specified debt service
and debt to equity ratios. In addition, the terms of the loan and security
prohibit changes in control, including ownership and certain management
personnel, and contain customary limitations on indebtedness and liens, making
investments, paying dividends and making loans or advances. The senior notes and
all other obligations owing by us to Pleasant Street are collateralized by
substantially all of our assets.
See "Management's Discussion and Analysis of Financial Condition and
Results of Operations - Liquidity and Capital Resources" in Part II, Item 7 of
this report for discussion of the refinancing arrangements we entered into in
October 2003 with each of LLCP and Pleasant Street.
37
In February and March 2003, we were a party to a consulting agreement with
The Steinbrun Group ("SHA"), a business and financial consulting firm. We
engaged SHA to provide management consulting services with the long-term
objective of maintaining and improving our financial position and profitability
and to train senior management of our company. Mr. Steinbrun, who became our
Senior Vice President and Chief Financial Officer on April 1, 2003, is a
stockholder, director and officer of SHA. We paid to SHA $80,400 for services
rendered under the consulting agreement. These fees totaled more than 5% of
SHA's estimated gross revenues for its fiscal year ending December 31, 2003.
We are or have been a party to employment arrangements with related
parties, as more particularly described above under the heading "Employment
Contracts and Termination of Employment and Change-in-Control Arrangements."
The interest of the particular director, executive officer or security
holder in each matter described above was disclosed to our board of directors
before our board of directors approved the matter.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
AUDIT AND NON-AUDIT FEES
The following table presents fees for professional audit services rendered
by Ernst & Young LLP for the audit of our annual financial statements for fiscal
years 2003 and 2002, and fees billed for other services rendered by Ernst &
Young LLP:
2003 2002
------------------ -------------------
Audit Fees $312,500 $578,355
Audit-Related Fees 18,000 77,000
Tax Fees 26,620 16,500
All Other Fees
------------------ -------------------
$ 357,120 $671,855
Fees for audit services include fees associated with the annual audit, and
the reviews of our quarterly reports on Form 10-Q. Audit-related fees
principally included payments for the company's registration statement. Tax
fees included tax compliance, tax advice and tax planning. It is our policy
to obtain pre-approval from the audit committee of our board of directors
for all audit, tax, and other fees paid to our principal accountants.
38
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
----------------------------------------------------------------
(a) FINANCIAL STATEMENTS AND SCHEDULES
----------------------------------
1. The following financial statements are filed as part of this report:
Report of Independent Auditors
Balance Sheets--September 28, 2003 and September 29, 2002
Statements of Operations--Years Ended September 28, 2003, September
29, 2002 and September 30, 2001
Statements of Shareholders' Equity--Years Ended September 28, 2003,
September 29, 2002 and September 30, 2001
Statements of Cash Flows--Years Ended September 28, 2003, September
29, 2002 and September 30, 2001
Notes to Financial Statements
2. Schedules for which provision is made in the applicable rules and
regulations of the Securities and Exchange Commission are not required
under the related instructions or are inapplicable, and therefore have
been omitted.
(b) REPORTS ON FORM 8-K
-------------------
On July 25, 2003, we filed Amendment No. 1 to our report on Form 8-K for
June 5, 2003, that contained Item 5 - Other Events and Required FD Disclosure
and discussed matters relating to our annual stockholders' meeting. This
Amendment No. 1 announced the rescheduling of our annual meeting to August 11,
2003.
On August 7, 2003, we filed a report on Form 8-K that contained Item 5 -
Other Events and Required FD Disclosure in which we announced that we had
recently amended our bylaws and had entered into various agreements that had not
yet been filed with the Securities and Exchange Commission. These documents were
filed as exhibits to this Form 8-K.
(c) EXHIBITS
--------
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
3.1 (1) Form of Amended and Restated Articles of Incorporation of
Overhill Farms, Inc. (Exhibit 3.1)
3.2 (1) Form of Amended and Restated Bylaws of Overhill Farms, Inc.
(Exhibit 3.2)
3.3 (4) Action with Respect to Bylaws of Overhill Farms, Inc.,
certified by the Secretary of Overhill Farms, Inc. as of June 13,
2003 (Exhibit 3.1)
3.4** Certificate of Amendment to Articles of Incorporation of Overhill
Farms, Inc. filed August 12, 2003 with the Nevada Secretary of
State
4.1 (1) Form of the specimen common stock certificate of Overhill
Farms, Inc. (Exhibit 4.1)
10.1 (1) # 2002 Employee Stock Option Plan for Overhill Farms, Inc.
(Exhibit 10.1)
39
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
10.2** Letter agreement dated June 24, 2002 between U.S. Growers Cold
Storage, Inc. and Overhill Farms, Inc. and Lease dated December 2,
1983 between Eastcase Company and Overhill Foods Corp. regarding
premises located at 3055 E. 44th Street, Vernon, California
10.3 (2) # Employment Agreement, entered into as of November 1, 1999
between Polyphase Corporation and Overhill Farms, Inc., jointly and
severally, and James Rudis (Exhibit 10.36)
10.4 (2) # Employment Agreement, entered into as of November 1, 1999
between Polyphase Corporation and Overhill Farms, Inc., jointly and
severally, and William E. Shatley (Exhibit 10.37)
10.5 (1) # Employment Agreement, entered into as of November 1, 1999
between Overhill Farms, Inc. and Andrew Horvath (Exhibit 10.5)
10.6 (1) Form of Amended and Restated Loan and Security Agreement among
Overhill Farms, Inc., Overhill L.C. Ventures, Inc. and Union Bank
of California, N.A. (Exhibit 10.6)
10.7 (2) Revolving Note, dated as of November 24, 1999, in the principal
amount of $16,000,000, payable to the order of Union Bank of
California, N.A., as payee, by Overhill Farms, Inc., as borrower
(Exhibit 10.40)
10.8 (1) Form of Reaffirmation of Continuing Guaranty by Overhill L.C.
Ventures, Inc. in favor of Union Bank of California, N.A. (Exhibit
10.8)
10.9 (1) Form of First Amendment to Pledge Agreement by Overhill Farms,
Inc. and Overhill L.C. Ventures, Inc. in favor of Union Bank of
California, N.A. (Exhibit 10.9)
10.10 (2) Term Note, dated as of August 23, 2000, by Overhill Farms, Inc.
in favor of Union Bank of California, N.A. (Exhibit 10.52)
10.11 (1) Form of Amended and Restated Intercreditor and Subordination
Agreement by and between Levine Leichtman Capital Partners II,
L.P., as subordinated lender, and Union Bank of California, N.A.,
as senior lender (Exhibit 10.11)
10.12 (2) Securities Purchase Agreement, dated as of November 24, 1999,
by and among Overhill Farms, Inc., as issuer, Polyphase Corporation
and Overhill L.C. Ventures, Inc., as guarantors, and Levine
Leichtman Capital Partners II, L.P., as purchaser (Exhibit 10.44)
10.13 (2) Consent and First Amendment to Securities Purchase Agreement,
entered into as of August 23, 2000, by and among Overhill Farms,
Inc., Levine Leichtman Capital Partners II, L.P., Polyphase
Corporation and Overhill L.C. Ventures, Inc. (Exhibit 10.53)
10.14 (1) Second Amendment to Securities Purchase Agreement, dated as of
January 11, 2002, by and among Overhill Farms, Inc., Overhill
Corporation, Overhill L.C. Ventures, Inc. and Levine Leichtman
Capital Partners II, L.P. (Exhibit 10.14)
10.15 (1) Consent and Third Amendment to Securities Purchase Agreement,
dated as of January 31, 2002, by and among Overhill Farms, Inc.,
Overhill Corporation, Overhill L.C. Ventures, Inc. and Levine
Leichtman Capital Partners II, L.P. (Exhibit 10.15)
10.16 (1) Fourth Amendment to Securities Purchase Agreement, dated as of
June 28, 2002, by and among Overhill Farms, Inc., Overhill
Corporation, Overhill L.C. Ventures, Inc. and Levine Leichtman
Capital Partners II, L.P. (Exhibit 10.16)
10.17 (1) Fifth Amendment to Securities Purchase Agreement, dated as of
September 11, 2002, by and among Overhill Farms, Inc., Overhill
Corporation, Overhill L.C. Ventures, Inc. and Levine Leichtman
Capital Partners II, L.P. (Exhibit 10.17)
40
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
10.18 (1) Form of Amended and Restated Securities Purchase Agreement by
and among Overhill Farms, Inc., as issuer, the entities from time
to time parties thereto as guarantors, and Levine Leichtman Capital
Partners II, L.P., as purchaser (Exhibit 10.18)
10.19 (2) Secured Senior Subordinated Note, dated November 4, 1999, in
the principal amount of $28,000,000, payable to the order of Levine
Leichtman Capital Partners II, L.P. (Exhibit 10.45)
10.20 (1) Amendment to Secured Senior Subordinated Note Due 2004, dated
as of May 1, 2001, by Overhill Farms, Inc. in favor of Levine
Leichtman Capital Partners II, L.P. (Exhibit 10.20)
10.21 (1) Second Amendment to Secured Senior Subordinated Note Due 2004,
dated as of September 11, 2002, by Overhill Farms, Inc. in favor of
Levine Leichtman Capital Partners II, L.P. (Exhibit 10.21)
10.22 (1) Form of Amended and Restated Secured Senior Subordinated Note
in the principal amount of $28,000,000, payable to the order of
Levine Leichtman Capital Partners II, L.P., as holder, by Overhill
Farms, Inc., as borrower (Exhibit 10.22)
10.23 (2) Form of Amended and Restated Warrant to Purchase 166.04 Shares
of Common Stock of Overhill Farms, Inc., in favor of Levine
Leichtman Capital Partners II, L.P. (Exhibit 10.46)
10.24 (1) Warrant to Purchase 57.57 Shares of Common Stock of Overhill
Farms, Inc., dated September 11, 2002, in favor of Levine Leichtman
Capital Partners II, L.P. (Exhibit 10.24)
10.25 (2) Investor Rights Agreement, entered into as of November 24,
1999, by and among Overhill Farms, Inc., Polyphase Corporation and
Levine Leichtman Capital Partners II, L. P. (Exhibit 10.47)
10.26 (2) Amendment to Investor Rights Agreement, entered into as of
August 25, 2000, by and among Overhill Farms, Inc., Polyphase
Corporation and Levine Leichtman Capital Partners II, L.P. (Exhibit
10.54)
10.27 (1) Second Amendment to Investor Rights Agreement, dated as of
January 11, 2002, by and among Overhill farms, Inc., Overhill
Corporation and Levine Leichtman Capital Partners II, L.P. (Exhibit
10.27)
10.28 (1) Form of Amended and Restated Investor Rights Agreement by and
among Overhill Farms, Inc., James Rudis, William E. Shatley and
Levine Leichtman Capital Partners II, L.P. (Exhibit 10.28)
10.29 (1) Registration Rights Agreement, dated as of November 24, 1999,
by and between Overhill Farms, Inc. and Levine Leichtman Capital
Partners II, L.P. (Exhibit 10.29)
10.30 (1) Form of Amended and Restated Registration Rights Agreement by
and between Overhill Farms, Inc. and Levine Leichtman Capital
Partners II, L.P. (Exhibit 10.30)
10.31 (1) Form of Amended and Restated Security Agreement, by Overhill
Farms, Inc. and Overhill L.C. Ventures, Inc. in favor of Levine
Leichtman Capital Partners II, L.P. (Exhibit 10.31)
10.32 (1) Form of Amended and Restated Patent, Trademark and Copyright
Security Agreement by Overhill Farms, Inc. and Overhill L.C.
