UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
10-K/A
(Mark One)
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ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 27, 2009
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TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 333-136167
UFOOD RESTAURANT GROUP, INC.
(Exact name of registrant as specified in its charter)
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Nevada
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20-4463582 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
255 Washington Street, Suite 100
Newton, Massachusetts 02458
(Address of principal executive offices) (Zip Code)
(617) 787-6000
Registrants telephone number
Securities registered under Section 12(b) of the Exchange Act:
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Title of each class |
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Name of each exchange on which registered |
None
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None |
Securities registered pursuant to Section 12(g) of the Act:
Common stock, $.001 par value per share
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of
the Securities Act.
Yes o No þ
Indicate by check mark if the if the registrant is not required to file reports pursuant to Section
13 or 15(d) of the Act.
Yes þ No o
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark
whether the registrant has submitted electronically and posted on its corporate
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 pursuant to Item 405 of Regulation S-K is
not contained herein, and will not be contained, to the best of registrants knowledge, in
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendments to this Form 10-K. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company.
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company þ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act). Yes o No þ
The aggregate market value of the common stock held by non-affiliates of the registrant was
approximately $6,335,970 based on the last sale price of the common stock as of June 28, 2009.
Shares held by each officer and director and by each person who owns 10% or more of the outstanding
common stock have been excluded in that such person may be deemed to be affiliates. The
determination of affiliate status is not necessarily a conclusive determination for other purposes.
There were 37,933,143 shares of our Common Stock issued and outstanding as March 22, 2010.
Part III of this Annual Report incorporates by reference certain information from the registrants
definitive proxy statement for the 2010 annual meeting of shareholders, which the registrant will
file pursuant to Regulation 14A with the Securities and Exchange Commission not later than 120 days
after the close of the registrants fiscal year ended December 27, 2009.
Forward-Looking Statements
Matters discussed in this report and in our public disclosures, whether written or oral, relating
to future events or our future performance, including any discussion express or implied, of our
anticipated growth, operating results, future earnings per share, plans and objectives, contain
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934, or Exchange Act. These statements are often
identified by the words believe, positioned, estimate, project, target, continue,
intend, expect, future, anticipate, and similar expressions that are not statements of
historical fact. These statements are not guarantees of future performance and involve certain
risks, uncertainties and assumptions that are difficult to predict. Our actual results and timing
of certain events could differ materially from those anticipated in these forward-looking
statements as a result of certain factors, including, but not limited to, those set forth under
Risk Factors and elsewhere in this report and in our other public filings with the Securities and
Exchange Commission, or SEC. It is routine for internal projections and expectations to change as
the year or each quarter in the year progresses, and therefore it should be clearly understood that
all forward-looking statements and the internal projections and beliefs upon which we base our
expectations included in this report or other periodic reports are made only as of the date made
and may change. While we may elect to update forward-looking statements at some point in the
future, we do not undertake any obligation to update any forward-looking statements whether as a
result of new information, future events or otherwise.
PART I
We are a franchisor and operator of fast-casual food service restaurants that capitalize on what we
believe are the developing trends toward healthier living and eating and the increasing consumer
demands for restaurant fare that offers appetizing food with healthy attributes. We believe our
menu items are made with higher quality ingredients and healthier cooking techniques than ordinary
quick serve food. Delivering great taste and an overall pleasing dining experience for an
individual customer is the focus of UFoods mission and concept.
We were incorporated in the State of Nevada on February 8, 2006, as Axxent Media Corporation. Prior
to December 18, 2007, we were a development stage company as defined by Accounting Standards
Codification (ASC) 915, Development Stage Entities. As Axxent Media Corporation, our business was
to obtain reproduction and distribution rights to foreign films within North America and also to
obtain the foreign rights to North American films for reproduction and distribution to foreign
countries. Following the merger described below, we abandoned our plans to obtain reproduction and
distribution rights to films. On August 8, 2007, we changed our name to UFood Franchise Company,
and on September 25, 2007, we changed our name to UFood Restaurant Group, Inc.
On December 18, 2007, a wholly-owned subsidiary of our Company merged with and into KnowFat
Franchise Company, Inc., with KnowFat surviving the merger as our wholly-owned subsidiary.
Following the merger, we continued KnowFats business operations. KnowFat was founded in 2004 to
capitalize on the popularity of a chain of fast-casual concept restaurants operating under the
trade name Lo Fat Know Fat in the greater Boston area, as well as the trend we believe is
developing in the United States towards healthier living and eating. After operating for three
years as KnowFat! Lifestyle Grille, while continuously modifying and improving the concept,
management decided that future locations will operate under the name UFood Grill. During the third
quarter of 2008, the four remaining KnowFat! Lifestyle Grille locations were converted to UFood
Grill outlets. All of our Company-owned restaurants and franchise-owned locations now operate, and
all future locations will operate, under the name UFood Grill.
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Three of our four Company-owned restaurants that were originally KnowFat! Lifestyle Grilles
included an integrated convenience-style retail store that carried a variety of health-oriented
nutritional products, such as supplements, vitamins, nutrition bars, energy drinks and healthy
snacks. As part of the process of conversion to UFood Grill outlets, floor space formerly devoted
to the sale of nutritional products in two of these stores was reconfigured to accommodate the sale
of smoothie drinks and frozen yogurt, because we believe that these products will generate higher
revenues in these locations. None of our franchise locations currently carries nutrition products,
and only our Watertown, Massachusetts Company-owned location carries nutritional products. We will
continue to evaluate the placement of nutrition products in our existing and future locations based
on our assessment of demand in the particular location and, in the case of franchise locations, the
franchisees preferences.
Our operations currently consist of seven restaurants in the Boston area, Naples, FL, and Dallas,
Texas, comprising four Company-owned restaurants and three franchise-owned locations. We have
entered into a total of four area development agreements covering 27 franchise units in five states
(California, Florida, Texas, Massachusetts, Ohio), including three franchise locations currently
open and operating, and requiring the construction by franchisees of 24 future UFood Grill outlets.
We believe the sale of franchises allows us to expand the UFood Grill brand faster than the
construction and operation of Company-owned outlets due to the Companys limited human and
financial resources, while allowing us to collect franchise fees and royalties. Under our area
development and franchise agreements, we receive royalties on gross franchise sales as described
above, and we do not pay any of the construction, opening (other than the training and advice
described above), operating or marketing costs. We do not provide or arrange financing to
franchisees or area developers.
All of our Company-owned restaurants and franchise-owned locations now operate, and all future
locations will operate, under the name UFood Grill.
We operate in two business segments: Store Operations and Franchise Operations. The Store
Operations segment comprises the operating activities of restaurants owned or operated by the
Company. The Franchise Operations segment is comprised of the operating activities of the franchise
business unit that licenses qualified operators to conduct business under the UFood Grill tradename
and monitors the operations of these business units. Certain financial information for each segment
is set forth in Note 14, Segment Data, of Notes to Consolidated Financial Statements.
Our headquarters are located at 255 Washington Street, Suite 100, Newton, Massachusetts 02458. Our
telephone number is (617) 787-6000.
Concept and Strategy
We are a franchisor and operator of fast-casual food service restaurants that capitalize on what we
believe are the developing trend toward healthier living and eating and the increased consumer
demands for restaurant fare that offers appetizing food with healthy attributes. We believe our
menu items are made using higher quality ingredients and healthier cooking techniques than ordinary
quick serve food. Consequently, we believe our menu provides customers with a delicious and healthy
alternative to typical fast food options. Guests order at a counter and wait three to five minutes
for their meals to be prepared. At UFood Grill, we bake, grill or steam our menu offerings; we
never fry our food. Our sauces, cheeses and salad dressings are reduced-fat. We serve whole-grain
breads and side dishes and, where we can do so while still charging our customers a reasonable
price, organic meats and vegetables (meeting U.S. Food and Drug Administration standards for
organic). The food is served on ceramic plates with metal utensils and is taken to the table by
each guest. Delivering great taste and an overall pleasing dining experience for an individual
customer is the focus of UFoods mission and concept.
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The UFood Grill concept attempts to provide each customer segment with the features it seeks in a
quick service restaurant. Understanding the market segmentation model allows us to focus on those
market segments that afford the greatest sales opportunities. The UFood Grill brand has four
pillars on which it rests:
U Love Great Food
U Are Always on the Go
U Want It Your Way
U Want to Look and Feel Great
Approximately half of all our sales are prepared for take-out, with the guest either calling ahead
or ordering in the restaurant. Nearly 60% of customers frequent our restaurants for lunch, with the
remaining 40% enjoying our fare at dinner time. Most of Our restaurants are not open for breakfast
service. We are required to offer breakfast service at our UFood Grill outlet at Logan
International Airport in Boston.
We believe the UFood concept has significant growth potential, which we hope to realize through a
combination of company and franchisee efforts. Franchising will be a key component of our success.
There are currently a total of seven UFood Grill restaurant locations open. Four of the locations
are in the greater Boston area, with one location in Naples, Florida, and two locations in the area
of the Dallas/Ft. Worth Texas.
Industry Background
The United States restaurant industry is benefitting from a long-term trend of consumers eating out
more frequently. According to the National Restaurant Association, the restaurant industrys share
of consumer food expenditures has increased from 25% in 1955 to 49% in 2009, and restaurant sales
are expected to reach $580 billion in 2010, an increase of 2.5% over 2009 sales. The leading
factors contributing to the recent growth have been the growing population, the trend toward busier
lifestyles, greater spending on dining and entertainment activities and the increased availability
of high-quality dining options.
The recent emergence of the fast-casual dining sector has capitalized significantly on the
industrys expansion. This group, led by companies such as Chipotle Mexican Grill and Panera Bread
Company, caters to customers who desire the convenience of fast food, and who are willing to pay a
premium for higher quality, differentiated menu items. According to the National Restaurant
Association, these consumer preferences have made fast-casual one of the fastest growing
sub-sectors within the restaurant industry.
However, the increase in eating out has also contributed to a general deterioration in the health
of Americans. Today, obesity has reached epidemic proportions in the United States. According to
the Centers for Disease Control and Prevention (CDC), approximately 34% of American adults aged 20
and over, or 72 million people, met the criterion for obesity in 2007-2008. In addition, a CDC
study indicates that in the past 30 years, the occurrence of obesity in children has doubled, and
it is now estimated that one in five children in the United States is overweight. According to
published studies, obese children are more likely to be obese as adults, which leads to an
increased risk for a number of diseases including stroke, cardiovascular disease, hypertension,
diabetes and some cancers. Obesity also contributes to additional negative health consequences,
including Type 2 Diabetes, high total and LDL (bad) cholesterol and triglyceride levels in the
blood, low HDL (good) cholesterol levels in the blood, sleep apnea and inflammation of the liver.
Poor food choices, such as diets high in calories (including fats and simple sugars) and lower in
fruits and vegetables, are linked with being overweight.
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Menu
We believe our menu items are made with higher quality ingredients and healthier cooking techniques
than ordinary quick serve food. Consequently, we believe our menu provides customers with a
delicious and healthy alternative to typical fast food options. Guests order at a counter and wait
three to five minutes for
their meals to be prepared. At UFood Grill, we bake, grill or steam our menu offerings; we never
fry our food. Our sauces, cheeses and salad dressings are reduced-fat. We serve whole-grain breads
and side dishes and, where we can do so while still charging our customers a reasonable price,
organic meats and vegetables (meeting U.S. Food and Drug Administration standards for organic).
The food is served on ceramic plates with metal utensils and is taken to the table by each guest.
Delivering great taste and an overall pleasing dining experience for an individual customer is the
focus of UFoods mission and concept.
With our innovative menu, we are targeting mainstream customers as well as health conscious
customers. We believe the taste and quality of our food offerings will have wide market appeal.
Our menu contains a wide variety of food types, including hot entrees, burgers, salads, sandwiches,
wraps, smoothies, and desserts, each of which is united in the theme that the food is better for
you than many other dining-out options. Each item is prepared with healthier alternatives in mind,
whether an ingredient or a method of preparation, and has better nutritional qualities than the
equivalent item a consumer might find at a typical quick serve establishment.
Growth Strategy
We plan to further expand our franchising network as well as open other Company-owned stores. We
have increased our focus on nontraditional locations such as airports, hospitals, colleges and
travel plazas. We anticipate announcing several new nontraditional locations in the coming months.
Franchise sales are led by our chairman and chief executive officer, George Naddaff. In addition,
we have entered into a services agreement with George Foreman, the well-known world heavyweight
boxing champion, businessman and celebrity, to be a spokesperson for the brand as well as to assist
in generating interest in franchising the UFood concept. Under the terms of an agreement, Mr.
Foreman has agreed to lend his name and likeness and assist in marketing and branding efforts of
UFood restaurants. Mr. Foreman is expected initially to be involved in helping to sell franchises.
Once we have more than 50 stores opened, he is expected to shift his focus to generating publicity
through personal appearances in UFood restaurants and traditional media. The agreement expires in
June 2011.
Outside of the Boston area, we plan to award only multi-unit territories to sophisticated,
experienced owner-operators. These operators will sign area development agreements wherein they
will obtain an exclusive territory in which to build UFood outlets. Upon signing these agreements,
the operators will pay an upfront fee for the rights to their territory, and they will then be
bound to a timeline over which they must open the units. Currently we have four area developers who
have committed to building and operating 27 franchise locations (including 3 locations currently
open and operating) in four areas:
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Dallas-Fort Worth International Airport and Parkland Hospital in Dallas, Texas. |
We have four area developers in the areas other than Boston. We seek to sell franchises to
sophisticated, experienced restaurant operators who already know their markets, having operated
other restaurants in their territories. We believe these sophisticated operators will enable our
concept to grow rapidly and help establish the UFood brand across the country. We do not allow
sub-franchising. All franchise agreements are directly with us.
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We also intend to grow our store base through the building of Company-owned stores. Our current
plan calls for approximately 10% of our stores to be Company-owned. The primary purpose of this
effort is to ensure that management understands how the stores evolve and operate and has its own
kitchen to test new initiatives (menu items, loyalty programs etc.) in front of real customers.
We have transitioned our loyalty program to an email club to communicate with our guests and send
out special offers. To leverage the current
geographical concentration of UFood stores in the Boston area, we plan to locate the new
Company-owned stores in the New England area, close to our headquarters.
We have developed two prototype stores that we believe are suitable to differing site and
demographic conditions: 1) 1,500 2,500 sq. feet units (currently four stores); and 2) 800
1,000 sq. feet units that are kiosks in airports, bus and train stations, hospitals and other
high-traffic locations (currently three store). We cannot currently estimate the proportion of our
planned future locations that will fall in each of these categories.
Franchise Operations
UFood has pursued a broad-based franchising program since 2004. UFood continues to extend its
franchise relationships beyond its current franchisees. Pursuant to federal and state regulations,
UFood annually updates its Franchise Disclosure Document, which includes a disclosure statement, a
Franchise Agreement, and an Area Development Agreement, to facilitate sales of additional franchise
and area development licenses. The UFood franchise agreement typically requires the payment of a
franchise fee of $35,000 per restaurant, royalties of 5.0% of gross sales and contributions to a
system-wide advertising fund of 1.5% of gross sales. The franchisee is also required to spend 1.5%
of gross sales on local marketing. In general, 50% of the franchise fee is payable at the time the
Franchise Agreement is signed and the balance is due at the time each store opens. Each Franchise
Agreement generally provides for a term of 15 years and two, five-year renewal options.
The Area Development Agreement is similar to the Franchise Agreement in its terms. In order for an
area developer to acquire the rights to a territory, the developer must pay one-half of the
franchise fee up front for each unit that developer agrees to build in the territory. In some
agreements, UFood has deferred the payment of the upfront fee, so that the developer pays up-front
fees for the first few stores upon the execution of the agreement and fees for the stores opening
in phase 2 of the build-out at a later date. UFood estimates that it costs between $560,000 and
$760,000 to open one of its outlets.
To ensure that the UFood concept is consistent across all geographic areas, we have fully built out
the corporate support system for franchisees. New franchisees get assistance on all levels,
including build-out specifications, operational guidance, and menu and recipes. We also provide a
three week training program for each of our new franchisees and employees prior to new store
openings.
Suppliers
We strive to obtain consistent high-quality ingredients at competitive prices from reliable
sources. To obtain operating efficiencies and to provide fresh ingredients for our food products
while obtaining the lowest possible ingredient prices for the required quality, we purchase over
70% of our restaurant supplies from a single supplier, US Foodservice, Inc. The balance of our
restaurant supplies come from local vegetable and bread suppliers. Most food, produce and other
products are shipped from US Foodservices distribution facility directly to our restaurant
locations two to three times per week. We do not maintain a central food product warehouse or
commissary. We do not have any long-term contracts with our food suppliers. In the past, we have
not experienced delays in receiving our food and beverage inventories, restaurant supplies or
equipment.
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Competition
The restaurant industry is intensely competitive. There are many different sectors within the
restaurant industry that are distinguished by types of service, food types and price/value
relationships. We position our restaurants in the highly competitive and fragmented fast-casual
sector of the restaurant industry. In addition to competing against other fast-casual restaurants,
we compete against other sectors of the restaurant industry, including fast-food restaurants and
casual dining restaurants. The number, size and strength of competitors
within each sector vary by region. We compete based on a number of factors including taste, product
quality, speed of service, value, name recognition, restaurant condition and ambiance, location and
customer service. Although we believe we compete favorably with respect to each of these factors,
many of our direct and indirect competitors are well-established national, regional or local chains
and have substantially greater financial, marketing, personnel and other resources.
Customers seeking a healthier meal at a foodservice establishment, have several choices available
to them throughout the country. However, we are not aware of any national chains of health-oriented
quick-service restaurants that geographically cover the whole United States or even a number of
states.
The following is a list of restaurants that position themselves as healthier and compete in the
quick-serve environment, mostly on a local level. The largest chain has six stores.
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Better Burger (New York City) |
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Energy Kitchen (New York City) |
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The Pump (New York City) |
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Evos (California, Florida, Nevada, North Carolina) |
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Healthy Bites (Florida) |
Of the restaurants listed above, only b. good operates in the Boston area. A number of fast food
chains and local eateries operating in the greater Boston area offer similar products and services
as UFood Grill but without the emphasis on health. b. good operates five locations in the Boston
area. In addition to b. good, there are several vegetarian and raw vegan restaurants in the Boston
area as well as several health food stores. These outlets offer healthy food but not in a
quick-serve environment.
We also compete with these and many other retail establishments for desirable site locations. See
Risk FactorsThere is intensive competition in our industry, and we will be competing with
national and regional chains and independent restaurant operators.
Employees
As of December 27, 2009, we employed approximately 32 full-time associates (defined as associates
who average 32 hours or more per week), of whom 11 were employed in general or administrative
functions, principally at our headquarters in Newton, Massachusetts, and approximately 21 were
employed in our four Company-operated restaurant locations in the Boston area as managers and
associates. UFood does not have any collective bargaining agreements with its employees and
considers its employee relations to be good. UFood places a priority on staffing its restaurant and
store operations with skilled associates and invests in training programs to ensure the quality of
its operations.
Trademarks
We have registered the following trademarks with the United States Patents and Trademarks Office:
Unfries , UFood Grill, Proccino, KnowFat! Lifestyle Grille, KnowFat, Prolatta,
UBerry, Ubowls, Smuuthies, and LoFat KnowFat. We believe that our trademarks and other
proprietary rights have significant value and are important to the marketing of our restaurant
concept.
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Seasonality
While our business is not significantly seasonal, revenues in the first two quarters of the
calendar year are slightly higher than the last two quarter of the year.
Government Regulation
Our restaurants are subject to licensing and regulation by state and local health, sanitation,
safety, fire and other authorities, including licensing and permit requirements for the sale of
food. To date we have not experienced an inability to obtain or maintain any necessary licenses,
permits or approvals. In addition, the development and construction of additional units are also
subject to compliance with applicable zoning, land use and environmental regulations. See Risk
FactorsOur food service business and the restaurant industry are subject to extensive government
regulation.
Environmental Regulation
Our business is subject to federal, state and local environmental laws and regulations concerning
the discharge, storage, handling, release and disposal of hazardous or toxic substances. These
environmental laws provide for significant fines, penalties and liabilities, sometimes without
regard to whether the owner or operator of the property knew of, or was responsible for, the
release or presence of the hazardous or toxic substances. Third parties may also make claims
against owners or operators of properties for personal injuries and property damage associated with
releases of, or actual or alleged exposure to, such substances. To date, our stores have not been
the subject of any material environmental matters. See Risk FactorsWe have not conducted a
comprehensive review of all the potential environmental liabilities at our properties.
Risks Related to Our Company and Our Business
We have a limited operating history and are subject to all of the risks inherent in the expansion
of an early-stage business.
