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Table of Contents

 

 

 

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 December 26, 2009

 

o

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: 1-14556

 

THE INVENTURE GROUP, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

86-0786101

(State or other jurisdiction of

 

(I.R.S. Employer Identification No.)

incorporation or organization)

 

 

 

5050 N. 40th  Street, Suite 300

Phoenix, Arizona 85018

(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code:  (623) 932-6200

 

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

 

Title of Class

 

Name of exchange on which registered

Common Stock, $.01 par value

 

Nasdaq

 

Securities registered pursuant to Section 12(g) of the Act:  None

 

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

 

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

 

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  o

 

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

 

Indicate by check mark if disclosure of delinquent filers in response 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.  o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer o

 

Accelerated filer o

 

 

 

Non-accelerated filer o

 

Smaller reporting company x

(Do not check if a smaller reporting company)

 

 

 

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

 

The aggregate market value of the voting stock (Common Stock, $.01 par value) held by non-affiliates of the Registrant was approximately $46.5  million based upon the closing market price on June 27, 2009, the last business day of the Registrant’s most recently completed second fiscal quarter.

 

The number of issued and outstanding shares of Common Stock, $.01 par value, as of March 1, 2010 was 17,887,643.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

Portions of the Proxy Statement for the Registrant’s Annual Meeting of Shareholders to be held on May 20, 2010 are incorporated by reference into Part III of this Form 10-K.

 

EXCHANGE ACT REPORTS AVAILABLE ON COMPANY WEBSITE

 

Under “SEC Filings” on the “Investors” page of the Company’s website located at www.inventuregroup.net, the following filings are made available as soon as reasonably practicable after they are electronically filed with or furnished to the Securities and Exchange Commission (the “SEC”): the Company’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, Proxy Statement on Schedule 14A related to the Company’s Annual Shareholders Meeting, and any amendments to those reports or statements filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934.  You may also read and copy any materials we file with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Washington, DC 20549.  You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.  The SEC also maintains an Internet website located at http://www.sec.gov that contains the information we file or furnish electronically with the SEC.

 

 

 



Table of Contents

 

TABLE OF CONTENTS

 

 

 

PART I

 

 

 

 

 

 

 

Item 1.

 

Business

 

3

Item 1A.

 

Risk Factors

 

9

Item 2.

 

Properties

 

15

Item 3.

 

Legal Proceedings

 

15

 

 

 

 

 

 

 

 

 

 

 

 

PART II

 

15

 

 

 

 

 

Item 5.

 

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

 

15

Item 7.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

16

Item 8.

 

Financial Statements and Supplementary Data

 

21

Item 9.

 

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

21

Item 9A(T).

 

Controls and Procedures

 

21

Item 9B.

 

Other Information

 

22

 

 

 

 

 

 

 

PART III

 

22

 

 

 

 

 

Item 10.

 

Directors, Executive Officers and Corporate Governance

 

22

Item 11.

 

Executive Compensation

 

22

Item 12.

 

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

 

22

Item 13.

 

Certain Relationships and Related Transactions, and Director Independence

 

22

Item 14.

 

Principal Accounting Fees and Services

 

22

 

 

 

 

 

 

 

PART IV

 

23

 

 

 

 

 

Item 15.

 

Exhibits, Financial Statement Schedules

 

23

 

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Table of Contents

 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

This Annual Report on Form 10-K, including all documents incorporated by reference, includes “forward-looking” statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995, and The Inventure Group, Inc. (the “Company”) desires to take advantage of the “safe harbor” provisions thereof.  Therefore, the Company is including this statement for the express purpose of availing itself of the protections of the safe harbor with respect to all of such forward-looking statements. In this Annual Report on Form 10-K, the words “anticipates,” “believes,” “expects,” “intends,” “estimates,” “projects,” “will likely result,” “will continue,” “future” and similar terms and expressions identify forward-looking statements. The forward-looking statements in this Annual Report on Form 10-K reflect the Company’s current views with respect to future events and financial performance. These forward-looking statements are subject to certain risks and uncertainties, including specifically the possibility that the Company will need additional financing due to future operating losses or in order to implement the Company’s business strategy, the possible diversion of management resources from the day-to-day operations of the Company as a result of strategic acquisitions, potential difficulties resulting from the integration of acquired businesses with the Company’s business, other acquisition-related risks, lack of consumer acceptance of existing and future products, dependence upon key license agreements, dependence upon major customers, significant competition, risks related to the food products industry, volatility of the market price of the Company’s common stock, par value $.01 per share (the “Common Stock”), the possible de-listing of the Common Stock from the Nasdaq Capital Market if the Company fails to satisfy the applicable listing criteria (including a minimum share price) in the future and those other risks and uncertainties discussed herein, that could cause actual results to differ materially from historical results or those anticipated.  In light of these risks and uncertainties, there can be no assurance that the forward-looking information contained in this Annual Report on Form 10-K will in fact transpire or prove to be accurate.  Readers are cautioned to consider the specific risk factors described herein and in “Risk Factors,” and not to place undue reliance on the forward-looking statements contained herein, which speak only as of the date hereof. The Company undertakes no obligation to publicly revise these forward-looking statements to reflect events or circumstances that may arise after the date hereof. All subsequent written or oral forward-looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by this section.

 

Item 1.  Business

 

General

 

The Inventure Group, Inc., a Delaware corporation (the “Company”), is a $120+ million leading marketer and manufacturer of healthy/all natural and indulgent specialty snack food brands. The Company is headquartered in Phoenix, Arizona with plants in Arizona, Indiana and Washington.  The Company’s executive offices are located at 5050 N. 40th  Street, Suite 300 Phoenix, Arizona 85018, and its telephone number is (623) 932-6200.  Shortly after the filing of this report, the Company will be moving its offices to 5415 East High Street, Suite 350, Phoenix, Arizona 85054, and its telephone number at the new address will not change.

 

The Company was formed in 1995 as a holding company to acquire a potato chip manufacturing and distribution business, which had been founded by Donald and James Poore in 1986.  In December 1996, the Company completed an initial public offering of its Common Stock.  In November 1998, the Company acquired the business and certain assets (including the Bob’s Texas Style® potato chip brand) of Tejas Snacks, L.P. (“Tejas”), a Texas-based potato chip manufacturer.  In October 1999, the Company acquired Wabash Foods, LLC (“Wabash”) including the Tato Skins®, O’Boisies®, and Pizzarias® trademarks and the Bluffton, Indiana manufacturing operation and assumed all of Wabash Foods’ liabilities.  In June 2000, the Company acquired Boulder Natural Foods, Inc. (“Boulder”) and the Boulder CanyonTM brand of totally natural potato chips.  The Company changed its name from Poore Brothers, Inc. to The Inventure Group, Inc. on May 23, 2006.  In May 2007, the Company acquired Rader Farms, Inc., including a farming operation and a berry processing facility in Lynden, Washington.

 

Products

 

In the Company’s healthy/all natural category, products include Rader Farms® frozen berries and Boulder CanyonTM Natural Foods brand kettle cooked potato chips. In the Company’s indulgent specialty category, products include T.G.I. Friday’s® brand snacks, BURGER KING TM  brand snack products, Poore Brothers® kettle cooked potato chips, Bob’s Texas Style® kettle cooked chips, Tato Skins® brand potato snacks and O’Boises® potato snacks.

 

Manufactured Snack Food Products.  The Company’s snack products are manufactured at the Arizona and Indiana plants as well as some third party plants for certain products.

 

Bluffton, Indiana Plant.  The Company produces T.G.I. Friday’s® brand Potato Skins snacks, BURGER KING TM brand potato snack products, Tato Skins® brand potato snacks, O’Boises® brand potato snacks and Boulder CanyonTM Natural Foods Rice and Bean snacks, utilizing a sheeting and frying process.  All of these are offered in several different flavors and formulations and are manufactured at the Company-owned facility in Bluffton, Indiana, except for Mozzarella and Buffalo Snack Sticks, Hot Pepper Jack Cheese Fries, Onion Rings and French Toast products, which are currently produced by contract manufacturers on behalf of the Company and sold under the T.G.I. Friday’s® and BURGER KING TM  brand names.  The Company also produces private label sheeted dough products.

 

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Goodyear, Arizona Plant.  Poore Brothers®, Bob’s Texas Style®, Boulder CanyonTM Natural Foods, and private label branded potato chips are produced in a variety of flavors utilizing a batch-frying process at the Company-owned facility in Goodyear, Arizona.   While conventional continuous line cooking methods may produce higher production volume, the Company believes that its batch-frying process is superior and produces premium potato chip products with enhanced crispness and distinctive flavor.

 

Licensed Snack BrandsIn 2000, the Company launched its T.G.I. Friday’s® brand snacks pursuant to a license agreement with T.G.I. Friday’s Inc., which expires in 2014.  In 2007, the Company launched its BURGER KING™ snack products pursuant to a license agreement with Burger King Corporation, which expires in 2012.  In  2009, the Company entered into a license agreement with Bruce Foods Corporation which the Company expects to result in a 2010 launch of a new line of Hot Fries snacks under the Louisiana Hot Sauce brand.

 

Private Label Products.  The Company currently has arrangements with several grocery chains and natural stores for the manufacture and distribution by the Company of their respective private label snacks and believes that additional contract manufacturing opportunities exist.  While such arrangements are extremely price competitive and can be short in duration, the Company believes that they may provide a profitable opportunity for the Company to improve the capacity utilization of its facilities.  The Company intends to seek additional private label and contract manufacturing customers located near its facilities who demand superior product quality at a reasonable price.

 

During 2009, the Company launched a number of new items under its existing brands such as:  Boulder CanyonTM Natural Foods Sun Dried Tomato & Basil Rice & Bean, Sweet Lemon & Cracked Pepper Rice & Bean, Honey BBQ Canyon Cut, and Lemon Pepper; T.G.I. Friday’s® Spicy Buffalo Sticks and Jalapeno Cheddar Potato Skins; BURGER KING TM Spicy Onion rings, Hot Fries and Cheesy Fries; and, Poore Brothers® Mole and Habanero.

 

Berry ProductsRader Farms grows, processes and markets premium berry blends, raspberries, blueberries, and rhubarb and purchases marionberries, cherries, cranberries, strawberries and other fruits from a select network of fruit growers for resale.  The fruit is processed and packaged for sale and distribution nationally to wholesale customers under the Rader Farms® brand, as well as through store brands.  The Company also uses third party processors for certain products.  In 2009, the Company entered into a license agreement with Jamba Juice that expires in 2014, which the Company expects to result in a 2010 launch of Jamba™ branded blend-and-serve smoothie kits with all natural vitamin and mineral boosts and a variety of fresh-frozen, whole fruit pieces, including raspberries and blueberries from Rader Farms.

 

Distributed  Products.  The Company purchases and resells throughout Arizona snack food products manufactured by others.  Such products include pretzels, popcorn, dips and meat snacks.

 

For the fiscal years 2009 and 2008, net revenues totaled $121.0 million and $113.1 million, respectively, and T.G.I. Friday’s® brand salted snacks represented 33% of the Company’s total net revenues in both 2009 and 2008.

 

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Table of Contents

 

 

 

Percent of Total Net Revenues

 

 

 

2009

 

2008

 

Branded snack and berry products

 

78

%

80

%

Private label products

 

19

%

17

%

Total manufactured snack and berry products revenues

 

97

%

97

%

 

 

 

 

 

 

Distributed products segment revenues

 

3

%

3

%

 

 

 

 

 

 

Total revenues

 

100

%

100

%

 

Business Strategy

 

The Company’s business strategy is to continue building a diverse portfolio of high quality, competitively priced healthy/all natural food brands (Rader Farms® and Boulder CanyonTM Natural Foods ) and indulgent specialty food brands (T.G.I. Friday’s®, BURGER KING TM, Poore Brothers®) with annualized target revenues between $5 million and $50 million each through expansion of existing brands, licensing, acquisition and development.  The goals of our strategy are to (i) capitalize on healthy/all natural and indulgent specialty food brand opportunities, (ii) deliver incremental category growth for retailers, (iii) provide product innovation targeted to a defined consumer segment, (iv) complement, rather than compete directly against, large national competitors with leading national brands, and (v) build relationships with major retailers in all channels of distribution by providing them higher margins, excellent customer service and constant innovation.  The Company plans to mitigate the financial impact of launching new products by introducing them in small-scale test markets rather than large scale regional or national introductions, and to continue to improve profit margins through increased operating efficiencies and manufacturing capacity utilization. The primary elements of the Company’s long-term business strategy are as follows:

 

Develop, Acquire or License Innovative Healthy/Natural and Indulgent Specialty Food Brands.   A significant element of the Company’s business strategy is to develop, acquire or license new innovative Healthy/Natural and Indulgent Specialty food brands that provide strategic fit with our existing business and possess strong national brand equity in order to expand, complement or diversify the Company’s existing business.

 

Broaden Distribution of Existing Brands.   The Company plans to increase distribution and build the market share of its existing branded products through selected trade activity in various existing or new markets and channels.  Marketing efforts may include, among other things, trade advertising and promotional programs with distributors and retailers, in-store advertisements, in-store displays and limited consumer advertising, public relations and coupon programs.

 

Pursue Acquisitions.   The Company continues to evaluate acquisition opportunities in the specialty food area where we can use our competencies in Operations, Sales, Marketing and Distribution in order to drive revenue and profit growth.

 

Develop New Products for Existing Brands.   The Company plans to continue its innovation activities to identify and develop (i) new line extensions for its brands, such as new flavors or products, and (ii) new food segments in which to expand the brand’s presence.

 

Leverage Infrastructure and Capacity.   The Company’s Indiana, Arizona and Washington facilities are currently operating at approximately 40%, 75% and 50% of their respective manufacturing capacities.   The Company continues to secure new manufacturing opportunities in private label and co-packing arrangements, as well as expand upon its own branded product lines.  In addition, the Company plans to continue capital investment in its plants and drive operating efficiencies.

 

Improve Profit Margins.   The Company plans to increase gross profit margins through increased long-term revenue growth, improved operating efficiencies, and higher margin new products.  It believes that additional improvements to its manufactured products’ gross profit margins are possible with the achievement of the business strategies discussed above.

 

Manufacturing

 

The Company-owned manufacturing facility in Bluffton, Indiana includes three fryer lines that can produce an aggregate of up to approximately 9,000 pounds per hour of T.G.I. Friday’s®, BURGER KING™,  and Tato Skins® brand products.  The Indiana facility is currently operating at approximately 40% of capacity.  Recently introduced production capabilities at the Bluffton plant allow the Company to use existing equipment to make additional snacks that are entirely different in appearance and taste from its other product lines.  The Company believes this technology will help expand its product lines and facilitate growth.  During 2010, the Company plans to further invest in new equipment to expand and diversify its production capabilities.

 

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The Company-owned manufacturing facility in Goodyear, Arizona has the capacity to produce up to approximately 2,800 pounds of potato chips per hour, including 1,860 pounds of batch-fried branded potato chips per hour and 940 pounds of continuous-fried private label potato chips per hour.  The Arizona facility is currently operating at approximately 75% of capacity.  During 2009, the Company spent approximately $1.2 million in capital at the Goodyear facility in order to increase capacity and improve efficiencies.  The investment included additional high capacity kettle cooking equipment, increasing our high speed packaging machines, and installing automated case packing machines.  The installation was completed by the end of the second quarter in 2009.

 

The Company-owned Radar Farms facilities in Lynden, Washington have the capacity to produce up to eight million pounds of grown berries per year.  The individually quick frozen (“IQF”) processing facilities located at the same location have the capacity to apply the IQF process to forty million pounds of berries annually.  Overall, the processing facility is operating at 50% of capacity.    Rader Farms had an exceptional 2009 harvest along with the rest of the industry as a result of favorable farming and weather conditions.  The Company has invested in new packaging equipment to accommodate the forthcoming Jamba™ smoothie launch.