Ventures, Inc. in favor of Levine Leichtman Capital Partners II,
L.P. (Exhibit 10.32)
10.33 (1) Form of Amended and Restated Stock Pledge and Control
Agreement, by Overhill Farms, Inc. in favor of Levine Leichtman
Capital Partners II, L.P. (Exhibit 10.33)
10.34 (1) Equity Repurchase Option Agreement, dated as of September 11,
2002, between Overhill Farms, Inc. and Levine Leichtman Capital
Partners II, L.P. (Exhibit 10.34)
41
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
10.35** Master Lease Agreement dated as of August 1, 2002 between
General Electric Capital Corporation and Overhill Farms, Inc. and
related documentation regarding freezers and various other
equipment
10.36 (2) Master Co-Pack Agreement, entered into as of August 7, 2000, by
and between Schwan's Sales Enterprises, Inc. and Overhill Farms,
Inc. (Exhibit 10.49)
10.37 (3) Second Amended and Restated Loan and Security Agreement, dated
as of April 16, 2003, among Overhill Farms, Inc., Overhill L.C.
Ventures, Inc. and Pleasant Street Investors, LLC (Exhibit 10.1)
10.38 (3) Amended and Restated Secured Senior Term A Note, dated as of
April 16, 2003 in the principal amount of $17,000,000, made by
Overhill Farms, Inc. and payable to the order of Pleasant Street
Investors, LLC (Exhibit 10.2)
10.39 (3) Secured Senior Term B Note, dated as of April 16, 2003 in the
stated principal amount of $5,000,000, made by Overhill Farms, Inc.
and payable to the order of Pleasant Street Investors, LLC (Exhibit
10.3)
10.40 (3) Second Amended and Restated Securities Purchase Agreement,
dated as of April 16, 2003, by and among Overhill Farms, Inc., the
entities identified therein as Guarantors and Levine Leichtman
Capital Partners, II, L.P.(Exhibit 10.4)
10.41 (3) Agreement Regarding Repayment of Bridge Note, dated as of April
16, 2003, by and among Overhill Farms, Inc., Overhill L.C.
Ventures, Levine Leichtman Capital Partners II, L.P. and Pleasant
Street Investors, LLC (Exhibit 10.5)
10.42 (3) Amendment to Investor Rights Agreement, dated as of April 16,
2003, by and among Overhill Farms, Inc., James Rudis, William E.
Shatley and Levine Leichtman Capital Partners II, L.P. (Exhibit
10.6)
10.43 (3) Second Amendment to Amended and Restated Security Agreement,
dated as of April 16, 2003, by Overhill Farm, Inc. and Overhill
L.C. Ventures, Inc. in favor of Levine Leichtman Capital Partners
II, L.P. (Exhibit 10.7)
10.44 (3) Amendment to Equity Repurchase Option Agreement, dated as of
April 16, 2003, by and between Overhill Farms, Inc. and Levine
Leichtman Capital Partners II, L.P. (Exhibit 10.8)
10.45 (4) # Letter agreement dated April 15, 2003 between Overhill Farms,
Inc. and William Shatley regarding restructuring of salary payments
(Exhibit 10.1)
10.46 (4) # Letter agreement dated April 15, 2003 between Overhill Farms,
Inc. and Andrew Horvath regarding restructuring of salary payments
(Exhibit 10.2)
10.47 (4) # Letter agreement dated April 3, 2003 between Overhill Farms,
Inc. and John Steinbrun confirming the terms of employment (Exhibit
10.3)
10.48 (4) Consulting Agreement dated effective February 10, 2003 between
Steinbrun, Hughes and Associates dba The Steinbrun Group and
Overhill Farms, Inc. (Exhibit 10.4)
10.49 (4) Limited Release and Indemnity Agreement dated as of April 16,
2003, among Union Bank of California, N.A., Levine Leichtman
Capital Partners II, L.P. and Overhill Farms, Inc. (Exhibit 10.5)
10.50 (4) # Limited Release Agreement dated effective as of October 29,
2002 between Overhill Corporation, Overhill Farms, Inc. and James
Rudis (Exhibit 10.6)
10.51 (4) # Limited Release Agreement dated effective as of October 29,
2002 between Overhill Corporation, Overhill Farms, Inc. and William
Shatley (Exhibit 10.7)
42
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
10.52 (4) Amendment to Amended and Restated Security Agreement dated as
of April 4, 2003 by Overhill Farms, Inc. and Overhill L.C.
Ventures, Inc. in favor of Levine Leichtman Capital Partners II,
L.P. (Exhibit 10.8) 10.53 (4) Amendment to Continuing Guaranty
dated as of April 16, 2003 between Overhill L.C. Ventures, Inc. and
Pleasant Street Investors, LLC (Exhibit 10.13)
10.54 (4) Acknowledgement and Reaffirmation of Loan Documents dated as of
April 16, 2003 made by Overhill Farms, Inc. in favor of Pleasant
Street Investors, LLC (Exhibit 10.14)
10.55 (4) First Amendment to Second Amended and Restated Securities
Purchase Agreement dated as of May 16, 2003, among Overhill Farms,
Inc., the entities from time to time parties thereto as Guarantors
and Levine Leichtman Capital Partners II, L.P. (Exhibit 10.15)
10.56 (4) First Amendment to Second Amended and Restated Loan and
Security Agreement dated as of May 16, 2003, among Overhill Farms,
Inc., Overhill L.C. Ventures, Inc. and Levine Leichtman Capital
Partners II, L.P. (Exhibit 10.16)
10.57 (4) Second Amendment to Second Amended and Restated Securities
Purchase Agreement dated as of June 19, 2003, among Overhill Farms,
Inc., the entities from time to time parties thereto as Guarantors
and Levine Leichtman Capital Partners II, L.P. (Exhibit 10.17)
10.58 (4) Second Amendment to Second Amended and Restated Loan and
Security Agreement dated as of June 19, 2003, among Overhill Farms,
Inc., Overhill L.C. Ventures, Inc. and Levine Leichtman Capital
Partners II, L.P. (Exhibit 10.18)
10.59 (4) Conditional Waiver Letter dated July 18, 2003 between Levine
Leichtman Capital Partners II, L.P. and Overhill Farms, Inc.
relating to Second Amended and Restated Securities Purchase
Agreement dated as of April 16, 2003, as amended (Exhibit 10.23)
10.60 (4) Assignment of Patent, Trademark and Copyright Security
Agreement dated as of April 16, 2003 among Union Bank of
California, N.A., Pleasant Street Investors, LLC, Overhill Farms,
Inc. and Overhill L.C. Ventures, Inc. (Exhibit 10.24).
10.61 (4) Termination Agreement regarding Alternative Dispute Resolution
Agreements dated as of April 16, 2003 between Overhill Farms, Inc.,
Overhill L.C. Ventures, Inc. and Union Bank of California, N.A.
(Exhibit 10.25)
10.62 (4) Second Amended and Restated Revolving Note dated December 20,
2002 made by Overhill Farms, Inc. in favor of Union Bank of
California, N.A. (Exhibit 10.26)
10.63 (4) Promissory Note dated September 25, 2001 in the principal
amount of $207,375 made by James Rudis in favor of Overhill
Corporation (Exhibit 10.27)
10.64 (4) Promissory Note dated September 25, 2001 in the principal
amount of $184,875 made by William Shatley in favor of Overhill
Corporation (Exhibit 10.28)
10.65 (4) Security Agreement dated September 25, 2001 between James Rudis
and Overhill Corporation (Exhibit 10.29).
10.66 (4) Security Agreement dated September 25, 2001 between William
Shatley and Overhill Corporation (Exhibit 10.30)
10.67 (5) Amendment to Amended and Restated Secured Senior Subordinated
Note due 2004 dated as of April 4, 2003 between Overhill Farms,
Inc. and Levine Leichtman Capital Partners II, L.P. (Exhibit 99.13)
10.68 (5) Secured Senior Subordinated Bridge Note dated April 4, 2003 in
the principal amount of $3,000,000 made by Overhill Farms, Inc. in
favor of Levine Leichtman Capital Partners II, L.P. (Exhibit 99.12)
43
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
10.69 (5) First Amendment to Amended and Restated Securities Purchase
Agreement dated as of April 4, 2003, among Overhill Farms, Inc.,
the entities from time to time parties thereto as Guarantors and
Levine Leichtman Capital Partners II, L.P. (Exhibit 99.11)
10.70 (6) Second Amended and Restated Intercreditor and Subordination
Agreement dated as of April 16, 2003 between Pleasant Street
Investors, LLC and Levine Leichtman Capital Partners II, L.P.
(Exhibit 99.20)
10.71 (6) Limited Release and Indemnity Agreement dated as of April 16,
2003, among Union Bank of California, N.A., Levine Leichtman
Capital Partners II, L.P. and Overhill Farms, Inc. (Exhibit 99.15)
10.72 (7) Pledge Agreement dated as of November 24, 1999 by Overhill
Farms, Inc., Polyphase Corporation and Overhill L.C. Ventures, Inc.
in favor of Union Bank of California, N.A. (Exhibit 10.4)
10.73 (7) Continuing Guarantee dated as of November 24, 1999 by Overhill
L.C. Ventures, Inc. and Polyphase Corporation in favor of Union
Bank of California, N.A. (Exhibit 10.3)
10.74 (8) Amended and Restated Warrant (No. LL-4) to purchase 100 shares
of common stock of Overhill Farms, Inc., originally issued
September 11, 2002, restated upon partial exercise as of December
13, 2002, issued by Overhill Farms, Inc. in favor of Levine
Leichtman Capital Partners II, L.P. (Exhibit 99.10)
10.75 (8) Amended and Restated Warrant (No. LL-3) to purchase 100 shares
of common stock of Overhill Farms, Inc., originally issued November
24, 1999, amended and restated as of October 29, 2002, restated
upon partial exercise as of December 13, 2002, issued by Overhill
Farms, Inc. in favor of Levine Leichtman Capital Partners II, L.P.
(Exhibit 99.9)
10.76 (9) # Amendment to Employment Agreement dated October 30, 2003
between Overhill Farms, Inc. and James Rudis (Exhibit 10.1)
10.77 (9) # Letter agreement dated October 30, 2003 confirming amendment
to terms of April 3, 2003 employment agreement between Overhill
Farms, Inc. and John Steinbrun (Exhibit 10.2)
10.78 (9) Third Amendment to Second Amended and Restated Securities
Purchase Agreement dated October 31, 2003 among Overhill Farms,
Inc., the entities from time to time parties thereto as Guarantors,
and Levine Leichtman Capital Partners II, L.P. (Exhibit 10.3)
10.79 (9) Second Amended and Restated Secured Senior subordinated Note
due 2006 in the principal amount of $28,858,000 made by Overhill
Farms, Inc. in favor of Levine Leichtman Capital Partners II, L.P.
on October 31, 2003 (Exhibit 10.4)
10.80 (9) Third Amendment to Amended and Restated Security Agreement
dated October 31, 2003 among Overhill Farms, Inc., any future
subsidiaries of Overhill Farms, Inc. from time to time parties
thereto, and Levine Leichtman Capital Partners II, L.P. (Exhibit
10.5)
10.81 (9) Second Amendment to Amended and Restated Investor Rights
Agreement dated October 31, 2003 between Overhill Farms, Inc.,
James Rudis and Levine Leichtman Capital Partners II, L.P. (Exhibit
10.6)
10.82 (9) Termination Agreement Re: Equity Repurchase Option Agreement
dated October 31, 2003 between Overhill Farms, Inc. and Levine
Leichtman Capital Partners II, L.P. (Exhibit 10.7)
10.83 (9) Third Amendment to Second Amended and Restated Loan and
Security Agreement dated October 31, 2003 between Overhill Farms,
Inc. and Pleasant Street Investors, LLC (Exhibit 10.8)
10.84 (9) Second Amended and Restated Secured Senior Term A Note in the
principal amount of $17,800 000 made by Overhill Farms, Inc. in
favor of Pleasant Street Investors, LLC on October 31, 2003
(Exhibit 10.9)
44
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
10.85 (9) First Amendment to and Consent Under Second Amended and
Restated Intercreditor and Subordination Agreement dated October
31, 2003 between Levine Leichtman Capital Partners II, L.P. and
Pleasant Street Investors, LLC (Exhibit 10.10)
10.86 ** Industrial Real Estate Lease (Single-Tenant Facility) dated
April 22, 1994 between Vernon Associates and Ernest Paper Products,
Inc. and related addendum regarding premises located at 2727 E.