We were formed approximately six years ago, and we have a short operating history upon which an
investor can evaluate our performance. Our proposed operations are subject to all of the risks
inherent in the expansion of an early-stage business enterprise, including higher-than-expected
expenses and uncertain revenues. The likelihood of our success must be considered in light of the
problems, expenses, difficulties, complications and delays frequently encountered in connection
with the expansion of an early-stage business and the competitive environment in which we operate.
We have had no profits to date, and there can be no assurance of future profits. As a result of the
expansion-stage nature of our business and the fact that we will incur significant expenses in
connection with our activities, we can be expected to sustain operating losses for the foreseeable
future.
We
have not been profitable to date and expect our operating losses to continue for the foreseeable
future; we may never be profitable. Our auditors have included an
explanatory paragraph in their opinion as to the substantial doubt
about our ability to continue as a going concern.
We have incurred annual operating losses and generated negative cash flows since our inception and
have financed our operations principally through equity investments and borrowings. At this time,
our ability to generate sufficient revenues to fund operations is uncertain. For the fiscal year
ended December 27, 2009, we had revenue of $5,450,836 and incurred an operating loss of $3,465,177.
For the fiscal year ended December 28, 2008, we had revenue of $5,824,042 and incurred an
operating loss of $9,949,481. Our total accumulated deficit through December 27, 2009, was
$25,515,871.
Due to, among other factors, our history of losses and negative cash
flows from operations, our independent auditors have included an
explanatory paragraph in their opinion for the year ended
December 31, 2009 as to the substantial doubt about our ability
to continue as a going concern. Our financial statements have been
prepared in accordance with accounting principals generally accepted
in the United States, which contemplate that we will continue to
operate as a going concern. Our financial statements do not contain
any adjustments that might result if we are unable to continue as a
going concern.
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As a result of our brief operating history, revenue is difficult to predict with certainty. Current
and projected expense levels are based largely on estimates of future revenue. We expect expenses
to increase in the future as we expand our sales, marketing and administrative activities and incur
the expenses of being a public company. As a result, we expect to incur additional losses for at
least the next 18 months. We cannot assure you that we will be profitable in the future or generate
future revenues. Accordingly, the extent of our future losses and the time required to achieve
profitability, if ever, is uncertain. Failure to achieve profitability could materially and
adversely affect the value of our Company and our ability to effect additional financings. The
success of the business depends on our ability to increase revenues to offset expenses. If our
revenues fall short of projections, our business, financial condition and operating results will be
materially adversely affected. If we are unable to generate positive cash flow from our
Company-owned restaurants or if the market price of our common stock declines, we may be required
to recognize an impairment loss with respect to the assets of our Company-owned restaurants or our
goodwill.
There are risks inherent in expansion of operations, including our ability to sell franchises,
generate profits from new restaurants, find suitable sites and develop and construct stores in a
timely and cost-effective way.
We cannot project with certainty, nor do we make any representations regarding, the number of
franchises we will be able to sell or the number of new restaurants we and our franchisees will
open in accordance with our present plans and within the timeline or the budgets that we currently
project. While our business plan focuses primarily on the sale of franchises rather than building
and operating additional Company-owned stores, sales at Company-owned stores represented over 85%
of our total revenues for the year ended December 27, 2009. Our failure to sell the projected
number of franchises would adversely affect our ability to execute our business plan by, among
other things, reducing our revenues and profits and preventing us from realizing our strategy of
being the first major franchiser of retail outlets offering a combination of food service featuring
low-fat, low-carbohydrate and low-calorie food items, selected beverages to the general public.
Furthermore, we cannot assure you that our new restaurants will generate revenues or profit margins
consistent with those currently operated by us and our franchisees or that our restaurants will be
operated profitably.
During the year ended December 27, 2009, our store operations business segment generated revenue of
$4,632,651 and an operating loss of $13,056. During the year ended December 28, 2008, our store
operations business segment generated revenue of $5,462,915 and an operating loss of $2,781,278.
We will rely primarily upon area developers to open and operate franchise units. The number of
openings and the performance of new stores will depend on various factors, including:
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the availability of suitable sites for new stores; |
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our and our franchisees ability to negotiate acceptable lease or purchase terms for
new locations, obtain adequate financing, on favorable terms, requires to construct,
build-out and operate new stores and meet construction schedules, and hire and train and
retain qualified store managers and personnel; |
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managing construction and development costs of new stores at affordable levels; |
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the establishment of brand awareness in new markets; and |
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the ability of our Company and our area developers to manage this anticipated
expansion. |
While the impact varies with the location and the qualifications of the franchisee, tight credit
markets are generally making financing for construction and operation of restaurants more difficult
to obtain on favorable terms.
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Competition for suitable store sites in target markets is intense and lease costs are increasing
(particularly for urban locations). Not all of these factors are within our control or the control
of our franchisees, and there can
be no assurance that we will be able to accelerate our growth or that we will be able to manage the
anticipated expansion of our operations effectively.
We will depend on contractors and real estate developers to construct our stores. Many factors may
adversely affect the cost and time associated with the development and construction of our stores,
including:
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shortages of materials or skilled labor; |
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requirements to use union labor; |
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unforeseen engineering problems; |
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environmental problems; |
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construction or zoning problems; |
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local government regulations; |
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modifications in design; and |
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other unanticipated increases in costs. |
Any of these factors could give rise to delays or cost overruns, which may prevent us from
developing additional stores within our anticipated budgets or time periods or at all. Any such
failure could cause our business, results of operations and financial condition to suffer. The
recent volatility in certain commodity markets, such as those for energy, grains and dairy
products, which have experienced significant increases in prices, may be generally causing
franchisees in our industry to delay construction of new restaurants and/or causing potential new
franchisees to reconsider entering into franchise agreements.
Our business plan is dependent on the franchising model; therefore, our success will generally
depend on the success of our franchisees and the profitability of their stores.
Because royalties from franchisees sales are a principal component of our revenue base, our
success is dependent upon our ability to attract highly qualified franchisees and the ability of
our franchisees to promote and capitalize upon UFoods concept. Our franchisees generally depend
upon financing from banks and other financial institutions to finance the cost of opening a new
restaurant. If franchisees cannot obtain reasonable financing and restaurants do not open, our
royalties from those restaurants will not exist. Even if we are successful in selling franchise
units, the contemplated expansion may entail difficulty in maintaining quality standards, operating
controls and communications, and in attracting qualified restaurant operators. Locations for units
will be based on theoretical projections of market demand with no assurance that such locations
will prove successful. As a result, franchise units may not attain desired levels of revenues or
may attain them more slowly than projected, and this would adversely affect our results of
operations. Since we are dependent on franchisee royalties, we are also at risk for the
non-performance by our franchisees of their payment and other obligations under our franchise
agreements. For example, in May 2008, we terminated a 2005 franchise agreement with our franchisee
operator in Dade and Broward Counties, Florida,
11
covering 24 unopened franchise locations because
the franchisee did not meet the opening timeline specified in the agreement, and we have reclaimed
the franchise territory. In 2007, two agreements covering two operating and four unopened
locations were terminated after the stores ceased operations. Two other agreements covering twelve
unopened locations were also terminated when the area developers did not meet the opening timeline
set forth in their agreements. In 2009, we terminated three Area Development Agreements that
included the following states Colorado, Utah, Montana, Wyoming, Idaho, Illinois, and the Houston,
TX area. Also, during 2009 we terminated two franchise agreements for stores in DeMoines, IA and
Burlington, MA. Currently, the area developers in San Jose, CA and Naples, FL whose agreements
require them to develop an aggregate of 12 restaurants, had failed to meet their agreed opening
timelines. Similar defaults or failures by other franchisees could materially adversely affect our
growth plans and our business, financial condition and operating results.
Our past and future operating losses may make it more difficult for us to attract new franchisees.
Potential new franchisees may be reluctant to commit to develop new UFood Grill restaurants as long
as we are not profitable. As stated above, we have not been profitable to date and expect our
operating losses to continue for at least the next 18 months. Until we have demonstrated the
ability to be profitable, we may find it difficult to attract new franchisees, who are required to
expend substantial sums to develop, construct and operate new restaurants, if they perceive that
there is a risk that we will not continue in business or that our lack of profitability will impair
their ability to make a profit.
We may be subject to general risk factors affecting the restaurant industry, including current
economic climate, costs of labor, food prices, gasoline prices and the unemployment levels.
If we grow as anticipated, our Company and our franchisees may be affected by risks inherent in the
restaurant industry, including:
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adverse changes in national, regional or local economic or market conditions; |
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increased costs of labor (including increases in the minimum wage); |
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increased costs of food products; |
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availability of, and ability to obtain, adequate supplies of ingredients that meet
our quality standards; |
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increased energy costs; |
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increases in the number and density of competitors; |
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limited alternative uses for properties and equipment; |
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changing consumer tastes, habits and spending priorities; |
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the cost and availability of insurance coverage; |
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changes in government regulation; |
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changing traffic patterns; |
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weather conditions; and |
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local, regional or national health and safety matters. |
Our Company and our franchisees may be the subject of litigation based on discrimination, personal
injury or other claims. We can be adversely affected by publicity resulting from food quality,
illness, injury or other health concerns or operating issues resulting from one restaurant or a
limited number of restaurants in our system. None of these factors can be predicted with any degree
of certainty, and any one or more of these factors could have a material adverse effect on our
Company.
There is intensive competition in our industry, and we will be competing with national and regional
chains and independent restaurant operators.
The restaurant industry is intensely competitive. There are several healthy-food themed
restaurants, most of which have fewer than six units. Moreover, the retail food industry in
general, which is highly competitive and includes highly sophisticated national and regional
chains, has begun to offer healthier alternatives to its typical menu offerings. We operate in
the fast-casual sector of the retail food industry. This sector is highly competitive with respect
to, among other things, taste, price, food quality and presentation, service, location and the
ambiance and condition of each restaurant. Some of the restaurants and franchises have substantial
financial resources, name recognition and reputations. While we strive to differentiate ourselves
from major restaurants and food-service establishments through the nutritional attributes of the
items we offer on our menu (all-natural and hormone-free meat, reduced fat sauces, cheeses and
salad dressings, whole grain breads, and whenever possible, organic vegetables), the manner in
which those items are prepared (baked, steamed or grilled) and the environment in which they are
offered, we will, nonetheless, be required to compete with national and regional chains and with
independent operators for market share, access to desirable locations and recruitment of personnel.
Many of our competitors have existed longer and have a more established market presence with
substantially greater financial, marketing, personnel and other resources than us. No assurances
can be given that we will have the financial resources, distribution ability, depth of key
personnel or marketing expertise to compete successfully in these markets.
Our business has been adversely affected by declines in discretionary spending and may be affected
by changes in consumer preferences.
Our success depends, in part, upon the popularity of our food products and our ability to develop
new menu items that appeal to consumers. Shifts in consumer preferences away from our restaurants
or cuisine, our inability to develop new menu items that appeal to consumers or changes in our menu
that eliminate items popular with some consumers could harm our business. Also, our success depends
to a significant extent on discretionary consumer spending, which is influenced by general economic
conditions and the availability of discretionary income. Accordingly, we may experience declines in
sales during economic downturns or during periods of uncertainty like that which followed the 2001
terrorist attacks on the United States and the possibility of further terrorist attacks. A
continuing decline in the amount of discretionary spending could have a material adverse effect on
our sales, results of operations, business and financial condition.
For the twelve months ended December 27, 2009, comparable store sales for our Company-owned stores
decreased by 5.6% and our system-wide comparable store sales decreased by 8.5%. We believe higher
gasoline prices, inflationary pressures on groceries and utilities, increased unemployment, home
foreclosures and tightening credit conditions have all reduced consumer discretionary spending
which in turn has adversely impacted our revenues and may continue to do so.
13
Increases in costs, including food, labor and energy prices, will adversely affect our results of
operations.
Our profitability is dependent on our ability to anticipate and react to changes in our operating
costs, including food, labor, occupancy (including utilities and energy), insurance and supplies
costs. Various factors beyond our control, including climatic changes and government regulations,
may affect food costs. Specifically, our dependence on frequent, timely deliveries of fresh meat
and produce subject us to the risks of possible
shortages or interruptions in supply caused by adverse weather or other conditions which could
adversely affect the availability and cost of any such items. In the past, we have been able to
recover some of our higher operating costs through increased menu prices. There have been, and
there may be in the future, delays in implementing such menu price increases, and competitive
pressures may limit our ability to recover such cost increases in their entirety. The recent
volatility in certain commodity markets, such as those for energy, grains and dairy products, which
have experienced significant increases in prices, may have an adverse effect on us in the fiscal
2010 and beyond and may cause franchisees in our industry to delay construction of new restaurants
and/or cause potential new franchisees to reconsider entering into franchise agreements. The extent
of the impact may depend on our ability to increase our menu prices and the timing thereof.
Our stores are concentrated in a small geographic area.
Four of our stores are located in the greater Boston area. A downturn in the regional economy or
other significant adverse events in the greater Boston area could have a material adverse effect on
our financial condition and results of operations.
The growth of our Company is dependent on the skills and expertise of management and key personnel.
During the upcoming stages of our Companys growth, we will be entirely dependent upon the
management skills and expertise of our management and key personnel, including George Naddaff, our
current Chairman and Chief Executive Officer, and Charles A. Cocotas, our current President and
Chief Operating Officer. We would be materially adversely affected in the event that the services
of these individuals or other management or key personnel for any reason ceased to be available and
adequate replacement personnel were not found. We have obtained key-man insurance on the life of
George Naddaff. Such insurance may be cancelled if premiums are not paid when due. If the current
policy is cancelled and when it expires, similar insurance may not be available in the future on
terms acceptable to us, and there can be no assurance we will be able to secure such insurance.
Our food service business and the restaurant industry are subject to extensive government
regulation.
We are subject to extensive and varied federal, state and local government regulation, including
regulations relating to public health and safety and zoning codes. We operate each of our stores in
accordance with standards and procedures designed to comply with applicable codes and regulations.
However, if we could not obtain or retain food or other licenses, it would adversely affect our
operations. Although we have not experienced, and do not anticipate, any significant difficulties,
delays or failures in obtaining required licenses, permits or approvals, any such problem could
delay or prevent the opening of, or adversely impact the viability of, a particular store or group
of stores.
Massachusetts, California and most other states and local jurisdictions have enacted laws, rules,
regulations and ordinances which may apply to the operation of a UFood store, including those
which:
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Establish general standards, specifications and requirements for the construction,
design and maintenance of the store premises; |
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regulate matters affecting the health, safety and welfare of our customers, such as
general health and sanitation requirements for restaurants, employee practices concerning
the storage, handling, cooking and preparation of food, special health, food service and
licensing requirements, restrictions on smoking, exposure to tobacco smoke or other
carcinogens or reproductive toxicants and saccharin and availability of and requirements
for public accommodations, including restrooms; |
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set standards pertaining to employee health and safety; |
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set standards and requirements for fire safety emergency preparedness; regulate the
proper use, storage and disposal of waste, insecticides, and other hazardous materials; |
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establish general requirements or restrictions on advertising containing false or
misleading claims, or health and nutrient claims on menus or otherwise, such as low
calorie or fat free, and |
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establish requirements concerning withholdings and employee reporting of taxes on tips. |
In addition, some jurisdictions now require menu or other in-store disclosure of calorie and other
nutritional information for each menu item.
In order to develop and construct more stores, we need to comply with applicable zoning, land use
and environmental regulations. Federal and state environmental regulations have not had a material
effect on our operations to date, but more stringent and varied requirements of local governmental
bodies with respect to zoning, land use and environmental factors could delay or even prevent
construction and increase development costs for new stores. We are also required to comply with the
accessibility standards mandated by the U.S. Americans with Disabilities Act, which generally
prohibit discrimination in accommodation or employment based on disability. We may, in the future,
have to modify stores, for example, by adding access ramps or redesigning certain architectural
fixtures, to provide service to or make reasonable accommodations for disabled persons. While these
expenses could be material, our current expectation is that any such action will not require us to
expend substantial funds.
We are subject to the U.S. Fair Labor Standards Act, the U.S. Immigration Reform and Control Act of
1986 and various federal and state laws governing various matters including minimum wages, overtime
and other working conditions. We pay a significant number of our hourly staff at rates consistent
with but higher than the applicable federal or state minimum wage. Accordingly, increases in the
minimum wage would increase our labor cost. We are also subject to various laws and regulations
relating to our current and any future franchise operations.
We are also subject to various federal and state laws that regulate the offer and sale of
franchises and aspects of the licensor-licensee relationships. Many state franchise laws impose
restrictions on the franchise agreement, including the duration and scope of non-competition
provisions, the ability of a franchisor to terminate or refuse to renew and the ability of a
franchisor to designate sources of supply. The Federal Trade Commission, or the FTC, and some state
laws also require that the franchisor furnish to prospective franchisees a franchise offering
circular that contains prescribed information and, in some instances, require the franchisor to
register the franchise offering.
We have not conducted a comprehensive review of all the potential environmental liabilities at our
properties.
We are subject to federal, state and local environmental laws and regulations concerning the
discharge, storage, handling, release and disposal of hazardous or toxic substances. These
environmental laws provide for significant fines, penalties and liabilities, sometimes without
regard to whether the owner or operator of the property knew of, or was responsible for, the
release or presence of the hazardous or toxic substances. Third parties may also make claims
against owners or operators of properties for personal injuries and property damage associated with
releases of, or actual or alleged exposure to, such substances. We cannot predict what
environmental laws will be enacted in the future, how existing or future environmental laws will be
administered or interpreted or the amount of future expenditures that we may need to make to comply
with, or to satisfy claims relating to, environmental laws. While, during the period of their
ownership, lease or operation, our stores have not been subject to any material environmental
matters, we have not conducted a comprehensive environmental review of our properties or
operations. We have not conducted investigations of our properties to identify contamination caused
by third-party operations; in such instances, our landlords would be required to address the
contamination. If the relevant landlord does not identify contamination properly or completely,
then under certain environmental laws, we could be held liable as an owner and operator to address
any remaining contamination. Any such liability could be material.
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Our success and competitive position depends on our ability to protect our proprietary intellectual
property.
We own certain common law trademark rights and a number of federal trademark and service mark
registrations. We believe that our trademarks and other proprietary rights are important to our
success and our competitive position. We therefore devote what we believe to be appropriate
resources to the protection of our trademarks and proprietary rights. The protective actions that
we take, however, may not be enough to prevent unauthorized usage or imitation by others, which may
cause us to incur significant litigation costs and could harm our image or our brand or competitive
position. To date, we have not been notified that our trademarks or menu offerings infringe upon
the proprietary rights of third parties, but we cannot assure you that third parties will not claim
infringement by us. Any such claim, whether or not it has merit, could be time-consuming, result in
costly litigation, cause product delays or require us to enter into royalty or licensing
agreements. As a result, any such claim could have a material adverse effect on our business,
results of operations and financial condition. As a franchisor, we will grant our franchisees a
limited license to use our trademarks and service marks. The general public could incorrectly
identify our franchisees as controlled by us. In the event that a court determines the franchisee
is not adequately identified as a franchisee, we could be held liable for the misidentified
franchisees debts, obligations and liabilities.
Our plan to rapidly increase the number of stores may make future results unpredictable, as our
success will depend on acceptance of our products in new markets.
We plan to significantly increase the number of our stores in the next three years. This growth
strategy and the substantial investment associated with the development of each new store may cause
operating results to fluctuate and be unpredictable or adversely affect profits. Our future results
depend on various factors, including successful selection of new markets and store locations,
market acceptance of the UFood experience, consumer recognition of the quality of our food and
willingness to pay our prices (which in some instances reflect higher ingredient costs), the
quality of operations and general economic conditions. In addition, as has happened when other
fast-casual restaurant concepts have tried to expand nationally, we may find that the UFood concept
has limited or no appeal to customers in new markets or we may experience a decline in the
popularity of UFood restaurants. Newly opened stores may not succeed, future markets and stores may
not be successful and, even if we are successful, our average store sales may not increase.
New stores, once opened, may not be profitable, and the increases in average store sales and
Company store sales that we have experienced in the past may not be indicative of future results.
Our ability to operate new stores profitably and increase sales will depend on many factors, some
of which are beyond our control, including:
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sales performance of new stores |
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competition, either from competitors in the restaurant industry or our own stores; |
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changes in consumer preferences and discretionary spending; |
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consumer understanding and acceptance of UFood stores; |
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road construction and other factors limiting access to new stores; |
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general economic conditions, which can affect store traffic, local labor costs and
prices we pay for ingredients and other supplies; and |
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changes in government regulation. |
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If we fail to open stores as quickly as planned, or if new stores do not perform as planned, our
business and future prospects could be harmed. In addition, a decrease in store sales could cause
operating results to vary adversely from expectations.
Expansion into new markets may present increased risks due to our unfamiliarity with those areas.
Some of the new stores are planned for markets where we have little or no operating experience.