 

There can be no assurance that the Company will obtain sufficient business to recoup the Company’s investments in its manufacturing facilities or to increase the utilization rates of such facilities.

 

Marketing and Distribution

 

The Company sells its products nationally and internationally through a number of channels including: Grocery, Natural, Mass, Drug, Club, Vending, Food Service, Convenience Stores and International.

 

The Company’s licensed T.G.I. Friday’s® brand snack food products have achieved significant market presence across a number of sales channels.  The Company attributes the success of its products in these markets to consumer loyalty.  The Company believes this loyalty results from the products’ differentiated taste, texture and flavor variety which result from the Company’s manufacturing processes.  The Company has retained various sales and marketing agencies with employees and offices nationwide to represent T.G.I. Friday’s® brand snacks on behalf of the Company in the grocery and convenience store channels.  The Company’s own sales organization, as well as brokers, sells T.G.I. Friday’s® brand snacks in the mass, club and drug channels.  The Company also obtains significant sales on T.G.I. Friday’s® brand snacks in the vending channel nationwide through an independent network of brokers and distributors.

 

The Company’s potato chip brands are distributed to grocery and other retailers directly, through brokers, and a select group of independent distributors in Arizona. The Company’s Boulder CanyonTM Natural Foods  brand potato chip products have achieved significant market presence in Colorado and in natural food stores nationwide as well as other leading grocery retailers.  Poore Brothers® brand potato chip products have achieved significant market presence in the southwest United States.  The Company’s Bob’s Texas Style® brand potato chip products have achieved significant market presence in south/central Texas.  The Company selects brokers and distributors for its branded products primarily on the basis of quality of service, call frequency on customers, financial capability and relationships they have with all of the various channels in which we operate. The Company currently retains a Canadian sales and marketing agency to sell to Canadian customers. The Company has also retained an international broker to expand sales.

 

The Company’s distribution network throughout Arizona includes approximately 42 independently operated service routes.  Each route is operated by an independent distributor who merchandises to major grocery store chains in Arizona, such as Albertson’s, Basha’s, Fry’s and Safeway stores.  The Company’s independent distributors also service many smaller independent grocery stores, club stores, and military facilities throughout Arizona.  In addition to Poore Brothers® brand products, the Company distributes throughout Arizona a wide variety of snack food items manufactured by other companies, including pretzels, popcorn, dips, and meat snacks. 

 

The Company’s marketing of its berry products is essentially performed through brokerage arrangements with whom the Company has relationships.   Similar to its snack business, the Company selects brokers primarily on the basis of quality of service, call frequency on customers, financial capability and relationships they have with supermarkets and club stores including access to freezer space for the berry products.  The Jamba™ blend and serve smoothie kits will launch through retail grocery distribution, as well as other channels.

 

Successful marketing of the Company’s products depends, in part, upon obtaining adequate shelf or freezer space for such products, particularly in supermarkets, C-Stores, discount stores and the club channel for both snacks and berry products and vending machines for snacks.  Frequently, the Company incurs additional marketing costs in order to obtain additional shelf space.  Whether or not the Company will continue to incur such costs in the future will depend upon a number of factors including, demand for the Company’s products, relative availability of shelf space and general competitive conditions.  The Company may incur significant shelf space, consumer marketing or other promotional costs as a necessary condition of entering into competition or maintaining market share in particular markets or channels.  Any such costs may materially affect the Company’s financial performance.

 

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The Company’s marketing programs are designed to increase product trial and build brand awareness in core markets.  Most of the Company’s marketing spending has traditionally been focused on trade advertising and trade promotions designed to attract new consumers to the products at a reduced retail price.  The Company’s marketing programs also include selective event sponsorship designed to increase brand awareness and to provide opportunities to mass sample branded products.  The Company also invests marketing dollars in brand and category research, coupons, customer consumer programs, Facebook, Twitter, and other social media.

 

The Company continues to focus on expanding the distribution of our Boulder CanyonTM Natural Foods brand nationally through the natural channel and the natural segment in the grocery channel, as well as club stores, drug, and C-stores.  We also continue to evaluate expansion opportunities overseas with the T.G.I. Friday’s® brand as well as BURGER KING™ and Boulder CanyonTM Natural Foods brands.  BURGER KING™ line of ready-to-eat snack chips are already sold in over 30 countries, and plans are in place to expand distribution to 17 new countries throughout Asia, Europe and the Middle East during 2010.  The new target markets include China, Singapore, Malaysia, Turkey and Scandinavia.

 

Suppliers

 

The principal raw materials used by the Company are potatoes, potato flakes, wheat flour, corn, oils and berries.  The Company believes that the raw materials it needs to produce its products are readily available from numerous suppliers on commercially reasonable terms.  Potatoes, potato flakes and corn are widely available year-round, although they are subject to seasonal price fluctuations.  The Company uses a variety of oils and seasonings in the production of its snack products and believes that alternative sources for such oils and seasonings, as well as alternative oils and seasonings, are readily abundant and available.  The Company may lock in prices for raw materials, such as oils, as it deems appropriate.  Although the Company produces many of its berry products in its own farms, it also augments that production by purchasing additional berries to meet customer demands.  The Company purchases both fresh berries from local farmers and already frozen berries for its repackaging business.   The Company uses packaging materials in its snack manufacturing and berry distribution business.

 

The Company chooses its suppliers based primarily on price, availability, service and quality.  Although the Company believes that its required products and ingredients are readily available, and that its business success is not dependent on any single supplier, the failure of certain suppliers to meet the Company’s performance specifications, quality standards or delivery schedules could have a material adverse effect on the Company’s operations.  In particular, a sudden scarcity, a substantial price increase, or an unavailability of product ingredients could materially adversely affect the Company’s operations.  There can be no assurance that alternative ingredients would be available when needed and on commercially attractive terms, if at all.

 

Customers

 

Costco accounted for 23% and 24% of the Company’s 2009 and 2008 net revenues, respectively.  The remainder of the Company’s revenues was derived from sales to a number of additional customers, either grocery chains, club stores or regional distributors, none of which individually accounted for more than 10% of the Company’s net revenues in 2009.  A decision by any of the Company’s major customers to cease or substantially reduce their purchases could have a material adverse effect on the Company’s business.

 

The majority of the Company’s revenues are attributable to external customers in the United States.  The Company does sell to Canadian and international customers as well, however, the revenues attributable to these customers are immaterial.  All of the Company’s assets are located in the United States.

 

Competition

 

The Company’s snack products generally compete against other snack foods, including potato chips and tortilla chips.  The snack food industry is large and highly competitive and is dominated by large food companies, including Frito-Lay, Inc., a subsidiary of PepsiCo, Inc., Procter and Gamble and General Mills.  These companies possess substantially greater financial, production, marketing, distribution and other resources than the Company, and their brands are more widely recognized than the Company’s products.  Numerous other companies that are actual or potential competitors of the Company offer products similar to the Company’s, and some of these have greater financial and other resources (including more employees and more extensive facilities) than the Company.  In addition, many competitors offer a wider range of products than offered by the Company.  Local or regional markets often have significant smaller competitors, many of whom offer products similar to those of the Company.  Expansion of the Company’s operations into new markets has and will continue to encounter significant competition from national, regional and local competitors that may be greater than that encountered by the Company in its existing markets.  In addition, such competitors may challenge the Company’s position in its existing markets.  While the Company believes that it has innovative products and methods of operation that will enable it to compete successfully, there can be no assurance of its ability to do so.

 

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The Company’s berry products generally compete against other packaged berries on the basis of quality and price.  Key competitors include Townsend Farms, Sunopta, and Dole.  Obtaining freezer space at supermarkets and club stores is tantamount to successfully competing with other berry products, as supermarkets and club stores will frequently only carry one brand of frozen berry products, contrasted to snack products where multiple brands are carried.

 

The principal competitive factors affecting the markets of the Company’s products include product quality and taste, brand awareness among consumers, access to shelf or freezer space, price, advertising and promotion, varieties offered, nutritional content, product packaging and package design.  The Company competes in its markets principally on the basis of product quality and taste.  While products produced at the Company’s Bluffton, Indiana facility involve the use of certain licensed technology and unique manufacturing processes, the taste and quality of products produced at the Company’s Goodyear, Arizona facility are largely due to two elements of the Company’s manufacturing process: its use of batch-frying and its use of distinctive seasonings to produce a variety of flavors.  The Company does not have exclusive rights to the use of either element; consequently, competitors may incorporate such elements into their own processes.

 

Government Regulation

 

The manufacture, labeling and distribution of the Company’s products are subject to the rules and regulations of various federal, state and local health agencies, including the Food & Drug Administration (“FDA”).  In May 1994, regulations issued under the Nutrition Labeling and Education Act of 1990 (“NLEA”), which requires specified nutritional information to be disclosed on all packaged foods, concerning labeling of food products, including permissible use of nutritional claims such as “fat-free” and “low-fat” became effective.  The Company believes that it is complying in all material respects with the NLEA regulations and closely monitors the fat content of its snack products through various testing and quality control procedures.  The Company does not believe that compliance with the NLEA regulations materially increases the Company’s manufacturing costs.

 

As a direct result of the September 11, 2001 terrorism attack, the FDA issued the Bioterrorism Act of 2002 (“the Act”) to protect the U.S. food supply.  While there are four parts to the Act, only two of the provisions impact the Company.  One requirement for the Company was registration with the FDA as a U.S. Food Manufacturing Company, which the Company completed prior to the required date of December 12, 2003.  The second of the Act’s provisions pertaining to the Company relates to record retention.  The Company is required to retain records pertaining to its raw materials’ immediate previous sources (“one back”) as well as its finished goods’ subsequent recipients (“one up”) for twelve months.  The Act was effective January 1, 2005, and the Company believes it is currently compliant with this provision.

 

On July 11, 2003, the FDA published its final rule on Trans Fat Labeling requiring that food labels declare trans fats on or before January 1, 2006.  This rule requires that trans fat be declared on a separate line in the standard Nutrition Facts below total fat and saturated fat and be calculated to the nearest 0.5 grams, unless it is less than 0.5 grams in which case it may be expressed as 0 grams.  The Company believes it is currently compliant with these requirements.

 

There can be no assurance that new laws or regulations will not be passed that could require the Company to alter the taste or composition of its products or impose other obligations on the Company.  Such changes could affect sales of the Company’s products and have a material adverse effect on the Company.

 

In addition to laws relating to food products, the Company’s operations are governed by laws relating to environmental matters, workplace safety and worker health, principally the Occupational Safety and Health Act.  The Company believes that it presently complies in all material respects with such laws and regulations.

 

Employees

 

As of December 26, 2009, the Company had 372 total employees, all full-time, including 311 in manufacturing and distribution, 26 in sales and marketing and 35 in administration and finance.  The Company’s employees are not represented by any collective bargaining organization and the Company has never experienced a work stoppage.  The Company believes that its relations with its employees are good.

 

Patents, Trademarks and Licenses

 

The Company produces T.G.I. Friday’s® brand snacks, BURGER KINGTM  brand potato snack products, Tato Skins® brand potato crisps and Boulder CanyonTM Natural Foods  Rice and Bean snacks utilizing a sheeting and frying process that includes technology that the Company licenses from a third party.  Pursuant to the license agreement between the Company and the third party, the Company has a royalty-bearing, exclusive right license to use the technology in the United States, Canada, and Mexico until such time the parties mutually agree to terminate the agreement and provide written sixty (60) days notice to each other.  Even though the patents for this technology expired December 26, 2006, in consideration for the use of this technology, the Company is required to make royalty payments on sales of products manufactured utilizing the technology until such termination date.  However, should products substantially similar to Tato Skins®, O’Boisies® and Pizzarias® become available for any reason in the marketplace by any manufacturer other than the Company which results in a sales decline of 10% or more, any royalty obligation for the respective product(s) shall cease.

 

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The Company owns the following trademarks in the United States: Poore Brothers®, Rader Farms®, Intensely Different®, Texas Style®, Boulder Canyon®, Canyon Cut®, Tato Skins®, O’Boisies®, Pizzarias®, and Braids®.  The Company considers its trademarks to be of significant importance in the Company’s business.  The Company is not aware of any circumstances that would have a material adverse effect on the Company’s ability to use its trademarks.  From time to time, the Company enters into licenses with owners of distinctive brands to produce branded snack food products.  Generally, the licenses require the Company to make royalty payments on sales and to achieve certain minimum sales levels by certain dates during the contract term.  Any termination of any of the Company’s license agreements, whether at the expiration of its term or prior thereto, could have a material adverse effect on the Company’s financial condition and results of operations.

 

Seasonality

 

The food products industry is seasonal.  Consumers tend to purchase our snack products at higher levels during the major summer holidays and also at times surrounding major sporting events throughout the year.  Consumers also tend to purchase fresh berries while in season and therefore we see a decline in frozen berry revenue in the summer months.  Additionally, we may face seasonal price increases for raw materials.

 

Item 1A.  Risk Factors

 

In addition to the other information in this report, any one of the following factors could materially adversely affect our business, financial condition or operating results.  You should read and carefully consider these risk factors, and the entirety of this report, before you invest in our securities.

 

Risks Related to Our Business

 

We may incur significant future expenses due to the implementation of our business strategy.

 

The Company is striving to achieve its long-term vision of being a leading marketer and manufacturer of healthy/all natural and indulgent specialty snack food brands.  Such action is subject to the substantial risks, expenses and difficulties frequently encountered in the implementation of a business strategy.  Even if the Company is successful in developing, acquiring and/or licensing new brands, and increasing distribution and sales volume of the Company’s existing products, it may require the Company to incur substantial additional expenses, including advertising and promotional costs, “slotting” expenses (i.e., the cost of obtaining shelf or freezer space in certain grocery stores), and integration costs of any future acquisitions. Accordingly, the Company may incur additional losses in the future as a result of the implementation of the Company’s business strategy, even if revenues increase significantly. There can be no assurance that the Company will be able to implement its strategic plan, that its business strategy will prove successful or that it will be able to maintain profitability during such implementation.

 

We may not be able to obtain the additional financing we need to implement our business strategy.

 

A significant element of the Company’s business strategy is the development, acquisition and/or licensing of innovative specialty food brands, for the purpose of expanding, complementing and/or diversifying the Company’s business. In connection with each of the Company’s previous acquisitions, the Company borrowed funds or assumed additional indebtedness in order to satisfy a substantial portion of the consideration required to be paid by the Company.  The Company may, in the future, require additional third party financing (debt or equity) as a result of any future operating losses, in connection with the expansion of the Company’s business through non-acquisition means, in connection with any additional acquisitions completed by the Company, or to provide working capital for general corporate purposes.  There can be no assurance that any such required financing will be available or, if available, be on terms attractive to the Company.  Any third party financing obtained by the Company may result in dilution of the equity interests of the Company’s shareholders.

 

We expect some of our future growth to be derived in part, from acquisitions, but our acquisition strategy may not be successful, or we may not be successful integrating acquisitions.

 

An element of the Company’s business strategy is the pursuit of selected strategic acquisition opportunities for the purpose of expanding, complementing and/or diversifying the Company’s business.  However, no assurance can be given that the Company will be able to identify, finance and complete additional suitable acquisitions on acceptable terms, or that future acquisitions, if completed, will be successful.  Any future acquisitions could divert management’s attention from the daily operations of the Company and otherwise require additional management, operational and financial resources.  Moreover, there can be no assurance that the Company will be able to successfully integrate acquired companies or their management teams into the Company's operating structure, retain management teams of acquired companies on a long-term basis, or operate acquired companies profitably. Acquisitions may also involve a number of other risks, including adverse short-term effects on the Company's operating results, dependence on retaining key personnel and customers, and risks associated with unanticipated liabilities or contingencies.

 

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We are subject to ongoing financial covenants under our main credit facility, and if we fail to meet those covenants or otherwise default on our credit facility, our lender may accelerate our borrowings.