Vernon Avenue, Vernon, California
10.87 ** Sublease dated as of January 1, 2002 by and between Ernest Paper
Products, Inc. and Overhill Farms, Inc. and related documents
regarding premises located at 2727 E. Vernon Avenue, Vernon,
California
10.88 ** Standard Industrial/Commercial Single-Tenant Lease - Net dated
January 1, 2002 by and between Vernon Associates, LLC and Overhill
Farms, Inc. regarding premises located at 2727 E. Vernon Avenue,
Vernon, California
10.89 ** Addendum to Standard Industrial/Commercial Single-Tenant Lease -
Net regarding premises located at 2727 E. Vernon Avenue, Vernon,
California
31** Certifications Required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended, as Adopted Pursuant to Section
302 of the Sarbanes-Oxley Act of 2002
32** Certification of Chief Executive Officer and Chief Financial
Officer Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
- ---------------------------
(1) Incorporated by reference to the exhibit shown in parentheses included
in the Overhill Farms, Inc.'s Registration Statement on Form 10 (File
No. 1-16699)
(2) Incorporated by reference to the exhibit shown in parentheses included
in Overhill Corporation's Annual Report on Form 10-K for the fiscal
year ended September 30, 2001, filed by Overhill Corporation with the
Securities and Exchange Commission
(3) Incorporated by reference to the exhibit shown in parentheses included
in the Overhill Farms, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended March 30, 2003
(4) Incorporated by reference to the exhibit shown in parentheses included
in Overhill Farms, Inc.'s Current Report on Form 8-K for August 7, 2003
regarding the amendment of Overhill Farms, Inc.'s bylaws and various
agreements entered into by Overhill Farms, Inc.
(5) Incorporated by reference to the exhibit shown in parentheses included
in Amendment No. 2 to Schedule 13D for April 4, 2003 relating to
ownership of Overhill Farms, Inc. by Levine Leichtman Capital Partners
II, L.P.
(6) Incorporated by reference to the exhibit shown in parentheses included
in Amendment No. 3 to Schedule 13D for April 16, 2003 relating to
ownership of Overhill Farms, Inc. by Levine Leichtman Capital Partners
II, L.P.
(7) Incorporated by reference to the exhibit shown in parentheses included
in the Form 10-Q for TreeCon Resources, Inc. formerly known as Overhill
Corporation (File No. 1-9083) for the quarter ended December 31, 1999
(8) Incorporated by reference to the exhibit shown in parentheses included
in Amendment No. 1 to Schedule 13D for December 13, 2002 relating to
ownership of Overhill Farms, Inc, by Levine Leichtman Capital Partners
II, L.P.
45
(9) Incorporated by reference to the exhibit shown in parentheses included
in the Overhill Farms, Inc.'s Current Report on Form 8-K for October
31, 2003 relating to the refinancing of its senior term loans and
senior subordinated debt
** Filed herewith
# Management contract or compensatory plan or arrangement.
46
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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 in the City of Vernon,
the State of California, on December 24, 2003.
By: /s/James Rudis
--------------------------------------------
Name: James Rudis
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/James Rudis President, Chief Executive Officer and Chairman of the December 24, 2003
- -------------------------------- Board of Directors (principal executive officer)
James Rudis
/s/John L. Steinbrun Senior Vice President, Chief Financial Officer December 24, 2003
- -------------------------------- and Director (principal financial and accounting
John L. Steinbrun officer)
/s/Richard A. Horvath Senior Vice President, Secretary and Director December 24, 2003
- --------------------------------
Richard A. Horvath
/s/William E. Shatley Senior Vice President, Treasurer and Director December 24, 2003
- --------------------------------
William E. Shatley
Director
- --------------------------------
Harold Estes
/s/Geoffrey A. Gerard Director December 24, 2003
- --------------------------------
Geoffrey A. Gerard
/s/John E. McConnaughy, Jr. Director December 24, 2003
- --------------------------------
John E. McConnaughy, Jr.
47
EXHIBITS ATTACHED TO THIS REPORT ON FORM 10-K
3.4 Certificate of Amendment to the Articles of Incorporation of Overhill
Farms, Inc., filed August 12, 2003 with the Nevada Secretary of State
10.2 Letter agreement dated June 24, 2002 between U.S. Growers Cold Storage,
Inc. and Overhill Farms, Inc. and Lease dated December 2, 1983 between
Eastcase Company and Overhill Foods Corp. regarding premises located at
3055 E. 44th Street, Vernon, California
10.35 Master Lease Agreement dated as of August 1, 2002 between General
Electric Capital Corporation and Overhill Farms, Inc. and related
documentation regarding freezers and various other equipment
10.86 Industrial Real Estate Lease (Single-Tenant Facility) dated April 22,
1994 between Vernon Associates and Ernest Paper Products, Inc. and
related addendum regarding premises located at 2727 E. Vernon Avenue,
Vernon, California
10.87 Sublease dated as of January 1, 2002 by and between Ernest Paper
Products, Inc. and Overhill Farms, Inc. and related documents regarding
premises located at 2727 E. Vernon Avenue, Vernon, California
10.88 Standard Industrial/Commercial Single-Tenant Lease - Net dated January
1, 2002 by and between Vernon Associates, LLC and Overhill Farms, Inc.
regarding premises located at 2727 E. Vernon Avenue, Vernon, California
10.89 Addendum to Standard Industrial/Commercial Single-Tenant Lease - Net
regarding premises located at 2727 E. Vernon Avenue, Vernon, California
31 Certifications Required by Rule 13a-14(a) of the Securities Exchange
Act of 1934, as amended, as Adopted Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
32 Certification of Chief Executive Officer and Chief Financial Officer
Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906
of the Sarbanes-Oxley Act of 2002
48
OVERHILL FARMS, INC.
INDEX TO FINANCIAL STATEMENTS
Audited Financial Statements:
- -----------------------------
Report of Independent Auditors............................................F-2
Balance Sheets as of September 28, 2003 and September 29, 2002............F-3
Statements of Operations for the Years Ended September 28, 2003,
September 29, 2002 and September 30, 2001 ...........................F-5
Statements of Shareholders' Equity for the Years Ended September 28,
2003, September 29, 2002 and September 30, 2001......................F-6
Statements of Cash Flows for the Years Ended September 28, 2003,
September 29, 2002 and September 30, 2001............................F-7
Notes to Financial Statements............................................F-10
F-1
Report of Independent Auditors
The Board of Directors and Shareholders
Overhill Farms, Inc.
We have audited the accompanying balance sheets of Overhill Farms, Inc. (the
Company) as of September 28, 2003 and September 29, 2002, and the related
statements of operations, shareholders' equity, and cash flows for the years
ended September 28, 2003, September 29, 2002 and September 30, 2001. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the 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. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes 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 financial statements referred to above present fairly, in
all material respects, the financial position of Overhill Farms, Inc. as of
September 28, 2003 and September 29, 2002, and the results of its operations and
its cash flows for the years ended September 28, 2003, September 29, 2002 and
September 30, 2001, in conformity with accounting principles generally accepted
in the United States.
As discussed in Note 2 to the financial statements, in fiscal 2002 the Company
changed its method of accounting for goodwill.
/s/ Ernst & Young LLP
Los Angeles, California
December 17, 2003
F-2
OVERHILL FARMS, INC.
BALANCE SHEETS
ASSETS
SEPTEMBER 28, September 29,
2003 2002
------------- -------------
Current assets:
Cash $ 513,622 $ 8,115
Accounts receivable, net of allowance for doubtful
accounts of $111,469 and $102,285 in 2003 and 2002,
respectively 10,027,543 13,450,103
Inventories 11,059,923 18,489,530
Prepaid expenses and other 1,077,392 1,537,791
Deferred income taxes 733,758 166,895
------------- -------------
Total current assets 23,412,238 33,652,434
------------- -------------
Property and equipment, at cost:
Fixtures and equipment 12,200,724 12,689,934
Leasehold improvements 9,033,353 3,932,842
Automotive equipment 52,669 52,669
------------- -------------
21,286,746 16,675,445
Less accumulated depreciation (8,035,416) (7,504,929)
------------- -------------
13,251,330 9,170,516
------------- -------------
Other assets:
Excess of cost over fair value of net assets acquired 12,188,435 12,188,435
Deferred financing costs, net of accumulated amortization of $4,934,968
and $1,395,829 in 2003 and 2002, respectively 2,507,028 2,952,587
Deferred income taxes 2,522,239 --
Other 2,300,857 1,053,610
------------- -------------
19,518,559 16,194,632
------------- -------------
Total assets $ 56,182,127 $ 59,017,582
============= =============
The accompanying notes are an integral
part of these financial statements.
F-3
OVERHILL FARMS, INC.
BALANCE SHEETS (CONTINUED)
LIABILITIES AND SHAREHOLDERS' EQUITY
SEPTEMBER 28, September 29,
2003 2002
------------- -------------
Current liabilities:
Accounts payable $ 7,434,945 $ 13,768,891
Accrued liabilities 3,322,554 1,908,439
Current maturities of long-term debt 813,649 1,481,600
------------- -------------
Total current liabilities 11,571,148 17,158,930
Deferred tax liabilities -- 265,127
Long-term debt, less current maturities 44,950,438 36,241,914
------------- -------------
Total liabilities 56,521,586 53,665,971
------------- -------------
Commitments and contingencies
Shareholders' equity:
Series A Preferred stock, $0.01 par value, authorized
50,000,000 shares, issued and outstanding, 23.57 shares
at September 28, 2003 and September 29, 2002
(liquidation preference of $750,000) -- --
Common stock, $0.01 par value, authorized 100,000,000
shares, issued and outstanding 14,805,556 shares at
September 28, 2003 and 9,400,810 shares at September
29, 2002 148,056 94,008
Additional paid-in capital 9,573,562 4,480,614
Receivable from former Parent -- (10,534,679)
Warrants to purchase common stock 400 3,470,000
Retained earnings (accumulated deficit) (10,061,477) 7,841,668
------------- -------------
Total shareholders' equity (339,459) 5,351,611
------------- -------------
Total liabilities and shareholders' equity $ 56,182,127 $ 59,017,582
============= =============
The accompanying notes are an integral
part of these financial statements.
F-4
OVERHILL FARMS, INC.
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED
------------------------------------------------------
SEPTEMBER 28, September 29, September 30,
2003 2002 2001
-------------- -------------- --------------
Net revenues $ 136,950,410 $ 138,900,642 $ 162,274,943
Cost of sales 119,579,890 119,452,816 136,948,088
-------------- -------------- --------------
Gross profit 17,370,520 19,447,826 25,326,855
Selling, general and administrative expenses 15,514,654 12,150,100 15,844,073
-------------- -------------- --------------
Operating income 1,855,866 7,297,726 9,482,782
Other income (expense):
Interest expense (7,011,480) (4,651,184) (5,372,023)
Amortization of deferred financing costs (3,539,140) (648,744) (435,825)
Other income (expense) (1,080,173) (299,498) (265,580)
-------------- -------------- --------------
Total other expenses (11,630,793) (5,599,426) (6,073,428)
-------------- -------------- --------------
Income (loss) before income taxes (9,774,927) 1,698,300 3,409,354
Income tax provision (benefit) (3,352,629) 668,413 1,167,809
-------------- -------------- --------------
Net income (loss) $ (6,422,298) $ 1,029,887 $ 2,241,545
============== ============== ==============
Net income (loss) per share - basic $ (0.53) $ 0.11 $ 0.24
============== ============== ==============
Net income (loss) per share - diluted $ (0.53) $ 0.09 $ 0.20
============== ============== ==============
Weighted average shares outstanding - basic 12,032,331 9,400,828 9,377,558
============== ============== ==============
Weighted average shares outstanding - diluted 12,032,331 11,617,713 11,394,968
============== ============== ==============
The accompanying notes are an integral
part of these financial statements.