Those markets may have different competitive conditions, consumer tastes and discretionary spending
patterns than our existing markets. As a result, those new stores may be less successful than
stores in existing markets. Consumers in a new market may not be familiar with the UFood brand, and
we may need to build brand awareness in that market through greater investments in advertising and
promotional activity than we originally planned. We may find it more difficult in new markets to
hire, motivate and keep qualified employees who can project the UFood vision, passion and culture.
Stores opened in new markets may also have lower average store sales than stores opened in existing
markets, and may have higher construction, occupancy or operating costs than stores in existing
markets. Sales at stores opened in new markets may take longer to ramp up and reach expected sales
and profit levels, and may never do so, thereby affecting overall profitability.
We may not persuade customers of the benefits of paying higher prices for higher-quality food.
Due to what we believe are our higher quality standards, our food prices may be substantially
higher than those of many of our competitors, particularly those in the fast food sector. Our
success depends in large part on our ability to persuade customers that food and beverages made
with higher-quality ingredients are worth the higher prices they will pay at our stores relative to
prices offered by these competitors. That could require us to change our pricing, advertising or
promotional strategies, which could materially and adversely affect its results or the brand
identity we have tried to create.
Additional instances of avian flu or mad cow disease or other food-borne illnesses could
adversely affect the price and availability of chicken, beef or other meat, cause the temporary
closure of some stores and result in negative publicity, thereby resulting in a decline in sales.
In 2004 and 2005, Asian and European countries experienced outbreaks of avian flu. Incidents of
mad cow disease have occurred in Canadian and U.S. cattle herds. These problems, other food-borne
illnesses (such as E. coli, hepatitis A, trichinosis or salmonella) and illnesses and injuries
caused by food tampering have in the past, and could in the future, adversely affect the price and
availability of affected ingredients and cause customers to shift their preferences, particularly
if we choose to pass any higher ingredient costs along to consumers. As a result, our sales may
decline. Instances of food-borne illnesses, real or perceived, whether at our restaurants or
those of our competitors, could also result in negative publicity about us or the restaurant
industry, which could adversely affect sales. If we react to negative publicity by changing our
menu or other key aspects of our restaurants, we may lose customers who do not accept those
changes, and may not be able to attract enough new customers to produce the revenue needed to make
our stores profitable. If customers become ill from food-borne illnesses, we could face substantial
liability and be forced to temporarily close restaurants.
Our franchisees could take actions that harm our reputation and reduce our royalty revenues.
We do not exercise control over the day-to-day operations of our franchised stores. While we try to
ensure that franchised stores meet the same operating standards demanded of our Company-operated
stores, one or more franchised stores may not do so. Any operational shortcomings of our franchised
stores are likely to be attributed by the public and/or regulators to our system-wide operations
and could adversely affect our reputation and have a direct negative impact on the royalty revenues
received from those stores.
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We could be party to litigation that could adversely affect us by distracting management,
increasing expenses or subjecting us to material money damages and other remedies.
Customers may occasionally file complaints or lawsuits against us alleging that we are responsible
for some illness or injury they suffered at or after a visit to a restaurant, or that we have
problems with food quality or operations. We could also become subject to a variety of other claims
arising in the ordinary course of business, including personal injury claims, contract claims and
claims alleging violations of federal and state law regarding workplace and employment matters,
discrimination and similar matters, and could become subject to class action or other lawsuits
related to these or different matters in the future. In addition, the restaurant industry has been
subject to a growing number of claims based on the nutritional content of food products they sell
and disclosure and advertising practices. We may also be subject to this type of proceeding in the
future and, even if not, publicity about these matters (particularly directed at the fast food and
fast-casual sectors of the industry) may harm our reputation or prospects and adversely affect our
results.
Unfavorable publicity or consumer perception of our nutritional products and any similar products
distributed by other companies could cause fluctuations in our operating results and could have a
material adverse effect on our reputation, the demand for our products and our ability to generate
revenues.
Consumer perception of products can be significantly influenced by scientific research or findings,
national media attention and other publicity about product use. A product may be received
favorably, resulting in high sales associated with that product that may not be sustainable as
consumer preferences change. Future scientific research or publicity could be unfavorable to the
nutritional products market or any of our particular products and may not be consistent with
earlier favorable research or publicity. A future research report or publicity that is perceived by
our consumers as less favorable or that question such earlier research or publicity could have a
material adverse effect on our ability to generate revenues from nutritional products. For example,
our sales were adversely affected when the Food and Drug Administrations rule banning the sale
of dietary supplements containing ephedra went into effect in 2004. As a result of the above
factors, our revenues from nutritional products may fluctuate significantly from quarter to
quarter, which may impair our overall revenues and profitability. Adverse publicity in the form of
published scientific research or otherwise, whether or not accurate, that associates consumption of
our nutritional products or any other similar products with illness or other adverse effects, that
questions the benefits of our or similar products or that claims that any such products are
ineffective could have a material adverse effect on our reputation, the demand for our nutritional
products and our ability to generate revenues.
We may incur material product liability claims, which could increase our costs and adversely affect
our reputation, revenues and operating income.
As a retailer of nutritional products designed for human consumption, we are subject to product
liability claims if the use of our products is alleged to have resulted in injury. Our products
include vitamins, minerals, herbs and other ingredients that are classified as foods or dietary
supplements and are not subject to pre-market regulatory approval in the United States. Our
products could contain contaminated substances, and some of our products contain innovative
ingredients that do not have long histories of human consumption. Previously unknown adverse
reactions resulting from human consumption of these ingredients could occur. All of the nutritional
products we sell are produced by third-party manufacturers. Even though we are only a retailer of
nutritional products manufactured by third parties, we may nevertheless be liable for various
product liability claims. We may be subject to various product liability claims, including, among
others, that our products include inadequate instructions for use or inadequate warnings concerning
possible side effects and interactions with other substances. A product liability claim against us
could result in increased costs and could adversely affect our reputation with our customers, which
in turn could adversely affect our revenues and operating income. Any claims would be tendered to
the third-party manufacturer or to our insurer; however, there can be no assurance that the
manufacturer would have sufficient financial resources to satisfy any claim or that a claim would
be covered by or would not exceed the limits of our insurance.
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We will need to raise additional capital to meet our business requirements in the future, and such
capital raising may be costly or difficult to obtain and could dilute current stockholders
ownership interests.
As of December 27, 2009, we expect we will need to raise additional capital to fund our operating
plan. See Managements Discussion and Analysis of Financial Condition and Results of
OperationsLiquidity, Funding and Capital Resources below. Additional capital may not be
available on reasonable terms or at all. Our income from operations is unlikely to be sufficient to
fund our business plan. We may need to raise additional funds through borrowings or public or
private debt or equity financings to meet various objectives including, but not limited to:
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pursuing growth opportunities, including more rapid expansion; |
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opening additional Company-owned stores beyond the four we currently operate |
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acquiring complementary businesses |
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making capital improvements to improve our infrastructure; |
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hiring qualified management and key employees; |
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research and development of new products; |
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increased advertising and marketing expenses; |
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responding to competitive pressures; |
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complying with regulatory requirements such as licensing and registration; and |
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maintaining compliance with applicable laws. |
Any future issuance of our equity or equity-backed securities may dilute then-current stockholders
ownership percentages. See You may experience dilution of your ownership interests because of
other future issuance of additional shares of common stock below.
Furthermore, any additional debt or equity financing that we may need may not be available on terms
favorable to us, or at all. If we are unable to obtain required additional capital, we may have to
curtail our growth plans or cut back on existing business and, further, we may not be able to
continue operating if we do not generate sufficient revenues from operations needed to stay in
business.
We may incur substantial costs in pursuing future capital financing, including investment banking
fees, legal fees, accounting fees, securities law compliance fees, printing and distribution
expenses and other costs. We may also be required to recognize non-cash expenses in connection with
certain securities we may issue, such as convertible notes, restricted stock, stock options and
warrants, which may adversely impact our financial condition.
The failure of our subsidiary to satisfy its obligations under an existing credit facility could
result in a foreclosure on our assets.
KFLG Watertown, Inc. (KFLG), our wholly-owned subsidiary, is a party to an approximately $255,000
credit facility with TD Banknorth , N.A. (the Bank), which is secured by a lien on the assets of
KFLG. The obligations of KFLG under the credit facility are guaranteed by KnowFat of Downtown
Crossing, Inc., KnowFat of Landmark Center, Inc., and our Chief Executive Officer, and are secured
by liens on the assets of each. In the event that KFLG fails to satisfy its obligations under the
Bank credit facility, the Bank may attempt to foreclose on the assets of KFLG, KnowFat of Downtown
Crossing, Inc., KnowFat of Landmark Center, Inc., and our Chief Executive Officer. Any such
foreclosure could be costly and time consuming to us
and our subsidiaries and could result in the forfeiture of the assets subject to the Banks liens.
In addition, the Banks liens could make it more difficult for us to obtain additional debt or
equity financing in the future.
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Compliance with the reporting requirements of federal securities laws can be expensive.
We are a public reporting company in the United States, and accordingly, are subject to the
information and reporting requirements of the Securities Exchange Act of 1934 (the Exchange Act)
and other federal securities laws, and the compliance obligations of the Sarbanes-Oxley Act. The
costs of preparing and filing annual and quarterly reports and other information with the SEC and
furnishing audited reports to stockholders will cause our expenses to be higher than they would be
if we had remained privately-held.
Applicable regulatory requirements, including those contained in and issued under the
Sarbanes-Oxley Act, may make it difficult for us to retain or attract qualified officers and
directors, which could adversely affect the management of our business and our ability to obtain or
retain listing of our common stock.
We may be unable to attract and retain those qualified officers, directors and members of board
committees required to provide for effective management because of the rules and regulations that
govern publicly held companies, including, but not limited to, certifications by principal
executive and financial officers. The enactment of the Sarbanes-Oxley Act has resulted in the
issuance of a series of rules and regulations and the strengthening of existing rules and
regulations by the SEC, as well as the adoption of new and more stringent rules by the stock
exchanges. The perceived increased personal risk associated with these changes may deter qualified
individuals from accepting roles as directors and executive officers.
Further, some of these changes heighten the requirements for board or committee membership,
particularly with respect to an individuals independence from the corporation and level of
experience in finance and accounting matters. We may have difficulty attracting and retaining
directors with the requisite qualifications. If we are unable to attract and retain qualified
officers and directors, the management of our business and our ability to obtain or retain listing
of our common stock on any stock exchange (assuming we elect to seek and are successful in
obtaining such listing) could be adversely affected.
We are a holding company that depends on cash flow from our subsidiaries to meet our obligations
and pay dividends; our subsidiary is restricted from making distributions to us.
We are a holding company with no material assets other than the stock of our wholly-owned
subsidiaries. Accordingly, all of our operations will be conducted by KnowFat, our wholly-owned
subsidiary (and the wholly-owned subsidiaries of KnowFat). We currently expect that the earnings
and cash flow of our subsidiaries will primarily be retained and used by them in their operations,
including servicing any debt obligations they may have now or in the future. Therefore, our
subsidiaries may not be able to generate sufficient cash flow to distribute funds to us in order to
allow us to pay the obligations of UFood Restaurant Group, Inc., as they become due or, although we
do not anticipate paying any dividends in the foreseeable future, pay future dividends on, or make
any distributions with respect to, our common or other stock. Additionally, our ability to
participate as an equity holder in any distribution of assets of any subsidiary upon liquidation is
generally subordinate to the claims of creditors of the subsidiary. Under the terms of the credit
facility with TD Banknorth, KFLG is prohibited, without the prior written consent of TD Banknorth,
from declaring, making or paying any distribution of any kind or dividend (other than dividends
payable solely in common stock) except that any of KFLGs subsidiaries may make a distribution to
KFLG.
20
We have reported a material weakness in our internal control over financial reporting as of
December 27, 2009. If we fail to maintain an effective system of internal controls, including
internal controls over financial reporting, we may not be able to accurately report our financial
results or detect fraud. Consequently, investors could lose confidence in our financial reporting
and this may decrease the trading price of our stock.
Pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, we are required to furnish a report by
management on our internal controls over financial reporting. Such report contains, among other
matters, an assessment of the effectiveness of our internal control over financial reporting. Our
managements assessment of the effectiveness of our internal control over financial reporting as of
December 27, 2009, resulted in a determination that we had a material weakness related to our
control environment because we did not have adequate segregation of duties due to limited
resources.
We must maintain effective internal controls to provide reliable financial reports on a timely
basis and detect fraud. We have been assessing our internal controls to identify areas that need
improvement. During 2010, we plan to implement changes to internal controls to improve segregation
of duties, but have not yet completed implementing these changes. Failure to implement these
changes to our internal controls or any others that we identify as necessary to maintain an
effective system of internal controls could harm our operating results and cause investors to lose
confidence in our reported financial information. Any such loss of confidence would have a negative
effect on the trading price of our stock.
We may be exposed to potential risks resulting from new requirements under Section 404 of the
Sarbanes-Oxley Act.
In addition to the report by management on our internal control over financial reporting described
above, for our fiscal year ending January 1, 2011, and thereafter, such report must also contain
a statement that our auditors have issued an attestation report on our managements assessment of
such internal control. If our auditors are unable to attest that our managements report is fairly
stated (or they are unable to express an opinion on the effectiveness of our internal control when
such attestation is required), we could lose investor confidence in the accuracy and completeness
of our financial reports which could have a material adverse effect on our stock price.
While we intend to expend resources to prepare the documentation required by Section 404 of the
Sarbanes-Oxley Act (Section 404), and to perform the required testing procedures, there is a risk
that we will not comply with all of the requirements imposed by Section 404. Accordingly, there can
be no assurance that our independent registered public accounting firm will be able to issue the
attestation required by Section 404. In the event we identify significant deficiencies or
additional material weaknesses in our internal controls that we cannot remediate in a timely manner
or we are unable to receive an attestation from our independent registered public accounting firm
with respect to our internal controls, investors and others may lose confidence in the reliability
of our financial statements and our ability to obtain equity or debt financing could be adversely
affected.
Risks Related to Our Securities
There is not now, and there may not ever be, an active market for our common stock.
There currently is a limited public market for our common stock. Further, although the common stock
is currently quoted on the OTC Bulletin Board, trading of our common stock may be extremely
sporadic. For example, several days may pass before any shares may be traded. As a result, an
investor may find it difficult to dispose of, or to obtain accurate quotations of the price of, the
common stock. There can be no assurance that a more active market for the common stock will
develop, or if one should develop, there is no assurance that it will be sustained. This severely
limits the liquidity of the common stock, and would likely have a material adverse effect on the
market price of the common stock and on our ability to raise additional capital.
21
We cannot assure you that our common stock will become liquid or that it will be listed on a
securities exchange.
Until our common stock is listed on an exchange, we expect the common stock to remain eligible for
quotation on the OTC Bulletin Board, or on another over-the-counter quotation system, or in the
pink sheets. In those
venues, however, an investor may find it difficult to obtain accurate quotations as to the market
value of the common stock. In addition, if we fail to meet the criteria set forth in SEC
regulations, various requirements would be imposed by law on broker-dealers who sell our securities
to persons other than established customers and accredited investors. Consequently, such
regulations may deter broker-dealers from recommending or selling the common stock, which may
further affect the liquidity of the common stock. This would also make it more difficult for us to
raise additional capital in the future.
Applicable SEC rules governing the trading of penny stocks limits the trading and liquidity of
our common stock, which may affect the trading price of the common stock.
Our common stock is currently quoted on the OTC Bulletin Board, and trades below $5.00 per share;
therefore, the common stock is considered a penny stock and subject to SEC rules and regulations
which impose limitations upon the manner in which such shares may be publicly traded. These
regulations require the delivery, prior to any transaction involving a penny stock, of a disclosure
schedule explaining the penny stock market and the associated risks. Under these regulations,
certain brokers who recommend such securities to persons other than established customers or
certain accredited investors must make a special written suitability determination regarding such a
purchaser and receive such purchasers written agreement to a transaction prior to sale. These
regulations have the effect of limiting the trading activity of the common stock and reducing the
liquidity of an investment in the common stock.
The price of our common stock may become volatile due to our operating results, products offered by
our competitors and stock market conditions, which could lead to losses by investors and costly
securities litigation.
The trading price of our common stock is likely to be highly volatile and could fluctuate in
response to factors such as:
|
|
|
actual or anticipated variations in our operating results; |
|
|
|
announcements of developments by us or our competitors; |
|
|
|
announcements by us or our competitors of significant acquisitions, strategic
partnerships, joint ventures or capital commitments; |
|
|
|
adoption of new accounting standards affecting our industry; |
|
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additions or departures of key personnel; |
|
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introduction of new products by us or our competitors; |
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|
sales of our common stock or other securities in the open market; and |
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|
other events or factors, many of which are beyond our control. |
The stock market in general, and in particular the penny stock market, is subject to significant
price and volume fluctuations. In the past, following periods of volatility in the market price of
a companys securities, securities class action litigation has often been initiated against the
Company. Litigation initiated against us, whether or not successful, could result in substantial
costs and diversion of our managements attention and resources, which could harm our business and
financial condition.
22
We do not anticipate dividends to be paid on the common stock, and investors may lose the entire
amount of their investment.
Cash dividends have never been declared or paid on our common stock, and we do not anticipate such
a declaration or payment for the foreseeable future. We expect to use future earnings, if any, to
fund business growth. Therefore, stockholders will not receive any funds absent a sale of their
shares. We cannot assure stockholders of a positive return on their investment when they sell their
shares, nor can we assure that stockholders will not lose the entire amount of their investment.
Securities analysts may not initiate coverage or continue to cover our common stock, and this may
have a negative impact on its market price.
The trading market for our common stock will depend on the research and reports that securities
analysts publish about our business and our Company. We do not have any control over these
analysts. There is no guarantee that securities analysts will cover our common stock. If securities
analysts do not cover our common stock, the lack of research coverage may adversely affect its
market price. If we are covered by securities analysts, and our stock is the subject of an
unfavorable report, our stock price would likely decline. If one or more of these analysts ceases
to cover our Company or fails to publish regular reports on us, we could lose visibility in the
financial markets, which could cause our stock price or trading volume to decline. In addition,
because KnowFat became public through a reverse triangular merger, we may have further difficulty
attracting the coverage of securities analysts.
You may experience dilution of your ownership interests because of the future issuance of
additional shares of common stock.
Any future issuance of our equity or equity-backed securities may dilute then-current stockholders
ownership percentages and could also result in a decrease in the fair market value of our equity
securities, because our assets would be owned by a larger pool of outstanding equity. As stated
above, we may need to raise additional capital through public or private offerings of our common or
preferred stock or other securities that are convertible into or exercisable for our common or
preferred stock. We may also issue such securities in connection with hiring or retaining employees
and consultants (including stock options issued under our equity incentive plans), as payment to
providers of goods and services, in connection with future acquisitions or for other business
purposes. Our Board of Directors may at any time authorize the issuance of additional common or
preferred stock without common stockholder approval, subject only to the total number of authorized
common and preferred shares set forth in our articles of incorporation. We are currently authorized
to issue an aggregate of 310,000,000 shares of capital stock, consisting of 300,000,000 shares of
common stock and 10,000,000 shares of preferred stock with preferences and rights to be determined
by our Board of Directors. As of December 27, 2009, there were 37,934,907 shares of common stock
outstanding and 49,779,658 shares of common stock subject to outstanding options and warrants. The
terms of equity securities issued by us in future transactions may be more favorable to new
investors, and may include dividend and/or liquidation preferences, superior voting rights and the
issuance of warrants or other derivative securities, which may have a further dilutive effect.
Also, the future issuance of any such additional shares of common or preferred stock or other
securities may create downward pressure on the trading price of the common stock. There can be no
assurance that any such future issuances will not be at a price (or exercise prices) below the
price at which shares of the common stock are then traded on the OTC Bulletin Board or other
then-applicable over-the-counter quotation system or exchange.
Our corporate headquarters, consisting of approximately 9,737 square feet, are located in Newton,
Massachusetts. We occupy our headquarters under a lease that expires in 2013, with an option to
extend the lease for an additional seven years. We lease each of our restaurant facilities. Our
leases expire on various dates through December 2016. The leases require us to pay our share of the
operating expenses of the leased properties, including taxes, utilities and insurance.
23
At December 27, 2009, future minimum payments under non-cancelable leases are as follows:
|
|
|
|
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Year ending December 31, |
|
|
|
|
|
|
|
|
|
2010 |
|
$ |
656,000 |
|
2011 |
|
|
670,000 |
|
2012 |
|
|
687,000 |
|
2013 |
|
|
695,000 |
|
2014 |
|
|
421,000 |
|
Thereafter |
|
|
236,000 |
|
|
|
|
|
|
|
$ |
3,365,000 |
|
|
|
|
|
|
|
|
Item 3. |
|
Legal Proceedings |
We are subject to legal proceedings and claims which arise in the normal course of business.