 

At December 26, 2009, the Company had outstanding indebtedness in the aggregate principal amount of $21.1 million.

 

Our credit agreement with U.S. Bank National Association (“U.S. Bank”) is secured by substantially all assets of the Company.  The Company’s obligations under the Credit Agreement are guaranteed by each of its subsidiaries.  The Company is required to comply with certain financial covenants pursuant to the U.S. Bank Credit Agreement so long as borrowings from U.S. Bank remain outstanding.  Should the Company be in default under any of such covenants, U.S. Bank shall have the right, upon written notice and after the expiration of any applicable period during which such default may be cured, to demand immediate payment of all of the then unpaid principal and accrued but unpaid interest under the Credit Agreement.  At December 26, 2009, the Company was in compliance with all covenants of the Credit Agreement.

 

As the Company implements its business strategy, there can be no assurance that the Company will remain in compliance with the financial covenants in the future. Any acceleration of the borrowings under the Credit Agreement prior to the applicable maturity dates could have a material adverse effect upon the Company. See “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources.”

 

We may not be able to successfully implement our strategy to expand our business internationally.

 

The Company plans to expand sales to Canadian customers and is exploring other international market opportunities for its brands.  Such expansion may require significant management attention and financial resources and may not produce desired levels of revenue.  International business is subject to inherent risks, including longer accounts receivable collection cycles, difficulties in managing operations across disparate geographical areas, difficulties enforcing agreements and intellectual property rights, fluctuations in local economic, market and political conditions, compliance requirements with U.S. and foreign export regulations, potential adverse tax consequences and currency exchange rate fluctuations.

 

We may incur material losses and costs as a result of product liability claims that may be brought against us or any product recalls we have to make.

 

As a manufacturer and marketer of food products, the Company may be subjected to various product liability claims.  There can be no assurance that the product liability and product recall insurance maintained by the Company will be adequate to cover any loss or exposure for product liability, or that such insurance will continue to be available on terms acceptable to the Company.  Any product liability claim not fully covered by insurance, as well as any adverse publicity from a product liability claim or product recall, could have a material adverse effect on the financial condition or results of operations of the Company.

 

We are subject to numerous governmental regulations, and our failure to comply with those regulations could result in fines or penalties being imposed on us.

 

The packaged food industry is subject to numerous federal, state and local governmental regulations, including those relating to the preparation, labeling and marketing of food products.  The Company is particularly affected by the Nutrition Labeling and Education Act of 1990 (“NLEA”), which requires specified nutritional information to be disclosed on all packaged foods.  Additionally, as a direct result of the September 11, 2001 terrorism attack, the FDA issued the Bioterrorism Act of 2002 (“the Act”) to protect the U.S. food supply.  While there are four parts to the Act, only two of the provisions impact the Company.  One requirement that applied to the Company was registration with the FDA as a U.S. Food Manufacturing Company, which the Company completed prior to the required date of December 12, 2003.  The second of the Act’s provisions pertaining to the Company relates to record retention.  The Company is required to retain records pertaining to its raw materials’ immediate previous sources (“one back”) as well as its finished goods’ subsequent recipients (“one up”) for twelve months. The Act was effective January 1, 2005.

 

On July 11, 2003, the FDA published its final rule on Trans Fat Labeling requiring that food labels declare trans fats on or before January 1, 2006.  This rule requires that trans fat be declared on a separate line in the standard Nutrition Facts below total fat and saturated fat and be calculated to the nearest 0.5 grams, unless it is less than 0.5 grams in which case it may be expressed as 0 grams.

 

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We cannot assure you that we will not face fines or penalties if our efforts to comply with these regulations are determined to be inadequate.

 

Newly adopted governmental regulations could increase our costs or liabilities or impact the sale of our products.

 

The food industry is highly regulated.  We cannot assure you that new laws or regulations will not be passed that could require the Company to alter the taste or composition of its products or impose other obligations on the Company.  Such changes could affect sales of the Company’s products and have a material adverse effect on the Company.

 

We do not own the patents for the technology we use to manufacture our T.G.I. Friday’s®, BURGER KING TM  and Tato Skins® brand products.

 

The Company licenses technology from a third party in connection with the manufacture of its T.G.I. Friday’s®, BURGER KINGTM and Tato Skins® brand products and has a royalty-bearing, exclusive right license to use the technology necessary to produce these products in the United States, Canada, and Mexico until such time the parties mutually agree to terminate the agreement and provide written sixty (60) days notice to each other.  Even though the patents for this technology expired December 26, 2006, in consideration for the use of this technology, the Company is required to make royalty payments to the third party on sales of products manufactured utilizing the technology until such termination date.   Since these patents expired, we no longer have exclusive rights to this technology and, as a result, may face additional competition that could adversely affect our revenues.  Moreover, competitors of the Company, certain of which may have significantly greater resources than the Company, may utilize different technology in the manufacture of products that are similar to those currently manufactured, or that may in the future be manufactured, by the Company.  The entry of any such products into the marketplace could have a material adverse effect on the Company’s sales of T.G.I. Friday’s®, BURGER KING TM  and Tato Skins® brand products, as well as any such future products.

 

The majority of our revenues are derived from a limited number of food brands.

 

The Company derives a substantial portion of its revenue from a limited number of snack food brands.  For the year ended December 26, 2009, 74% of the Company’s net revenues were attributable to the T.G.I. Friday’s® brand products, the Boulder Canyontm Natural Foods brand products and Rader Farms® brand products.  A decrease in the popularity of these brands during any year could have a material adverse effect on the Company’s business, financial condition and results of operations.  There can be no assurance that any of the Company’s food brands will retain their historical levels of popularity or increase in popularity.  Any impact to a licensed brand’s reputation could also lead to an impact on the Company’s other snack food products associated with that brand.  Decreased sales from any one of our key food brands without a corresponding increase in sales from other existing or newly introduced products would have a material adverse effect on the Company’s financial condition and results of operations.

 

We depend on a license agreement for the right to sell our T.G.I. Friday’s® brand.

 

For the year ended December 26, 2009, 33% of the Company’s net revenues were attributable to the T.G.I. Friday’s® brand products, which are manufactured and sold by the Company pursuant to a license agreement by and between the Company and T.G.I. Friday’s Inc. that expires in 2014.  Pursuant to the license agreement, the Company is subject to various requirements and conditions (including, without limitation, minimum sales targets).  The failure of the Company to comply with certain of such requirements and conditions could result in the early termination of the license agreement by T.G.I. Friday’s Inc.  Any termination of the T.G.I. Friday’s license agreement, whether at the expiration of its term or prior thereto, could have a material adverse effect on the Company’s financial condition and results of operations.

 

The loss of one of our major customers could have a material adverse effect on our business.

 

Costco accounted for 23% of the Company’s 2009 net revenues, with the remainder of the Company’s net revenues being derived from sales to a number of additional customers, either grocery chains or regional distributors, none of which individually accounted for more than 10% of the Company’s revenues for 2009.  A decision by any major customer to cease or substantially reduce its purchases could have a material adverse effect on the Company’s business.

 

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The loss of certain key employees could adversely affect our business.

 

The Company’s success is dependent in large part upon the abilities of its executive officers, including Terry McDaniel, Chief Executive Officer and Steve Weinberger, Chief Financial Officer.  The Company’s business strategy will challenge its executive officers, and the inability of such officers to perform their duties or the inability of the Company to attract and retain other highly qualified personnel could have a material adverse effect upon the Company’s business and prospects.

 

Risks Related to the Snack Business

 

We may not be able to compete successfully in our highly competitive industry.

 

The market for snack foods, such as those sold by us, including potato chips and meat snacks, is large and intensely competitive. Competitive factors in the snack food industry include product quality and taste, brand awareness among consumers, access to supermarket shelf space, price, advertising and promotion, variety of snacks offered, nutritional content, product packaging and package design. The Company competes in that market principally on the basis of product taste and quality.

 

The snack food industry is dominated by large food companies, including Frito-Lay, Inc., a subsidiary of PepsiCo, Inc., Procter and Gamble, General Mills and others which have substantially greater financial and other resources than the Company and sell brands that are more widely recognized than are the Company’s products. Numerous other companies that are actual or potential competitors of the Company, many with greater financial and other resources (including more employees and more extensive facilities) than the Company, offer products similar to those of the Company. In addition, many of such competitors offer a wider range of products than that offered by the Company. Local or regional markets often have significant smaller competitors, many of whom offer products similar to those of the Company. With expansion of Company operations into new markets, the Company has and will continue to encounter significant competition from national, regional and local competitors that may be greater than that encountered by the Company in its existing markets. In addition, such competitors may challenge the Company’s position in its existing markets. There can be no assurance of the Company’s ability to compete successfully.

 

Unavailability of our necessary supplies, at reasonable prices, could materially adversely affect our operations.

 

The Company’s manufacturing costs are subject to fluctuations in the prices of potatoes, potato flakes, wheat flour, corn and oil as well as other ingredients of the Company’s products.  Potatoes, potato flakes, wheat flour and corn are widely available year-round, and the Company uses a variety of oils in the production of its products.  Nonetheless, the Company is dependent on its suppliers to provide the Company with products and ingredients in adequate supply and on a timely basis.  The failure of certain suppliers to meet the Company’s performance specifications, quality standards or delivery schedules could have a material adverse effect on the Company’s operations.  In particular, a sudden scarcity, a substantial price increase, or an unavailability of product ingredients could materially adversely affect the Company’s operations.  There can be no assurance that alternative ingredients would be available when needed and on commercially attractive terms, if at all.  From time to time, the Company may lock in prices for raw materials, such as oils, as it deems appropriate, and such strategies may result in the Company paying prices for raw materials that are above market at the time of purchase.

 

We may incur substantial costs in order to market our snacks.

 

Successful marketing of snack products generally depends upon obtaining adequate retail shelf space for product display, particularly in supermarkets. Frequently, food manufacturers and distributors, such as the Company, incur additional costs in order to obtain additional shelf space. Whether or not the Company incurs such costs in a particular market is dependent upon a number of factors, including demand for the Company’s products, relative availability of shelf space and general competitive conditions. The Company may incur significant shelf space or other promotional costs as a necessary condition of entering into competition or maintaining market share in particular markets or stores. If incurred, such costs may materially affect the Company’s financial performance.

 

Our business may be adversely affected by oversupply of snack products at the wholesale and retail levels and seasonal fluctuations.

 

Profitability in the food product industry is subject to oversupply of certain snack products at the wholesale and retail levels, which can result in our products going out of date before they are sold.  The snack products industry is also seasonal.  Consumers tend to purchase our products at higher levels during the major summer holidays and also at times surrounding the major sporting events throughout the year.

 

We may not be able to respond successfully to shifting consumer tastes.

 

Consumer preferences for snack foods are continually changing and are extremely difficult to predict.  The ability of the Company to generate revenues in new markets will depend upon customer acceptance of the Company’s products.  The success of new products will be key to the success of the Company’s business plan and there can be no assurance that the Company will succeed in the development of any new products or that any new products developed by the Company will achieve market acceptance or generate meaningful revenue for the Company.

 

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Risks Related to the Rader Farms Business

 

Farming is subject to numerous inherent risks including changes in weather conditions or natural disasters that can have an adverse impact on crop production and materially affect our results of operations.

 

The Company, through its subsidiary Rader Farms, Inc., is subject to the risks that generally relate to the agricultural industry. Change in weather conditions and natural disasters, such as earthquakes, droughts, extreme cold or pestilence, may affect the planting, growing and delivery of crops, reduce sales stock, interrupt distribution, and have a material adverse impact on our business, financial condition and results of operations. Our competitors may be affected differently by such weather conditions and natural disasters depending on the location of their supplies or operations.

 

Revenues are derived from one brand; the loss or impairment of this brand may have a material adverse effect on operating results.

 

Rader Farms derives the majority of its revenue from the sales of one brand. The Company’s net revenues are predominantly attributable to the Rader Farms® brand of frozen berries. A decrease in the popularity of frozen berries during any year could have a material adverse effect on the Company’s business, financial condition and results of operations. There can be no assurance that the Rader Farms® brand will retain its historical level of popularity or increase in popularity. Decreased sales from the Rader Farms® brand of frozen berries would have a material adverse effect on the Company’s financial condition and results of operations.

 

Unavailability of purchased berries, at reasonable prices, could materially adversely affect our operations.

 

The Company’s manufacturing costs are subject to fluctuations in the prices of certain commodity prices. Berries are not readily available year-round, therefore, the Company uses an individual quick frozen (IQF) technique to freeze the berries harvested for use during the year to meet processing demands. In addition to freezing our own home-grown berries, we also purchase a significant amount of berries from outside suppliers to meet customer demands. The Company is dependent on its suppliers to provide the Company with adequate supply and on a timely basis. The failure of certain suppliers to meet the Company’s performance specifications, quality standards or delivery schedules could have a material adverse effect on the Company’s operations. In particular, a sudden scarcity, a substantial price increase, or an unavailability of certain types of berries could materially adversely affect the Company’s operations. There can be no assurance that alternative products would be available when needed and on commercially attractive terms, if at all.

 

We may incur material losses and costs as a result of product liability claims that may be brought against us or any product recalls we have to make.

 

The sale of food products for human consumption involves the risk of injury to consumers. Such hazards could result from: tampering by unauthorized third parties; product contamination (such as listeria, e-coli, and salmonella) or spoilage; the presence of foreign objects, substances, chemicals, and other agents; residues introduced during the growing, storage, handling or transportation phases; or improperly formulated products. There can be no assurance that the product liability and product recall insurance maintained by the Company will be adequate to cover any loss or exposure for product liability, or that such insurance will continue to be available on terms acceptable to the Company. Any product liability claim not fully covered by insurance, as well as any adverse publicity from a product liability claim or product recall, could have a material adverse effect on the financial condition or results of operations of the Company.

 

Risks Related to Our Securities

 

The market price of our Common Stock is volatile.

 

The market price of our Common Stock has experienced a high level of volatility since the completion of the Company’s initial public offering in December 1996.  Commencing with an offering price of $3.50 per share in the initial public offering, the market price of the Common Stock experienced a substantial decline, reaching a low of $0.50 per share (based on last reported sale price of the Common Stock on the Nasdaq Capital Market) on December 22, 1998.  During fiscal 2009, the market price of the Common Stock (based on last reported sale price of the Common Stock on the Nasdaq Capital Market) ranged from a high of $3.03 per share to a low of $1.17 per share.  The last reported sales price of the Common Stock on the Nasdaq Capital Market on December 26, 2009 was $2.32 per share. There can be no assurance as to the future market price of the Common Stock.  See “Our Common Stock may not continue to trade at a market price sufficient to prevent our de-listing from the NASDAQ Capital Market.

 

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Our Common Stock may not continue to trade at a market price sufficient to prevent our de-listing from the NASDAQ Capital Market.

 

In order for the Company’s Common Stock to continue to be listed on the Nasdaq Capital Market, the Company is required to be in compliance with certain continued listing standards.  One of such requirements is that the bid price of listed securities be equal to or greater than $1.00.  If, in the future, the Company’s Common Stock fails to be in compliance with the minimum closing bid price requirement for at least thirty consecutive trading days or the Company fails to be in compliance with any other Nasdaq continued listing requirements, then the Common Stock could be de-listed from the Nasdaq Capital Market.  Upon any such de-listing, trading, if any, in the Common Stock would thereafter be conducted in the over-the-counter market on the so-called “pink sheets” or the “Electronic Bulletin Board” of the National Association of Securities Dealers, Inc. (“NASD”).  As a consequence of any such de-listing, an investor could find it more difficult to dispose of, or to obtain accurate quotations as to the price of, the Company’s Common Stock.  See “The market price of our Common Stock is volatile.

 

A significant amount of our Common Stock is controlled by a small number of shareholders, and the interests of such  shareholders may conflict with those of other shareholders.