F-5
OVERHILL FARMS, INC.
STATEMENTS OF SHAREHOLDERS' EQUITY
Retained
Additional Warrants Receivable Earnings
Preferred Stock Common Stock Paid-In To Purchase from Accumulated
Shares Amount Shares Amount Capital Common Stock former Parent (Deficit) Total
-------------- -------------------- ---------- ------------ ------------- ----------- ---------
Balance, October 1, 2000 -- -- 9,307,732 93,078 3,681,544 2,370,000 (10,371,408) 4,570,236 343,450
Exercise of warrants -- -- 93,078 930 49,070 -- -- -- 50,000
Net decrease in receivable from
former Parent -- -- -- -- -- -- 829,415 -- 829,415
Net income (comprehensive income) -- -- -- -- -- -- -- 2,241,545 2,241,545
-------------- -------------------- ---------- ------------ ------------- ----------- ---------
Balance, September 30, 2001 -- -- 9,400,810 94,008 3,730,614 2,370,000 (9,541,993) 6,811,781 3,464,410
Issuance of preferred stock 24 -- -- -- 750,000 -- -- -- 750,000
Issuance of warrants -- -- -- -- -- 1,100,000 -- -- 1,100,000
Net increase in receivable from
former Parent -- -- -- -- -- -- (992,686) -- (992,686)
Net income (comprehensive income) -- -- -- -- -- -- -- 1,029,887 1,029,887
-------------- -------------------- ---------- ------------ ------------- ----------- ---------
Balance, September 29, 2002 24 -- 9,400,810 94,008 4,480,614 3,470,000 (10,534,679) 7,841,668 5,351,611
Issuance of dilution protection
shares -- -- 252,632 2,526 (2,526) -- -- -- --
Warrant exercises -- -- 2,685,355 26,854 3,442,746 (3,469,600) -- -- --
Issuance in connection with bridge
financing -- -- 2,466,759 24,668 1,652,728 -- -- -- 1,677,396
Net advances to former Parent -- -- -- -- -- -- (946,168) -- (946,168)
Cancellation of receivable from
former Parent -- -- -- -- -- -- 11,480,847 (11,480,847) --
Net loss (comprehensive loss) -- -- -- -- -- -- -- (6,422,298) (6,422,298)
-------------- -------------------- ---------- ------------ ------------- ----------- ---------
Balance, September 28, 2003 24 -- 14,805,556 $148,056 $9,573,562 $ 400 $ -- $(10,061,477) $ (339,459)
============= =================== ========== ========== ============ ============= ===========
The accompanying notes are an integral
part of these financial statements.
F-6
OVERHILL FARMS, INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED
---------------------------------------------------
SEPTEMBER 28, September 29, September 30,
2003 2002 2001
------------- ------------- -------------
OPERATING ACTIVITIES
Net income (loss) $ (6,422,298) $ 1,029,887 $ 2,241,545
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Depreciation 1,146,405 689,377 587,213
Amortization 5,226,857 1,222,744 1,879,589
Provision for doubtful accounts 475,446 90,000 --
Deferred income taxes (3,354,229) 243,158 (177,932)
Changes in:
Accounts receivable 2,947,114 2,997,013 1,508,340
Inventories 7,429,607 (855,438) 1,159,744
Prepaid expenses and other (786,848) (973,462) (198,744)
Accounts payable (6,333,946) 467,481 2,805,865
Accrued liabilities 1,414,115 (382,898) 626,273
------------- ------------- -------------
Net cash provided by operating activities 1,742,223 4,527,862 10,431,893
------------- ------------- -------------
INVESTING ACTIVITIES
Net additions to property and equipment (5,227,219) (5,040,801) (1,196,831)
Acquisition of Chicago Brothers -- -- (32,238)
------------- ------------- -------------
Net cash used in investing activities (5,227,219) (5,040,801) (1,229,069)
------------- ------------- -------------
The accompanying notes are an integral
part of these financial statements.
F-7
OVERHILL FARMS, INC.
STATEMENTS OF CASH FLOWS (CONTINUED)
FOR THE YEARS ENDED
---------------------------------------------------
SEPTEMBER 28, September 29, September 30,
2003 2002 2001
------------- ------------- -------------
FINANCING ACTIVITIES
Borrowings on line of credit arrangements $ 6,722,093 $ 7,061,018 $ 1,389,397
Repayment of line of credit arrangements (18,679,386) (3,026,540) (7,960,549)
Borrowings on short-term debt 25,000,000 -- --
Repayment of short-term debt (3,000,000)
Principal payments on long-term debt (2,037,124) (2,017,858) (2,659,218)
Deferred financing costs (3,093,580) (584,294) --
Issuance of common stock 24,668 -- --
Exercise of stock warrants -- -- 50,000
Net advances to or on behalf of former
Parent (946,168) (992,686) (500,000)
------------- ------------- -------------
Net cash provided by (used in) financing
activities 3,990,503 439,640 (9,680,370)
------------- ------------- -------------
Net increase (decrease) in cash 505,507 (73,299) (477,546)
Cash at beginning of year 8,115 81,414 558,960
------------- ------------- -------------
Cash at end of year $ 513,622 $ 8,115 $ 81,414
============= ============= =============
SUPPLEMENTAL SCHEDULE OF CASH FLOW
INFORMATION
Cash paid during the year for:
Interest $ 5,159,407 $ 3,842,297 $ 4,940,893
============= ============= =============
Income taxes $ -- $ 9,775 $ 16,326
============= ============= =============
The accompanying notes are an integral
part of these financial statements.
F-8
OVERHILL FARMS, INC.
STATEMENTS OF CASH FLOWS (CONTINUED)
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES:
The Company, in connection with its spin-off from its former Parent in October
2002, netted a total of approximately $11.5 million, consisting of all accrued
income taxes due to and the unpaid receivable due from its former Parent,
against retained earnings (accumulated deficit).
During the fiscal year ended September 28, 2003, the Company issued to Levine
Leichtman Capital Partners II, L.P. ("LLCP") a total of 2,937,987 shares of its
common stock in connection with the cashless exercise of warrants and dilution
protection rights granted to LLCP in prior fiscal years.
In connection with bridge financing arrangements with LLCP during the fiscal
year ended September 28, 2003, the Company issued shares of stock and recorded a
debt discount of approximately $1.65 million, which was being amortized over the
remaining life of the debt. Due to the refinancing of our debt with LLCP on
October 31, 2003, the unamortized balance of the discount as of September 28,
2003 of $482,001 will be expensed in the fiscal quarter ending December 28,
2003.
During the fiscal year ended September 29, 2002, the Company issued to LLCP
warrants to purchase approximately 750,000 shares of common stock at a nominal
exercise price. The warrants issued had an estimated value of $1.1 million and
were recorded as deferred financing costs in the accompanying balance sheet.
During the fiscal year ended September 29, 2002, the Company issued to LLCP
23.57 shares of a newly created Series A Preferred Stock having an estimated
value of $750,000 as consideration for financing costs.
The accompanying notes are an integral
part of these financial statements.
F-9
OVERHILL FARMS, INC.
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 28, 2003
1. COMPANY AND ORGANIZATIONAL MATTERS
NATURE OF BUSINESS AND BASIS OF PRESENTATION
Overhill Farms, Inc. (the Company or Overhill Farms) is a producer of
high-quality entrees, plated meals, meal components, soups, sauces, and
poultry, meat and fish specialties. From May 5, 1995 through October 29,
2002, the Company was a majority-owned subsidiary of TreeCon Resources, Inc.,
formerly Overhill Corporation and Polyphase Corporation (the former Parent),
whose ownership was subject to warrants outstanding to purchase Overhill
Farms' common stock (see Note 6). On October 29, 2002, TreeCon Resources,
Inc. distributed to its shareholders, in the form of a tax-free dividend, all
of its ownership of the Company (see Note 12).
In October 2002, in connection with the spin-off transaction (see Note 12),
the Company's Board of Directors authorized a 12,010-shares-for-1 stock
split. Share and per share data as of and for all periods presented herein
have been restated to reflect the stock split.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The financial statements for periods ended prior to September 28, 2003 were
consolidated to include the accounts of Overhill Farms and its wholly-owned
subsidiary, Overhill L.C. Ventures, Inc., which was liquidated during fiscal
2003. All material intercompany accounts and transactions were eliminated.
Certain prior year amounts have been reclassified to conform to the current
period presentation.
FISCAL YEAR
The Company utilizes a 52- to 53-week accounting period, which ends on the
last Sunday of September in each fiscal year if September 30 does not fall on
a Saturday, or October 1 if September 30 falls on a Saturday.
F-10
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
DEFERRED FINANCING COSTS
Debt financing costs are deferred and amortized as additional interest
expense using the straight-line method over the term of the related debt.
Amortization of these costs totaled $3,539,140, $648,744, and $435,825 for
the fiscal years ended September 28, 2003, September 29, 2002 and September
30, 2001, respectively.
CONCENTRATIONS OF CREDIT RISK
The Company's financial instruments that are exposed to concentrations of
credit risk consist primarily of trade receivables. The Company performs
ongoing credit evaluations of its customers' financial condition and
generally requires no collateral from its customers. The Company charges off
uncollectible accounts at the point in time when no recovery is expected.
For the fiscal years ended September 28, 2003, September 29, 2002 and
September 30, 2001, revenues from airline-related customers accounted for
approximately 21.4%, 25.3%, and 33.7% of total net revenues, respectively.
Additionally, accounts receivable from airline-related customers accounted
for approximately 33.1% and 30.8% of the total accounts receivable balance at
September 28, 2003 and September 29, 2002, respectively.
For the fiscal years ended September 28, 2003, September 29, 2002 and
September 30, 2001, the Company's largest airline customer, American
Airlines, accounted for approximately 8.1%, 9.3% and 10.0% of total net
revenues, respectively. Additionally, accounts receivable from American
Airlines accounted for approximately 18% and 10% of the total accounts
receivable at September 28, 2003 and September 29, 2002, respectively. The
tragic events of September 11, 2001 have significantly impacted the Company's
sales to airlines. The long-term effect of these events on the airline
industry, airline revenues, and on Overhill Farms' business in particular,
still cannot be accurately determined at this time. These events have
resulted in a decreased demand for air travel and a reduction in the number
of meals served as a result of airlines' cost savings measures. These
effects, depending upon their scope and duration, which cannot be predicted
at this time, could negatively impact the Company's financial position,
results of operations or cash flows.
In December 2002, United Airlines filed a petition for bankruptcy
reorganization. As of the date of United's bankruptcy filing, the Company's
outstanding receivable balance from United was approximately $180,000. As of
September 28, 2003, the Company has written off all of its pre-bankruptcy
receivables from United Airlines due to uncertainty with respect to their
ultimate collectibility. The Company will continue to pursue collection of
these pre-bankruptcy receivables through the normal course of United
Airline's bankruptcy proceedings. The Company no longer does business with
United Airlines.
The Company continues to do business with American Airlines. The Company
evaluates its business relationship with American Airlines on an ongoing
basis to determine the manner in which its relationship should be continued.
F-11
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
For the years ended September 28, 2003, September 29, 2002 and September 30,
2001, the Company's write-offs, net of recoveries, to the allowance for
doubtful accounts were approximately $466,000, $0 and $0, respectively.