Although there can be no assurance as to the ultimate outcome, we generally have denied, or believe
we have a meritorious defense and will deny, liability in all significant cases pending against us,
including the matters described below, and we intend to defend vigorously each such case. Based on
information currently available, we believe the amount, or range, of reasonably possible losses in
connection with the actions against us, including the matters described below, in excess of
established reserves, in the aggregate, not to be material to our consolidated financial condition
or cash flows. However, losses may be material to our operating results for any particular future
period, depending on the level of our income for such period.
Subcontractors Claims
In connection with the build-out of the premises, located at Logan International Airport Terminal
B (the Premises), several of the subcontractors that performed work at the Premises claimed that the general
contractor failed or refused to pay amounts due them. Accordingly, such subcontractors asserted
mechanics liens totaling $253,431 (the Lien Amounts) against our leasehold interest in the
Premises. In April 2008, pursuant to the terms of the Sublease Agreement, we obtained target lien
dissolution bonds in order to dissolve the liens against our leasehold interest in the Premises.
The lien bond surety required the Company to post cash collateral in the amount of 120% of the Lien
Amounts. The general contractor on the project was responsible for the amounts claimed by the
subcontractors and was previously forced into involuntary bankruptcy. We have paid the general
contractor and intend to assert claims against the general contractor for, among other things, the
amounts claimed by the subcontractors. In January, 2009, we settled with the subcontractors. The
subcontractor liens have been removed and the bond and cash collateral related to this matter have
been released.
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Item 4. |
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Submission of Matters to a Vote of Security Holders |
None.
24
PART II
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Item 5. |
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Market for Registrants Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities |
Our common stock is quoted on the OTC Bulletin Board under the symbol UFFC.OB. As of March 22,
2010, there were 37,933,143 shares of our common stock issued and outstanding and 49,779,658
shares issuable upon exercise of outstanding stock options and warrants. On that date, there were
approximately 400 holders of record of shares of our common stock.
Prior to the merger on December 18, 2007, there was a limited sales history for our common stock,
because it had never been actively traded. As of March 11, 2010, the last reported sale price of
our shares on the OTC Bulletin Board was $0.105. For the periods indicated, the following table
sets forth the range of high and low bid quotations for our common stock, as reported by Nasdaq in
the Info Quotes section of its web site located at www.nasdaq.com. The quotations reflect
inter-dealer prices, without retail mark-up, mark-down or commission, and may not represent actual
transactions.
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The fiscal year ended |
|
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|
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December 27, 2009 |
|
|
December 28, 2008 |
|
|
|
High |
|
|
Low |
|
|
High |
|
|
Low |
|
First Quarter |
|
$ |
0.36 |
|
|
$ |
0.10 |
|
|
$ |
1.52 |
|
|
$ |
0.95 |
|
Second Quarter |
|
$ |
0.28 |
|
|
$ |
0.17 |
|
|
$ |
2.10 |
|
|
$ |
1.15 |
|
Third Quarter |
|
$ |
0.20 |
|
|
$ |
0.09 |
|
|
$ |
1.65 |
|
|
$ |
0.625 |
|
Fourth Quarter |
|
$ |
0.14 |
|
|
$ |
0.07 |
|
|
$ |
0.67 |
|
|
$ |
0.18 |
|
Dividends
We have never declared or paid dividends on our equity securities. We do not intend to pay cash
dividends on our common stock for the foreseeable future, but currently intend to retain any future
earnings to fund the development and growth of our business. The payment of dividends, if any, on
the common stock will rest solely within the discretion of our Board of Directors and will depend,
among other things, upon our earnings, capital requirements, financial condition, and other
relevant factors. We are a holding company with no material assets and therefore are dependent on
our operating subsidiaries to make distributions to us in order to have cash with which to pay
dividends. We currently expect that the earnings and cash flow of our subsidiaries will primarily
be retained and used by them in their operations, including servicing any debt obligations they may
have now or in the future. Under the terms of a credit agreement dated as of May 27, 2005 between
our wholly-owned subsidiary, KFLG Watertown, Inc. (KFLG) and TD Banknorth, N.A. (as amended, the
Credit Agreement), KFLG is prohibited, without the prior written consent of TD Banknorth, from
declaring, making or paying any distribution of any kind or dividend (other than dividends payable
solely in common stock), except that any of KFLGs subsidiaries may make a distribution to KFLG.
See Risk FactorsWe are a holding company that depends on cash flow from our subsidiaries to
meet our obligations and pay dividends; our subsidiary is restricted from making distributions to
us above and Managements Discussion and Analysis of Financial Condition and Results of
OperationsLiquidity, Funding and Capital ResourcesCredit Agreement with TD Banknorth, N.A. and
Note 5, Long-Term Debt, to our 2009 Consolidated Financial Statements below.
Securities Authorized for Issuance under Equity Compensation Plans
The Company has two share-based, shareholder-approved equity compensation plans, the 2004 Stock
Option Plan (2004 Plan) and the 2007 Equity Incentive Plan (2007 Plan). Descriptions of these
plans, and certain information regarding options issued thereunder, are presented in Note 8,
Stock-Based Compensation, of Notes to Consolidated Financial Statements ended December 27, 2009 and
December 28, 2008.
25
As of the end of fiscal year 2009, we had the following securities authorized for issuance under
our equity compensation plans:
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|
|
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|
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|
Number of securities |
|
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|
Number of |
|
|
|
|
|
|
remaining available for |
|
|
|
securities to be |
|
|
|
|
|
|
future issuance under |
|
|
|
issued upon |
|
|
Weighted-average |
|
|
equity compensation |
|
|
|
exercise of |
|
|
exercise price of |
|
|
plans (excluding |
|
|
|
outstanding |
|
|
outstanding options, |
|
|
securities reflected in |
|
|
|
options |
|
|
warrants and rights |
|
|
column (a)) |
|
Plan Category |
|
(a) |
|
|
(b) |
|
|
(c) |
|
Equity compensation
plans approved by
security holders |
|
|
3,952,747 |
(2) |
|
$ |
0.20 |
|
|
|
2,080,010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation
plans not approved
by security holders |
|
|
175,000 |
(1) |
|
$ |
0.15 |
|
|
|
0 |
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
4,127,747 |
|
|
$ |
0.19 |
|
|
|
2,080,010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The options to purchase 175,000 shares shown in the table were not granted pursuant to a
compensation plan, but instead represent non-qualified stock options granted to consultants in
lieu of cash payment. The options granted were fully vested. |
|
(2) |
|
On May 13, 2009, the Board of Directors approved the grant of 3,929,990 options to acquire
shares of the Companys common stock under the Companys 2007 Equity Incentive Plan to
officers and employees, effective upon the cancelation of the previous options granted to such
persons, and the vesting scheduled will remain the same as the canceled ones. |
On February 12, 2008, our Board of Directors approved an increase in the number of shares of common
stock reserved for issuance under the 2007 Plan to 6,000,000 shares. The increase was approved by
shareholders at a meeting of shareholders on August 29, 2008.
|
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Item 6. |
|
Selected Financial Data |
N/A
|
|
|
Item 7. |
|
Managements Discussion and Analysis of Financial Condition and Results of Operations |
The following discussion and analysis of financial condition and results of operations should be
read in conjunction with our financial statements and related notes included elsewhere in this
report. This discussion contains forward-looking statements that involve risks, uncertainties and
assumptions. Our actual results could differ materially from those anticipated in the
forward-looking statements as a result of certain factors discussed in Risk Factors and elsewhere
in this report.
Overview
Our operations currently consist of seven restaurants in the Boston area, Naples, FL, and Dallas,
TX, comprising four Company-owned restaurants and three franchise-owned locations. We have entered
into a total of four area development agreements and two franchise agreements covering 27 franchise
units in five states (California, Florida, Texas, Ohio and Massachusetts), including three
franchise locations currently open and operating, and requiring the construction by franchisees of
24 future UFood Grill outlets.
26
We view ourselves primarily as a franchisor and continually review our restaurant ownership mix
(that is our mix among Company-owned, franchised and joint venture locations) in an endeavor to
deliver a pleasant customer experience and drive profitability. In most cases, franchising is the
best way to achieve both goals. In
our Company-owned stores, and in collaboration with our franchisees, we further develop and refine
operating standards, marketing concepts and product and pricing strategies, so that we introduce
system-wide only those that we believe are most beneficial.
We include in this discussion information on company, franchisee, and/or system-wide comparable
sales. System-wide sales are a non-GAAP financial measure that includes sales at all Company-owned
and franchise-operated stores, as reported by franchisees. Management uses system-wide sales
information internally in connection with store development decisions, planning and budgeting
analysis. Management believes it is useful in assessing customer acceptance of our brand and
facilitating an understanding of financial performance as our franchisees pay royalties and
contribute to marketing funds based on a percentage of their sales.
We derive revenues from three sources: (i) store sales which include sales of hot and cold prepared
food in a fast casual dining environment as well as sales of health and nutrition related products;
(ii) franchise royalties and fees represent amounts earned under franchise and area development
agreements; and (iii) other revenues derived primarily from the sale of marketing materials to
franchisees. Store operating expenses include the cost of goods, food and paper products sold in
Company-owned stores as well as labor and other operating costs incurred to operate Company-owned
stores. General and administrative expenses, advertising, marketing and promotion expenses and
depreciation expense relate to all three revenue sources.
Critical Accounting Policies & Estimates
The discussion and analysis of our financial condition and results of operations is based upon our
consolidated financial statements for the fiscal years ended December 27, 2009 and December 28,
2008 which have been prepared in accordance with accounting principles generally accepted in the
United States. The preparation of the consolidated financial statements requires us to make
estimates, judgments and assumptions, which we believe to be reasonable, based on the information
available. These estimates and assumptions affect the reported amounts of assets, liabilities,
revenues and expenses. Variances in the estimates or assumptions used could yield materially
different accounting results. On an ongoing basis, we evaluate the continued appropriateness of our
accounting policies and resulting estimates to make adjustments we consider appropriate under the
facts and circumstances.
We have chosen accounting policies we believe are appropriate to report accurately and fairly our
operating results and financial position, and we apply those accounting policies in a consistent
manner.
Revenue Recognition
The Company records revenue for Company-owned store sales upon the delivery of the related food and
other products to the customer. The Company records a liability in the period in which a gift card
is issued and proceeds are received. As gift cards are redeemed, this liability is reduced and
revenue is recognized.
The Company follows the accounting guidance of ASC No. 952 Franchisors. Franchisee deposits
represent advances on initial franchise fees prior to the opening of the franchisee location. We
recognize initial franchise fee revenue when all material services we are required to perform and
all material conditions we are required to satisfy have been substantially completed, which is
generally the opening of the franchised location. The Company defers direct costs related to
franchise sales until the related revenue is recognized; however, the deferred costs shall not
exceed anticipated revenue less estimated additional related costs. Such costs include training,
facilities design, menu planning and marketing. Franchise royalty revenues are recognized in the
same period the relevant franchisee sales occur.
27
Goodwill and Other Intangible Assets
We account for goodwill and other intangible assets under ASC No. 805, Business
Combinations, and ASC No. 350-20 to 30, Goodwill and Other Intangible Assets.
ASC No. 805 requires that the purchase method of accounting be used for all
business combinations initiated after June 30, 2001, and that certain
intangible assets acquired in a business combination be recognized as assets
apart from goodwill. Under ASC No. 350-20 to 30, purchased goodwill and
intangible assets with indefinite lives are not amortized, but instead tested
for impairment at least annually or whenever events or changes in circumstances
indicate the carrying value may not be recoverable. Goodwill attributable to
our franchise operations segment is evaluated by comparing the Companys fair
market value, determined based upon quoted market prices of the Companys
equity securities, to the carrying amount of goodwill. The goodwill
attributable to our franchise operations segment was impaired due to the
decision to not renew the lease agreement for a property originally leased as a
training facility. The carrying amount of the goodwill attributable to
franchise operations exceeded its implied fair value and the Company recognized
a non-cash impairment charge of $136,000, during the year ended December 27,
2009. Goodwill attributable to our store operations segment is evaluated on a
restaurant-by-restaurant basis by comparing the restaurants estimated fair
value to the carrying value of the restaurants underlying net assets inclusive
of goodwill. Fair value is determined based upon the restaurants estimated
future cash flows. Future cash flows are estimated based upon a restaurants
historical operating performance and managements estimates of future revenues
and expenses over the period of time that the Company expects to operate the
restaurant, which generally coincides with the initial term of the restaurants
lease but which may take into account the restaurants first lease renewal
period up to 5 years. The estimate of a restaurants future cash flows may also
include an estimate of the restaurants terminal value, determined by applying
a capitalization rate to the restaurants estimated cash flows during the last
year of the forecast period. The capitalization rate used by the Company was
determined based upon the restaurants location, cash flows and growth
prospects.
In August 2008, the Company completed the conversion of three of its
Company-owned stores from KnowFat! locations to UFood Grill outlets, including
two stores that have goodwill associated with them. Following the store
conversions, the Company tested the carrying value of the stores goodwill for
impairment as of the first day of the fourth quarter and determined that there
was no impairment. For purposes of estimating each stores future cash flows,
the Company assumed that comparable store sales would increase by
approximately 4% per year; store operating expenses as a percentage of the
stores revenues would decrease by a total of 1-1/2% of sales per year due to
labor and purchasing efficiencies; and the terminal value of each store was
calculated using a 20% capitalization rate applied to the final years
estimated cash flow. The present value of each restaurants estimated future
cash flows was calculated using a discount rate of 8%. Following the
impairment test performed as of the first day of the fourth quarter of the
fiscal year 2008, economic conditions in the United States worsened. The U.S.
Government and Federal Reserve provided an unprecedented level of financial
support to U.S. financial institutions, unemployment has risen, home
foreclosures have increased, mortgage delinquency rates have increased, credit
markets have tightened, volatility in the equity markets has continued and the
National Bureau of Economic Research announced that the United States economy
has been in recession for almost a year. These factors, all contributed to
economic uncertainty and a decrease in consumer spending which in turn
contributed to a decline in sales at Company-owned stores during the fiscal
year 2008. According to The Conference Board, Inc., the decline in real
consumer spending experienced in the third and fourth quarters of 2008 were
expected to last through 2009. As a result of these factors and the
uncertainty surrounding the level of economic activity in 2009 and beyond, the
Company tested the carrying value of the stores goodwill in December 2008 and
determined that the carrying amount of the goodwill attributable to our store
operations exceeded its implied fair value and recognized a non-cash
impairment charge of $765,772. For purposes of its mid-December 2008
impairment test, the Company assumed that comparable store sales will decline
by 6% in 2009 and increase by 2.5% per year thereafter and store operating
expenses will continue at their current level as a percentage of store
revenues. As a result of the economic uncertainty that currently exists, the
Companys estimate of future cash flows did not include an estimate of the
restaurants terminal value since the Company cannot be certain that a buyer
could be found for the restaurant at the end of the lease term. The present
value of the estimated future cash flows was calculated using a 7% discount
rate reflecting the recent decrease in long-term interest rates. Following the
non-cash impairment charge, the carrying value of goodwill attributable to our
store operations segment is $75,363. As of the first day of the fourth quarter
of the year ended December 27, 2009 according to our policy we have tested the
carrying value of the Goodwill attributable to our store operations and no
impairment was necessary. The carrying amount of goodwill may be impaired in
the future if our actual operating results and cash flows fall short of our
expectations.
28
Deferred Financing Costs
Deferred financing costs represent costs paid to third parties in order to obtain long-term financing and have been
included in other assets. Deferred financing costs are amortized over the life of the related debt. Amortization
expense related to these costs were $266,176 and $15,871 for the years ended December 27, 2009 and December 28, 2008,
respectively, and is included in interest expense.
Impairment of Long-Lived Assets
In accordance with ASC No. 360 Property, Plant and Equipment, when impairment indicators exist, the
Company evaluates its long-lived assets for potential impairment. Potential impairment is assessed
when there is evidence that events or changes in circumstances have occurred that indicate the
carrying amount of an asset may not be recovered. When events or changes in circumstances have
occurred that indicate a long-lived asset may be impaired, the Company uses estimates of future
cash flows on a restaurant-by-restaurant basis to test the recoverability of its long-lived assets.
Future cash flows are estimated based upon the restaurants historical operating performance and
managements projections of future revenues and expenses and may take into account the restaurants
estimated terminal value. During the fourth quarter of 2008, the Company determined that the
carrying value of the long-lived assets of its store operations segment may not be recovered and
recorded a non-cash impairment charge of $1,249,150. The impairment charge was primarily due to a
decrease in forecasted sales resulting from the economic downturn to continue through 2009, an
increase in the carrying value of the underlying assets of two stores as a result of the conversion
from KnowFat! locations to UFood Grill outlets and new restaurants that opened in the fall of 2008
in the vicinity of one of our Company-owned stores and which are expected to have an adverse impact
on the stores future sales growth. Long-lived assets may be impaired in the future if our actual
operating results and cash flows fall short of our expectations.
Rent Expense
The Company recognizes rent expense on a straight-line basis over the reasonably assured lease term
as defined in ASC No. 840, Leases. The reasonably assured lease term on most of the Companys
leases is the initial non-cancelable lease term, which generally equates to between 5 and 10 years.
In addition, certain of the Companys lease agreements provide for scheduled rent increases during
the lease terms or for rental payments commencing at a date other than the date of initial
occupancy. The Company includes any rent escalations and other rent holidays in its determination
of straight-line rent expense. Therefore, rent expense for new locations is charged to expense upon
the commencement date of the lease.
Stock-Based Compensation
The Company maintains two stock-based incentive plans. The Company grants options to purchase
common stock at an option price equal to the market value of the stock at the date of grant.
Options generally vest over a three-year period beginning on the date of grant and have a ten-year
contractual term.
The Company applies the fair value recognition provisions of ASC No. 718, Compensation-Stock Compensation,
which requires all stock-based compensation, including grants of employee stock options, to be recognized in
the statement of operations based on their fair values. The Company uses the
Black-Scholes option pricing model which requires extensive use of accounting
judgment and financial estimates, including estimates of the expected term participants
will retain their vested stock options before exercising them and the estimated volatility of
the Companys common stock price over the
expected term.
Stock-based compensation expense recognized during the fiscal year ended December 27, 2009 totaled
approximately $483,625 for stock options. Stock-based compensation expense recognized during the
fiscal year ended December 28, 2008 totaled approximately $996,792 for stock options. Stock-based
compensation expense was included in general and administrative expenses in the accompanying
consolidated statements of operations.
29
Executive Summary of Results
The following table sets forth the percentage relationship to total revenues, except where
otherwise indicated, of certain items included in our consolidated statements of operations for the
periods indicated. Percentages may not add due to rounding:
|
|
|
|
|
|
|
|
|
|
|
Year Ended |
|
|
|
December 27, |
|
|
December 28, |
|
|
|
2009 |
|
|
2008 |
|
Revenues: |
|
|
|
|
|
|
|
|
Store sales |
|
|
85.0 |
% |
|
|
93.8 |
% |
Franchise royalties and fees |
|
|
7.9 |
|
|
|
5.8 |
|
Other revenue |
|
|
7.1 |
|
|
|
0.4 |
|
|
|
|
|
|
|
|
|
|
|
100.0 |
% |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Costs and expenses: |
|
|
|
|
|
|
|
|
Store operating expenses (1): |
|
|
|
|
|
|
|
|
Food and paper cost |
|
|
32.6 |
% |
|
|
34.5 |
% |
Cost of goods sold |
|
|
7.4 |
|
|
|
9.3 |
|
Labor |
|
|
29.2 |
|
|
|
31.9 |
|
Occupancy |
|
|
12.0 |
|
|
|
12.1 |
|
Other store operating expenses |
|
|
16.8 |
|
|
|
18.2 |
|
General and administrative expenses |
|
|
67.8 |
|
|
|
116.5 |
|
Advertising, marketing and promotion expenses |
|
|
4.0 |
|
|
|
15.2 |
|
Depreciation and amortization |
|
|
7.5 |
|
|
|
8.6 |
|
Loss on disposal of assets, Impairment of
Goodwill and
Long-lived assets |
|
|
4.1 |
|
|
|
35.7 |
|
|
|
|
|
|
|
|
Total costs and expenses |
|
|
163.6 |
|
|
|
270.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(63.6 |
) |
|
|
(170.8 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense): |
|
|
|
|
|
|
|
|
Interest income |
|
|
0.4 |
|
|
|
1.4 |
|
Interest expense |
|
|
(17.5 |
) |
|
|
(1.3 |
) |
Other expense, net |
|
|
8.1 |
|
|
|
1.2 |
|
|
|
|
|
|
|
|
Other income (expense), net |
|
|
(9.0 |
) |
|
|
1.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes |
|
|
(72.6 |
) |
|
|
(169.6 |
) |
Income taxes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
(72.6 |
%) |
|
|
(169.6 |
%) |
|
|
|
|
|
|
|
|
|
|
(1) |
|
Food and paper costs are shown as a percentage of food sales. The cost of nutritional
products, labor, occupancy and other store operating expenses are shown as a
percentage of total store sales. |
30
The following table sets forth certain data relating to the number of Company-owned,
franchise-operated and system-wide store locations:
|
|
|
|
|
|
|
|
|
|
|
Year Ended |
|
|
|
December 27, |
|
|
December 28, |
|
|
|
2009 |
|
|
2008 |
|
Company-owned locations: |
|
|
|
|
|
|
|
|
Locations at the beginning of the year |
|
|
4 |
|
|
|
4 |
|
Locations opened |
|
|
|
|
|
|
|
|
Locations closed |
|
|
|
|
|
|
|
|
Locations sold |
|
|
|
|
|
|
|
|
Locations transferred |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Locations at the end of the year |
|
|
4 |
|
|
|
4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Franchise-operated locations: |
|
|
|
|
|
|
|
|
Locations at the beginning of the year |
|
|
6 |
|
|
|
4 |
|
Locations opened |
|
|
4 |
|
|
|
3 |
|
Locations closed |
|
|
(6 |
) |
|
|
(1 |
) |
Locations sold |
|
|
|
|
|
|
|
|
Locations transferred |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Locations at the end of the year |
|
|
4 |
|
|
|
6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
System-wide locations |
|
|
|
|
|
|
|
|
Locations at the beginning of the year |
|
|
10 |
|
|
|
8 |
|
Locations opened |
|
|
4 |
|
|
|
3 |
|
Locations closed |
|
|
(6 |
) |
|
|
(1 |
) |
Locations sold |
|
|
|
|
|
|
|
|
Locations transferred |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Locations at the end of the year |
|
|
8 |
|
|
|
10 |
|
|
|
|
|
|
|
|
Fiscal Year Ended December 27, 2009 Compared to Fiscal Year Ended December 28, 2008
General
For the twelve months ended December 27, 2009, our comparable store sales for Company-owned stores
decreased by 5.6%. All of the comparable store locations are located in the greater Boston area.