 

As of December 26, 2009, Capital Foods, LLC, an affiliate of our Chairman Larry Polhill (“Capital Foods”), beneficially owned 23.7% of the Company’s outstanding shares, and Heartland Advisors, Inc. (“Heartland”) beneficially owned 19.8% of the Company’s outstanding shares.  Capital Foods and Heartland are hereinafter referred to collectively as the “Significant Shareholders.”  There can be no assurance that one or more of the Significant Shareholders will not adopt or support a plan to undertake a material change in the management or business of the Company.

 

Apart from transfer restrictions arising under applicable provisions of the securities laws, there are no restrictions on the ability of the Significant Shareholders to transfer any or all of their respective shares of Common Stock at any time.  One or more of such transfers could have the effect of transferring effective control of the Company, including to one or more parties not currently known to the Company.

 

A significant amount of our Common Stock is subject to registration rights, and the registration and sale of such shares could negatively affect the market price of our Common Stock and impair our ability to obtain financing.

 

Approximately 4.3 million shares of outstanding Common Stock issued by the Company are subject to “piggyback” registration rights granted by the Company, pursuant to which such shares of Common Stock may be registered under the Securities Act and, as a result, become freely tradable in the future.  The Company will be required to pay all expenses relating to any such registration, other than underwriting discounts, selling commissions and stock transfer taxes applicable to the shares, and any other fees and expenses incurred by the holder(s) of the shares (including, without limitation, legal fees and expenses) in connection with the registration.  All or a portion of such shares may, at the election of the holders thereof, be included in a future registration statement of the Company and, upon the effectiveness thereof, may be sold in the public markets.

 

No prediction can be made as to the effect, if any, that future sales of shares of Common Stock will have on the market price of the Common Stock prevailing from time to time.  Sales of substantial amounts of Common Stock, or the perception that these sales could occur, could adversely affect prevailing market prices for the Common Stock and could impair the ability of the Company to raise additional capital through the sale of its equity securities or through debt financing.

 

Our Certificate of Incorporation authorizes us to issue preferred stock, and the rights of holders of Common Stock may be adversely affected by the rights of holders of any such preferred stock.

 

The Company’s Certificate of Incorporation authorizes the issuance of up to 50,000 shares of “blank check” preferred stock with such designations, rights and preferences as may be determined from time to time by the Board of Directors of the Company.  The Company may issue such shares of preferred stock in the future without shareholder approval.  The rights of the holders of Common Stock will be subject to, and may be adversely affected by, the rights of the holders of any preferred stock that may be issued in the future.  The issuance of preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, could have the effect of discouraging, delaying or preventing a change of control of the Company, and preventing holders of Common Stock from realizing a premium on their shares.  In addition, under Section 203 of the Delaware General Corporation Law (the “DGCL”), the Company is prohibited from engaging in any business combination (as defined in the DGCL) with any interested shareholder (as defined in the DGCL) unless certain conditions are met.  This statutory provision could also have an anti-takeover effect.

 

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Item 2.  Properties

 

The Company owns a 140,000 square foot manufacturing facility located on 15 acres of land in Bluffton, Indiana, approximately 20 miles south of Ft. Wayne, Indiana.  The facility is financed by a mortgage with U.S. Bank National Association that matures in December, 2016.  The Company produces its T.G.I. Friday’s® brand snacks, BURGER KING TM brand snacks and Tato Skins® brand potato snacks at the Bluffton, Indiana facility.

 

The Company owns a 60,000 square foot manufacturing facility located on 7.7 acres of land in Goodyear, Arizona, approximately 15 miles west of Phoenix, Arizona.  The facility is financed by a mortgage with Morgan Guaranty Trust Company of New York that matures in June 2012.  The Company produces its Poore Brothers®, Bob’s Texas Style® and Boulder CanyonTM Natural Foods  brand potato chips, as well as its private label potato chips, at the Goodyear, Arizona facility.

 

The Company owns a farming, processing and storage facility located on 696 acres of land in Lynden, Washington, which is leased from the Uptrails Group LLC, owned by four members of the Rader family.  One of the four, Brad Rader, is a current employee of the Company and two of the others, Lyle and Sue Rader, were the former owners of Rader Farms.  This lease commenced on the acquisition date and is effect until May 17, 2017.  Lease payments are $43,500 per month throughout the term of the lease.

 

The Company also leases one-half of a 200,000 square foot facility in Bluffton, Indiana which is used as a distribution center.  The Company has entered into a lease, the initial term expiring in November 2006, with respect to the facility and has entered into the second of two three-year renewal options.  Current lease payments are approximately $32,500 per month.

 

The Company also leases approximately 15,500 square feet of warehouse space in Phoenix, Arizona, which is used as a distribution center.  The lease expires March 31, 2013 and current lease payments are approximately $7,700 per month.

 

The Company is responsible for all insurance costs, utilities and real estate taxes in connection with its facilities. The Company believes that its facilities are adequately covered by insurance.

 

Item 3.  Legal Proceedings

 

The Company is periodically a party to various lawsuits arising in the ordinary course of business.  Management believes, based on discussions with legal counsel, that the resolution of such lawsuits, individually and in the aggregate, will not have a material adverse effect on the Company’s financial position or results of operations.

 

The Company was one of eight companies sued by the Environmental Law Foundation in August, 2006 in the Superior Court for the State of California for the County of Los Angeles by the Attorney General of the State of California for alleged violations of California Proposition 65.  California Proposition 65 is a state law that, in part, requires companies to warn California residents if a product contains chemicals listed within the statute. The matter was resolved in March 2009, at which time the Company incurred a settlement liability of $0.2 million.

 

PART II

 

Item 5.  Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

 

The Company’s Common Stock is traded on the Nasdaq Capital Market tier of the Nasdaq Stock Market under the symbol “SNAK.”  There were approximately 200 shareholders of record on March 26, 2010.  The Company believes the number of beneficial owners is substantially greater than the number of record holders because a large portion of the Common Stock is held of record in broker “street names.”

 

The Company has never declared or paid any dividends on the shares of Common Stock.  Management intends to retain any future earnings for the operation and expansion of the Company’s business and does not anticipate paying any dividends at any time in the foreseeable future.  Additionally, certain debt agreements of the Company limit the Company’s ability to declare and pay dividends.

 

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The following table sets forth the range of high and low sale prices of the Company’s Common Stock as reported on the Nasdaq Capital Market for each quarter of the fiscal years ended December 26, 2009 and December 27, 2008.

 

 

 

Sales Prices

 

Period of Quotation

 

High

 

Low

 

Fiscal 2008:

 

 

 

 

 

First Quarter

 

$

2.23

 

$

1.70

 

Second Quarter

 

$

2.03

 

$

1.66

 

Third Quarter

 

$

2.13

 

$

1.59

 

Fourth Quarter

 

$

1.95

 

$

1.21

 

Fiscal 2009:

 

 

 

 

 

First Quarter

 

$

1.97

 

$

1.17

 

Second Quarter

 

$

2.58

 

$

1.31

 

Third Quarter

 

$

3.03

 

$

2.18

 

Fourth Quarter

 

$

2.91

 

$

2.29

 

 

The information appearing under the heading “Securities Authorized for Issuance under Equity Compensation Plans” in the Company’s 2010 Proxy Statement is incorporated by reference in this section.

 

See Note 8 to our Financial Statements in this annual report for a summary of treasury stock repurchases and retirements executed in 2009 and 2008.

 

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

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”) should be read in conjunction with the other sections of this Annual Report on Form 10-K, including “Item 1.:  Business” and “Item 8.:  Financial Statements and Supplementary Data.”  The various sections of this MD&A contain a number of forward-looking statements, all of which are based on our current expectations and could be affected by the uncertainties and risk factors described throughout this filing and particularly in “Item 1A.: Risk Factors.”  Accordingly, the Company’s actual future results may differ materially from historical results or those currently anticipated.

 

Overview

 

The Company’s net revenue increased 7.0% in fiscal 2009.  Net revenues from sales of T.G.I. Friday’s® snack products, which comprised 33% of total net revenues, increased 5.9% partially due to new T.G.I. Friday’s® branded products.  Key revenue growth drivers also included Boulder CanyonTM Natural Foods brand kettle cooked chips, which increased 15.0%, and private label snacks growth of 89.7%.  Rader Farms berry products net revenues increased 5.5% despite an exceptional industry-wide 2009 harvest placing substantial downward pressure on the wholesale price of berries.  Net revenues from potato chips and other snacks increased 9.7% in 2009.  The table below highlights the changes between years:

 

Net Revenues Comparison

($ in millions)

 

 

 

2009

 

2008

 

% Change

 

T.G.I. Friday’s®

 

$

39.7

 

$

37.5

 

5.9

%

Potato Chips and Other Snacks

 

40.8

 

37.2

 

9.7

%

Rader Farms Berry Products

 

40.5

 

38.4

 

5.5

%

Total

 

$

121.0

 

$

113.1

 

7.0

%

 

In connection with the implementation of the Company’s business strategy, the Company is likely to require future debt or equity financings (particularly in connection with future strategic acquisitions).  Expenditures stemming from acquisition-related integration costs, trade and consumer marketing programs and new product development may adversely affect operating expenses and consequently may adversely affect operating and net income.

 

Key Trends

 

Retailer Consolidation

 

The retail food environment continues to be influenced by consolidation as fewer large retailers, including Kroger, Safeway and Wal*Mart, are gaining a larger share of the grocery retail environment.  These retailers are also consolidating their regional buying operations into singular national operations to improve efficiency.  This action creates opportunities for the Company because brands like T.G.I. Friday’s® and BURGER KING TM  brand snack products are niche brands that can be sold effectively on a national basis.

 

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Consumer Trends

 

The snack industry has been heavily influenced in the past five years by a proliferation of new flavors and health focused snacks, with a rapid increase in the number of low-fat, low-carb and all-natural and organic products.  Mainstream retailers such as Safeway have now created standalone natural and organic sections in their stores.  The Company believes this trend for healthier snacks will continue and will provide opportunities for its Rader Farms® and Boulder CanyonTM products to experience revenue growth.  Also, given the current economic environment, more consumers are moving towards the discount channel, which continues to be an opportunity for the Company.

 

Results of Operations

 

The following discussion summarizes the significant factors affecting the consolidated operating results, financial condition, liquidity and capital resources of the Company.  This discussion should be read in conjunction with “Item 8.: Financial Statements and Supplementary Data” and the “Cautionary Statement Regarding Forward-Looking Statements” on page 3.

 

Year ended December 26, 2009 compared to the year ended December 27, 2008

 

 

 

2009

 

2008

 

Difference

 

(dollars in millions)

 

$

 

% of Rev

 

$

 

% of Rev

 

$

 

%

 

Net revenues

 

$

121.0

 

100.0

%

$

113.1

 

100.0

%

$

7.9

 

7.0

%

Cost of revenues

 

97.2

 

80.3

 

90.9

 

80.4

 

6.3

 

6.9

 

Gross profit

 

23.8

 

19.7

 

22.2

 

19.6

 

1.6

 

7.3

 

Selling, general and administrative expenses

 

16.7

 

13.8

 

16.8

 

14.9

 

(0.1

)

(0.6

)

Operating income

 

7.1

 

5.9

 

5.4

 

4.7

 

1.7

 

31.5

 

Interest expense, net

 

0.9

 

0.7

 

1.3

 

1.1

 

(0.4

)

(30.8

)

Income before income taxes

 

6.2

 

5.1

 

4.1

 

3.6

 

2.1

 

51.2

 

Income tax provision

 

2.4

 

2.0

 

1.7

 

1.5

 

0.7

 

41.2

 

Net income

 

$

3.8

 

3.1

%

$

2.4

 

2.1

%

$

1.4

 

59.6

%

 

For the fiscal year ended December 26, 2009, net revenues increased 7.0%, or $7.9 million, to $121.0 million compared with net revenues of $113.1 million for the previous fiscal year.  The increase in net revenues were attributable to a number of factors, including a 15.0% increase in Boulder CanyonTM Natural Foods  brand kettle cooked chips, an increase of 5.9% in T.G.I. Friday’s® brand of snacks, an increase of 89.7% in Private Label snacks which reflects the Company’s strategy of moving into premium private label snack products to utilize the capacity we have at the Indiana plant and an increase of 5.5% in Rader Farms berries despite a double-digit price decline as a result of market pricing pressures due to the exceptional 2009 harvest for most of the industry.

 

Gross profit for 2009 increased $1.6 million or 7.3% to $23.8 million, and increased as a percentage of net revenues to 19.7% as compared to 19.6% in 2008.  The increase in both gross profit dollars and margin was achieved without the benefit of any price increases and with the aforementioned Rader Farms price reduction in the fourth quarter.

 

Selling, general and administrative expenses were $16.7 million or 13.8% of net revenues for the year, which is relatively flat in dollars versus 2008, but down 1.1 percentage points from 14.9% of net revenue last year.  The improvement represents the Company’s ability to drive top-line growth while containing costs.

 

The Company’s effective income tax expense rate was 39.0% in 2009 compared to 42.1% in 2008.  The change in the effective rate is due to differences in non-deductible expenses, primarily stock based compensation related to individual stock option grants.  During 2009, the Company utilized the remaining $0.6 million in net operating losses.

 

Net income for 2009 was $3.8 million, representing a $1.4 million or 59.6% increase when compared to $2.4 million for 2008.   The net income for 2009 equated to $0.21 per basic and diluted share, compared with $0.13 per basic and diluted share in 2008.

 

Liquidity and Capital Resources

 

Net working capital was $8.0 million (a current ratio of 1.3:1) and $4.5 million (a current ratio of 1.2:1) at December 26, 2009 and December 27, 2008, respectively.  For the fiscal year ended December 26, 2009, operating activities provided $3.0 million, primarily as a result of our generation of net income partially offset by changes in working capital of $5.3 million, primarily due to increases in inventory. Investing activities utilized $2.6 million for the purchase of fixed assets.  Financing activities were relatively flat as a result of additional borrowings on our line of credit, offset by principal payments on debt and purchases of treasury stock.

 

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For the fiscal year ended December 27, 2008, operating activities provided $5.4 million, primarily as a result of our generation of net income in fiscal year 2008, compared to a net loss in 2007, and an increase in accounts payable and accrued liabilities of $1.9 million.  Investing activities utilized $3.9 million, primarily due to the purchase of fixed assets.  Financing activities utilized $1.3 million, largely due to the Company’s payments towards debt borrowings and purchases of treasury stock.

 

The Company’s Goodyear, Arizona manufacturing and distribution facility is subject to a $1.5 million mortgage loan from Morgan Guaranty Trust Company of New York, which bears interest at 9.03% per annum and is secured by the building and the land on which it is located. The loan matures on July 1, 2012; however monthly principal and interest installments of $16,825 are determined based on a twenty-year amortization period.

 

The Company’s Bluffton, Indiana manufacturing and distribution facility was purchased for $3.0 million in December, 2006. The facility is subject to a $2.2 million mortgage loan from U.S. Bank National Association, (“U.S. Bank”), which bears interest at the 30 day LIBOR plus 165 basis points and is secured by the building and the land on which it is located. The interest rate associated with this debt instrument was fixed to 6.85% via an interest rate swap agreement with U.S. Bank in December 2006.  The loan matures in December, 2016; however monthly principal and interest installments of $18,392 are determined based on a twenty-year amortization period.

 

To fund the acquisition of Rader Farms the Company entered into a Loan Agreement (the “Loan Agreement”) with U.S. Bank. Each of our subsidiaries is a guarantor of the Loan Agreement, which is secured by a pledge of all of the assets of our consolidated group. The borrowing capacity available to us under the Loan Agreement consists of notes representing:

 

·          a $15,000,000 revolving line of credit maturing on June 30, 2011; based on asset eligibility, there was $5.1 million of borrowing availability under the line of credit at December 26, 2009.