SIGNIFICANT CUSTOMERS
Significant customers accounted for the following percentages of the
Company's sales during the years ended:
SEPTEMBER 28, September 29, September 30,
2003 2002 2001
--------------------------------------------------
Panda Restaurant Group 24% 21% 14%
Jenny Craig Products 18% 15% 12%
American Airlines 8% 9% 10%
Pinnacle Foods 7% 11% 14%
Delta Airlines 5% 8% 12%
No other customer accounted for sales of 10% or more in the periods
presented.
FINANCIAL INSTRUMENTS
The fair value of financial instruments is determined by reference to market
data and by other valuation techniques as appropriate. Unless otherwise
disclosed, the fair value of financial instruments approximates their
recorded values.
INVENTORIES
Inventories, which include material, labor, and manufacturing overhead, are
stated at the lower of cost, which approximates the first-in, first-out
(FIFO) method, or market. For the years ended September 28, 2003, September
29, 2002 and September 30, 2001, the Company's inventory write-offs were
immaterial.
CONCENTRATION OF SOURCES OF LABOR
The Company's total hourly and salaried workforce consists of approximately
775 employees at September 28, 2003. Approximately 80% of the Company's
workforce is covered by a collective bargaining agreement expiring February
28, 2005.
PROPERTY AND EQUIPMENT
The cost of property and equipment is depreciated over the estimated useful
lives of the related assets, which range from three to ten years. Leasehold
improvements to the Company's Vernon operating facility are amortized over
the lesser of the initial lease term plus one lease extension period,
initially 13 years, or the estimated useful life of the assets. Other
leasehold improvements are amortized over the lesser of the term of the
related lease or the estimated useful lives of the assets. Depreciation is
generally computed using the straight-line method.
F-12
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Expenditures for maintenance and repairs are charged to expense as incurred.
Betterments and major renewals are capitalized. Costs and related accumulated
depreciation of properties sold or otherwise retired are eliminated from the
accounts, and gains or losses on disposals are included in other income
(expense).
The Company incurred interest costs of approximately $7.0 million during the
year ended September 28, 2003 and capitalized $236,000 as a component of
property and equipment related to internally constructed assets.
EXCESS OF COST OVER FAIR VALUE OF NET ASSETS ACQUIRED
The excess of cost over fair value of net assets acquired (goodwill) is
evaluated annually for impairment in accordance with SFAS 142. The Company
has one reporting unit and estimates fair value based upon a variety of
factors, including discounted cash flow analysis, market capitalization and
other market-based information. The Company reviewed its goodwill for
impairment as of July 1, 2003. No impairment was recorded as a result of this
review.
STOCK OPTIONS
The Company accounts for stock-based awards to employees and directors using
the intrinsic value method as prescribed by Accounting Principle Board
Opinion No. 25, "Accounting for Stock Issued to Employees" and provides the
pro forma disclosure provisions of SFAS No. 123, "Accounting for Stock-Based
Compensation." As such, compensation expense for stock options issued to
employees is recorded on the date of the grant only if the current market
price of the underlying stock exceeded the exercise price.
For purposes of pro forma disclosures, the estimated fair value of the
options, based on the Black-Scholes option pricing model, is amortized to
expense over the options' vesting periods. The following is the pro forma
information had the fair value method under SFAS No. 123, as amended by SFAS
No. 148, been adopted (in thousands, except per share amounts):
F-13
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
FOR THE YEARS ENDED
-----------------------------------------------------
SEPTEMBER 28, September 29, September 30,
2003 2002 2001
-------------- -------------- --------------
Net Income $ (6,422,298) $ 1,029,887 $ 2,241,545
As reported
Add: Stock-based compensation
expense included in reported
net income, net of related
tax effects -- -- --
Deduct: Total stock-based
compensation expense
determined under fair value
method for all awards, net
of related tax effects (452,580) -- --
-------------- -------------- --------------
Pro forma (6,874,878) 1,029,887 2,241,545
-------------- -------------- --------------
Basic earnings per share:
As reported $ (0.53) $ 0.11 $ 0.24
Pro forma $ (0.57) $ 0.11 $ 0.24
Diluted earnings per share:
As reported $ (0.53) $ 0.09 $ 0.20
Pro forma $ (0.57) $ 0.09 $ 0.20
REVENUE RECOGNITION
Sales are recognized when products are shipped, which is when title and risk
of loss pass to the customer. The Company provides for estimated returns and
allowances, which have historically been immaterial, at the time of sale.
Shipping and handling revenues are included as a component of net sales.
The Company classifies customer rebate costs as a reduction in net revenues.
Customer rebate costs were approximately $ 3,000, $0 and $375,000 for the
fiscal years ended September 28, 2003, September 29, 2002 and September 30,
2001, respectively.
F-14
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INCOME TAXES
Deferred income taxes recorded using the liability method reflect the net tax
effects of temporary differences between the carrying amounts of assets and
liabilities for financial reporting purposes and the amounts used for income
tax purposes.
SHIPPING AND HANDLING COSTS
During the year ended September 28, 2003, the Company has reclassified all
storage, shipping and handling costs, other than freight-out, from selling
general and administrative expenses to cost of sales. Additionally, the
Company has reclassified customer payments for freight and handling costs as
revenue from selling general and administrative expenses. Storage, shipping
and handling costs reclassified to cost of sales were approximately
$2,161,000, $3,955,000 and $3,306,000 for the fiscal years ended September
28, 2003, September 29, 2002 and September 30, 2001, respectively. Freight
revenues reclassified to net revenue were approximately $650,000, $782,000
and $117,000 for the fiscal years ended September 28, 2003, September 29,
2002 and September 30, 2001, respectively.
ASSET RETIREMENT OBLIGATIONS
The Company records liabilities related to asset retirement obligations in
the period in which they are incurred and measures them at the net present
value of the future estimated cost. The offset to the liability is
capitalized as part of the carrying amount of the related long-lived asset.
Changes in the liability due to the passage of time are recognized over the
operating term in the income statement as accretion expense.
RECENT ACCOUNTING PRONOUNCEMENTS
In January 2003, the Financial Accounting Standards Board (FASB) issued
Interpretation No. 46, "Consolidation of Variable Interest Entities." Under
previous practices, certain entities were included in consolidated financial
statements based upon controlling voting interests or in other special
situations. Under Interpretation No. 46, certain previously unconsolidated
entities will be required to be included in consolidated financial statements
of the primary beneficiary, as defined. For variable interest entities, often
referred to as special purpose entities, created after January 31, 2003,
Interpretation No. 46 is effective immediately. Portions of Interpretation
No. 46 have been delayed. The Company does not expect the adoption of
Interpretation No. 46 to have a material impact on its financial statements.
In December 2002, the FASB issued Interpretation No. 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, Including Indirect
Guarantees of Indebtedness of Others." Interpretation No. 45 clarifies the
requirement for recognition of a liability by a guarantor at the inception of
the guarantee, based on the fair vale of a non-contingent obligation to
perform. Interpretation No. 45 must be applied prospectively to guarantees
entered into or modified after December 31, 2002. The Company's adoption of
Interpretation No. 45 did not have a material effect on its financial
statements.
F-15
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
In December 2002, the FASB issued SFAS No. 148, "Accounting for Stock-Based
Compensation - Transition and Disclosure - an Amendment to FASB Statement No.
123." SFAS No. 148 amends SFAS No. 123, "Accounting for Stock-Based
Compensation," to provide new guidance concerning the transition when a
company changes from the intrinsic value method to the fair value method of
accounting for employee stock-based compensation cost. SFAS No. 123, as
amended by SFAS No. 148, also requires additional disclosure regarding such
cost in annual financial statements and interim financial statements. The
amendment to SFAS No. 123 is effective for fiscal years ending after December
15, 2002 and effective for interim financial statements beginning after
December 15, 2002. The Company does not expect the adoption of SFAS No. 148
to have a material impact on its results of operations or financial
condition. The Company adopted the disclosure requirements of SFAS No. 148 in
the year ended September 28, 2003.
On July 30, 2002, the FASB issued Statement No. 146, "Accounting for Costs
Associated with Exit or Disposal Activities" (SFAS 146), which addresses
financial accounting and reporting for costs associated with exit or disposal
activities. These rules supersede EITF 94-3, "Liability Recognition for
Certain Employee Termination Benefits and Other Costs to Exit an Activity."
SFAS 146 requires that costs related to an exit or disposal activity can only
be accrued when a liability is actually incurred, rather than at the date of
commitment to an exit or disposal plan. SFAS 146 is required to be adopted
for exit or disposal activities occurring after December 31, 2002. The
adoption of SFAS 146 did not have a material effect on the Company's
financial position, results of operations or cash flows.
In June 2001, the FASB issued Statement No. 142, "Goodwill and Other
Intangible Assets" (SFAS 142), which requires that goodwill no longer be
amortized but instead be tested at least annually for impairment. The Company
adopted SFAS 142 as of October 1, 2001 and no impairment of goodwill was
recorded upon adoption. Had the Company been accounting for goodwill under
SFAS 142 for all periods presented, the Company's income before income taxes
would have increased by $830,000 for fiscal 2001, and the Company's net
income would have increased by $548,000 ($0.06 per share and $0.05 per
diluted share) for fiscal 2001.
USE OF ESTIMATES
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 amounts reported in the
financial statements and accompanying notes. Actual results could differ from
those estimates.
F-16
3. RECEIVABLE FROM FORMER PARENT
From time to time, Overhill Farms made advances to or on behalf of its former
Parent for various purposes. Additionally, Overhill Farms netted accumulated
federal income tax liabilities payable to the former Parent against the
receivable from former Parent balance. No interest was charged to the former
Parent on net amounts outstanding. As there was substantial doubt as to its
collectibility at September 29, 2002, the Company classified its receivable
from former Parent as a reduction of shareholders' equity.
During the fiscal years ended September 28, 2003, September 29, 2002 and
September 30, 2001, the Company made cash payments to, or on behalf of, its
former Parent of approximately $950,000, $1.2 million and $500,000,
respectively, for various purposes, including tax payments, expense
reimbursement and other corporate purposes. Additionally, during the fiscal
year ended September 29, 2002, the Company and its former Parent agreed to an
allocation to the former Parent of salary and other payroll costs and
expenses of the Company's chief executive officer relating to the spin-off
transaction (see Note 12), which resulted in approximately $290,000 of costs
and expenses being allocated to the receivable from former Parent account.
In October 2002 in connection with the spin-off, the former Parent
transferred to the Company certain notes receivable having an aggregate
principal balance of approximately $400,000. These notes receivable are due
from certain officers of both the former Parent and the Company who,
subsequent to the spin-off, remained officers of the Company but who have
resigned, or are obligated to resign, from the former Parent. These notes
became due and payable on September 24, 2003 and are collateralized solely by
the common stock of the former Parent. Based upon the Company's assessment of
the collectibility of these notes receivable, including the value of the
subject collateral, the Company assigned no value to the notes upon their
receipt effective as of October 29, 2002, the date of the spin-off, and the
notes receivable continued to have no recorded value as of September 28,
2003. Future amounts ultimately realized, if any, on these notes receivable,
will be recorded as an adjustment to shareholders' equity at the time such
amounts are realized.
In October 2002, the Company made or accrued final cash payments of
approximately $946,000 made or to be made on behalf of, its former Parent and
simultaneous with the spin-off, after giving effect to the netting of
accumulated federal income tax liabilities payable to the former Parent as of
October 29, 2002 against the receivable from former Parent balance, the
remaining net intercompany amounts of approximately $11.5 million due to the
Company by its former Parent were cancelled and charged to retained earnings
(accumulated deficit.)