Comparable store sales are based on sales for stores that have been in operation for the entire
period of comparison. Franchisee-owned stores which we acquire are included in comparable store
sales once they have been open for the entire period of comparison. Comparable store sales exclude
closed locations.
Results of Operations
Revenues
Our total revenues for the year ended December 27, 2009 decreased by $373,206, or 6.4%, to
$5,450,836 from $5,824,042 for the year ended December 28, 2008. The decrease in total revenues for
the year ended December 27, 2009, as compared to the prior year was primarily due to the closing of
two stores operated under two management services agreements partially offset by the increase in
Other Revenue due to the recognition of franchise deposits as revenue for the cancellation of
several franchise agreements and no material obligations will have to be satisfied by the Company.
31
Total store sales at Company-owned stores for the year ended decreased by $830,264, or 15.2%, to
$4,632,651 from $5,462,915 for the year ended December 28, 2008. As a percentage of total revenues,
sales at Company-owned stores decreased to 85.0% of total revenues for the year ended December 27,
2009 from 93.8% of total revenues for the year ended December 28, 2008. The decrease in sales at
Company-owned stores for the year ended December 27, 2009 was primarily due to the closing of two
stores operated under two management services agreements and the decrease in same store sales.
During the year ended December 27, 2009, franchise royalties and fees increased by 93,677, or 27.9%
to $429,537 from $335,860 for the year ended December 28, 2008 primarily due to an increase in
franchise fees offset by a decrease in royalties. The Company recognized $157,500 of revenue from
initial franchise fees during the year ended December 27, 2009 compared with $87,500 for the year
ended December 28, 2008.
As of December 27, 2009, our operations consisted of eight restaurants comprising four
Company-owned restaurants in the Boston area and four franchise-owned locations in Naples, FL,
Dallas TX and Sacramento, CA. As of December 27, 2009, we had entered into a total of four area
development agreements covering 26 franchise units in five states (California, Florida, Texas,
Massachusetts, and Ohio), including three franchise locations that were open and operating, and
requiring the construction by franchisees of 22 future UFood Grill outlets.
During the year ended December 27, 2009, we have terminated the area development agreements for the
five states (Colorado, Montana, Idaho, Utah and Wyoming) and for the Chicago, IL area. We also
terminated two single franchise agreements for Des Moines, IA and Burlington, MA. Our standard
franchise and area development agreements require franchisees and area developers to develop a
specified number of stores on or before specific dates. If a franchisee or area developer fails to
develop stores on schedule, we have the right to terminate the agreement, retain up-front franchise
fees and develop Company-owned locations or develop locations through new area developers in that
market. We may exercise one or more alternative remedies to address defaults by area developers and
franchisees of the terms of their franchise agreements including the failure to open locations on
time and non-compliance with our operating and brand requirements and other covenants under the
franchise agreement.
Costs and Expenses
Cost of food and paper products for the year ended December 27, 2009, decreased by $279,177, or
17.3%, to $1,336,240 from $1,615,417 for the year ended December 28, 2008. The decrease in food and
paper cost was primarily due to a decrease in the number of Company-operated stores in 2009
compared with 2008. As a percentage of store sales, food and paper cost decreased to 32.6% of store
sales for the year ended December 27, 2009, from 34.5% of store sales for the year ended December
28, 2008. The decrease in food and paper cost as a percentage of store sales was primarily due to
the introduction of new menu items with lower food cost and operational improvements such as
portion control, loss prevention, and reduced waste. The cost of goods sold for the year ended
December 27, 2009, decreased by $165,556, or 32.5% to $344,219 from $509,775 for the year ended
December 28, 2008. The decrease in cost of goods sold was primarily due to the elimination of the
retail space within our stores as a result of the conversion of the stores to UFood outlets. As a
percentage of the retail sales, the cost of goods sold decreased to 65.1% of store retail sales for
the year ended December 27, 2009, from 65.7% of store retail sales for the year ended December 28,
2008.
Labor expense for the year ended December 27, 2009, decreased by $389,730, or 22.3%, to $1,354,101
from $1,743,831 for the year ended December 28, 2008. The decrease in labor expense was primarily
attributable to the closing of two stores operated under a consulting services agreement by the
Company. As a percentage of store sales, labor expense decreased to 29.2% of store sales for the
year ended December 27, 2009, from 31.9% of store sales for the year ended December 28, 2008. The
decrease in labor expense as a percentage of store sales for the year ended December 27, 2009, was
primarily due to the reduction of man hours at the stores.
32
Occupancy costs for the year ended December 27, 2009, decreased by $103,749, or 15.8%, to $554,923
from $658,672 for the year ended December 28, 2008. The decrease in occupancy costs was primarily
attributable the closing of two franchisee-owned stores operated by the Company under management
services agreements. As a percentage of store sales, occupancy costs decreased to 12.0% of store
sales for the year ended December 27, 2009, from 12.1% of store sales for the year ended December
28, 2008.
Other store operating expenses
for the year ended December 27, 2009, decreased by $214,195, or
21.6%, to $778,155 from $992,350 for the year ended December 28, 2008. The decrease in other store
operating expenses was primarily due to the closing of two stores operated under management
services agreements during 2008. As a percentage of store sales, other store operating expenses
decreased to 16.8% of store sales during the year ended December 27, 2009, from 18.2% of store
sales during the year ended December 28, 2008.
General and administrative expenses for the year ended December 27, 2009, decreased by $3,089,196, or 45.5%,
to $3,696,425 from $6,785,620 for the year ended December 28, 2008. The decrease in general and administrative
expenses for the year ended December 27, 2009, compared to the same period in the prior year is primarily due
to reduction in personnel costs, investor and public relations, legal, training and travel expenses. The
variance for each major category is as follows:
|
|
|
The personnel related costs decrease was $871,412 and is comprised of $358,245 of payroll expenses due
to the reduction of corporate staff headcount, and $513,167 for stock base compensation, as a result of
the immediate vesting of stock options granted to Officers and employees of the company during 2008. We
decided to reduce our corporate staff due to the change in our store opening and development schedule. |
|
|
|
Also, general and administrative expenses for the year ended December 27, 2009 include $82,819 of
investor and public relations expenses in 2009 compared to $1,475,108 for the year ended December 28,
2008. The decline of $1,392,289 was primarily due to the fact that in May 2008, we commenced a corporate
awareness campaign in the investment community. In connection with this campaign, we entered into service
agreements with a number of investors relations and public relations firms, under which we issued shares
and warrants for their services and some expenses were paid with cash. |
|
|
|
The year-over-year decrease of legal expenses of $597,653 was primarily due to legal expenses incurred
during 2008 to pay the settlement of a dispute with a former franchisee and the legal cost associated
with the mechanics liens in connection with the build-out of premises, which the original contractor
failed to pay the subcontractors. |
|
|
|
The decrease in training and travel expenses was primarily due to a 2008 study of different markets
across the country in order to develop site selection criteria and the understanding of the local market
through the United States. |
The general and administrative expenses as a percentage of total revenues, decreased to 67.8% of total
revenues for the year ended December 27, 2009, from 116.5% of total revenues for the year ended December 28,
2008.
Advertising, marketing and promotion expenses for the year ended December 27, 2009, decreased by
$667,899, or 75.3%, to $219,360 from $887,259 for the year ended December 28, 2008. The decrease in
advertising, marketing and promotion expenses was primarily due to the rebranding of our KnowFat
stores into UFood outlets during the year ended December 28, 2008. As a percentage of total
revenues, advertising, marketing and promotion expenses decreased to 4% of total revenues in 2009
from 15.2% of total revenues in 2008.
Depreciation and amortization expense for the year ended December 27, 2009, decreased by $92,560,
or 18.5%, to $407,593 from $500,153 for the year ended December 28, 2008 due to the reduction of
fixed assets as result of the long lived assets impairment charged during 2008. As a percentage of
total revenues, depreciation and amortization expense decreased to 7.5% of total revenues for the
year ended December 27, 2009, from 8.6% of total revenues for the year ended December 28, 2008.
The Company recognized a non-cash impairment charge of the carrying value of Goodwill for the year
ended December 27, 2009 in the amount of $136,000 as result of a triggering event attributable to
our franchise operations segment. The impairment of goodwill was primarily due to the decision to
not renew the lease of one of our training facilities. The loss on disposal of assets for the year
ended December 27, 2009, represents the costs associated with the closing of one Company-operated
store and the disposal of idle assets.
Net interest expense/income for the year ended December 27, 2009, increased by $938,530, to an
expense of $934,307, from $4,223 of income for the year ended December 28, 2008. As a percentage of
total revenues, the net interest expense was 17.1%, for the year ended December 27, 2009, compared
to 0.1% of income of total revenues for the year ended December 28, 2008. The increase in net
interest expense was primarily due to the interest paid to the debenture holders, the amortization
of the deferred financing costs and the amortization of the debt discount associated with the
beneficial conversion feature on the debt, which is being accreted using the effective interest
method over the term of the debenture.
33
Our net loss for the year ended December 27, 2009, decreased by 5,917,954, or 59.9%, to 3,957,351
from $9,875,305 for the year ended December 28, 2008. Our net loss decreased primarily due to lower
employee
compensation expense, fewer expenses for investor and public relations, advertising, marketing and
promotion expenses, and legal settlements, and the loss recognized in connection with the
impairment charges for long-lived assets and goodwill during the year ended December 28, 2008. As
a percentage of total revenues, our net loss decreased to 72.6% of total revenues for the year
ended December 27, 2009, from 169.6% of total revenues for the year ended December 28, 2008.
Liquidity and Capital Resources
Historically we have funded our operations, working capital requirements, acquisitions and capital
expenditures with proceeds from the issuance of debt and equity securities. Our future capital
requirements and the adequacy of available funds will depend on many factors, including the pace of
expansion, real estate markets, site locations and the nature of the arrangements negotiated with
landlords, as well as access to the debt and/or equity capital markets. We have incurred
significant operating losses since our inception and we expect to incur operating losses for the
foreseeable future.
Our current business plan assumes no Company-owned stores will be constructed during 2010. As set
forth in the following table, we will need to secure approximately $6.5 million of additional
capital through the sale of debt securities or equity securities or both to fund our current
business plan through December 31, 2011. The amounts shown below may change as we execute our
business plan.
|
|
|
|
|
|
|
Estimated |
|
|
|
Capital Required |
|
|
|
to Fund the |
|
|
|
Companys |
|
|
|
Operating Plan |
|
|
|
from Dec. 27, 2009 |
|
|
|
to Dec 31, 2011(Millions) |
|
Capital required to fund the Companys operating plan (millions): |
|
|
|
|
Operating activities (excluding marketing & promotion services
shown below) |
|
$ |
4.4 |
|
Other capital expenditures |
|
|
1.3 |
|
Marketing and promotion services |
|
|
0.5 |
|
Debt repayment |
|
|
0.3 |
|
|
|
|
|
Estimated capital required through December 30, 2011 |
|
$ |
6.5 |
|
|
|
|
|
The estimated capital required to fund our current plan is expected to come from the sale of debt
securities, equity securities or both. Currently, we do not have a bank line of credit or other
source of additional debt financing. There can be no assurance that we will be able to secure the
additional capital that our business plan requires. See Risk Factorsit is highly likely that we
will need to raise additional capital to meet our business requirements in the future, and such
capital raising may be costly or difficult to obtain and could dilute current stockholders
ownership interests.
If we are unable to generate sufficient
revenue to meet our goals, we will need to obtain additional third-party
financing to (i) conduct the sales, marketing and technical support
necessary to execute our plan to substantially grow operations, increase
revenue and serve a significant customer base; and (ii) provide working
capital. Therefore, we may need to obtain additional financing through the
issuance of debt or equity securities, or to restructure our financial position
through similar transactions to those consummated during 2006, 2007, and 2009.
Due to several factors, including our
history of losses and limited revenue, our independent auditors have included
an explanatory paragraph in opinions they have previously issued related to our
annual financial statements as to the substantial doubt about our ability to
continue as a going concern. Our long-term viability and growth will depend
upon the successful commercialization of our technologies and our ability to
obtain adequate financing. To the extent that we require such additional
financing, no assurance can be given that any form of additional financing will
be available on terms acceptable to us, that adequate financing will be
obtained to meet our needs, or that such financing would not be dilutive to
existing stockholders. If available financing is insufficient or unavailable or
we fail to continue to generate meaningful revenue, we may be required to
further reduce operating expenses, delay the expansion of operations, be unable
to pursue merger or acquisition candidates, or continue as a going concern.
At and for the Fiscal Year Ended December 27, 2009
Cash and cash equivalents and restricted cash at December 27, 2009 were $2,338,852 compared to
$1,205,041 at December 28, 2008. Cash is primarily used to fund our (i) capital expenditures for
new and remodeled Company-owned stores, (ii) working capital requirements and (iii) net operating
losses. At December 27, 2009, restricted cash included $60,425 in a letter of credit as guarantee
of the deposit for the lease of our corporate offices.
34
We used $3,189,391 of cash to fund our operating activities in the twelve months ended December 27,
2009 compared with $5,171,158 of cash used to fund our operating activities in twelve months ended
December 28, 2008. The decrease in cash used to fund our operating activities was primarily due to
less cash used for
investor relations and public relations activities, costs of operating as a public company and
legal and other costs associated with the settlement of a dispute with a former franchisee and
changes in working capital during the year ended in December 28, 2008.
During the twelve months ended December 27, 2009, we spent $116,910 primarily for the acquisition
of additional equipment in our stores, compared with $792,225 spent for the conversion of four
KnowFat! locations to UFood Grill outlets.
During the twelve months ended December 27, 2009, financing activities provided $4,791,577 of cash
including the issuance of Senior Secured Convertible Debentures (the Debentures) to accredited
investors in the principal amount of $5,874,000 at 8% interest rate with a financing cost of
$1,001,220 to net cash proceeds in the amount of $4,872,780. We used $375,511 of cash to repay
bank debt. During the twelve months ended December 28, 2008, financing activities provided
$3,398,733 of cash including $4,088,323 of net cash proceeds from the sale of 4,781,000 Units of
our securities. In addition, during the twelve months ended December 28, 2008, we used $1,303,713
of cash to repay outstanding indebtedness. Restricted cash decreased by $357,065 during the twelve
months ended December 27, 2009 primarily due to the payment of the settlement to subcontractors
that asserted mechanics liens against our leasehold interest in the Premises.
Credit Agreement with TD Banknorth, N.A.
Under the terms of a credit agreement dated as of May 27, 2005 between our wholly-owned subsidiary,
KFLG Watertown, Inc. and TD Banknorth, N.A. (as amended, the Credit Agreement), KFLG is obligor on
a term loan that matures in May 2010. No additional amounts are available to be borrowed under the
Credit Agreement. At December 27, 2009, the outstanding balance on the term loan was $342,072. The
term loan is due in monthly installments of $29,167 through May 2010 and bears interest at the
banks prime rate (3.25% at December 27, 2009). The term loan is secured by substantially all of
the assets of KFLG and its subsidiaries. The term loan is guaranteed by the Companys chief
executive officer and its wholly-owned subsidiary, KnowFat Franchise Company, Inc.
Under the terms of the Credit Agreement, KFLG is prohibited, without the prior written consent of
TD Banknorth, from declaring, making or paying any distribution of any kind or dividend of any kind
whatsoever (other than dividends payable solely in common stock) except that any of KFLGs
subsidiaries may make a distribution to KFLG so long as there is a loan outstanding. Such
restriction has not had and is not expected to have any impact on our ability to meet our cash
obligations.
Senior Secured Convertible Debentures
On March 19, 2009, the Company sold 8% Senior Secured Convertible Debentures (the Debentures) to
investors in the principal amount of $3,315,000 and issued warrants (the 2009 Warrants and,
collectively with the Debentures, the Securities) to purchase 12,750,000 shares of our Common Stock
to such investors in connection with first closing of our private placement of securities (the 2009
Offering). On April 20, 2009, the Company sold an additional $2,559,000 of Debentures in connection
with the final closing of its private offering to accredited investors. The total gross proceeds of
both closings are $5,874,000 of Debentures. Those Debentures are convertible into 45,184,615 shares
of common stock of the Company, and are convertible at the rate of $0.13 per share, the potential
common shares from the assumed conversion of the debentures and exercise of warrants related to
this transaction were exclude from the calculation of diluted net loss per share for the year ended
December 27, 2009 because their inclusion would have been anti-dilutive. The Debentures bear
interest at a rate of 8% per annum, payable quarterly and are due three years from the date they
are issued. In addition, each investor will receive 5-year detachable warrants to purchase a number
of shares of Common Stock equal to 50% of the shares underlying the Investors Debenture. Subject
to certain conditions, the Company has the right to pay interest on the Debentures in either cash
or shares of Common Stock, or in a combination of cash and Common Stock. After the one year
anniversary of the first closing of the 2009 Offering, the Company has the right to redeem the
Debentures at a 20% premium, subject to certain conditions. Subject to certain conditions, the
Company has the right to force conversion of the Debentures into shares of Common Stock. The
Company has filed a registration statement with the Securities and Exchange Commission covering all
shares of Common Stock issuable upon conversion of the Debentures and/or exercise of the 2009
Warrants.
The Company paid Garden State Securities, Inc., the placement agent retained in connection with the
2009 Offering (the 2009 Placement Agent), (i) a commission of 10% of the aggregate subscription
amount of the Securities sold in the 2009 Offering, plus (ii) $50,000 for its legal fees and
expenses, plus (iii) a non-accountable expense allowance equal to 3% of the aggregate subscription
amount of the Securities sold in the 2009 Offering. In addition, the 2009 Placement Agent (or its
assigns) received warrants (the 2009 Placement Agent Warrants) to purchase a number of shares of
Common Stock equal to twenty percent (20%) of the maximum number of shares of Common Stock
underlying the Debentures and 2009 Warrants sold in the 2009 Offering. As a result of the
foregoing, the 2009 Placement Agent was paid a commission of $587,400 plus a non-accountable
expense allowance of $176,220 and received warrants to purchase 5,100,000 shares of Common Stock
for March 2009 first closing, and 3,936,923 for April 2009 second and final closing in connection
with the 2009 Offering. The terms of these warrants were similar to those of the 2009 Warrants.
In conjunction with the Debentures and the 2009 Warrants, the Company recorded a debt discount of
$3,130,200 associated with a beneficial conversion feature on the debt, which is being accreted
using the effective interest method over the three year term of the debentures. For the twelve
months ended December 27, 2009, the Company recorded interest expense of $310,201 in connection
with the debt discount on the warrants and the beneficial conversion feature. Of the $3,130,200 in
debt discount, $571,200 has an effective interest rate of 15.18%, and $2,559,000 has an effective
interest rate of 82.97%. The Company has undergone additional financing in order to fund future
working capital requirements.