·          an equipment term loan, secured by the equipment acquired, subject to a $3.9 million mortgage loan from U.S. Bank, bears interest at the 30 day LIBOR plus 165 basis points. The loan matures in May, 2014 and monthly principal installments are $71,429 plus interest and

·          a real estate term loan, secured by a leasehold interest in the real property we are leasing from the former owners of Rader Farms in connection with the Acquisition, subject to a $3.6 million real estate term loan from U.S. Bank, bears interest at the 30 day LIBOR plus 165 basis points. The interest rate associated with this debt instrument was fixed to 4.28% via an interest rate swap agreement with U.S. Bank in January 2008. The loan matures in July, 2017; however monthly principal and interest installments of $36,357 are determined based on a fifteen-year amortization period.

 

The Company believes that its current financing arrangement with U.S. Bank will provide adequate ability to finance future capital expenditures. We anticipate 2010 capital expenditures of approximately $5.0 million, funded through working capital and various purchase or leasing arrangements. Our plans are not expected to materially affect our financial ratios or liquidity.

 

All borrowings under the revolving line of credit will bear interest at either (i) the prime rate of interest announced by U.S. Bank from time to time or (ii) LIBOR, plus the LIBOR Rate Margin (as defined in the revolving credit facility note). The term loan will bear interest at LIBOR, plus the LIBOR Rate Margin (as defined in the term loan note).

 

As is customary in such financings, U.S. Bank may terminate its commitments and accelerate the repayment of amounts outstanding and exercise other remedies upon the occurrence of an event of default (as defined in the Loan Agreement), subject, in certain instances, to the expiration of an applicable cure period. The agreement requires the Company to maintain compliance with certain financial covenants, including a minimum tangible net worth, a minimum fixed charge coverage ratio and a leverage ratio. At December 26, 2009, the Company was in compliance with all of the financial covenants.

 

Off-Balance Sheet Arrangements

 

Under SEC regulations, in certain circumstances, the Company is required to make certain disclosures regarding the following off-balance sheet arrangements, if material:

 

·          Any obligation under certain guarantee contracts;

·          Any retained or contingent interest in assets transferred to an unconsolidated entity or similar arrangement that serves as credit, liquidity or market risk support to that entity for such assets;

·          Any obligation under certain derivative instruments; and

·          Any obligation arising out of a material variable interest held by us in an unconsolidated entity that provides financing, liquidity, market risk or credit risk support to us, or engages in leasing, hedging or research and development services with us.

 

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The Company does not have any off-balance sheet arrangements that are required to be disclosed pursuant to these regulations, other than those described in the Notes to Consolidated Financial Statements.  The Company does not have, nor does it engage in, transactions with any special purpose entities.  Other than an interest rate swap, the Company is not engaged in any derivative activities and had no forward exchange contracts outstanding at December 26, 2009.  In the ordinary course of business, the Company enters into operating lease commitments, purchase commitments and other contractual obligations.  These transactions are recognized in our financial statements in accordance with generally accepted accounting principles in the United States, and are more fully discussed below.

 

Management’s Plans

 

In connection with the implementation of the Company’s business strategy, the Company may incur operating losses in the future and may require future debt or equity financings (particularly in connection with future strategic acquisitions, new brand introductions or capital expenditures).  Expenditures relating to acquisition-related integration costs, market and territory expansion and new product development and introduction may adversely affect promotional and operating expenses and consequently may adversely affect operating and net income.  These types of expenditures are expensed for accounting purposes as incurred, while revenue generated from the result of such expansion or new products may benefit future periods.  Management believes that the Company will generate positive cash flow from operations during the next twelve months, which, along with its existing working capital and borrowing facilities, will enable the Company to meet its operating cash requirements for the next twelve months.  The belief is based on current operating plans and certain assumptions, including those relating to the Company’s future revenue levels and expenditures, industry and general economic conditions and other conditions. For instance, if current general economic conditions continue or worsen, we believe that our sales forecasts may prove to be less reliable than they have in the past as consumers may change their buying habits with respect to snack food products. Unexpected price increases for commodities used in our snack products, or adverse weather conditions affecting our Rader Farms crop yield could also impact our financial condition.  If any of these factors change, the Company may require future debt or equity financings to meet its business requirements. There can be no assurance that any required financings will be available or, if available, will be on terms attractive to the Company.

 

Critical Accounting Policies and Estimates

 

The Securities and Exchange Commission indicated that a “critical accounting policy” is one which is both important to the portrayal of the Company’s financial condition and results and requires management’s most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain.  The Company believes that the following accounting policies fit this definition:

 

Allowance for Doubtful Accounts.  The Company maintains an allowance for doubtful accounts for estimated losses resulting from the inability of its customers to make required payments.  If the financial condition of the Company’s customers were to deteriorate, resulting in an impairment of their ability to make payments, additional allowances may be required.  We record specific allowances for receivable balances that are considered at higher risk due to known facts regarding the customer.

 

Inventories.   The Company’s inventories are stated at the lower of cost (first-in, first-out) or market.  The Company identifies slow moving or obsolete inventories and estimates appropriate loss provisions related thereto.  If actual market conditions are less favorable than those projected by management, additional inventory write-downs may be required.

 

Goodwill and Trademarks.   Goodwill and trademarks are reviewed for impairment annually, or more frequently if impairment indicators arise.  Goodwill is required to be tested for impairment between the annual tests if an event occurs or circumstances change that more-likely-than-not reduce the fair value of a reporting unit below its carrying value.  Intangible assets with indefinite lives are required to be tested for impairment between the annual tests if an event occurs or circumstances change indicating that the asset might be impaired.  During 2007, the Company determined the carrying values of two trademarks were impaired following the completion of a discounted cash flow analysis and recorded a $2.7 million charge as a result.  In 2009 and 2008, the Company conducted a similar analysis, and believes the carrying values of its trademarks are appropriate.

 

Management believes that each of our trademarks has the continued ability to generate cash flows indefinitely, and therefore each of our trademarks has been determined to have an indefinite life.  Management’s determination that these trademarks have indefinite lives includes an evaluation of historical cash flows and projected cash flows for each of these trademarks. The Company continues making investments to market and promote each of these brands, and management continues to believe that the market opportunities and brand extension opportunities will generate cash flows for an indefinite period of time. In addition, there are no legal, regulatory, contractual, economic or other factors to limit the useful life of these trademarks, and management intends to renew each of these trademarks, which can be accomplished at little cost.

 

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Advertising and Promotional Expenses and Trade Spending.  The Company expenses production costs of advertising the first time the advertising takes place, except for cooperative advertising costs which are expensed when the related sales are recognized.  Costs associated with obtaining shelf space (i.e., “slotting fees”) are accounted for as a reduction of revenue in the period in which such costs are incurred by the Company.  Anytime the Company offers consideration (cash or credit) as a trade advertising or promotional allowance to a purchaser of products at any point along the distribution chain, the amount is accrued and recorded as a reduction in revenue.  Marketing programs that deal directly with the consumer, primarily consisting of in-store demonstrations/samples, are recorded as a marketing expense in selling, general and administrative expenses.  Further discussion of these marketing programs is expanded upon below:

 

·      Demonstrations/Samples :   The Company periodically arranges in-store product demonstrations with club stores (i.e. Sam’s, Costco or BJ’s) or grocery retailers.  Product demonstrations are conducted by independent third party providers designated by the various retailer or club chains.  During the in-store demonstrations the consumers in the stores receive small samples of our products, and consumers are not required to purchase our product in order to receive the sample. The cost of product used in the demonstrations, which is insignificant, and the fee we pay to the independent third party providers who conduct the in-store demonstrations are recorded as a sales and marketing expense in selling, general and administrative expenses.

 

·      Sponsorship :   The Company is a national co-sponsor of American Rivers, a leading conservation organization protecting and restoring America’s rivers.  The Company donates a portion of each Boulder Canyon bag sold and is allowed to use the American Rivers mark on packaging and printed materials as well as directly promote products to members and river cleanup volunteers.

 

Income Taxes.   We estimate valuation allowances on deferred tax assets for the portions that we do not believe will be fully utilized based on projected earnings and usage.  Our effective tax rate is based on the level and mix of income of our separate legal entities, statutory tax rates and tax planning opportunities available in the various jurisdictions in which we operate.  Significant judgment is required in evaluating tax positions that affect the annual tax rate.  Unrecognized tax benefits for uncertain tax positions are established when, despite the fact that the tax return positions are supportable, we believe these positions may be challenged and the results are uncertain.  We adjust these liabilities in light of changing facts and circumstances.

 

Revenue Recognition.   In accordance with accounting principles generally accepted in the United States, the Company recognizes operating revenues upon shipment of products to customers provided title and risk of loss pass to its customers. In those instances where title and risk of loss does not pass until delivery, revenue recognition is deferred until delivery has occurred.  Revenue for products sold through our direct store delivery distributed product segment is recognized when the product is received by the retailer.  Provisions and allowances for sales returns, promotional allowances and discounts are also recorded as a reduction of revenues in the Company’s consolidated financial statements.  These allowances are estimated based on a percentage of sales returns using historical and current market information.

 

Stock-Based Compensation We account for our stock options under the fair value method of accounting using a Black-Scholes valuation model to measure stock option fair values at the date of grant. Prior to May 2008, all stock option grants had a five year term. The fair value of these stock option grants is amortized to expense over the vesting period, generally three years for employees and one year for the Board of Directors.  In May 2008, the Company’s Board of Directors approved a ten year term for all future employee stock option grants and a five year term for Board of Directors stock option grants. The stock option grants have vesting periods of five years and one year for employees and Board of Director members, respectively.

 

The above listing is not intended to be a comprehensive list of all of the Company’s accounting policies.  In many cases the accounting treatment of a particular transaction is specifically dictated by generally accepted accounting principles, with no need for management’s judgment in their application.  See the Company’s audited financial statements and notes thereto included in this Annual Report on Form 10-K which contain accounting policies and other disclosures required by accounting principles generally accepted in the United States.

 

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Item 8.    Financial Statements and Supplementary Data

 

Report of Independent Registered Public Accounting Firm

27

Consolidated balance sheets as of December 26, 2009 and December 27, 2008

28

Consolidated statements of operations for the years ended December 26, 2009, and December 27, 2008

29

Consolidated statements of shareholders’ equity for the years ended December 26, 2009, and December 27, 2008

30

Consolidated statements of cash flows for the years ended December 26, 2009, and December 27, 2008

31

Notes to consolidated financial statements

32

 

Item 9.        Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

None.

 

Item 9A(T).           Controls and Procedures.

 

Disclosure Controls and Procedures

 

The Company’s management, with the participation of the Company’s Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by this report.  Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures as of the end of the period covered by this report have been designed and are functioning effectively to provide reasonable assurance that the information required to be disclosed by the Company in reports filed under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time period specified in the SEC’s rules and forms.

 

The Company’s Chief Executive Officer and Chief Financial Officer do not expect that the Company’s internal controls will prevent all errors and all fraud.  A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met.  Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of internal controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected.  Also, projections of any evaluation of effectiveness to future periods are subject to the risk that internal controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

Management’s Report on Internal Control over Financial Reporting

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Our internal control over financial reporting includes those policies and procedures that:

 

(i)

pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;

 

(ii)

provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of our management and directors; and

 

(iii)

provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of assets that could have a material effect on the financial statements.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect all misstatements or instances of fraud.  As such, a control system, no matter how well conceived and operated, can provide only reasonable assurance that the objectives of the control system are met.  Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

Management assessed the effectiveness of internal control over financial reporting as of December 26, 2009. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework. Based on our assessment and those criteria, management believes that we maintained effective internal control over financial reporting as of December 26, 2009.

 

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This Annual Report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting.  Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this Annual Report.

 

Changes in Internal Control Over Financial Reporting

 

No change occurred in our internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) during the three months ended December 26, 2009 that has materially affected, or is reasonably likely to materially affect our internal control over financial reporting.

 

Item 9B.     Other Information.

 

None.

 

PART III

 

Item 10.     Directors, Executive Officers and Corporate Governance

 

Code of Ethics

 

Each of the Company’s directors, officers and employees are required to comply with The Inventure Group, Inc. Code of Business Conduct and Ethics adopted by the Company.  The Code of Business Conduct and Ethics sets forth policies covering a broad range of subjects and requires strict adherence to laws and regulations applicable to the Company’s business.  The Company has also adopted a Financial Code of Ethics for its Chief Executive Officer, Chief Financial Officer and all other finance managers.  The Financial Code of Ethics supplements the Code of Business Conduct and Ethics and is intended to emphasize the importance of honest and ethical conduct in connection with the Company’s financial reporting obligations.  The Code of Business Conduct and Ethics and the Financial Code of Ethics are available on the Company’s website at www.inventuregroup.net, under the “Investors-Governance” captions.  Copies of these Codes may also be obtained, without charge, by any shareholder upon written request directed to the Secretary of the Company at 5050 N. 40 th  St. Suite #300, Phoenix, Arizona 85018.  The Company will post to its website any amendments to these Codes, or waiver from the provisions thereof, applicable to the Company’s directors or any principal executive officer, principal financial officer principal accounting officer or controller, or any person performing similar functions under an “Investors-Governance-Code of Business Conduct-Waivers” caption.

 

The information regarding Directors and Executive Officers appearing under the headings “Proposal 1: Election of Directors,” “Executive Officers,” “Meetings and Committees of the Board of Directors” and “Section 16(a) Beneficial Ownership Reporting Compliance” of the Company’s 2010 Proxy Statement is incorporated by reference in this section.

 

Item 11.     Executive Compensation

 

The information appearing under the headings “Director Compensation,” “Employment Agreements,” “Compensation Committee Report on Executive Compensation” and “Executive Officer Compensation” of the Company’s 2010 Proxy Statement is incorporated by reference in this section.

 

Item 12.     Security Ownership of Beneficial Owners and Management and Related Stockholder Matters

 

The information appearing under the headings “Security Ownership of Certain Beneficial Owners and Management” and “Securities Authorized for Issuance Under Equity Compensation Plans” of the Company’s 2010 Proxy Statement is incorporated by reference in this section.

 

Item 13.     Certain Relationships and Related Transactions, and Director Independence

 

The information appearing under the heading “Meetings and Committees of the Board of Directors” and “Certain Relationships and Related Transactions” of the Company’s 2010 Proxy Statement is incorporated by reference in this section.

 

Item 14.     Principal Accounting Fees and Services

 

Information appearing under the heading “Independent Auditors” of the Company’s 2010 Proxy Statement is incorporated by reference in this section.

 

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PART IV

 

Item 15.         Exhibits and Financial Statement Schedules:

 

The following documents are filed as part of this Annual Report on Form 10-K

 

1.               Financial Statements

 

Reports of Independent Registered Public Accounting Firms

Consolidated balance sheets as of December 26, 2009 and December 27, 2008

Consolidated statements of operations for the years ended December 26, 2009 and December 27, 2008

Consolidated statements of shareholders’ equity and comprehensive income for the years ended December 26, 2009 and December 27, 2008

Consolidated statements of cash flows for the years ended December 26, 2009 and December 27, 2008

Notes to consolidated financial statements

 

2.               Financial Schedules

 

Schedules have been omitted because of the absence of conditions under which they are required or because the information required is included in the Company’s consolidated financial statements or notes thereto.