4. INVENTORIES
Inventories are summarized as follows:
SEPTEMBER 28, September 29,
2003 2002
---------------------------------------
Raw ingredients $ 4,414,292 $ 8,003,573
Finished product 5,313,593 8,681,091
Packaging 1,332,038 1,804,866
---------------------------------------
$ 11,059,923 $ 18,489,530
=======================================
F-17
5. LONG-TERM DEBT
Notes payable and long-term debt as of September 28, 2003 and September 29,
2002 are summarized as follows:
SEPTEMBER 28, September 29,
2003 2002
------------- -------------
Senior Term A Note payable to Pleasant Street Investors, LLC
(Pleasant Street), net of discount of $324,322, bearing
interest at no less than 10%, subject to periodic adjustments,
collateralized by certain assets of Overhill Farms until
maturity on November 30, 2003. $ 16,675,678 $ --
Senior Term B Note payable to Pleasant Street, net of discount
of $157,668, bearing interest at 15%, subject to adjustment,
collateralized by certain assets of Overhill Farms until
maturity on January 30, 2004. 4,842,332 --
Secured senior subordinated note payable to Levine Leichtman
Capital Partners II, L.P. (LLCP), net of discount of $566,688
and $1,083,667 at September 28, 2003 and September 29, 2002,
respectively, bearing interest payable monthly at 15% until
maturity in October 2004, collateralized by certain assets
of Overhill Farms. The loan provides for principal payments in an
amount equal to 50% of the excess cash flow, as defined, for
Overhill Farms' previous fiscal year, payable annually. 24,091,201 24,115,222
F-18
5. LONG-TERM DEBT (CONTINUED)
SEPTEMBER 28, September 29,
2003 2002
-------------- --------------
Revolving credit agreement with Union Bank of California, N.A.
("Union Bank"), bearing interest at prime plus 0.50% or LIBOR
plus 3.0%, collateralized by certain assets of Overhill Farms.
Effective interest rate on outstanding borrowings at September
29, 2003 was 5.25% -- 11,957,293
Term loan payable to Union Bank, bearing interest at prime plus 1.0%
(approximately 5.75% at September 29, 2002), payable in monthly
installments of $50,000 plus interest, collateralized by certain
assets of Overhill Farms. -- 1,150,000
Unsecured promissory note, bearing interest at 9%, payable in quarterly
installments of $150,000 plus interest through maturity in December
2002. This note was issued in connection with the Chicago Brothers
purchase. -- 300,000
Other 154,876 200,999
-------------- --------------
45,764,087 37,723,514
Less current maturities, as amended (see below) (813,649) (1,481,600)
-------------- --------------
Total long-term debt $ 44,950,438 36,241,914
============== ==============
In November 1999, Overhill Farms refinanced substantially all of its existing
debt. The total refinanced debt amounted to $44 million at that time,
consisting of a $16 million line of credit provided by Union Bank, together
with $28 million in the form of a five-year term secured senior subordinated
term loan by LLCP. Both of these agreements were subsequently amended on
multiple occasions as described further below. Additionally, the Company
issued a term loan payable to Union Bank in connection with an acquisition
that occurred in August 2000. At March 30, 2003, amounts outstanding under
these arrangements were $12.6 million on the revolving line of credit and
$850,000 on term loans payable to Union Bank, and $24.7 million payable to
LLCP on a term loan.
The Company's revolving line of credit, senior subordinated term note payable
and term loan agreements all contain or contained various covenants,
including financial covenants covering restrictions on capital expenditures,
minimum levels of EBITDA and net worth and specified debt service and
debt-to-equity ratios. In addition, the terms of the agreements prohibit
changes in control, including ownership and certain management personnel and
contain customary limitations on indebtedness and liens, making investments,
paying dividends and making loans or advances. As of March 30, 2003, the
Company was experiencing liquidity shortfalls and was not in compliance with
certain financial covenants with respect to its financing arrangements with
both Union Bank and LLCP.
F-19
5. LONG-TERM DEBT (CONTINUED)
To assist the Company in meeting its liquidity needs, effective as of April
4, 2003, the Company entered into amendments to its then-existing securities
purchase agreement with LLCP, the note and certain related agreements,
pursuant to which LLCP waived the Company's non-compliance with certain
covenants under the securities purchase agreement and certain other
documents, and LLCP purchased from the Company a secured senior subordinated
bridge note in the principal amount of $3.0 million, bearing interest at 15%
and initially was due and payable January 30, 2004, thereby providing the
Company with the liquidity it needed to meet its short-term payment
obligations. In a related transaction, LLCP also agreed with Union Bank that
it or an LLCP affiliate would acquire Union Bank's senior secured loans to
the Company. Finally, as part of the bridge financing and in substantial
consideration for LLCP's financial accommodations, the Company agreed to
issue and sell to LLCP, and LLCP agreed to purchase from the Company,
2,466,759 shares of the Company's common stock for a purchase price of $0.01
per share. The Company was originally required to issue and sell these shares
to LLCP by April 16, 2003, but the Company was unable to meet that deadline.
In addition, the Company was required to wind up and dissolve its subsidiary
Overhill L.C. Ventures, Inc. by June 30, 2003, but was also unable to meet
that deadline. LLCP agreed to extend the issuance date to April 24, 2003, and
then, in consideration of the payment by the Company to LLCP of an amendment
fee of $125,000, to July 20, 2003. As discussed below, this deadline was
further extended to August 20, 2003.
After completing the bridge financing and submitting an application to the
American Stock Exchange (Amex) requesting listing of the shares to be issued
to LLCP, Amex advised the Company that its approval of the Company's listing
application with respect to the issuance and sale of these shares to LLCP
would be subject to approval of the Company's stockholders. The Company
obtained a waiver from LLCP for its failure to deliver these shares by July
20, 2003, provided that delivery of these shares be made on or before August
20, 2003. At a meeting of the Company's stockholders held on August 11, 2003,
the stockholders approved the issuance of these shares to LLCP; and the
Company obtained Amex approval and delivered the shares prior to the
expiration of the waiver. In connection with this transaction, a debt
discount of approximately $1.65 million was recorded and was being amortized
over the remaining life of the debt.
Effective April 16, 2003, Pleasant Street, an affiliate of LLCP, acquired the
senior secured loans previously made to the Company by Union Bank, and the
Company and Pleasant Street amended and restated the senior secured loan
arrangements on mutually acceptable terms and conditions. As a result of the
repayment of the Union Bank loans, the Company wrote off unamortized deferred
financing costs of approximately $450,000. Under the new amended and restated
loan and security agreement with Pleasant Street, $12.117 million owing to
Union Bank on the effective date plus additional amounts newly advanced to
the Company by Pleasant Street, $1.883 million, together with the $3.0
million owing to LLCP under the bridge note described above, were combined
into a new $17.0 million Term A Loan, bearing interest at no less than 10%,
subject to periodic adjustments, and due and payable on November 30, 2003. An
additional $5.0 million advanced by Pleasant Street to the Company as of the
F-20
5. LONG-TERM DEBT (CONTINUED)
effective date is evidenced by a Term B Loan, bearing interest at 15%, and
initially was due and payable January 30, 2004. The Company used $3.0 million
of proceeds from Term A Loan to repay the outstanding principal amounts of
the term note issued to LLCP on April 4, 2003. The senior term loans may be
prepaid without premium or penalty. The amended and restated loan and
security agreement with Pleasant Street contains various covenants, including
financial covenants covering restrictions on capital expenditures, minimum
levels of EBITDA and net worth, and specified debt service and debt to equity
ratios. In addition, the terms of the loan and security prohibit changes in
control, including ownership and certain management personnel, and contain
customary limitations on indebtedness and liens, making investments, paying
dividends and making loans or advances. The senior notes and all other
obligations owing by the Company to Pleasant Street are collateralized by
substantially all of the Company's assets.
At September 28, 2003, the Company was not in compliance with certain of the
financial and other covenants of its agreements with LLCP and Pleasant
Street, including, among other things, its failure to observe the limitations
on indebtedness relating to trade accounts payable, failure to comply with
certain payment plans and failure to dissolve Overhill Ventures before August
20, 2003. Subsequent to fiscal year end, the Company reached agreement with
each of LLCP and Pleasant Street wherein the lenders waived specified events
of default by the Company under the then existing agreements and further
agreed to a refinancing of all indebtedness owing by the Company to LLCP and
Pleasant Street as described below.
On October 31, 2003, the Company entered into debt refinancing arrangements
with LLCP and Pleasant Street in order (1) to obtain an aggregate of $5.0
million of additional funds to finance the Company's accounts receivable, to
build up its inventory levels and for other working capital purposes, (2) to
reduce the base rates of interest on and extend the maturity dates of the
note held by LLCP and the loans made by Pleasant Street, (3) to amend the
financial covenants and certain other provisions contained in the relevant
investment documents with respect to LLCP and the relevant loan documents
with respect to Pleasant Street and (4) to obtain waivers of specified events
of default under then existing agreements with LLCP and Pleasant Street.
The Company issued to LLCP a second amended and restated secured senior
subordinated note due October 31, 2006 in the stated principal amount of
$28.858 million in exchange for the surrender by LLCP of the existing $24.658
million senior subordinated note and $4.2 million in additional cash funds.
The replacement note has a base rate of interest that was reduced from 15% to
13.5%, subject to increase upon the occurrence of any interest rate event, as
defined, or event of default, and an extended maturity date from October 31,
2004 to October 31, 2006. The Company paid LLCP an amendment fee of $184,800
and a new capital fee of $168,000. The amendment fee of $184,800 will be
expensed in association with the October 2003 debt refinancing.
F-21
5. LONG-TERM DEBT (CONTINUED)
Also as part of the October 31, 2003 debt refinancing, the Company and
Pleasant Street amended their existing loan and security agreement to amend
the financial covenants and various other provisions. Pleasant Street waived
certain specified events of default. In addition, Pleasant Street made an
additional term loan to the Company in the principal amount of $800,000 and
surrendered the note evidencing the existing Term A Loan in exchange for a
second amended and restated senior Term A note in the principal amount of
$17.8 million. The annual interest rate on the in-formula portion of the Term
A Loan was reduced from 10% to 5.5%. The annual interest rate on the $5.0
million Term B Loan was reduced from 15% to 12%. The interest rates on the
Term A Loan and Term B Loan are subject to increase upon the occurrence of
any interest rate event, as defined, or event of default as provided in the
notes that evidence those loans. The maturity dates of the Term A Loan and
the Term B Loan were extended to October 31, 2006 from November 30, 2003 and
January 30, 2004, respectively. The Term B Loan was modified to be a monthly
amortizing term loan. The prepayment terms of the Term A Loan and the Term B
Loan were modified to provide, among other things, that the Company will make
mandatory prepayments of annual excess cash flow, if any. The Company paid
Pleasant Street an amendment fee of $35,200 and a new capital fee of $32,000.
The October 31, 2003 debt refinancing has been recorded as a debt
extinguishment. Accordingly, unamortized costs associated with the LLCP and
Pleasant Street debt that existed prior to October 31, 2003, along with new
amendment fees paid to LLCP and Pleasant Street, will be expensed on October
31, 2003. The unamortized costs included original issue debt discounts of
$1,048,677 unamortized financing fees and expenses of $1,456,834 and
unamortized cost of warrants issued to LLCP in September of 2002 of $618,633.
On October 31, 2003 amendment fees were paid to LLCP and Pleasant Street in
the amounts of $184,800 and $35,200 respectively. The total expense to be
recognized in connection with the October 31, 2003 debt extinguishment is
$3,344,144.
In conjunction with the October 31, 2003 debt refinancing, the Company, James
Rudis and LLCP amended an investor rights agreement among them pursuant to
which the Company granted to LLCP the right to designate for nomination and
election up to three members of the Company's Board of Directors, together
with the right to fill the next available vacancy created on the Board of
Directors after October 31, 2003, which could result in LLCP having up to
four LLCP representatives on the Board at any time. In addition, the parties
extended to October 31, 2006 the time period during which annual consulting
fees of $180,000 will be payable to LLCP, agreed that the Company would be
liable for any breach by Mr. Rudis of his liabilities and obligations under
the agreement and included a provision obligating Mr. Rudis to resign, and he
did timely resign, from all of his positions at TreeCon Resources, Inc., the
Company's former Parent, no later than December 31, 2003.