The unamortized issuance costs of $ 750,915 associated with this Debentures, have been included in
deferred financing costs in other assets, and which are being amortized over the life of the related
debt. Amortization expense related to these costs was $266,176 for the year ended December 27, 2009,
which is included in interest expense.
Commitments, Contractual Obligations and Off Balance Sheet Arrangements
In addition to our capital expenditures requirements, we have certain other contractual and
committed cash obligations. Our contractual cash obligations primarily consist of non-cancelable
operating leases for our stores, and administrative offices. Lease terms for our stores and
administrative offices are generally for seven to ten years with renewal options at most locations
and generally require us to pay a proportionate share of real estate taxes, insurance, common area,
and other operating costs. Some store leases provide for contingent rental ( i.e. , percentage
rent) payments based on sales in excess of specified amount. Certain of our lease agreements
provide for scheduled rent increases during the lease terms or for rental payments commencing at a
date other than the date of initial occupancy.
35
The following table sets forth information as of December 27, 2009, with respect to our contractual
obligations and the effect they are expected to have on our liquidity and cash flows in future
periods:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less Than |
|
|
1 Year to |
|
|
4 Years to |
|
|
More than |
|
|
|
Total |
|
|
1 Year |
|
|
3 Years |
|
|
5 Years |
|
|
5 Years |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
$ |
3,901,883 |
|
|
$ |
857,882 |
(1) |
|
$ |
3,044,001 |
|
|
$ |
|
|
|
$ |
|
|
Capital leases |
|
|
97,892 |
|
|
|
58,820 |
|
|
|
39,072 |
|
|
|
|
|
|
|
|
|
Operating leases |
|
|
3,365,000 |
|
|
|
656,000 |
|
|
|
1,357,000 |
|
|
|
1,116,000 |
|
|
|
236,000 |
|
Scheduled interest payments(2) |
|
|
1,106,263 |
|
|
|
487,405 |
|
|
|
618,858 |
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
During the twelve months ended December 27, 2009, we repaid $375,511
of our long-term debt including $350,004 paid to TD Bank for the
credit facility we have with them. Long-term debt due in less than 1
year includes $450,000 that becomes due upon the sale of our Landmark
Center restaurant and store. We currently have no plans to sell our
Landmark Center unit. |
|
(2) |
|
Interest on the term note payable to T.D. Banknorth, N.A. is payable
monthly at the banks prime rate (3.25% per annum at December 27,
2009). Future interest on the T.D. Banknorth note was calculated using
an assumed rate of 3.25%. Also includes, the interest due to the
Debenture holders at an interest rate of 8% per annum. |
Impact of Inflation
Our profitability depends in part on our ability to anticipate and react to increases in our
operating costs, including food, labor, occupancy (including utilities and energy), insurance and
supplies costs. In the past, we have been able to recover some of our higher operating costs
through increased menu prices. There have been, and there may be in the future, delays in
implementing such menu price increases, and competitive pressures may limit our ability to recover
such cost increases in their entirety. Historically, the effects of inflation on our net income
have not been materially adverse. However, the recent volatility in certain commodity markets, such
as those for energy, grains and dairy products, which have experienced significant increases in
prices, may have an adverse effect on us in the latter half of fiscal 2009 and beyond and may be
generally causing franchisees in our industry to delay construction of new restaurants and/or
causing potential new franchisees to reconsider entering into franchise agreements. The extent of
the impact may depend on our ability to increase our menu prices and the timing thereof.
Many of our employees are paid hourly rates related to federal and state minimum wage laws.
Although we have and will continue to attempt to pass along any increased labor costs through food
price increases, there can be no assurance that all such increased labor costs can be reflected in
our prices or that increased prices will be absorbed by consumers without diminishing to some
degree consumer spending at our stores. However, we have not experienced to date a significant
reduction in store profit margins as a result of changes in such laws, and management does not
anticipate any related future significant reductions in gross profit margins.
36
New Accounting Pronouncements
Adoption of New Accounting Principle
In December 2007, the Financial Accounting Standards Board (FASB) issued ASC No. 805, Business
Combinations. ASC No. 805 establishes principles and requirements for how the acquirer of a
business recognizes and measures in its financial statements the identifiable assets acquired, the
liabilities assumed, and any non-controlling interest in the acquiree. The statement also provides
guidance for recognizing and measuring the goodwill acquired in the business combination and
specifies what information to disclose to enable users of the financial statements to evaluate the
nature and financial effects of the business combination. ASC No. 805 is effective for financial
statements issued for fiscal years beginning after December 15, 2008. We expect ASC No. 805 will
have an impact on our consolidated financial statements when effective, but the nature and
magnitude of the specific effects will depend upon the nature, terms and size of the acquisitions
we consummate after the effective date.
In June 2008, the FASB ratified ASC No. 815-40 Derivatives and Hedging-Contracts in Entitys Own
Equity. This issue provides guidance for determining whether an equity-linked financial instrument
(or embedded feature) is indexed to an entitys own stock. ASC No. 815-40 applies to any
freestanding financial instrument or embedded feature that has all the characteristics of a
derivative under ASC No. 815-10-15 for purposes of determining whether that instrument or embedded
feature qualifies for the first part of the scope exception under ASC No. 815-10-15. ASC No. 815-40
also applies to any freestanding financial instrument that is potentially settled in an entitys
own stock, regardless of whether the instrument has all the characteristics of a derivative under
ASC No. 815-10-15, for purposes of determining whether the instrument is within the scope of ASC
No. 815-40, which provides accounting guidance for instruments that are indexed to, and potentially
settled in, the issuers own stock. ASC No. 815-40-15 is effective for fiscal years beginning after
December 15, 2008. The application of ASC No. 815-40-15 has had a material impact on the Companys
financial statements, resulting in unrealized, non-operating gains from the change in the fair
value of derivative warrant liabilities in the consolidated statement of operations of $349,498 for
the year ended December 27, 2009, that was recorded in interest expense in the consolidated
statement of operations.
In December 2007, the FASB issued ASC No. 810 Consolidations. ASC No. 810 changes the accounting
and reporting for minority interests. Minority interests will be re-characterized as
non-controlling interests and will be reported as a component of equity separate from the parents
equity, and purchases or sales of equity interests that do not result in a change in control will
be accounted for as equity transactions. In addition, net income attributable to the
non-controlling interest will be included in consolidated net income on the face of the income
statement and upon a loss of control, the interest sold, as well as any interest retained, will be
recorded at fair value with any gain or loss recognized in earnings. ASC No. 810 is effective for
financial statements issued for fiscal years beginning after December 15, 2008, and interim periods
within those fiscal years, except for the presentation and disclosure requirements, which will
apply retrospectively. The adoption of ASC No. 810 did not have a material impact on the Companys
consolidated financial statements.
In October 2008, the FASB issued ASC No. 820, Fair Value Measurements and Disclosure, clarifying
the application of ASC No. 820-10, which the Company adopted as of January 1, 2008, in cases where
a market is not active. The Company will comply with the clarification to the original application.
In April 2009, the FASB issued ASC No. 825-10-65-1, Financials Instruments. This ASC essentially
expands the disclosure about fair value of financial instruments that were previously required only
annually to also be required for interim period reporting. In addition, the ASC requires certain
additional disclosures regarding the methods and significant assumptions used to estimate the fair
value of financial instruments. These additional disclosures were adopted beginning with the
quarter ended September 27, 2009. The adoption of ASC No. 825-10-65-1 did not impacted the
Companys consolidated financial statements.
37
In May 2009, the FASB issued ASC No. 855, Subsequent Events, to incorporate the accounting and
disclosure requirements for subsequent events into U.S. generally accepted accounting principles.
ASC No. 855 introduces new terminology, defines a date through which management must evaluate
subsequent events, and lists the circumstances under which an entity must recognize and disclose
events or transactions occurring after the balance-sheet date. The Company adopted ASC No. 855 as
of June 30, 2009, with no impact to our financial statements or results of operations.
In June 2009, the FASB issued ASC105 Generally Accepted Accounting Principles (GAAP),
establishes the FASB Accounting Standard Codification (the Codification) as the source of
authoritative accounting principles recognized by the FASB to be applied by nongovernmental
entities in the preparation of financial statements in conformity with generally accepted
accounting principles in the United States. All guidance contained in the Codification carries an
equal level of authority. On the effective date of ASC No. 105, the Codification supersedes all
then-existing non-SEC accounting and reporting standards. All other nongrandfathered non-SEC
accounting literature not included in the Codification will become nonauthoritative. ASC No. 105 is
effective for financial statements issued for interim and annual periods ending after September 15,
2009. The Company has reflected Codification-related authoritative GAAP reference updates within
our third quarter 10Q filing, as appropriate.
In June 2009, the FASB issued ASU No. 2009-02, Omnibus Update: Amendments to Various Topics for
Technical Corrections. This ASU amended various topics within the FASB Accounting Standards
Codification for assorted technical corrections of material therein. The Company has evaluated this
new ASU, and has determined that it will not have a significant impact on the determination or
reporting of its financial results.
In August 2009, the FASB issued ASU No. 2009-03, SEC Update: Amendments to Various Topics
Containing SEC Staff Accounting Bulletins. This ASU represents technical corrections to various
topics within the FASB Accounting Standards Codification containing SEC Staff Accounting Bulletins,
to update cross-references to Codification text. The Company has evaluated this new ASU, and has
determined that it will not have a significant impact on the determination or reporting of its
financial results.
In August 2009, the FASB issued ASU No. 2009-04, Accounting for Redeemable Equity Instruments, an
Amendment to Section 480-10-S99. This ASU represents an update to Section 480-10-S99, per EITF
Topic D-98, Classification and Measurement of Redeemable Securities. The Company has evaluated this
new ASU, and has determined that it will not have a significant impact on the determination or
reporting of its financial results.
In August 2009, the FASB issued ASU No. 2009-05, Fair Value Measurements and Disclosures (Topic
820), Measuring Liabilities at Fair Value. This ASU provides amendments to Subtopic 820-10, Fair
Value Measurements and Disclosures Overall, for the fair value measurement of liabilities. The
guidance provided in this ASU is effective for the first reporting period (including interim
periods) beginning after issuance. The Company has evaluated this new ASU, and has determined that
it will not have a significant impact on the determination or reporting of its financial results.
In September 2009, the FASB issued ASU No. 2009-07, Accounting for Various Topics Technical
Corrections to SEC Paragraphs. This ASU represents technical corrections to various Topics within
the FASB Accounting Standards Codification to various Topics containing SEC guidance, based on
external comments received. The Company has evaluated this new ASU, and has determined that it will
not have a significant impact on the determination or reporting of its financial results.
38
In September 2009, the FASB issued ASU No. 200909, Accounting for Investments Equity Method
and Joint Ventures and Accounting for Equity-Based Payments to Non-Employees Amendments to
Sections 323-10-S99 and 505-50-S99. This ASU represents a correction to Section 323-10-S99-4,
Accounting by an Investor for Stock-Based Compensation Granted to Employees of an Equity Method
Investee. Section 323-10-S99-4 was originally entered into the Codification incorrectly.
Additionally, it adds observer comment Accounting Recognition for Certain Transactions Involving
Equity Instruments Granted to Other Than Employees to the Codification. The Company has evaluated
this new ASU, and has determined that it will not have a significant impact on the determination or
reporting of its financial results.
|
|
|
Item 7A. |
|
Quantitive and Qualitive Disclosures About Market Risk |
N/A
|
|
|
Item 8. |
|
Financial Statements and Supplementary Data |
|
|
|
|
|
Index to Consolidated Financial Statements |
|
|
|
|
|
|
|
|
|
|
|
|
40 |
|
|
|
|
|
|
|
|
|
41 - 42 |
|
|
|
|
|
|
|
|
|
43 |
|
|
|
|
|
|
|
|
|
44 |
|
|
|
|
|
|
|
|
|
45 |
|
|
|
|
|
|
|
|
|
46 - 68 |
|
39
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders of UFood Restaurant Group, Inc:
We have audited the accompanying consolidated balance sheets of UFood Restaurant Group, Inc and
Subsidiary (the Company) as of December 27, 2009 and December 28, 2008, and the related
consolidated statements of operations, changes in stockholders equity and cash flows for the
fiscal years then ended. These consolidated financial statements are the responsibility of the
Companys management. Our responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight
Board (United States of America). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the consolidated 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. An audit includes 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 of the
effectiveness of the Companys 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 consolidated financial statements, assessing the accounting
principles used and significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all
material respects, the financial position of UFood Restaurant Group, Inc and Subsidiary as of
December 27, 2009 and December 28, 2008, and the results of their operations and their cash flows
for the years then ended in conformity with accounting principles generally accepted in the United
States of America.
The accompanying financial statements have been prepared assuming that the Company will continue as
a going concern. As discussed in Note 1 to the financial statements, the Companys significant
operating losses and negative cash flows from operations raise substantial doubt about its ability
to continue as a going concern. Managements plans regarding these matters also are described in
Note 1. The financial statements do not include any adjustments that might result from the outcome
of this uncertainty.
/s/ CCR LLP
Westborough, Massachusetts
March 26, 2010
40
UFOOD RESTAURANT GROUP, INC. AND SUBSIDIARY
Consolidated Balance Sheets
December 27, 2009 and December 28, 2008
Assets
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
2,278,427 |
|
|
$ |
787,551 |
|
Restricted cash |
|
|
60,425 |
|
|
|
417,490 |
|
Accounts receivable |
|
|
180,134 |
|
|
|
152,373 |
|
Inventories |
|
|
123,648 |
|
|
|
141,807 |
|
Prepaid expenses and other current assets |
|
|
68,605 |
|
|
|
79,657 |
|
|
|
|
|
|
|
|
|
|
|
2,711,239 |
|
|
|
1,578,878 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment: |
|
|
|
|
|
|
|
|
Equipment |
|
|
937,857 |
|
|
|
925,329 |
|
Furniture and fixtures |
|
|
202,205 |
|
|
|
155,744 |
|
Leasehold improvements |
|
|
1,744,594 |
|
|
|
1,782,919 |
|
Website development costs |
|
|
37,050 |
|
|
|
49,389 |
|
|
|
|
|
|
|
|
|
|
|
2,921,706 |
|
|
|
2,913,381 |
|
Accumulated depreciation and amortization |
|
|
1,560,402 |
|
|
|
1,172,984 |
|
|
|
|
|
|
|
|
|
|
|
1,361,304 |
|
|
|
1,740,397 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other assets: |
|
|
|
|
|
|
|
|
Deferred financing costs, net |
|
|
757,873 |
|
|
|
22,828 |
|
Goodwill |
|
|
75,363 |
|
|
|
211,363 |
|
Other |
|
|
86,560 |
|
|
|
89,200 |
|
|
|
|
|
|
|
|
|
|
|
919,796 |
|
|
|
323,391 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
$ |
4,992,339 |
|
|
$ |
3,642,666 |
|
|
|
|
|
|
|
|
See accompanying notes.
41
UFOOD RESTAURANT GROUP, INC. AND SUBSIDIARY
Consolidated Balance Sheets
December 27, 2009 and December 28, 2008
Liabilities and Stockholders Equity
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
|
|
Current portion of long-term debt |
|
$ |
857,882 |
|
|
$ |
883,684 |
|
Current portion of capital lease obligations |
|
|
58,820 |
|
|
|
61,725 |
|
Accounts payable |
|
|
285,150 |
|
|
|
614,556 |
|
Franchisee deposits |
|
|
157,500 |
|
|
|
700,000 |
|
Accrued expenses and other current liabilities |
|
|
157,870 |
|
|
|
404,908 |
|
|
|
|
|
|
|
|
|
|
|
1,517,222 |
|
|
|
2,664,873 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term liabilities: |
|
|
|
|
|
|
|
|
Long-term debt |
|
|
3,044,001 |
|
|
|
349,712 |
|
Warrant liability |
|
|
3,750 |
|
|
|
-0- |
|
Capital lease obligations |
|
|
276,920 |
|
|
|
86,619 |
|
Other noncurrent liabilities |
|
|
39,071 |
|
|
|
225,264 |
|
|
|
|
|
|
|
|
|
|
|
3,363,742 |
|
|
|
661,595 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
4,880,964 |
|
|
|
3,326,468 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity: |
|
|
|
|
|
|
|
|
Common stock, $0.001 par value, 300,000,000
shares authorized, 37,934,907 and
34,818,490 shares issued and outstanding |
|
|
37,935 |
|
|
|
34,818 |
|
Additional paid-in capital |
|
|
25,589,311 |
|
|
|
24,998,924 |
|
Accumulated deficit |
|
|
(25,515,871 |
) |
|
|
(24,717,544 |
) |
|
|
|
|
|
|
|
|
|
|
111,375 |
|
|
|
316,198 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity |
|
$ |
4,992,339 |
|
|
$ |
3,642,666 |
|
|
|
|
|
|
|
|
See accompanying notes.
42
UFOOD RESTAURANT GROUP, INC. AND SUBSIDIARY
Consolidated Statements of Operations
For the Fiscal Years Ended December 27, 2009 and December 28, 2008
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
Revenues: |
|
|
|
|
|
|
|
|
Store sales |
|
$ |
4,632,651 |
|
|
$ |
5,462,915 |
|
Franchise royalties and fees |
|
|
429,537 |
|
|
|
335,860 |
|
Other revenue |
|
|
388,648 |
|
|
|
25,267 |
|
|
|
|
|
|
|
|
|
|
|
5,450,836 |
|
|
|
5,824,042 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Costs and expenses: |
|
|
|
|
|
|
|
|
Store operating expenses: |
|
|
|
|
|
|
|
|
Food and paper costs |
|
|
1,336,240 |
|
|
|
1,615,417 |
|
Cost of Goods sold |
|
|
344,219 |
|
|
|
509,775 |
|
Labor |
|
|
1,354,101 |
|
|
|
1,743,831 |
|
Occupancy |
|
|
554,923 |
|
|
|
658,672 |
|
Other store operating expenses |
|
|
778,155 |
|
|
|
992,350 |
|
General and administrative expenses |
|
|
3,696,425 |
|
|
|
6,785,620 |
|
Advertising, marketing and promotion expenses |
|
|
219,360 |
|
|
|
887,259 |
|
Depreciation and amortization |
|
|
407,593 |
|
|
|
500,153 |
|
Impairment of goodwill |
|
|
136,000 |
|
|
|
765,772 |
|
Impairment of long-lived assets |
|
|
-0- |
|
|
|
1,249,150 |
|
Loss on disposal of assets |
|
|
88,997 |
|
|
|
65,524 |
|
|
|
|
|
|
|
|
Total costs and expenses |
|
|
8,916,013 |
|
|
|
15,773,523 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(3,465,177 |
) |
|
|
(9,949,481 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense): |
|
|
|
|
|
|
|
|
Interest income |
|
|
20,709 |
|
|
|
80,825 |
|
Interest expense |
|
|
(955,016 |
) |
|
|
(76,602 |
) |
Other income |
|
|
442,133 |
|
|
|
69,953 |
|
|
|
|
|
|
|
|
Other income (expense), net |
|
|
(492,174 |
) |
|
|
74,176 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes |
|
|
(3,957,351 |
) |
|
|
(9,875,305 |
) |
Income taxes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(3,957,351 |
) |
|
$ |
(9,875,305 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted earnings (loss) per share |
|
$ |
(0.11 |
) |
|
$ |
(0.29 |
) |
|
|
|
|
|
|
|
See
accompanying notes.