 

3.               Exhibits required by Item 601 of Regulation S-K:

 

Exhibit
Number

 

 

Description

3.1

 

Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on February 23, 1995. (1)

3.2

 

Certificate of Amendment to the Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on March 3, 1995. (1)

3.3

 

Certificate of Amendment to the Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on October 7, 1999. (1)

3.4

 

By-Laws of the Company (as amended and restated on January 11, 2005). (2)

3.5

 

Certificate of Amendment to the Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on May 24, 2006. (1)

4.1

 

Specimen Certificate for shares of Common Stock. (3)

10.10

 

Fixed Rate Note dated June 4, 1997, by and between La Cometa Properties, Inc. and Morgan Guaranty Trust Company of New York. (4)

10.11

 

Deed of Trust and Security Agreement dated June 4, 1997, by and between La Cometa Properties, Inc. and Morgan Guaranty Trust Company of New York. (4)

10.12

 

Guaranty Agreement dated June 4, 1997, by and between the Company and Morgan Guaranty Trust Company of New York. (4)

10.13

 

Agreement for Purchase and Sale of Limited Liability Company Membership Interests dated as of August 16, 1999, by and between Pate Foods Corporation, Wabash Foods and the Company. (5)

10.18

 

Commercial Lease, dated May 1, 1998, by and between Wabash Foods, LLC and American Pacific Financial Corporation. (6)

10.23

 

License Agreement, dated April 3, 2000, by and between the Company and T.G.I. Friday’s Inc. (Certain portions of this exhibit have been omitted pursuant to a confidential treatment request filed with the Securities and Exchange Commission.) (7)

10.25

 

First Amendment to License Agreement, dated as of July 11, 2001, by and between the Company and T.G.I. Friday’s Inc. (certain portions of this exhibit have been omitted pursuant to a confidentiality treatment request filed with the Securities and Exchange Commission.) (8)

10.33

 

Commercial Lease Agreement, dated May 22, 2003, by and between the Company and Westland Park LLC (9)

10.34

 

Warehouse Services Agreement, dated June 30, 2003, by and between the Company and Customized Distribution Services, Inc. (9)

10.37 *

 

Form of Officer Nonstatutory Stock Option Agreement. (10)

10.40

 

Loan Agreement (Revolving Line of Credit Loan and Term Loan) dated August 19, 2005 between the Company and U.S. Bank National Association. (11)

10.41

 

Security Agreement relating to the Loan Agreement dated August 19, 2005 between the Company and U.S. Bank National Association. (11)

10.42

 

$5 Million Promissory Note (Facility 1 - Revolving Line of Credit Loan) dated August 19, 2005 between the Company and U.S. Bank National Association. (11)

10.43

 

$756,603 Promissory Note (Facility 2 — Term Loan) dated August 19, 2005 between the Company and U.S. Bank National Association. (11)

10.44*

 

Executive Employment Agreement dated August 1, 2005 between the Company and Steven Sklar. (11)

 

23



Table of Contents

 

10.45*

 

Restricted Stock Agreement dated August 1, 2005 between the Company and Steven Sklar. (11)

10.49*

 

Poore Brothers, Inc. Amended and Restated 2005 Equity Incentive Plan. (12)

10.50*

 

Form of Director Nonstatutory Stock Option Agreement — Amended and Restated 2005 Equity Incentive Plan. (13)

10.51*

 

Form of Employee Incentive Stock Option Agreement — Amended and Restated 2005 Equity Incentive Plan. (13)

10.52*

 

Executive Employment Agreement by and between Poore Brothers, Inc. and Eric J. Kufel, dated as of February 14, 2006. (14)

10.53*

 

Executive Employment Agreement by and between Poore Brothers, Inc. and Terry McDaniel, dated as of April 17, 2006. (15)

10.54

 

Commercial Lease Agreement, dated May 8, 2006, by and between the Company and B.G. Associates, Inc. (16)

10.57*

 

Executive Employment Agreement by and between the Company and Steve Weinberger, dated as of July 27, 2006. (17)

10.58*

 

 

The Inventure Group, Inc. Deferred Compensation Plan. (18)

10.59

 

 

Asset Purchase Agreement dated as of May 17, 2007, by and among Rader Farms Acquisition Corp., Rader Farms, Inc. and the Company Shareholders named therein. (19)

10.60

 

 

Agricultural Ground Lease dated as of May 17, 2007, by and among Lyle Rader, Sue Rader, Brad Rader, Julie Newell and Rader Farms Acquisition Corp. (19)

10.61

 

 

Loan Agreement (Revolving Line of Credit and Term Loan) dated as of May 16, 2007, by and between The Inventure Group, Inc. and U.S. Bank, National Association. (19)

10.62

 

 

Promissory Note (Facility 1 — Revolving Line of Credit Loan) dated May 16, 2007, by The Inventure Group, Inc. in favor of U.S. Bank, National Association. (19)

10.63

 

 

Promissory Note (Facility 2 — Term Loan) dated May 16, 2007, by The Inventure Group, Inc. in favor of U.S. Bank, National Association. (19)

10.64

 

 

Security Agreement (Blanket — All Business Assets) dated as of May 16, 2007, by and among between The Inventure Group, Inc., La Cometa Properties, Inc., Poore Brothers Bluffton, LLC, Tejas PB Distributing, Inc., Boulder Natural Foods, Inc., BN Foods, Inc., Rader Farms Acquisition Corp. and U.S. Bank, National Association. (19)

10.65

 

 

Term Loan Agreement dated as of June 28, 2007, by and between The Inventure Group, Inc. and U.S. Bank, National Association. (19)

10.66

 

 

Promissory Note Secured by Deed of Trust (Term Loan) dated June 28, 2007, by The Inventure Group, Inc. in favor of U.S. Bank, National Association. (19)

10.67

 

 

Deed of Trust dated June 28, 2007, by and between Rader Farms Acquisition Corp. and U.S. Bank National Association. (19)

10.68*

 

 

Letter Agreement effective as of May 19, 2008, by and between the Company and Eric J. Kufel. (20)

10.69*

 

 

Form of Employee Restricted Stock Award Agreement — Amended and Restated 2005 Equity Incentive Plan. (21)

 

 

 

 

21.1

 

List of Subsidiaries of the Company. (22)

23.1

 

Consent of Moss Adams LLP (23)

31.1

 

Certification of Chief Executive Officer pursuant to Rule 13a-14(a) or Rule 15(d)-14(a). (23)

31.2

 

Certification of Chief Financial Officer pursuant to Rule 13a-14(a) or Rule 15(d)-14(a) (23)

32

 

Certification of Chief Executive Officer and Chief Financial Officer pursuant to Rule 13a-14(b) and 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (23)

 


 *

 

Management compensatory plan or arrangement.

 

(1)

 

Incorporated by reference to the Company’s Current Report on Form 8-K filed on May 23, 2006.

(2)

 

Incorporated by reference to the Company’s Current Report on Form 8-K filed on January 12, 2005.

(3)

 

Incorporated by reference to the Company’s Registration Statement on Form SB-2, Registration No. 333-5594-LA.

(4)

 

Incorporated by reference to the Company’s Quarterly Report on Form 10-QSB for the quarter ended June 30, 1997.

(5)

 

Incorporated by reference to the Company’s definitive Proxy Statement on Schedule 14A filed with the Commission on September 19, 1999.

(6)

 

Incorporated by reference to the Company’s Annual Report on Form 10-KSB for the year ended December 31, 1999.

(7)

 

Incorporated by reference to the Company’s Quarterly Report on Form 10-QSB for the quarter ended March 31, 2001.

(8)

 

Incorporated by reference to the Company’s Quarterly Report on Form 10-QSB for the quarter ended September 30, 2001.

(9)

 

Incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 27, 2003.

(10)

 

Incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 25, 2004.

(11)

 

Incorporated by reference to the to the Company’s Quarterly Report on 10-Q for the quarter ended October 1, 2005.

(12)

 

Incorporated by reference to the Company’s definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on April 18, 2008.

(13)

 

Incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005.

(14)

 

Incorporated by reference to the Company’s Current Report on Form 8-K/A filed on February 16, 2006.

 

24



Table of Contents

 

(15)

 

Incorporated by reference to the Company’s Current Report on Form 8-K filed on April 17, 2006.

(16)

 

Incorporated by reference to the Company’s Quarterly Report on 10-Q for the quarter ended April 1, 2006.

(17)

 

Incorporated by reference to the Company’s Current Report on Form 8-K field on July 27, 2006.

(18)

 

Incorporated by reference to the Company’s Current Report on Form 8-K as filed on January 23, 2007.

(19)

 

Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2007.

(20)

 

Incorporated by reference to the Company’s Current Report on Form 8-K filed on May 9, 2008.

(21)

 

Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 27, 2009.

(22)

 

Incorporated by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 29, 2007.

(23)

 

Filed herewith.

 

25



Table of Contents

 

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.

 

Dated:      March 26, 2010

THE INVENTURE GROUP, INC.

 

 

 

 

By:

/s/ Terry McDaniel

 

 

Terry McDaniel

 

 

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, in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Terry McDaniel

 

Chief Executive Officer and Director

 

March 26, 2010

Terry McDaniel

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Steve Weinberger

 

Chief Financial Officer, Secretary & Treasurer

 

March 26, 2010

Steve Weinberger

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ Larry R. Polhill

 

Chairman and Director

 

March 26, 2010

Larry R. Polhill

 

 

 

 

 

 

 

 

 

/s/ Ashton D. Asensio

 

Director

 

March 26, 2010

Ashton D. Asensio

 

 

 

 

 

 

 

 

 

/s/ Mark S. Howells

 

Director

 

March 26, 2010

Mark S. Howells

 

 

 

 

 

 

 

 

 

/s/ Macon Bryce Edmonson

 

Director

 

March 26, 2010

Macon Bryce Edmonson

 

 

 

 

 

 

 

 

 

/s/ Ronald Kesselman

 

Director

 

March 26, 2010

Ronald Kesselman

 

 

 

 

 

 

 

 

 

/s/ Itzhak Reichman

 

Director

 

March 26, 2010

Itzhak Reichman

 

 

 

 

 

26



Table of Contents

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Stockholders of
The Inventure Group, Inc.
Phoenix, Arizona

 

We have audited the accompanying consolidated balance sheets of The Inventure Group, Inc. and subsidiaries (the “Company”) as of December 26, 2009 and December 27, 2008 and the related consolidated statements of operations, stockholders’ equity and comprehensive income and cash flows for each of the years in the two-year period ended December 26, 2009. These financial statements are the responsibility of the Company’s management.  Our responsibility is to express an opinion on the financial statements based on our audits.

 

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

 

In our opinion, such consolidated financial statements referred to above present fairly, in all material respects, the financial position of The Inventure Group, Inc. as of December 26, 2009 and December 27, 2008, and the results of their operations and their cash flows for each of the years in the two-year period ended December 26, 2009, in conformity with accounting principles generally accepted in the United States of America.

 

/s/ MOSS ADAMS LLP

 

Scottsdale, Arizona
March 26, 2010

 

27



Table of Contents

 

THE INVENTURE GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS

 

 

 

December 26,
2009

 

December 27,
2008

 

ASSETS

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

1,102,689

 

$

683,567

 

Accounts receivable, net of allowance for doubtful accounts of $101,076 in 2009 and $80,740 in 2008

 

10,884,986

 

9,767,750

 

Inventories, net

 

17,445,163

 

13,979,526

 

Deferred income tax asset

 

651,761

 

831,779

 

Other current assets

 

1,045,797

 

638,923

 

Total current assets

 

31,130,396

 

25,901,545

 

 

 

 

 

 

 

Property and equipment, net

 

23,734,921

 

24,548,060

 

Goodwill

 

11,616,225

 

11,616,225

 

Trademarks and other intangibles, net

 

2,757,161

 

2,799,160

 

Other assets

 

596,157

 

396,052

 

Total assets

 

$

69,834,860

 

$

65,261,042

 

 

 

 

 

 

 

LIABILITIES AND SHAREHOLDERS’ EQUITY

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Accounts payable

 

$

6,751,612

 

$

7,629,321

 

Line of credit

 

9,870,590

 

8,188,990

 

Accrued liabilities

 

5,314,180

 

4,382,078

 

Current portion of long-term debt

 

1,204,475

 

1,204,080

 

Total current liabilities

 

23,140,857

 

21,404,469

 

 

 

 

 

 

 

Long-term debt, less current portion

 

10,037,902

 

11,251,510

 

Interest rate swaps

 

452,292

 

886,222

 

Deferred income tax liability

 

3,077,343

 

2,529,266

 

Other liabilities

 

219,903

 

138,269

 

Total liabilities

 

36,928,297

 

36,209,736

 

 

 

 

 

 

 

Commitments and contingencies (Notes 7 and 11)

 

 

 

 

 

 

 

 

 

 

 

Shareholders’ equity:

 

 

 

 

 

Preferred stock, $100 par value; 50,000 shares authorized; no shares issued or outstanding at December 26, 2009 and December 27, 2008

 

 

 

Common stock, $.01 par value; 50,000,000 shares authorized; 18,255,600 and 18,252,386 shares issued and outstanding at December 26, 2009 and December 27, 2008, respectively

 

182,557

 

182,525

 

Additional paid-in capital

 

26,025,511

 

25,740,911

 

Accumulated other comprehensive loss

 

(188,429

)

(448,610

)

Retained earnings

 

7,358,119

 

3,576,480

 

 

 

33,377,758

 

29,051,306

 

Less : treasury stock, at cost: 367,957 shares at December 26, 2009 and -0- shares at December 27, 2008

 

(471,195

)

 

Total shareholders’ equity

 

32,906,563

 

29,051,306

 

Total liabilities and shareholders’ equity

 

$

69,834,860

 

$

65,261,042

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

28



Table of Contents

 

THE INVENTURE GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS

 

 

 

December 26,
2009

 

December 27,
2008

 

 

 

 

 

 

 

Net revenues

 

$

121,011,309

 

$

113,058,715

 

 

 

 

 

 

 

Cost of revenues

 

97,189,028

 

90,864,406

 

 

 

 

 

 

 

Gross profit

 

23,822,281

 

22,194,309

 

 

 

 

 

 

 

Selling, general and administrative expenses

 

16,746,148

 

16,827,692

 

 

 

 

 

 

 

Operating income

 

7,076,133

 

5,366,617

 

 

 

 

 

 

 

Interest expense, net

 

(878,807

)

(1,275,535

)

 

 

 

 

 

 

Income before income tax provision

 

6,197,326

 

4,091,082

 

 

 

 

 

 

 

Income tax provision

 

(2,415,687

)

(1,721,791

)

 

 

 

 

 

 

Net income

 

$

3,781,639

 

$

2,369,291

 

 

 

 

 

 

 

Earnings per common share:

 

 

 

 

 

Basic

 

$

0.21

 

$

0.13

 

Diluted

 

$

0.21

 

$

0.13

 

 

 

 

 

 

 

Weighted average number of common shares:

 

 

 

 

 

Basic

 

17,955,165

 

18,736,331

 

Diluted

 

18,239,380

 

18,736,331

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

29



 

Table of Contents

 

THE INVENTURE GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY AND COMPREHENSIVE INCOME

 

 

 

 

 

 

 

Additional

 

 

 

Accumulated
Other

 

 

 

 

 

 

 

Common Stock

 

Paid-in

 

Retained

 

Comprehensive

 

Treasury

 

 

 

 

 

Shares

 

Amount

 

Capital

 

Earnings

 

Income (Loss)

 

Stock, at Cost

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance, December 29, 2007

 

20,186,213

 

$

201,863

 

$

29,304,491

 

$

1,207,189

 

$

 

$

(2,981,574

)

$

27,731,969

 

Net income

 

 

 

 

 

 

 

2,369,291

 

 

 

 

 

2,369,291

 

Net unrealized losses on derivative instruments, net of tax

 

 

 

 

 

(448,610

)

 

(448,610

)

Total comprehensive income

 

 

 

 

 

 

 

 

 

 

 

 

 

1,920,681

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Restricted stock and related compensation expense

 

 

 

31,812

 

 

 

 

31,812

 

Stock-based compensation expense

 

 

 

260,925

 

 

 

 

260,925

 

Purchase of treasury stock, at cost

 

 

 

 

 

 

(894,081

)

(894,081

)

Retirement of treasury stock, at cost

 

(1,933,827

)

(19,338

)

(3,856,317

)

 

 

3,875,655

 

 