On October 31, 2003, the Company and LLCP also terminated the Company's
equity repurchase option that provided, among other things, that the Company
had the right, under certain conditions, to repurchase from LLCP, in whole
but not in part, all shares of the Company's common stock owned by LLCP or
issuable to LLCP upon the exercise of warrants or conversion of preferred
stock. In addition, the Company entered into amended employment arrangements
with Mr. Rudis and Mr. John Steinbrun pursuant to which salaries were
adjusted and the terms of the agreements extended. Also, LLCP and Pleasant
Street amended their intercreditor and subordination agreement with respect
to the indebtedness, liabilities and obligations owed by the Company to each.
F-22
5. LONG-TERM DEBT (CONTINUED)
The Company believes, based upon forecasted performance for fiscal year 2004,
that it is probable that the Company will be in compliance with all of its
revised financial and other covenant requirements. Accordingly, and as a
result of the refinancing of the obligations described above, all principal
amounts payable to LLCP and to Pleasant Street, other than currently
scheduled principal payments, have been classified as long-term liabilities
in the accompanying balance sheet as of September 28, 2003. In the future,
the failure of the Company to achieve certain revenue, expense and
profitability levels could result in a violation of the amended financial
covenants under its financing arrangements, which would cause the interest
rates on the above loans to increase substantially and could have a material
adverse effect on the Company's financial condition, results of operations or
cash flows.
Because there is no market for our debt owed to LLCP, it is impractical at
this time to estimate the fair value of the debt.
Scheduled maturities of long-term obligations outstanding at September 28,
2003, after giving effect to the debt refinancing described above, are
summarized as follows:
2004 $ 813,649
2005 888,742
2006 883,059
2007 44,227,314
----------------
Total 46,812,764
Less unamortized debt discount (1,048,677)
----------------
$ 45,764,087
================
6. SHAREHOLDERS' EQUITY
WARRANTS TO PURCHASE COMMON STOCK
In connection with a refinancing in December 1997, an unrelated consultant
was issued a warrant to purchase 1% of Overhill Farms' common stock at a
purchase price of $50,000. The warrant was exercised during the fiscal year
ended September 30, 2001.
In November 1999, in connection with the purchase of a $28 million secured
senior subordinated note by the Company's senior subordinated creditor, the
Company issued to LLCP a warrant to purchase 166.04 shares of the common
stock of the Company exercisable immediately at an exercise price of $0.01
per share. This warrant was valued at $2.37 million, which was recorded as
debt discount and is being amortized over the original term of the LLCP loan.
The warrant became exercisable for 1,994,141 shares at an exercise price of
$0.0000008 per share following the 12,010-shares-for-1 stock split declared
F-23
6. SHAREHOLDER'S EQUITY (CONTINUED)
in connection with the spin-off. The Company issued 1,994,040 shares of
common stock and cancelled one share of common stock upon the cashless
exercise of the warrant by the senior subordinated creditor in December 2002.
The warrant remains exercisable as to 100 shares through October 31, 2009.
In connection with, and as consideration for, a September 2002 amendment to
its senior subordinated loan agreement, the Company issued a warrant, valued
at $1.1 million to purchase 57.57 shares of the common stock of the Company
to LLCP. Under this agreement, the warrant was intended to bring the total
equity ownership of the Company by LLCP, on a fully diluted basis, to 24.0%.
The warrant has certain anti-dilution protection provisions and was
exercisable immediately upon issuance. Following the 12,010-shares-for-1
stock split declared in connection with the spin-off, the warrant became
exercisable for 691,416 shares of the Company's common stock at an exercise
price of $0.0000008 per share. The Company issued 691,315 shares of common
stock and cancelled one share of common stock upon the cashless exercise of
warrant by LLCP in December 2002. The warrant remains exercisable as to 100
shares through September 11, 2012.
DILUTION PROTECTION
Upon adoption of the Company's employee stock option plan in October 2002, as
described below, the Company reserved 800,000 shares of common stock for
issuance under the plan. In November 2002, the Company issued 252,632 shares
of its common stock to LLCP, its senior subordinated creditor, upon the
reservation of these shares pursuant to the anti-dilution protection granted
in the amendments to the Company's securities purchase agreement with LLCP,
whereby the number of shares of the Company's common stock beneficially owned
by LLCP on a fully-diluted basis immediately following the spin-off would not
be less than 24.0%.
PREFERRED STOCK
Effective January 31, 2002, the Company and LLCP reached agreement relative
to an amendment of the credit arrangement with LLCP to accommodate the
consolidation of the Company's facilities and to permit additional
indebtedness to be incurred by the Company in connection therewith. As
consideration for financing costs related to this amendment with LLCP, the
value of which was agreed to be $750,000, the Company agreed to issue to LLCP
23.57 shares of a newly created Series A Preferred Stock. These shares were
issued in March 2002. The designations for the preferred stock provide the
holder with, among other things, a liquidation preference totaling $750,000,
voting rights along with holders of common stock, conversion rights into a
like number of common shares, subject to adjustment, and provide for
adjustment to prevent dilution of the holders' interests. Following the
12,010-shares-for-1 stock split, the preferred stock became convertible into
283,076 shares of the Company's common stock. The Company recorded the
$750,000 of Series A Preferred Stock issued to LLCP as deferred financing
costs, which is being amortized as additional interest expense through
October 2004, to coincide with original maturity of the LLCP loan.
F-24
6. SHAREHOLDER'S EQUITY (CONTINUED)
STOCK OPTIONS
In October 2002, the Company adopted an employee stock option plan ("The
Plan") and reserved 800,000 shares of common stock for issuance to eligible
directors and employees of, and consultants to, the Company under The Plan.
The Plan provides for the grant of both incentive stock options (at exercise
prices no less than fair value at the date of grant) and non-qualified stock
options (at exercise prices as determined by the Compensation Committee of
the Board of Directors). Such options may be exercisable as determined by
such Committee. The Plan will expire in 2012, ten years following its
adoption.
Pro forma information regarding net income and earnings per share is required
by SFAS No. 123, and has been determined as if the Company had accounted for
its employee stock options under the fair value method of that Statement. The
fair value for these options was estimated at the date of grant using a
Black-Scholes option pricing model with the following weighted average
assumptions for fiscal year 2003: weighted average risk-free interest rate of
4.25%; dividend yields of 0%; weighted average volatility factor of the
expected market price of the Company's common stock of 1.32; and a weighted
average expected life of the options of 5 years. The weighted average fair
value of options granted during the year are $1.12.
A summary of the Company's stock option activity and related information
follows:
FOR THE YEARS ENDED
------------------------------------------------------------------
SEPTEMBER 28, SEPTEMBER 29, SEPTEMBER 30,
2003 2002 2001
-----------------------------------------------------------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Options Price Options Price Options Price
------------------------------------------------------------------
Outstanding at beginning of
year -- $ -- 0 $ - 0 $ --
Granted 672,000 1.28 0 - 0 --
Exercised -- -- 0 - 0 --
Canceled -- -- 0 - 0 --
------------------------------------------------------------------
Outstanding at end of year 672,000 $ 1.28 0 $ - 0 $ --
------------------------------------------------------------------
Exercisable at end of year 672,000 $ 1.28 0 $ - 0 $ --
------------------------------------------------------------------
Exercise prices for the 672,000 options outstanding as of September 28, 2003
ranged from $0.48 to $1.60. The weighted average contractual life of those
options is 8.5 years. The following table summarizes information about stock
options outstanding as of September 28, 2003:
F-25
6. SHAREHOLDER'S EQUITY (CONTINUED)
Weighted Weighted Weighted
Average Average Average
Number Exercise Contractual Number Exercise
Outstanding Price Life Exercisable Price
--------------------------------------------------------------------------
$1.60 472,000 $ 1.60 10 472,000 $ 1.60
$0.70 50,000 $ 0.70 5 50,000 $ 0.70
$0.48 150,000 $ 0.48 5 150,000 $ 0.48
--------------------------------------------------------------------------
$0.48 - $1.60 672,000 $ 1.28 8.5 672,000 $ 1.28
--------------------------------------------------------------------------
AMENDMENTS TO ARTICLES OF INCORPORATION
During February 2002 the stockholders and Board of Directors of the Company
unanimously approved an amendment to the Company's Articles of Incorporation
to increase the number of shares which the Company shall have authority to
issue to a total of 150,000,000, consisting of (i) 50,000,000 shares of
preferred stock, $.01 par value and (ii) 100,000,000 shares of common stock,
$.01 par value. Such shares may be issued in one or more series from time to
time, without action by the stockholders, and for such consideration as may
be fixed by the Board of Directors. Additionally, the Board of Directors is
authorized to fix the designations, preferences, and relative participating,
option or other special rights of the shares of each such series of preferred
stock, and the qualifications, limitations or restrictions thereon.
F-26
7. INCOME (LOSS) PER SHARE
The following table sets forth the calculation of earnings (loss) per share
for the periods presented:
FOR THE YEARS ENDED
----------------------------------------------------------
SEPTEMBER 28, September 29, September 30,
2003 2002 2001
----------------------------------------------------------
Numerator:
Net income (loss) attributable to common stockholders $ (6,422,298) $ 1,029,887 $ 2,241,545
==========================================================
Denominator:
Denominator for basic earnings
per share - weighted average shares 12,032,331 9,400,828 9,377,558
----------------------------------------------------------
Effect of dilutive securities:
Warrants -- 2,051,758 2,017,410
Series A Preferred Stock -- 165,127 --
----------------------------------------------------------
Dilutive potential common shares -- 2,216,885 2,017,410
----------------------------------------------------------
Denominator for diluted earnings per share 12,032,331 11,617,713 11,394,968
==========================================================
Net income (loss) per share - basic and diluted:
Net income (loss) per share - basic $ (0.53) $ 0.11 $ 0.24
==========================================================
Net income (loss) per share - diluted $ (0.53) $ 0.09 $ 0.20
==========================================================
At September 28, 2003, options to purchase 672,000 shares, warrants to
purchase 400 shares and preferred stock convertible into 283,076 shares of
common stock have been excluded from the diluted earnings per share
computation as their effect, if any, would be antidilutive. Share and per
share data for all periods presented have been retroactively restated to
reflect the 12,010-shares-for-1 stock split that occurred in October 2002.
8. ACCRUED LIABILITIES
Accrued liabilities consist of the following:
SEPTEMBER 28, September 29,
2003 2002
---------------------------------------
Compensation $ 969,777 $ 853,680
Taxes other than income taxes 111,296 226,999
Interest 514,162 349,806
Other 1,727,319 477,954
----------------------------------------
$ 3,322,554 $ 1,908,439
========================================
F-27
9. INCOME TAXES
Income tax provision consists of the following:
FOR THE YEARS ENDED
-------------------------------------------------------------------
SEPTEMBER 28, 2003 September 29, 2002 September 30, 2001
------------------- ------------------ ------------------
Current:
Federal $ -- $ 423,655 $ 1,344,141
State 1,600 1,600 1,600
------------------- ------------------ ------------------
Total current 1,600 425,255 1,345,741
Deferred:
Federal (3,119,608) 243,158 (177,932)
State (234,621) -- --
------------------- ------------------ ------------------
Total deferred (3,354,229) 243,158 (177,932)
------------------- ------------------ ------------------
Total income tax provision $ (3,352,629) $ 668,413 $ 1,167,809
=================== ================== ==================
For the one month period from September 30, 2002 to October 29, 2002, the
effective date of the spin-off, and for the years ended September 29, 2002
and September 30, 2001 the Company is included in the consolidated federal
tax return of its former Parent. Prior to the spin-off, the Company provided
for federal taxes on a separate company basis in accordance with FASB
Statement No. 109, "Accounting for Income Taxes." Historically, with respect
to state income taxes, primarily in California, the Company has been able to
reduce its tax liability by offsetting otherwise taxable income with other
losses under the former Parent entity. On a separate company basis, the
Company would have had an approximate effective state tax rate of 6%. For
periods following the completion of the spin-off, the Company's tax returns
will be filed on a stand-alone basis. The Company has elected to carry
forward its Net Operating Losses into its stand-alone return.