43
UFOOD RESTAURANT GROUP, INC.
and SUBSIDIARY
Consolidated Statements of Changes in Stockholders
Equity
For the Fiscal Years Ended December 27, 2009 and December 28, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock |
|
|
Additional Paid-in |
|
|
Accumulated |
|
|
|
|
|
|
Shares |
|
|
Value |
|
|
Capital |
|
|
Deficit |
|
|
Total |
|
|
Balances, December 30, 2007 |
|
|
29,241,158 |
|
|
$ |
29,241 |
|
|
$ |
18,833,096 |
|
|
$ |
(14,842,239 |
) |
|
$ |
4,020,098 |
|
Issuance of units (net of issuance costs of $691,154) |
|
|
4,781,000 |
|
|
|
4,781 |
|
|
|
4,083,542 |
|
|
|
|
|
|
|
4,088,323 |
|
Stock issued for marketing and promotional services |
|
|
740,000 |
|
|
|
740 |
|
|
|
1,030,510 |
|
|
|
|
|
|
|
1,031,250 |
|
Stock issued for franchise sales commission |
|
|
56,332 |
|
|
|
56 |
|
|
|
54,984 |
|
|
|
|
|
|
|
55,040 |
|
Stock-based compensation |
|
|
|
|
|
|
|
|
|
|
996,792 |
|
|
|
|
|
|
|
996,792 |
|
Net loss for year ended December 28, 2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9,875,305 |
) |
|
|
(9,875,305 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances, December 28, 2008 as filed |
|
|
34,818,490 |
|
|
|
34,818 |
|
|
|
24,998,924 |
|
|
|
(24,717,544 |
) |
|
|
316,198 |
|
Cumulative effect of reclassification of warrants to warrants liabilities |
|
|
|
|
|
|
|
|
|
|
(3,512,272 |
) |
|
|
3,159,024 |
|
|
|
(353,248 |
) |
Stock issued for marketing and promotional services |
|
|
|
|
|
|
|
|
|
|
150,920 |
|
|
|
|
|
|
|
150,920 |
|
Stock issued for interest payment |
|
|
2,982,671 |
|
|
|
2,983 |
|
|
|
312,995 |
|
|
|
|
|
|
|
315,978 |
|
Exercise of stock options |
|
|
7,618 |
|
|
|
8 |
|
|
|
45 |
|
|
|
|
|
|
|
53 |
|
Stock issued for franchise sales commission |
|
|
82,895 |
|
|
|
83 |
|
|
|
14,917 |
|
|
|
|
|
|
|
15,000 |
|
Stock-based compensation |
|
|
|
|
|
|
|
|
|
|
483,625 |
|
|
|
|
|
|
|
483,625 |
|
Issuance of warrants in connection with debentures |
|
|
|
|
|
|
|
|
|
|
3,130,200 |
|
|
|
|
|
|
|
3,130,200 |
|
Forfeitures of stock |
|
|
(33,690 |
) |
|
|
(34 |
) |
|
|
34 |
|
|
|
|
|
|
|
|
|
Conversion of debentures into stock |
|
|
76,923 |
|
|
|
77 |
|
|
|
9,923 |
|
|
|
|
|
|
|
10,000 |
|
Net loss for year ended December 27, 2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,957,351 |
) |
|
|
(3,957,351 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balances, December 27, 2009 |
|
|
37,934,907 |
|
|
$ |
37,935 |
|
|
$ |
25,589,311 |
|
|
$ |
(25,515,871 |
) |
|
$ |
111,375 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
44
UFOOD RESTAURANT GROUP, INC. AND SUBSIDIARY
Consolidated Statements of Cash Flows
For the Fiscal Years Ended December 27, 2009 and December 28, 2008
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(3,957,351 |
) |
|
$ |
(9,875,305 |
) |
Adjustments to reconcile net loss to net cash used in operating
activities: |
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
407,593 |
|
|
|
500,154 |
|
Amortization of beneficial conversion feature |
|
|
310,201 |
|
|
|
|
|
Amortization of deferred financing costs |
|
|
266,176 |
|
|
|
15,871 |
|
Provision for doubtful accounts |
|
|
161,424 |
|
|
|
29,949 |
|
Impairment of goodwill |
|
|
136,000 |
|
|
|
765,772 |
|
Impairment of long lived assets |
|
|
|
|
|
|
1,249,150 |
|
Change in value of warrant liability |
|
|
(349,498 |
) |
|
|
|
|
Stock-based compensation |
|
|
483,625 |
|
|
|
996,792 |
|
Loss on disposal of assets |
|
|
88,997 |
|
|
|
115,566 |
|
Non-cash promotion expenses |
|
|
158,302 |
|
|
|
1,086,290 |
|
Non-cash interest payments |
|
|
315,976 |
|
|
|
|
|
Gain on extinguishment of debt |
|
|
(74,967 |
) |
|
|
(68,575 |
) |
Increase (decrease) in cash from changes in assets and liabilities: |
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(189,185 |
) |
|
|
(88,788 |
) |
Inventories |
|
|
18,159 |
|
|
|
51,552 |
|
Prepaid expenses and other current assets |
|
|
11,052 |
|
|
|
(39,374 |
) |
Other assets and noncurrent liabilities |
|
|
2,640 |
|
|
|
41,343 |
|
Accounts payable |
|
|
(248,269 |
) |
|
|
(112,737 |
) |
Franchisee deposits |
|
|
(542,500 |
) |
|
|
195,500 |
|
Accrued expenses and other current liabilities |
|
|
(187,766 |
) |
|
|
(34,318 |
) |
|
|
|
|
|
|
|
Net cash used in operating activities |
|
|
(3,189,391 |
) |
|
|
(5,171,158 |
) |
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
Proceeds from sale of assets |
|
|
5,600 |
|
|
|
|
|
Acquisition of property and equipment |
|
|
(116,910 |
) |
|
|
(792,225 |
) |
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(111,310 |
) |
|
|
(792,225 |
) |
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
Proceeds from exercise of options |
|
|
53 |
|
|
|
|
|
Proceeds from issuance of common stock, net |
|
|
|
|
|
|
4,088,323 |
|
Proceeds from issuance of convertible debt |
|
|
5,874,000 |
|
|
|
|
|
Payments for financing costs |
|
|
(1,001,220 |
) |
|
|
|
|
Payments on long-term debt |
|
|
(375,511 |
) |
|
|
(1,303,713 |
) |
Payments on capital lease obligations |
|
|
(62,810 |
) |
|
|
(51,999 |
) |
Decrease in restricted cash |
|
|
357,065 |
|
|
|
666,122 |
|
|
|
|
|
|
|
|
Net cash provided by financing activities |
|
|
4,791,577 |
|
|
|
3,398,733 |
|
|
|
|
|
|
|
|
|
|
Increase(Decrease) in cash and cash equivalents |
|
|
1,490,876 |
|
|
|
(2,564,650 |
) |
Cash and cash equivalents beginning of year |
|
|
787,551 |
|
|
|
3,352,201 |
|
|
|
|
|
|
|
|
|
Cash and cash equivalents end of year |
|
$ |
2,278,427 |
|
|
$ |
787,551 |
|
|
|
|
|
|
|
|
See accompanying notes.
45
UFOOD RESTAURANT GROUP, INC. AND SUBSIDIARY
Notes to Consolidated Financial Statements
1. Nature of Operations and Basis of Presentation
UFood Restaurant Group, Inc. was incorporated in the State of Nevada on February 8, 2006 as Axxent
Media Corp. Prior to December 18, 2007, UFood was a development stage company headquartered in
Vancouver, Canada. As Axxent Media Corp., the Companys business was to obtain reproduction and
distribution rights to foreign films within North America and also to obtain the foreign rights to
North American films for reproduction and distribution to foreign countries. On August 8, 2007, the
Company changed its name to UFood Franchise Company, and on September 25, 2007, changed its name to
UFood Restaurant Group, Inc. (UFood or the Company).
On December 18, 2007, (Merger Date) pursuant to the terms of an Agreement and Plan of Merger and
Reorganization, a wholly-owned subsidiary of the Company merged with and into KnowFat Franchise
Company, Inc. (KnowFat). Following the merger (the Merger), UFood continued KnowFats business
operations as a franchisor and operator of fast-casual food service restaurants that capitalize on
consumer demands for great tasting food with healthy attributes. As of December 27, 2009, the
Companys operations consisted of four Company-owned restaurants and four franchise-owned
locations. One of the franchise-owned locations was operated by the Company pursuant to a
management series agreement. On the Merger Date, each share of KnowFat common stock issued and
outstanding immediately prior to the Merger was exchanged for 1.52350763 shares of UFood Common
Stock. All share amounts have been adjusted to reflect the effect of the share exchange.
As shown in the accompanying
consolidated financial statements, the Company has incurred recurring losses from
operations and negative cash flows from operations. Over the past few years, the Companys
operations have been funded through a combination of private equity and debt financing. As of
December 27, 2009, the Company had approximately $2,278,000 of unrestricted cash. These factors
raise substantial doubt about the Companys ability to continue as a going concern. Based on
current trends, management believes that additional franchises will be sold within the next twelve
months, and that the additional capital raised will be sufficient to support activities though
2011. The Company is subject to a number of risks similar to those of other companies in its
industry, including dependence on key individuals, competition from substitute products, the
successful attraction of franchisee, and the ability to obtain adequate additional financing
necessary to fund continuing operations. The Company is currently in the process of raising
additional equity capital. The accompanying financial statements do not include any adjustments
that might be necessary if the Company is unable to continue as a going concern.
2. Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation
The accompanying consolidated financial statements of UFood Restaurant Group, Inc. and its
subsidiary consist of the accounts of UFood Restaurant Group, Inc. and its wholly-owned
subsidiaries. All significant intercompany balances and transactions have been eliminated in
consolidation.
Certain reclassifications have been made to conform previously reported data to the current
presentation.
Fiscal Year
The Companys fiscal year ended on December 27, 2009 and December 28, 2008, respectively, both
fiscal years had 52 weeks.
46
Adoption of the FASB Accounting Standards Codification
In June 2009, the Financial Accounting Standards Board (FASB) issued the FASB Accounting
Standards Codification (ASC). The ASC became the single source for all authoritative GAAP
recognized by the FASB and is required to be applied to financial statements issued for interim and
annual periods ending after September 15, 2009. The Companys accounting policies were not affected
by the conversion to ASC. However, references to specific accounting standards in the notes have
been changed to refer to the appropriate ASC topics.
Use of Estimates
The preparation of consolidated financial statements in conformity with accounting principles
generally accepted in the United States requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the reported amount of revenues and
expenses during the reporting period. Actual amounts could differ from those estimates.
Cash Equivalents
Cash equivalents represent highly liquid instruments with original maturities of three months or
less when purchased. Cash equivalents consist of money market accounts at December 27, 2009 and
December 28, 2008. At December 27, 2009 restricted cash was comprised of $60,425 used to
collateralize a standby letter of credit.
Inventories
Inventories, which primarily consist of food products, paper goods and supplies and vitamins and
supplements for resale, are stated at the lower of cost or market, with cost determined by the
average cost method.
Deferred Financing Costs
Deferred financing costs represent costs paid to third parties in order to obtain long-term
financing and have been included in other assets. Deferred financing costs are amortized over the
life of the related debt. Amortization expense related to these costs were $266,176 and $15,871
for the years ended December 27, 2009 and December 28, 2008, respectively, and is included in
interest expense.
Property and Equipment
Property, equipment and leaseholds are stated at cost. Depreciation is provided using the
straight-line method over the estimated useful lives of the assets. Leasehold improvements are
amortized using the straight-line method over the shorter of their estimated useful lives or the
related reasonably assured lease term. The estimated useful lives used for financial statement
purposes are:
|
|
|
Leasehold improvements
|
|
5 years, or over life of lease, whichever is shorter |
Equipment
|
|
5 years |
Furniture and fixtures
|
|
5 years |
Website development costs
|
|
3 years |
Upon retirement or sale, the cost of assets disposed and their related accumulated depreciation are
removed from the accounts. Any resulting gain or loss is credited or charged to operations.
Maintenance and repairs are charged to expense when incurred, while betterments are capitalized.
The total amounts expensed for maintenance and repairs were $71,038 and $92,808 for the fiscal
years ended December 27, 2009 and December 28, 2008, respectively.
47
Goodwill and Other Intangible Assets
We account for goodwill and other intangible assets under ASC No. 805, Business
Combinations, and ASC No. 350-20 to 30, Goodwill and Other Intangible Assets.
ASC No. 805 requires that the purchase method of accounting be used for all
business combinations initiated after June 30, 2001, and that certain
intangible assets acquired in a business combination be recognized as assets
apart from goodwill. Under ASC No. 350-20 to 30, purchased goodwill and
intangible assets with indefinite lives are not amortized, but instead tested
for impairment at least annually or whenever events or changes in circumstances
indicate the carrying value may not be recoverable. Goodwill attributable to
our franchise operations segment is evaluated by comparing the Companys fair
market value, determined based upon quoted market prices of the Companys
equity securities, to the carrying amount of goodwill. The Goodwill
attributable to our franchise operations segment was impaired due to the
decision to not renew the lease agreement for a property originally leased as a
training facility. The carrying amount of the goodwill attributable to
franchise operations exceeded its implied fair value and the Company recognized
a non-cash impairment charge of $136,000, during the year ended December 27,
2009. Goodwill attributable to our store operations segment is evaluated on a
restaurant-by-restaurant basis by comparing the restaurants estimated fair
value to the carrying value of the restaurants underlying net assets inclusive
of goodwill. Fair value is determined based upon the restaurants estimated
future cash flows. Future cash flows are estimated based upon a restaurants
historical operating performance and managements estimates of future revenues
and expenses over the period of time that the Company expects to operate the
restaurant, which generally coincides with the initial term of the restaurants
lease but which may take into account the restaurants first lease renewal
period up to 5 years. The estimate of a restaurants future cash flows may also
include an estimate of the restaurants terminal value, determined by applying
a capitalization rate to the restaurants estimated cash flows during the last
year of the forecast period. The capitalization rate used by the Company was
determined based upon the restaurants location, cash flows and growth
prospects.
In August 2008, the Company completed the conversion of three of its
Company-owned stores from KnowFat! locations to UFood Grill outlets, including
two stores that have goodwill associated with them. Following the store
conversions, the Company tested the carrying value of the stores goodwill for
impairment as of the first day of the fourth quarter and determined that there
was no impairment. For purposes of estimating each stores future cash flows,
the Company assumed that comparable store sales would increase by
approximately 4% per year; store operating expenses as a percentage of the
stores revenues would decrease by a total of 1-1/2% of sales per year due to
labor and purchasing efficiencies; and the terminal value of each store was
calculated using a 20% capitalization rate applied to the final years
estimated cash flow. The present value of each restaurants estimated future
cash flows was calculated using a discount rate of 8%. Following the
impairment test performed as of the first day of the fourth quarter of the
fiscal year 2008, economic conditions in the United States worsened. The U.S.
Government and Federal Reserve provided an unprecedented level of financial
support to U.S. financial institutions, unemployment has risen, home
foreclosures have increased, mortgage delinquency rates have increased, credit
markets have tightened, volatility in the equity markets has continued and the
National Bureau of Economic Research announced that the United States economy
has been in recession for almost a year. These factors, all contributed to
economic uncertainty and a decrease in consumer spending which in turn
contributed to a decline in sales at Company-owned stores during the fiscal
year 2008. According to The Conference Board, Inc., the decline in real
consumer spending experienced in the third and fourth quarters of 2008 are
expected to last through 2009. As a result of these factors and the
uncertainty surrounding the level of economic activity in 2009 and beyond, the
Company tested the carrying value of the stores goodwill in December 2008 and
determined that the carrying amount of the goodwill attributable to our store
operations exceeded its implied fair value and recognized a non-cash
impairment charge of $765,772. For purposes of its mid-December 2008
impairment test, the Company assumed that comparable store sales will decline
by 6% in 2009 and increase by 2.5% per year thereafter and store operating
expenses will continue at their current level as a percentage of store
revenues. As a result of the economic uncertainty that currently exists, the
Companys estimate of future cash flows did not include an estimate of the
restaurants terminal value since the Company cannot be certain that a buyer
could be found for the restaurant at the end of the lease term. The present
value of the estimated future cash flows was calculated using a 7% discount
rate reflecting the recent decrease in long-term interest rates. Following the
non-cash impairment charge, the carrying value of goodwill attributable to our
store operations segment is $75,363. As of the first day of the fourth quarter
of the year ended December 27, 2009 according to our policy we have tested the
carrying value of the Goodwill attributable to our store operations and no
impairment was necessary. The carrying amount of goodwill may be impaired in
the future if our actual operating results and cash flows fall short of our
expectations.
48
Impairment of Long-Lived Assets
In accordance with ASC No. 360 Property, Plant and Equipment, when impairment
indicators exist, the Company evaluates its long-lived assets for potential
impairment. Potential impairment is assessed when there is evidence that events
or changes in circumstances have occurred that indicate the carrying amount of
an asset may not be recovered. When events or changes in circumstances have
occurred that indicate a long-lived asset may be impaired, the Company uses
estimates of future cash flows on a restaurant-by-restaurant basis to test the
recoverability of its long-lived assets. Future cash flows are estimated based
upon the restaurants historical operating performance and managements
projections of future revenues and expenses and may take into account the
restaurants estimated terminal value. During the fourth quarter of 2008, the
Company determined that the carrying value of the long-lived assets of its
store operations segment may not be recovered and recorded a non-cash
impairment charge of $1,249,150. The impairment charge was primarily due to a
decrease in forecasted sales resulting from the economic downturn to continue
through 2009, an increase in the carrying value of the underlying assets of two
stores as a result of the conversion from KnowFat! locations to UFood Grill
outlets and new restaurants that opened in the fall of 2008 in the vicinity of
one of our Company-owned stores and which are expected to have an adverse
impact on the stores future sales growth. Long-lived assets may be impaired in
the future if our actual operating results and cash flows fall short of our
expectations.
Income Taxes
The Company completes the provision for income taxes in accordance with the accounting standard for
income taxes in the Companys consolidated financial statements and accompanying notes. Under this
method, deferred tax assets and liabilities are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of existing assets and
liabilities and their respective tax basis. Deferred tax assets and liabilities are measured using
enacted income tax rates expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. Any effect on deferred tax assets and
liabilities from a change in tax rates is recognized in income in the period that includes the
enactment date.
In accordance with the authoritative guidance on income taxes issued by the FASB, the Company
establishes additional provisions for income taxes when, despite the belief that tax positions are
fully supportable, there remain certain positions that do not meet the minimum probability
threshold, which is a tax position that is more likely than not to be sustained upon examination by
the applicable taxing authority. In the normal course of business, the Company and its subsidiaries
are examined by various Federal, State and foreign tax authorities. The Company regularly assesses
the potential outcomes of these examinations and any future examinations for the current or prior
years in determining the adequacy of its provision for income taxes. The Company continually
assesses the likelihood and amount of potential adjustments and adjusts the income tax provision,
the current tax liability and
deferred taxes in the period in which the facts that give rise to a revision become known. The
Company classifies estimated interest and penalties related to the underpayment of income taxes as
a component of income taxes in the consolidated statements of
operations.
49
Revenue Recognition
The Company records revenue for Company-owned store sales upon the delivery of the related food and
other products to the customer. The Company records a liability in the period in which a gift card
is issued and proceeds are received. As gift cards are redeemed, this liability is reduced and
revenue is recognized.
The Company follows the accounting guidance of ASC No. 952, Franchisors. Franchisee deposits
represent advances on initial franchise fees prior to the opening of the franchisee location. We
recognize initial franchise fee revenue when all material services we are required to perform and
all material conditions we are required to satisfy have been substantially completed, which is
generally the opening of the franchised location. The Company defers direct costs related to
franchise sales until the related revenue is recognized; however, the deferred costs shall not
exceed anticipated revenue less estimated additional related costs. Such costs include training,
facilities design, menu planning and marketing. Franchise royalty revenues are recognized in the
same period the relevant franchisee sales occur.
Advertising Costs
The Company expenses advertising costs as incurred. Advertising expense amounted to $76,998 in 2009
and $90,279 in 2008.
Pre-Opening Costs
All pre-opening costs directly associated with the opening of new Company-owned restaurant
locations, which consist primarily of labor and food costs incurred during in-store training and
preparation for opening, but exclude manager training costs which are included in other operating
expenses, are expensed when incurred.
Rent Expense
The Company recognizes rent expense on a straight-line basis over the reasonably assured lease term
as defined in ASC No. 840, Leases. The reasonably assured lease term on most of the Companys
leases is the initial non-cancelable lease term, which generally equates to between 5 and 10 years.
In addition, certain of the Companys lease agreements provide for scheduled rent increases during
the lease terms or for rental payments commencing at a date other than the date of initial
occupancy. The Company includes any rent escalations and other rent holidays in its determination
of straight-line rent expense. Therefore, rent expense for new locations is charged to expense upon
the commencement date of the lease.
Earnings Per Share Data
Earnings per share are based on the weighted average number of shares outstanding during the period
after consideration of the dilutive effect, if any, for common stock equivalents, including stock
options, restricted stock, and other stock-based compensation. Earnings per common share are
computed in accordance with ASC No. 260, Earnings Per Share, which requires companies to present
basic earnings per share and diluted earnings per share. Basic earnings per share are computed by
dividing net income allocable to common stockholders by the weighted average number of shares of
common stock outstanding during the year. Diluted earnings per common share are computed by
dividing net income by the weighted average number of shares of common stock outstanding and
dilutive securities outstanding during the year.
50
Fair Value of Financial Instruments
The carrying amounts of the Companys financial instruments, which include accounts receivable,
accounts payable and other accrued expenses approximate their fair values due to the short-term
maturity of these instruments.
Stock-Based Compensation
The Company maintains two stock-based incentive plans. The Company grants options to purchase common stock at an option price equal to the market value of the stock at the date of grant. Options generally vest over a three-year period beginning on the date of grant and have a ten-year contractual term.