Balance, December 27, 2008

 

18,252,386

 

$

182,525

 

$

25,740,911

 

$

3,576,480

 

$

(448,610

)

$

 

$

29,051,306

 

Net income

 

 

 

 

 

 

 

3,781,639

 

 

 

 

 

3,781,639

 

Other comprehensive income, net of tax

 

 

 

 

 

260,181

 

 

260,181

 

Total comprehensive income

 

 

 

 

 

 

 

 

 

 

 

 

 

4,041,820

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Restricted stock and related compensation expense

 

 

 

41,360

 

 

 

 

41,360

 

Stock-based compensation expense

 

 

 

242,382

 

 

 

 

242,382

 

Purchase of treasury stock, at cost

 

 

 

 

 

 

(471,195

)

(471,195

)

Exercise of stock options and issuance of restricted stock

 

3,214

 

32

 

858

 

 

 

 

 

 

 

890

 

Balance, December 26, 2009

 

18,255,600

 

$

182,557

 

$

26,025,511

 

$

7,358,119

 

$

(188,429

)

$

(471,195

)

$

32,906,563

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

30



Table of Contents

 

THE INVENTURE GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS

 

 

 

December 26,
2009

 

December 27,
2008

 

Cash flows provided by operating activities:

 

 

 

 

 

Net income

 

$

3,781,639

 

$

2,369,291

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation

 

3,413,943

 

2,737,526

 

Amortization

 

62,442

 

49,025

 

Provision for bad debts

 

95,994

 

83,794

 

Deferred income taxes

 

728,095

 

1,602,186

 

Share-based compensation expense

 

242,382

 

260,925

 

Restricted stock compensation expense

 

41,360

 

31,812

 

Loss on disposition of equipment

 

 

1,360

 

Change in assets and liabilities:

 

 

 

 

 

Accounts receivable

 

(1,213,230

)

(1,246,803

)

Inventories

 

(3,465,637

)

(2,393,928

)

Other assets and liabilities

 

(545,787

)

(41,716

)

Accounts payable and accrued liabilities

 

(119,356

)

1,914,452

 

Net cash provided by operating activities

 

3,021,845

 

5,367,924

 

Cash flows used in investing activities:

 

 

 

 

 

Purchase of land, building and equipment

 

(2,600,805

)

(3,850,964

)

Proceeds from disposition of equipment

 

 

770

 

Net cash used in investing activities

 

(2,600,805

)

(3,850,194

)

Cash flows used in financing activities:

 

 

 

 

 

Net borrowings on line of credit

 

1,681,600

 

736,681

 

Proceeds from issuance of restricted stock

 

890

 

 

Payments made on long term debt

 

(1,213,213

)

(1,171,681

)

Treasury stock purchases

 

(471,195

)

(894,081

)

Net cash used in financing activities

 

(1,918

)

(1,329,081

)

Net increase in cash and cash equivalents

 

419,122

 

188,649

 

Cash and cash equivalents at beginning of year

 

683,567

 

494,918

 

Cash and cash equivalents at end of year

 

$

1,102,689

 

$

683,567

 

 

Supplemental disclosure of cash flow information:

 

 

 

 

 

Cash paid during the period for interest

 

$

864,725

 

$

1,134,900

 

Cash paid during the period for income taxes

 

2,115,600

 

8,717

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

31



Table of Contents

 

THE INVENTURE GROUP, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

1.     Organization, Business and Summary of Significant Accounting Policies:

 

The Inventure Group, Inc., (“the Company”) a Delaware corporation, was formed in 1995 as a holding company to acquire a potato chip manufacturing and distribution business, which had been founded by Donald and James Poore in 1986.  The Company changed its name from Poore Brothers, Inc. to The Inventure Group, Inc. on April 10, 2006.

 

In December 1996, the Company completed an initial public offering of its Common Stock.  In November 1998, the Company acquired the business and certain assets (including the Bob’s Texas Style® potato chip brand) of Tejas Snacks, L.P. (“Tejas”), a Texas-based potato chip manufacturer.  In October 1999, the Company acquired Wabash Foods, LLC (“Wabash”) including the Tato Skins®, O’Boisies®, and Pizzarias® trademarks and the Bluffton, Indiana manufacturing operation and assumed all of Wabash Foods’ liabilities.  In June 2000, the Company acquired Boulder Natural Foods, Inc. (“Boulder”) and the Boulder CanyonTM Natural Foods brand of totally natural potato chips.

 

In October 2000, the Company launched its T.G.I. Friday’s® brand snacks pursuant to a license agreement with T.G.I. Friday’s Inc., which expires in 2014.

 

In May 2007, the Company acquired Rader Farms, Inc. including the Rader Farms® trademark and the Lynden, Washington frozen fruit processing operation, for a total cost of $20.9 million.

 

In October 2007, the Company launched its BURGER KING TM brand snack products pursuant to a license agreement with Burger King Corporation, which expires in 2012.

 

In August 2009, the Company entered into a license agreement with Jamba Juice to develop Jamba™ branded blend-and-serve smoothie kits, which are expected to launch in early 2010.

 

The Company’s fiscal year ends on the last Saturday occurring in the month of December of each calendar year.  Accordingly, fiscal 2009 commenced December 28, 2008 and ended December 26, 2009.  The fiscal year end dates result in an additional week of results every five or six years.

 

Business

 

The Company is engaged in the development, production, marketing and distribution of innovative snack food products and frozen berry products that are sold primarily through grocery retailers, mass merchandisers, club stores, convenience stores and vend distributors across the United States and internationally.  The Company currently manufactures and sells nationally T.G.I. Friday’s® brand snacks under license from T.G.I. Friday’s Inc. and BURGER KING TM  brand snack products under license from Burger King Corporation.  The Company currently (i) manufactures and sells its own brands of snack food products, including Poore Brothers®, Bob’s Texas Style® and Boulder CanyonTM Natural Foods brand batch-fried potato chips, Tato Skins® brand potato snacks and O’Boises® potato snacks (ii) manufactures private label snacks for grocery and various other retail chains and (iii) distributes in Arizona snack food products that are manufactured by others.  The Company sells its T.G.I. Friday’s® brand snack products and BURGER KING TM  brand snack products to mass merchandisers, grocery, club and drug stores directly and to primarily convenience stores and vend operators through independent distributors.  The Company’s other brands are also sold through independent distributors.

 

In addition, with the acquisition of Rader Farms, the Company grows, processes and markets premium berry blends, raspberries, blueberries, and rhubarb and purchases marionberries, cherries, cranberries, strawberries, and other fruits from a select network of fruit growers for resale.  The fruit is processed, frozen and packaged for sale and distribution nationally to wholesale customers under the Rader Farms® brand, as well as through store brands.

 

Principles of Consolidation

 

The consolidated financial statements include the accounts of The Inventure Group, Inc. and all of its wholly owned subsidiaries.  All significant intercompany amounts and transactions have been eliminated.

 

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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 reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period.  The Company routinely evaluates its estimates, including those related to accruals for customer programs and incentives, product returns, brand discontinuance costs, bad debts, income taxes, long-lived assets, inventories, stock based compensation, interest rate swap valuations, accrued broker commissions and contingencies.  The Company bases its estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances.  Actual results could differ from those estimates.

 

Reclassifications

 

Certain 2008 amounts have been reclassified to conform to the 2009 presentation.

 

Fair Value of Financial Instruments

 

Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability (i.e., the “exit price”)  in an orderly transaction between market participants at the measurement date.  The Company classifies its investments based upon an established fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurement) and the lowest priority to unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy are described as follows:

 

Level 1                Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities;

 

Level 2                   Quoted prices in markets that are not considered to be active or financial instruments without quoted market prices, but for which all significant inputs are observable, either directly or indirectly;

 

Level 3                   Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable.

 

A financial instrument’s level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement.

 

At December 26, 2009 and December 27, 2008, the carrying value of cash, accounts receivable, accounts payable and accrued liabilities approximate fair values since they are short-term in nature.  The carrying value of the long-term debt approximates fair-value based on the borrowing rates currently available to the Company for long-term borrowings with similar terms, except for the mortgage loan with fixed interest at 9.03%, which has a fair value of $1.2 million and $1.3 million at December 26, 2009 and December 27, 2008 respectively. 

 

 

 

Fair Value at December 26, 2009

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

Liabilities:

 

 

 

 

 

 

 

 

 

Interest rate swaps

 

 

 

$

452,292

 

 

 

$

452,292

 

 

Considerable judgment is required in interpreting market data to develop the estimate of fair value of our derivative instruments.  Accordingly, the estimate may not be indicative of the amounts that the Company could realize in a current market exchange.  The use of different market assumptions or valuation methodologies could have a material effect on the estimated fair value amounts.

 

Derivative Financial Instruments

 

The Company utilizes interest rate swaps in the management of its variable interest rate exposure and does not enter into derivatives for trading purposes.  All derivatives are measured at fair value.  The Company’s interest rate swaps are classified as cash flow hedges.

 

Cash and Cash Equivalents

 

The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.

 

Accounts Receivable

 

Accounts receivable consist primarily of receivables from customers and distributors for products purchased.   Receivable are past due when they are unpaid greater than thirty days.  The Company determines any required reserves by considering a number of factors, including the length of time the accounts receivable have been outstanding, and the Company’s loss history.  The Company maintains an allowance for doubtful accounts for estimated losses resulting from the inability of its customers to make required payments.

 

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Inventories

 

Inventories are stated at the lower of cost (first-in, first-out) or market.  The Company identifies slow moving or obsolete inventories and estimates appropriate write-down provisions related thereto.  If actual market conditions are less favorable than those projected by management, additional inventory write-downs may be required.

 

Property and Equipment

 

Property and equipment are recorded at cost.  Cost includes expenditures for major improvements and replacements.  Maintenance and repairs are charged to operations when incurred.  When assets are retired or otherwise disposed of, the related costs and accumulated depreciation are removed from the appropriate accounts, and the resulting gain or loss is recognized.  Depreciation expense is computed using the straight-line method over the estimated useful lives of the assets, ranging from two to thirty years.  We capitalize certain computer software and software development costs incurred in connection with developing or obtaining computer software for internal use. Capitalized software costs are included in property, plant and equipment and amortized on a straight-line basis when placed into service over three years.

 

The Company evaluates the recoverability of property and equipment not held for sale by comparing the carrying amount of the asset or group of assets against the estimated undiscounted future cash flows expected to result from the use of the asset or group of assets and their eventual disposition, in accordance with relevant authoritative guidance. If the undiscounted future cash flows are less than the carrying value of the asset or group of assets being evaluated, an impairment loss is recorded. The loss is measured as the difference between the fair value and carrying value of the asset or group of assets being evaluated. Assets to be disposed of are reported at the lower of the carrying amount or the fair value less cost to sell. The estimated fair value would be based on the best information available under the circumstances, including prices for similar assets or the results of valuation techniques, including the present value of expected future cash flows using a discount rate commensurate with the risks involved.

 

Intangible Assets

 

Goodwill and trademarks are reviewed for impairment annually, or more frequently if impairment indicators arise. Goodwill, by reporting unit, is required to be tested for impairment between the annual tests if an event occurs or circumstances change that more-likely-than-not reduces the fair value of a reporting unit below its carrying value. Intangible assets with indefinite lives are required to be tested for impairment between the annual tests if an event occurs or circumstances change indicating that the asset might be impaired.   Amortizable intangible assets are amortized using the straight-line method over their estimated useful lives, which is the estimated period over which economic benefits are expected to be provided.

 

Management believes that each of our trademarks has the continued ability to generate cash flows indefinitely, and therefore each of our trademarks has been determined to have an indefinite life. Management’s determination that our trademarks have indefinite lives includes an evaluation of historical cash flows and projected cash flows for each of these trademarks. In addition, there are no legal, regulatory, contractual, economic or other factors to limit the useful life of these trademarks, and management intends to renew each of these trademarks, which can be accomplished at little cost.

 

In 2009 and 2008, the Company conducted its annual review of intangible assets and believes the carrying values are appropriate.

 

Self-Insurance Reserves

 

The Company is partially self-insured for the purposes of providing health care benefits to employees covered by its insurance plan.  The plan covers all full-time employees of the Company on the first day of the month after hiring date for salaried employees, and the first day of the month following the ninetieth day of service for hourly employees.  The plan covers the employee’s dependents, if elected by the employee.  The Company has contracted with an insurance carrier for stop loss coverage that comments when $75,000 in claims is paid annually for a covered participant.  In addition, the Company has contracted for aggregate stop loss insurance which provides coverage after the maximum amount paid by the Company exceeds approximately $1.5 million.   Estimated unpaid claims included in accrued liabilities amount to $187,774 and $275,877 at December 26, 2009 and December 27, 2008 respectively.   These amounts represents management’s best estimate of amounts that have not been paid prior to the year-end dates.  It is reasonably possible that the expense the Company will ultimately incur could differ.

 

Revenue Recognition

 

In accordance with accounting principles generally accepted in the United States, the Company recognizes operating revenues upon shipment of products to customers provided title and risk of loss pass to its customers. In those instances where title and risk of loss does not pass until delivery, revenue recognition is deferred until delivery has occurred.  Revenue for products sold through our direct store delivery distributed product segment is recognized when the product is received by the retailer.  Provisions and allowances for sales returns, promotional allowances and discounts are also recorded as a reduction of revenues in the Company’s consolidated financial statements.

 

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Advertising and Promotional Expenses and Trade Spending

 

The Company expenses production costs of advertising the first time the advertising takes place, except for cooperative advertising costs which are expensed when the related sales are recognized. Costs associated with obtaining shelf space (i.e., “slotting fees”) are accounted for as a reduction of revenue in the period in which such costs are incurred by the Company. Anytime the Company offers consideration (cash or credit) as a trade advertising or promotional allowance to a purchaser of products at any point along the distribution chain, the amount is accrued and recorded as a reduction in revenue when the transaction occurs.  Marketing programs that deal directly with the consumer, primarily consisting of in-store demonstration/samples, are recorded as a marketing expense in selling, general and administrative expenses. Further discussion of these marketing programs is expanded upon below:

 

·      Demonstrations/Samples:    The Company will periodically arrange in-store product demonstrations with club stores (i.e. Sam’s, Costco or BJ’s) or grocery retailers. Product demonstrations are conducted by independent third party providers designated by the various retailer or club chains. During the in-store demonstrations the consumers in the stores receive small samples of our products, and consumers are not required to purchase our product in order to receive the sample. The cost of product used in the demonstrations, which is insignificant, and the fee paid to the independent third party providers who conduct the in-store demonstrations are recorded as a sales and marketing expense in selling, general and administrative expenses.

 

·      Sponsorships :   The Company is a national co-sponsor of American Rivers, a leading conservation organization protecting and restoring America’s rivers.  The Company donates a portion of each Boulder Canyon bag sold and is allowed to use the American Rivers mark on packaging and printed materials as well as directly promote products to members and river cleanup volunteers.

 

Shipping and Handling

 

Shipping and handling costs are included in cost of revenues.  The Company does not bill customers for freight.

 

Income Taxes

 

We account for income taxes under the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements. Under this method, deferred tax assets and liabilities are determined based on the differences between the financial statements and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date.

 

We record net deferred tax assets to the extent we believe these assets will more likely than not be realized. In making such determination, we consider all available positive and negative evidence, including future reversals of existing taxable temporary differences, projected future taxable income, tax planning strategies and recent financial operations.  Failure to achieve forecasted taxable income in applicable tax jurisdictions could affect the ultimate realization of deferred tax assets and could result in an increase in the Company’s effective tax rate on future earnings.  A valuation allowance is provided when it is more likely than not that some portion or all of the deferred tax assets will not be realized.  The authoritative guidance provides that a tax benefit from an uncertain tax position may be recognized when it is more likely than not that the position will be sustained upon examination, including resolutions of any related appeals or litigation processes, based on the technical merits.  The tax benefit is measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement.