Due to operating losses for the eleven months ended September 28, 2003, the
Company has provided tax benefits and recorded a deferred tax asset,
classified as other assets on the accompanying balance sheet, of $3.3
million. The Company has not recorded a valuation allowance against any of
its deferred tax assets, since it is believed that such assets are more
likely than not to be recoverable through estimated future profitable
operations. The Company currently expects to improve its current operating
results, returning to profitable operations, primarily through (a) improved
gross margins achieved by streamlining additional costs and continuing to
leverage its new consolidated manufacturing and storage facilities to improve
manufacturing efficiency, (b) growing revenues from profitable product lines
and (c) reducing future interest costs on outstanding debt as a result of the
recently completed refinancing its indebtedness. Failure by the Company to
successfully improve margins, grow revenues and/or maintain the anticipated
savings on future interest costs, and return to profitable operating results
in the near term, could adversely impact the Company's expected realization
of some or all of its deferred tax assets and could require the Company to
record a valuation allowance against some or all of such assets, which could
have a material adverse effect on the Company's financial position and
results of operations.
F-28
9. INCOME TAXES (CONTINUED)
The total income tax provision (benefit) was (34.3%), 39.4% and 34.3% of
pretax income (loss) for the years ended September 28, 2003, September 29,
2002 and September 30, 2001, respectively. A reconciliation of income taxes
with the amounts computed at the statutory federal rate follows:
FOR THE YEARS ENDED
-----------------------------------------------
SEPTEMBER 28, September 29, September 30,
2003 2002 2001
------------ ------------ ------------
Computed tax provision (benefit) at
federal statutory rate (35%) $(3,400,717) $ 577,422 $ 1,159,181
State income tax provision,
net of federal benefit (281,211) 1,024 1,024
Permanent items 40,461 54,318 33,846
Tax benefit attributed to parent 331,975
Other (43,137) 35,649 (26,242)
------------ ------------ ------------
$(3,352,629) $ 668,413 $ 1,167,809
============ ============ ============
The deferred tax assets and deferred tax liabilities recorded on the balance
sheet are as follows:
SEPTEMBER 28, 2003 September 29, 2002
------------------------------ ------------------------------
DEFERRED DEFERRED DEFERRED DEFERRED
TAX TAX TAX TAX
ASSETS LIABILITIES ASSETS LIABILITIES
------------ ------------ ------------ ------------
Current:
Inventory, A/R $ 337,416 $ -- $ 207,035 $ --
Accrued liabilities 640,704 -- 192,367 --
Prepaid expenses -- (151,401) -- (142,667)
Other -- (92,961) -- (89,840)
------------ ------------ ------------ ------------
978,120 (244,362) 399,402 (232,507)
Noncurrent:
Net Operating Loss Carry
forwards $ 3,823,823 -- -- --
Deposits and Deferrals -- (497,003) -- --
Depreciation -- (211,815) -- (21,640)
Goodwill -- (592,766) -- (243,487)
------------ ------------ ------------ ------------
3,823,823 (1,301,584) -- (265,127)
------------ ------------ ------------ ------------
Total deferred taxes $ 4,801,943 (1,545,946) $ 399,402 $ (497,634)
============ ============ ============ ============
As of September 28, 2003, the Company had net operating losses
available for carryforward for Federal tax purposes of approximately $10
million expiring beginning in 2023.
F-29
10. COMMITMENTS AND CONTINGENCIES
COMMITMENTS
Future minimum lease payments for all operating leases, including facilities
and equipment, at September 28, 2003 are as follows:
2004 $ 2,508,593
2005 1,468,144
2006 1,026,457
2007 977,116
2008 and thereafter 6,949,158
----------------
$ 12,929,468
================
The Company leases its facilities under operating leases expiring through
September 2011, with an option for a five-year extension on its Vernon
operating facility. Certain of the other leases provide for renewal options
at substantially the same terms as the current leases.
The Company's lease of its primary operating facility requires the premises
to be restored to its original condition upon the termination of the lease.
Accordingly, the Company has recorded a liability of $189,000 representing
the present value of the estimated restoration costs at September 28, 2003.
The corresponding asset will be depreciated over 13 years, and the present
value of the liability will be accreted over the term in order to establish a
reserve at the end of the lease equal to the refurbishment costs.
Certain of the Company's equipment leases provide for declining annual rental
amounts. Rent expense is recorded on a straight-line basis over the term of
the lease. Accordingly, prepaid rent is recorded in the accompanying balance
sheets as the difference between rent expense and amounts paid under the
terms of the lease agreements.
Rent expense, including monthly equipment rentals, was approximately $3.2
million, $2.8 million, and $2.4 million for the years ended September 28,
2003, September 29, 2002 and September 30, 2001, respectively.
F-30
10. COMMITMENTS AND CONTINGENCIES (CONTINUED)
TreeCon Resources, as well as certain of its current and former officers and
directors, were parties to lawsuits, originally filed in 1997, which alleged
misrepresentations that the plaintiffs claim resulted in the market price of
TreeCon Resources' stock being artificially inflated. The plaintiffs twice
attempted to enjoin the spin-off of the Company, and in each instance, the
district court denied the plaintiffs' attempts. Prior to a trial scheduled to
commence in March 2003, TreeCon Resources and the plaintiffs agreed to a
settlement for a nominal payment. This payment was made in June 2003 and the
lawsuit was dismissed with prejudice, preventing the plaintiffs from refiling
or advancing similar claims in the future. The Company was never a named
defendant in these actions.
TreeCon Resources received an opinion with respect to the spin-off to the
effect that, among other things, the spin-off should qualify as a tax-free
spin-off to TreeCon Resources' stockholders and to TreeCon Resources for
federal income tax purposes. The opinion is based upon various factual
representations and assumptions, as well as certain undertakings, which if
untrue or incomplete in a material respect, or any undertaking was not
complied with, or if the facts upon which the opinion was based were
materially different from the facts at the time of the spin-off, the spin-off
may not qualify for tax-free treatment. If, for these reasons or due to
events occurring subsequent to the spin-off, it is determined that the
spin-off does not qualify for tax-free treatment, then, in general, a very
substantial tax would be payable by TreeCon Resources and its stockholders.
In certain circumstances, the Company and TreeCon Resources would be jointly
and severally liable, and the Company could be required to pay for all or a
portion of such taxes resulting from the spin-off being taxable. The Company
and TreeCon Resources are unaware of any facts or circumstances that could
result in the spin-off being determined to be taxable.
In connection with the spin-off, TreeCon Resources agreed to indemnify the
Company with respect to any current or future tax liabilities for which the
Company might otherwise be liable resulting from the operations of any entity
other than the Company. Additionally, as discussed in Note 12 to the
financial statements, in connection with the spin-off, the Company and
TreeCon Resources agreed to cancel all existing intercompany receivables and
payables between the entities as of the date of the spin-off.
The Company is involved in certain legal actions and claims arising in the
ordinary course of business. Management believes (based, in part, on advice
of legal counsel) that such contingencies will be resolved without material
effect on the Company's financial position, results of operations or cash
flows.
In February and March 2003, we were a party to a consulting agreement with
The Steinbrun Group ("SHA"), a business and financial consulting firm. We
engaged SHA to provide management consulting services with the long-term
objective of maintaining and improving our financial position and
profitability and to train senior management of our company. Mr. Steinbrun,
who became our Senior Vice President and Chief Financial Officer on April 1,
2003, is a stockholder, director and officer of SHA. We paid to SHA $80,400
for services rendered under the consulting agreement. These fees totaled more
than 5% of SHA's estimated gross revenues for its fiscal year ending December
31, 2003.
F-31
11. EMPLOYEE BENEFIT PLANS
In April 1997, Overhill Farms introduced a retirement savings plan under
Section 401(k) of the Internal Revenue Code. The plan covers substantially
all non-union employees meeting minimum service requirements. Under the plan,
contributions are voluntarily made by employees. The Company does not provide
for a match to the employees' contributions, and its expenses related to the
plan have not been significant.
The Company has also established a 401(k) plan for members of UFCW Union,
Local 770 that covers employees meeting certain eligibility requirements. The
plan provides for voluntary contributions that may be made by employees and
for a contribution to be made by the Company in the event that revenues
exceed $140 million for a fiscal year. The annual contribution under the plan
ranges from $75-$100 per eligible employee if annual revenues range from
$140-$145 million to $400-$425 per eligible employee if annual revenues
exceed $200 million. No contributions have been required to be made by the
Company under this plan.
12. SPIN-OFF TRANSACTION AND RELATED EVENTS
On August 14, 2001, the Former Parent's Board of Directors approved a plan to
spin-off Overhill Farms, Inc. to stockholders of the Former Parent. On
October 29, 2002, the Former Parent accomplished the spin-off by
distributing, in the form of a dividend, 100% of its ownership of Overhill
Farms common stock, representing 99% of the issued and outstanding common
stock of Overhill Farms, to the Former Parent's stockholders of record as of
September 30, 2002. The Former Parent's stockholders each received one share
of Overhill Farms, Inc. common stock for every two shares of the Former
Parent's common stock they owned as of the date of record. Any Former Parent
stockholder entitled to a fractional share under this formula received cash,
which was immaterial.
The spin-off was intended to separate Overhill Farms and its Former Parent's
other subsidiary, Texas Timberjack, Inc., so that each company's management
team could focus on its specific industry. The spin-off was also intended to
enable both companies to attract and retain key employees and to reward them
with compensation plans directly tied to the success of each business. Also,
the assets, debts, liabilities, and organizational structure of the two
post-spin-off companies could be more clearly defined. Immediately after the
spin-off transaction became effective, the Former Parent no longer owned any
shares of Overhill Farms common stock.
To facilitate the spin-off, in October 2002, the Company's Board of Directors
authorized a stock split of 12,010-shares-for-1, which increased outstanding
common shares, based upon outstanding common shares as of September 29, 2002,
to approximately 9.4 million shares. Shares issuable pursuant to outstanding
warrants and conversion rights of preferred stock were similarly increased.
Share and per share data for all periods presented herein have been adjusted
to reflect the 12,010-shares-for-1 stock split.
F-32
13. QUARTERLY FINANCIAL DATA (UNAUDITED)
FOR THE YEAR ENDED SEPTEMBER 28, 2003
----------------------------------------------------------------------
DECEMBER 29 MARCH 30 JUNE 29 SEPTEMBER 28
------------- ------------- ------------- -------------
NET REVENUES $ 38,309,691 $ 33,610,990 $ 34,139,886 $ 30,889,843
GROSS PROFIT 5,452,023 3,918,209 4,719,769 3,280,519
OPERATING INCOME (LOSS) 426,919 (1,173,344) 888,954 1,713,337
NET INCOME (LOSS) (646,244) (1,807,003) (1,750,967) (2,218,084)
NET (LOSS) PER SHARE - BASIC $ (0.06) $ (0.15) $ (0.14) $ (0.17)
NET (LOSS) PER SHARE - DILUTED $ (0.06) $ (0.15) $ (0.14) $ (0.17)
For the Year Ended September 29, 2002
----------------------------------------------------------------------
December 30 March 31 June 30 September 29
------------- ------------- ------------- -------------
Net revenues $ 33,521,834 $ 34,434,884 $ 34,726,115 $ 36,217,809
Gross profit 4,415,242 4,640,430 5,076,946 5,315,208
------------- ------------- ------------- -------------
Operating income 1,642,431 1,723,011 1,900,956 2,031,328
Net income 178,407 219,936 285,037 346,507
Net income per share - basic $ 0.02 $ 0.02 $ 0.03 $ 0.04
Net income per share - diluted $ 0.02 $ 0.02 $ 0.02 $ 0.03
F-33