 

It is the Company’s policy to recognize interest and penalties accrued on any unrecognized tax benefits as a component of income tax expense. The Company does not have any accrued interest or penalties associated with any unrecognized tax benefits, nor was any interest or penalties recorded during the years ended December 26, 2009 and December 27, 2008.

 

The Company files income tax returns in the U.S. federal jurisdiction and various state jurisdictions. The Company’s U.S. federal income tax returns for years 2006 through 2009 remain open to examination by the Internal Revenue Service. The Company’s state tax returns for years 2005 through 2009 remain open to examination by the state.

 

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Stock Options and Stock-Based Compensation

 

Stock options and other stock based compensation awards expense are adjusted for estimated forfeitures and are recognized on a straight-line basis over the requisite period of the award, which is currently five to ten years for stock options, and three years for restricted stock.  The Company estimates future forfeiture rates based on its historical experience.

 

Compensation costs related to all share-based payment arrangements, including employee stock options, are recognized in the financial statements based on the fair value method of accounting. Excess tax benefits related to share-based payment arrangements be classified as cash inflows from financing activities and cash outflows from operating activities.

 

See Footnote 8 “Shareholder’s Equity” for additional information.

 

Earnings Per Common Share

 

Basic earnings per common share is computed by dividing net income by the weighted average number of shares of common stock outstanding during the period. Diluted earnings per share is calculated by including all dilutive common shares such as stock options and restricted stock. The total stock options outstanding of 2,130,500 and restricted shares outstanding of 124,353 were excluded from the weighted average per share calculation for the year ended December 26, 2009 because inclusion of such would be anti-dilutive.  The total stock options outstanding of 2,223,833 and restricted shares outstanding of 35,853 were excluded from the weighted average per share calculation for the year ended December 27, 2008 because inclusion of such would be anti-dilutive.  Exercises of outstanding stock options or warrants are assumed to occur for purposes of calculating diluted earnings per share for periods in which their effect would not be anti-dilutive. Earnings per common share was computed as follows for the years ended December 26, 2009 and December 27, 2008:

 

 

 

2009

 

2008

 

Basic Earnings Per Common Share:

 

 

 

 

 

Net income

 

$

3,781,639

 

$

2,369,291

 

 

 

 

 

 

 

Weighted average number of common shares

 

17,955,165

 

18,736,331

 

Earnings per common share

 

$

0.21

 

$

0.13

 

 

 

 

 

 

 

Diluted Earnings Per Common Share:

 

 

 

 

 

Net income

 

$

3,781,639

 

$

2,369,291

 

 

 

 

 

 

 

Weighted average number of common shares

 

17,955,165

 

18,736,331

 

Incremental shares from assumed conversions - stock options and restricted stock

 

284,215

 

 

Adjusted weighted average number of common shares

 

18,239,380

 

18,736,331

 

 

 

 

 

 

 

Earnings per common share

 

$

0.21

 

$

0.13

 

 

Subsequent Events

 

Subsequent events are events or transactions that occur after the balance sheet date but before financial statements are issued. The Company recognizes in the financial statements the effects of all subsequent events that provide additional evidence about conditions that existed at the date of the balance sheet, including the estimates inherent in the process of preparing the financial statements. The Company’s financial statements do not recognize subsequent events that provide evidence about conditions that did not exist at the date of the balance sheet but arose after the balance sheet date and before financial statements are issued. The Company has evaluated subsequent events through March 26, 2010, which is the date the financial statements were issued.

 

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Recent Accounting Pronouncements

 

In August 2009, the Financial Accounting Standards Board (“FASB”) issued guidance on the measurement of liabilities at fair value. The guidance provides clarification that in circumstances in which a quoted market price in an active market for an identical liability is not available, an entity is required to measure fair value using a valuation technique that uses the quoted price of an identical liability when traded as an asset or, if unavailable, quoted prices for similar liabilities or similar assets when traded as assets. If none of this information is available, an entity should use a valuation technique in accordance with existing fair valuation principles. The Company adopted this guidance in the quarter ended September 26, 2009 and there was no material impact on the Company’s financial position, results of operations or liquidity.

 

In June 2009, the FASB issued guidance related to the FASB Accounting Standards Codification (“ASC”). Effective for interim or annual financial periods ending after September 15, 2009, the ASC is the single source of authoritative generally accepted accounting principles in the United States of America (“U.S. GAAP”) and changes the referencing of accounting standards. The ASC is not intended to change or alter existing U.S. GAAP; however the way authoritative literature is referred to has changed effective in the third quarter of 2009. The Company has adopted the provisions of the ASC effective September 26, 2009 and there was no material impact on the Company’s financial position, results of operations or liquidity.

 

In May 2009, the FASB issued guidelines on subsequent  event accounting which defines subsequent events as events or transactions that occur after the balance sheet date but before financial statements are issued or are available to be issued, and establishes general standards of accounting for and disclosure of subsequent events. The new guidance also includes a required disclosure of the date through which an entity has evaluated subsequent events, which for public entities is the date upon which the financial statements are issued. The guidance is effective for interim or annual financial periods ending after June 15, 2009, and shall be applied prospectively. The Company adopted this guidance for the interim period ended June 27, 2009 and there was no material impact on the Company’s financial position, results of operations or liquidity.

 

In April 2009, the FASB issued three related sets of accounting guidance which sets forth rules related to determining the fair value of financial assets and financial liabilities when the activity levels have significantly decreased in relation to the normal market, guidance related to the determination of other-than-temporary impairments to include the intent and ability of the holder as an indicator in the determination of whether an other-than-temporary impairment exists and interim disclosure requirements for the fair value of financial instruments.  The adoption of the three sets of accounting guidance did not have a material impact on the Company’s financial position, results of operations or liquidity.

 

In March 2008, the FASB issued new disclosure requirements regarding derivative instruments and hedging activities. The new guidance applies to all entities and requires enhanced disclosures about how and why an entity uses derivative instruments, how derivative instruments and related hedged items are accounted for and their effect on an entity’s financial position, financial performance, and cash flows. This guidance is effective for fiscal years and interim periods beginning after November 15, 2008 and the adoption of this guidance had no impact on the Company’s financial position, results of operations or liquidity.

 

In December 2007, the FASB issued new guidance on non-controlling interests in consolidated financial statements.  This guidance establishes accounting and reporting standards for the non-controlling interest in a subsidiary and for the deconsolidation of a subsidiary.  It also establishes disclosure requirements that clearly identify and distinguish between the controlling and non-controlling interests and requires the separate disclosure of income attributable to controlling and non-controlling interests. The guidance is effective for fiscal years and interim periods beginning after December 15, 2008 and the adoption had no impact on the Company’s financial position, results of operations or liquidity.

 

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2.     Goodwill, Trademarks, and Other Intangible Assets:

 

Goodwill, trademarks and other intangibles, net consisted of the following as of December 26, 2009 and December 27, 2008:

 

 

 

Estimated
Useful Life

 

December 26,
2009

 

December 27,
2008

 

Goodwill:

 

 

 

 

 

 

 

The Inventure Group, Inc.

 

 

 

$

5,986,252

 

$

5,986,252

 

Rader Farms, Inc.

 

 

 

5,629,973

 

5,629,973

 

 

 

 

 

 

 

 

 

Total goodwill

 

 

 

$

11,616,225

 

$

11,616,225

 

 

 

 

 

 

 

 

 

Trademarks:

 

 

 

 

 

 

 

The Inventure Group, Inc.

 

 

 

$

1,535,659

 

$

1,535,659

 

Rader Farms, Inc.

 

 

 

1,070,000

 

1,070,000

 

 

 

 

 

 

 

 

 

Other intangibles:

 

 

 

 

 

 

 

Rader - Covenant-not-to-compete, gross carrying amount

 

5 years

 

160,000

 

160,000

 

Rader - Covenant-not-to-compete, accum. amortization

 

 

 

(82,676

)

(50,673

)

Rader - Customer relationship, gross carrying amount

 

10 years

 

100,000

 

100,000

 

Rader - Customer relationship, accum. amortization

 

 

 

(25,822

)

(15,826

)

 

 

 

 

 

 

 

 

Total trademarks and other intangibles, net

 

 

 

$

2,757,161

 

$

2,799,160

 

 

The weighted average useful life of amortizable intangible assets is 6.92 years.  The trademarks are deemed to have an indefinite useful life because they are expected to generate cash flows indefinitely.  Amortization expense for the years ending December 26, 2009 and December 27, 2008 was $41,999 and $28,582, respectively. As of December 26, 2009, we expect amortization expense on these intangible assets over the next five years to be as follows:

 

2010

 

$

42,000

 

2011

 

$

42,000

 

2012

 

$

23,324

 

2013

 

$

10,000

 

2014

 

$

10,000

 

 

Goodwill and trademarks are reviewed for impairment annually in the second fiscal quarter, or more frequently if impairment indicators arise. Goodwill is required to be tested for impairment between the annual tests if an event occurs or circumstances change that more-likely-than-not reduces the fair value of a reporting unit below its carrying value. Intangible assets with indefinite lives are required to be tested for impairment between the annual tests if an event occurs or circumstances change indicating that the asset might be impaired. The Company believes the carrying values of its intangible assets are appropriate.

 

3.       Accrued Liabilities:

 

Accrued liabilities consisted of the following as of December 26, 2009 and December 27, 2008:

 

 

 

2009

 

2008

 

Accrued payroll and payroll taxes

 

$

1,635,564

 

$

1,531,079

 

Accrued royalties and commissions

 

809,095

 

679,152

 

Accrued advertising and promotion

 

1,327,021

 

669,256

 

Accrued other

 

1,542,500

 

1,502,591

 

 

 

$

5,314,180

 

$

4,382,078

 

 

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4.     Inventories:

 

Inventories consisted of the following as of December 26, 2009 and December 27, 2008:

 

 

 

2009

 

2008

 

Finished goods

 

$

5,558,696

 

$

4,615,228

 

Raw materials

 

11,886,467

 

9,364,298

 

 

 

$

17,445,163

 

$

13,979,526

 

 

5.     Property and Equipment:

 

Property and equipment consisted of the following as of December 26, 2009 and December 27, 2008:

 

 

 

Useful Lives

 

2009

 

2008

 

Buildings and improvements

 

20 – 30 years

 

$

11,371,130

 

$

10,797,734

 

Equipment

 

7 – 15 years

 

25,278,715

 

23,444,317

 

Land

 

 

346,506

 

346,506

 

Vehicles

 

5 years

 

61,689

 

117,918

 

Furniture and office equipment

 

2 – 5 years

 

4,382,689

 

4,133,450

 

 

 

 

 

41,440,729

 

38,839,925

 

Less accumulated depreciation and amortization

 

 

 

(17,705,808

)

(14,291,865

)

 

 

 

 

$

23,734,921

 

$

24,548,060

 

 

6.     Long-Term Debt and Line of Credit:

 

Long-term debt consisted of the following as of December 26, 2009 and December 27, 2008:

 

 

 

December 26,
2009

 

December 27,
2008

 

Mortgage loan due monthly through July, 2012; interest at 9.03%; collateralized by land and building in Goodyear, AZ

 

$

1,515,079

 

$

1,577,093

 

Mortgage loan due monthly through December, 2016; interest rate at 30 day LIBOR plus 165 basis points, fixed through a swap agreement to 6.85%; collateralized by land and building in Bluffton, IN

 

2,220,877

 

2,284,909

 

Equipment term loan due monthly through May, 2014; interest at LIBOR plus 165 basis points; collateralized by equipment at Rader Farms in Lynden, WA

 

3,857,143

 

4,714,286

 

Real Estate term loan due monthly through July, 2017; interest at LIBOR plus 165 basis points; fixed through a swap agreement to 4.28%; secured by a leasehold interest in the real property in Lynden, WA

 

3,612,125

 

3,780,919

 

Vehicle term loan and other miscellaneous loans due in various monthly installments through February, 2011; collateralized by vehicles

 

29,868

 

88,183

 

Office Equipment leases due June 2012

 

7,285

 

10,200

 

 

 

11,242,377

 

12,455,590

 

Less current portion of long-term debt

 

(1,204,475

)

(1,204,080

)

Long-term debt, less current portion

 

$

10,037,902

 

$

11,251,510

 

 

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Annual maturities of long-term debt as of December 26, 2009 are as follows:

 

Year

 

 

 

2010

 

$

1,204,475

 

2011

 

1,207,360

 

2012

 

1,226,846

 

2013

 

1,254,856

 

2014

 

857,156

 

Thereafter

 

5,491,684

 

 

 

$

11,242,377

 

 

To fund the acquisition of Rader Farms, the Company entered into a Loan Agreement (the “Loan Agreement”) with U.S. Bank National Association (“U.S. Bank”). Each of our subsidiaries is a guarantor of the Loan Agreement, which is secured by a pledge of all of the assets of our consolidated group. The borrowing capacity available to us under the Loan Agreement consists of notes representing:

 

·           a $15,000,000 revolving line of credit maturing on June 30, 2011; $9,870,590 was outstanding at December 26, 2009. Based on eligible assets, the amount available under the line of credit was $5,129,410 at December 26, 2009. As defined in the revolving credit facility note, all borrowings under the revolving line of credit will bear interest at either (i) the prime rate of interest announced by U.S. Bank from time to time or (ii) LIBOR plus the LIBOR Rate Margin.  The rate at December 26, 2009 was 3.25%.

·           Equipment term loan due May 2014 noted above.

·           Real estate term loan due July 2017 noted above.

 

U.S. Bank may terminate its commitments and accelerate the repayment of amounts outstanding and exercise other remedies upon the occurrence of an event of default (as defined in the Loan Agreement), subject, in certain instances, to the expiration of an applicable cure period. The agreement requires the Company to maintain compliance with certain financial covenants, including a minimum tangible net worth, a minimum fixed charge coverage ratio and a minimum current ratio. At December 26, 2009, the Company was in compliance with all of the financial covenants. Deferred financing fees totaling $119,744, which are included in Other Assets, were recorded in connection with the Loan Agreement and are being amortized over the life of the loan.

 

Interest income (expense), net consisted of the following for the fiscal years ended December 26, 2009 and December 27, 2008:

 

 

 

2009

 

2008

 

Interest expense

 

$

(879,332

)

$

(1,275,872

)

 

 

 

 

 

 

Interest income

 

525

 

337

 

 

 

 

 

 

 

Interest expense, net

 

$

(878,807

)

$

(1,275,535

)

 

Interest Rate Swaps

 

To manage exposure to changing interest rates, the Company selectively enters into interest rate swap agreements.  The Company’s interest rate swaps qualify for and are designated as cash flow hedges.  Changes in the fair value of a swap that is highly effective and that is designated and qualifies as a cash flow hedge to the extent that the hedge is effective, are recorded in other comprehensive income (loss).

 

The Company entered into an interest rate swap in 2006 to convert the interest rate of the mortgage to purchase the Bluffton, Indiana plant from the contractual rate of 30 day LIBOR plus 165 basis points to a fixed rate of 6.85%. On September 28, 2008, the Company’s first day of its fiscal fourth quarter, the Company prospectively redesignated the hedging relationship to a cash flow hedge.  The swap has a fixed pay-rate of 6.85% and a notional amount of approximately $2.2 million at December 26, 2009 and expires in December, 2016.  We evaluate the effectiveness of the hedge on a quarterly basis and at December 26, 2009 the hedge is highly effective.  The interest rate swap had fair value of ($244,442) at December 26, 2009, which is recorded as a liability on the accompanying consolidated balance sheet.  The swap value was determined in accordance with the fair value measurement guidance discussed earlier using Level 2 observable inputs and approximates the loss that would have been realized if the contract had been settled on December 26, 2009.  An unrealized loss of $138,528 was recorded as interest expense in the Company’s condensed, consolidated statement of operations during the three quarters ending September 27, 2008, associated with this swap.

 

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