The Company applies the fair value recognition provisions of ASC No. 718, Compensation-Stock Compensation, which requires all stock-based compensation, including grants of employee stock options, to be recognized in the statement of operations based on their fair values. The Company uses the
Black-Scholes option pricing model which requires extensive use of accounting judgment and financial estimates, including estimates of the expected term participants will retain their vested stock options before exercising them and the estimated volatility of the Companys common stock price over the
expected term.
Stock-based compensation expense recognized during the fiscal year ended December 27, 2009 totaled
approximately $483,625 for stock options. Stock-based compensation expense recognized during the
fiscal year ended December 28, 2008 totaled approximately $996,792 for stock options. Stock-based
compensation expense was included in general and administrative expenses in the accompanying
consolidated statements of operations.
Reclassifications
Certain accounts previously reported in the 2008 financial statements have been reclassified to
facilitate comparability with the current year presentation. The reclassifications had no effect
on the 2008 net loss previously reported.
New Accounting Pronouncements
Adoption of New Accounting Principle
Effective January 1, 2008, we adopted ASC 820, Fair Value Measurements, for all financial assets
and liabilities, defines fair value as the exchange price that would be received for an asset or
paid to transfer a liability (an exit price) in the principal or most advantageous market for the
asset or liability in an orderly transaction between market participants on the measurement date.
ASC 820 establishes a framework for measuring fair value and enhances disclosures about fair value
measures required under other accounting pronouncements, but does not change existing guidance as
to whether or not an instrument is carried at fair value. The adoption of ASC 820 did not expect to
have a material impact on our consolidated financial statements.
In February 2007, the FASB issued ASC 825, The Fair Value Option for Financial Assets and Financial
Liabilities including an amendment of FASB Statement No. 115. Under ASC 825, a company may elect
to measure eligible financial assets and financial liabilities at fair value. Unrealized gains and
losses on items for which the fair value option has been elected are reported in earnings at each
subsequent reporting date. If elected, ASC 825 is effective for fiscal year beginning after
November 15, 2007.
Recent Accounting Pronouncements
In December 2007, the FASB issued ASC No. 805, Business Combinations. ASC No. 805 establishes
principles and requirements for how the acquirer of a business recognizes and measures in its
financial statements the identifiable assets acquired, the liabilities assumed, and any
non-controlling interest in the acquiree. The statement also provides guidance for recognizing and
measuring the goodwill acquired in the business combination and specifies what information to
disclose to enable users of the financial statements to evaluate the nature and financial effects
of the business combination. ASC No. 805 is effective for financial statements issued for fiscal
years
beginning after December 15, 2008. We expect ASC No. 805-10 will have an impact on our consolidated
financial statements when effective, but the nature and magnitude of the specific effects will
depend upon the nature, terms and size of the acquisitions we consummate after the effective date.
51
In June 2008, the FASB ratified ASC No. 815-40 Derivatives and Hedging-Contracts in Entitys Own
Equity. This issue provides guidance for determining whether an equity-linked financial instrument
(or embedded feature) is indexed to an entitys own stock. ASC No. 815-40 applies to any
freestanding financial instrument or embedded feature that has all the characteristics of a
derivative under ASC No. 815-10-15 for purposes of determining whether that instrument or embedded
feature qualifies for the first part of the scope exception under ASC No. 815-10-15. ASC No. 815-40
also applies to any freestanding financial instrument that is potentially settled in an entitys
own stock, regardless of whether the instrument has all the characteristics of a derivative under
ASC No. 815-10-15, for purposes of determining whether the instrument is within the scope of ASC
No. 815-40, which provides accounting guidance for instruments that are indexed to, and potentially
settled in, the issuers own stock. ASC No. 815-40-15 is effective for fiscal years beginning after
December 15, 2008. The application of ASC No. 815-40-15 has had a material impact on the Companys
financial statements, resulting in unrealized, non-operating gains from the change in the fair
value of derivative warrant liabilities in the consolidated statement of operations of $349,498 for
the year ended December 27, 2009, that was recorded in interest expense in the consolidated
statement of operations.
In December 2007, the FASB issued ASC No. 810 Consolidations,. ASC No. 810-10 changes the
accounting and reporting for minority interests. Minority interests will be re-characterized as
non-controlling interests and will be reported as a component of equity separate from the parents
equity, and purchases or sales of equity interests that do not result in a change in control will
be accounted for as equity transactions. In addition, net income attributable to the
non-controlling interest will be included in consolidated net income on the face of the income
statement and upon a loss of control, the interest sold, as well as any interest retained, will be
recorded at fair value with any gain or loss recognized in earnings. ASC No. 810-10 is effective
for financial statements issued for fiscal years beginning after December 15, 2008, and interim
periods within those fiscal years, except for the presentation and disclosure requirements, which
will apply retrospectively. The adoption of ASC No. 810 did not have a material impact on the
Companys consolidated financial statements.
In October 2008, the FASB issued ASC No. 820, Fair Value Measurements and Disclosure, clarifying
the application of ASC No. 820-10, which the Company adopted as of January 1, 2008, in cases where
a market is not active. The Company will comply with the clarification to the original application.
In April 2009, the FASB issued ASC No. 825-10-65-1, Financials Instruments. This ASC essentially
expands the disclosure about fair value of financial instruments that were previously required only
annually to also be required for interim period reporting. In addition, the ASC requires certain
additional disclosures regarding the methods and significant assumptions used to estimate the fair
value of financial instruments. These additional disclosures will be required beginning with the
quarter ending September 27, 2009. The adoption of ASC No. 825-10-65-1 did not impacted the
Companys consolidated financial statements.
In May 2009, the FASB issued ASC No. 855, Subsequent Events, to incorporate the accounting and
disclosure requirements for subsequent events into U.S. generally accepted accounting principles.
ASC No. 855 introduces new terminology, defines a date through which management must evaluate
subsequent events, and lists the circumstances under which an entity must recognize and disclose
events or transactions occurring after the balance-sheet date. The Company adopted ASC No. 855 as
of June 30, 2009, with no impact to our financial statements or results of operations.
52
In June 2009, the FASB issued ASC105 Generally Accepted Accounting Principles (GAAP),
establishes the FASB Accounting Standard Codification (the Codification) as the source of
authoritative accounting principles recognized by the FASB to be applied by nongovernmental
entities in the preparation of financial
statements in conformity with generally accepted accounting principles in the United States. All
guidance contained in the Codification carries an equal level of authority. On the effective date
of ASC No. 105, the Codification supersedes all then-existing non-SEC accounting and reporting
standards. All other nongrandfathered non-SEC accounting literature not included in the
Codification will become nonauthoritative. ASC No. 105 is effective for financial statements issued
for interim and annual periods ending after September 15, 2009. The Company has reflected
Codification-related authoritative GAAP reference updates within our third quarter 10Q filing, as
appropriate.
In June 2009, the FASB issued ASU No. 2009-02, Omnibus Update: Amendments to Various Topics for
Technical Corrections. This ASU amended various topics within the FASB Accounting Standards
Codification for assorted technical corrections of material therein. The Company has evaluated this
new ASU, and has determined that it will not have a significant impact on the determination or
reporting of its financial results.
In August 2009, the FASB issued ASU No. 2009-03, SEC Update: Amendments to Various Topics
Containing SEC Staff Accounting Bulletins. This ASU represents technical corrections to various
topics within the FASB Accounting Standards Codification containing SEC Staff Accounting Bulletins,
to update cross-references to Codification text. The Company has evaluated this new ASU, and has
determined that it will not have a significant impact on the determination or reporting of its
financial results.
In August 2009, the FASB issued ASU No. 2009-04, Accounting for Redeemable Equity Instruments, an
Amendment to Section 480-10-S99. This ASU represents an update to Section 480-10-S99, per EITF
Topic D-98, Classification and Measurement of Redeemable Securities. The Company has evaluated this
new ASU, and has determined that it will not have a significant impact on the determination or
reporting of its financial results.
In August 2009, the FASB issued ASU No. 2009-05, Fair Value Measurements and Disclosures (Topic
820), Measuring Liabilities at Fair Value. This ASU provides amendments to Subtopic 820-10, Fair
Value Measurements and Disclosures Overall, for the fair value measurement of liabilities. The
guidance provided in this ASU is effective for the first reporting period (including interim
periods) beginning after issuance. The Company has evaluated this new ASU, and has determined that
it will not have a significant impact on the determination or reporting of its financial results.
In September 2009, the FASB issued ASU No. 2009-07, Accounting for Various Topics Technical
Corrections to SEC Paragraphs. This ASU represents technical corrections to various Topics within
the FASB Accounting Standards Codification to various Topics containing SEC guidance, based on
external comments received. The Company has evaluated this new ASU, and has determined that it will
not have a significant impact on the determination or reporting of its financial results.
In September 2009, the FASB issued ASU No. 200909, Accounting for Investments Equity Method
and Joint Ventures and Accounting for Equity-Based Payments to Non-Employees Amendments to
Sections 323-10-S99 and 505-50-S99. This ASU represents a correction to Section 323-10-S99-4,
Accounting by an Investor for Stock-Based Compensation Granted to Employees of an Equity Method
Investee. Section 323-10-S99-4 was originally entered into the Codification incorrectly.
Additionally, it adds observer comment Accounting Recognition for Certain Transactions Involving
Equity Instruments Granted to Other Than Employees to the Codification. The Company has evaluated
this new ASU, and has determined.
53
3. Disposal of Assets
During 2009, the Company recorded a loss on disposal of assets of $88,997 due to the write off of
obsolete equipment and furniture and fixtures as a result of the closure of the Bedford, MA
location.
During 2008, the Company recorded a loss on disposal of assets of $65,524 due to the write off of
obsolete equipment and furniture and fixtures as a result of the conversion of four KnowFat stores
to UFood Grill outlets.
4. Goodwill
At September 28, 2008, the carrying amount of goodwill was $977,135 and was comprised of $841,135
of goodwill attributable to our store operations segment and $136,000 of goodwill attributable to
our franchise operations segment. Goodwill attributable to our franchise operations segment is
evaluated by comparing the Companys fair market value, determined based upon quoted market prices
of the Companys equity securities, to the carrying amount of goodwill.
In August 2008, the Company completed the conversion of three of its Company-owned stores from
KnowFat! locations to UFood Grill outlets, including two stores that have goodwill associated with
them. Following the store conversions, the Company tested the carrying value of the stores
goodwill for impairment as of the first day of the fourth quarter and determined that there was no
impairment. For purposes of estimating each stores future cash flows, the Company assumed that
comparable store sales would increase by approximately 4% per year; store operating expenses as a
percentage of the stores revenues would decrease by a total of 1-1/2% of sales due to labor and
purchasing efficiencies; and the terminal value of each store was calculated using a 20%
capitalization rate applied to the final years estimated cash flow. The present value of each
restaurants estimated future cash flows was calculated using a discount rate of 8%.
Following the impairment test performed as of the first day of the fourth quarter of fiscal year
2008, economic conditions in the United States worsened. The U.S. Government and Federal Reserve
provided an unprecedented level of financial support to U.S. financial institutions, unemployment
has risen, home foreclosures have increased, mortgage delinquency rates have increased, credit
markets have tightened, volatility in the equity markets has continued and the National Bureau of
Economic Research announced that the United States economy has been in recession for almost a year.
These factors contributed to economic uncertainty and a decrease in consumer spending which in
turn has contributed to a decline in sales at Company-owned stores during the fiscal year 2008. As
a result of these factors and the uncertainty surrounding the level of economic activity in 2009
and beyond, the Company tested the carrying value of the stores goodwill in December 2008 and
determined that the carrying amount of the goodwill attributable to our store operations exceeded
its implied fair value and has recognized a non-cash impairment charge of $765,772. For purposes of
its mid-December 2008 impairment test, the Company has assumed that comparable store sales will
decline by 6% in 2009 and increase by 2-1/2% per year thereafter and store operating expenses will
continue at their current level as a percentage of store revenues. As a result of the economic
uncertainty that currently exists, the Companys estimate of future cash flows did not include an
estimate of the restaurants terminal value since the Company cannot be certain that a buyer could
be found for the restaurant at the end of the lease term. The present value of the estimated
future cash flows was calculated using a 7% discount rate reflecting the recent decrease in
long-term interest rates. Following the non-cash impairment charge, the carrying value of goodwill
attributable to our store operations segment is $75,363. During the year ended December 27, 2009,
the goodwill attributable to our franchise operations segment was impaired due to the decision to
not renew the lease agreement for a property originally leased as a training facility. The carrying
amount of the goodwill attributable to franchise operations exceeded its implied fair value and the
Company recognized a non-cash impairment charge of $136,000.
54
As of the first day of the fourth quarter of the year ended December 27, 2009 according to our
policy we have tested the carrying value of the goodwill attributable to our store operations and
no impairment was necessary. The carrying amount of goodwill may be impaired in the future if our
actual operating results and cash flows fall short of our expectations.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Franchise |
|
|
|
|
|
|
Store Operations |
|
|
Operations |
|
|
|
|
|
|
Segment |
|
|
Segment |
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance as of December 30, 2007 |
|
|
841,135 |
|
|
|
136,000 |
|
|
|
977,135 |
|
Goodwill written off in
connection with impairment
test |
|
|
(765,772 |
) |
|
|
|
|
|
|
(765,772 |
) |
|
|
|
|
|
|
|
|
|
|
Balance as of December 28, 2008 |
|
|
75,363 |
|
|
|
136,000 |
|
|
|
211,363 |
|
Goodwill written off in
connection with impairment
test |
|
|
|
|
|
|
(136,000 |
) |
|
|
(136,000 |
) |
|
|
|
|
|
|
|
|
|
|
Balance as of December 27, 2009 |
|
|
75,363 |
|
|
|
|
|
|
|
75,363 |
|
|
|
|
|
|
|
|
|
|
|
5. Long-Term Debt
2008 Investor Warrants
On December 18 and 21, 2007, January 22, 2008, February 6, 2008, and March 30, 2008, the Company
sold 5,720,000, 440,000, 863,000, 1,927,000, and 1,991,000 units (Units), respectively, of its
securities at a price of $1.00 per Unit, in connection with five separate closings (the Closings)
of its private placement of securities (the Offering). Each Unit consists of one share of common
stock of the Company, par value $.001 per share (Common Stock), and a warrant to purchase one-half
of one share of Common Stock (the 2008 Investor Warrants). A total of 5,470,500 2008 Investor
Warrants were issued in conjunction with the closings.
The 2008 Investor Warrants provide for the purchase of shares of Common Stock for five years at an
original exercise price of $1.25 per share. The 2008 Investor Warrants, at the option of the
holder, may be exercised by cash payment of the exercise price or by cashless exercise to the
extent that a registration statement covering the shares of Common Stock underlying the 2008
Investor Warrants is not in effect following the one year anniversary of issuance. A cashless
exercise means that in lieu of paying the aggregate purchase price for the shares being purchased
upon exercise of the 2008 Investor Warrants in cash, the holder will forfeit a number of shares
underlying the 2008 Investor Warrants with a fair market value equal to such aggregate exercise
price. The Company will not receive additional proceeds to the extent that 2008 Investor Warrants
are exercised by cashless exercise. As a result of the Companys recent private placement, the
exercise price of the 2008 Investor Warrants was reduced to $0.59 pursuant to the terms of such
warrants.
The exercise price and number of shares of Common Stock issuable on exercise of the 2008 Investor
Warrants may be adjusted in certain circumstances including in the event of a stock dividend, or
our recapitalization, reorganization, merger or consolidation. The 2008 Investor Warrants are also
subject to a weighted average price protection for the term of the Investor Warrants.
Through March of 2008, the Company paid the placement agent retained in connection with the
Offering (the 2008 Placement Agent) a commission of 10% of the funds raised from the investors in
connection with the Closings. In addition, the 2008 Placement Agent received warrants (the 2008
Placement Agent Warrants) to purchase a number of shares of Common Stock equal to 20% of the shares
of Common Stock included in the Units sold to investors. As a result of the foregoing, the 2008
Placement Agent was paid commissions of $1,294,100 and received warrants to purchase 2,988,200
shares of Common Stock. The terms of these warrants were similar to those
of the 2008 Investor Warrants, except that they had a seven-year term and $1.00 original exercise
price. As a result of the Companys recent private placement, the exercise price of the 2008
Placement Agent Warrants was reduced to $0.49 pursuant to the terms of such warrants.
55
The Company is subject to a derivative warrant liability instrument due to the fact that the
related contract is not indexed to its own stock, as specified by ASC No. 815-40, Derivatives and
Hedging-Contracts in entitys Own Equity. The derivative is accounted for and classified as a
Derivative warrant liability within the liabilities section of the consolidated balance sheet.
The change in the fair value of the derivative is included within Other income (Loss) in the
consolidated statements of operations. The change in the fair value of the derivative instrument
affects the Change in fair value of derivative warrant liability line in the Cash flows from
operating activities section of the consolidated statements of cash flows.
At the date of issuance of the 2008 Investor Warrants and 2008 Placement Agent Warrants, based upon
evaluation under applicable ASC No. 815 Derivatives and Hedging guidance, the Company initially
determined that the financial instrument did not constitute a derivative, and, accordingly,
reflected the balance within additional paid-in capital as of December 28, 2008 in the Companys
Form 10-K. During the quarter ended March 29, 2009, the Company re-assessed this categorization
based upon the clarified indexed to an entitys own stock criteria specified within ASC No.
815-40, which is effective for fiscal years beginning after December 15, 2008, and concluded that
the financial instrument constituted a derivative. The aggregate fair value of the derivative at
inception was determined to be $3,512,272, which was recorded as a derivative liability during the
quarter ended March 29, 2009. At December 29, 2008, the aggregate fair value of the derivatives
was $353,248. The decrease in the fair value of the derivative in the aggregate amount of
$3,159,024 upon adoption of ASC No. 815-40 was recorded in the consolidated statements of changes
in stockholders equity as a cumulative adjustment gain on derivative during the three months ended
March 29, 2009.
At December 27, 2009, the aggregate fair value of the derivative was $3,750. The decrease in the
fair value of the derivative was in the aggregate amount of $349,498 during the twelve months ended
December 27, 2009. The decrease in the fair value of the derivative was recorded in the
consolidated statement of operations as other income.
The derivative is not intended to hedge any specific risk exposures, such as fluctuating interest
rates, exchange rates, commodity prices, etc. Therefore, the derivative constitutes neither a cash
flow hedge, nor a fair value hedge. The volume of derivative activity relates solely to the
derivative warrant liability instrument itself, and changes in fair value thereon.
Tabular disclosure of the fair value of the derivative instrument in the consolidated balance
sheets, and the effect of the derivative instrument on the consolidated balance sheets follows:
|
|
|
|
|
|
|
|
|
|
|
As of December 27, 2009 |
|
|
|
Liability Derivatives |
|
|
|
Balance Sheet |
|
|
|
|
|
|
Location |
|
|
Fair Value |
|
Derivatives designated as hedging
instruments under ASC No. 815: |
|
|
|
|
|
|
|
|
None |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivatives not designated as
hedging instruments under ASC No.
815: |
|
|
|
|
|
|
|
|
Derivative warrant liability |
|
Long-term liabilities |
|
$ |
3,750 |
|
|
|
|
|
|
|
|
|
|
Total derivatives |
|
|
|
|
|
$ |
3,750 |
|
56
The effect of the derivative instrument on the consolidated statements of operations for the twelve
months ended December 27, 2009 follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of Gain (Loss) |
|
|
|
|
|
|
|
Recognized in Income on |
|
|
|
Location of Gain (Loss) |
|
|
Derivative |
|
|
|
Recognized in Income on |
|
|
Twelve Months Ended |
|
|
|
Derivative |
|
|
December 27, 2009 |
|
Derivatives not designated as
hedging instruments under ASC No.
815: |
|
|
|
|
|
|
|
|
Derivative warrant liability |
|
Other Income (Expense) |
|
$ |
349,498 |
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
$ |
349,498 |
|
The fair value of the warrant liability was determined using the Black Scholes Option Pricing
method. The valuation methodology uses a combination of observable (Level 2) and unobservable
(Level 3) inputs in calculating fair value. As required by ASC 820, assets are classified in their
entirety based on the lowest level of input that is significant to the fair value measurement.
The fair value of the warrant liability was estimated on the date of issuance, as of December 29,
2008, and as of December 27, 2009, using the following assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At Issuance |
|
|
December 29, 2008 |
|
|
December 27, 2009 |
|
Expected term (years) |
|
5 - 7 Years |
|
|
5 - 7 Years |
|
|
5 - 7 Years |
|
Expected volatility |
|
|
32.34 |
% |
|
|
34.87 |
% |
|
|
37.20 |
% |
Risk-free interest rate |
|
|
2.46 |
% |
|
|
1.55 |
% |
|
|
1.56 |
% |
Expected annual dividend |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
The table below sets forth a summary of changes in the fair value of the Companys level 3
derivative at December 29, 2008, and for the twelve months ended December 27, 2009:
|
|
|
|
|
Balance as of December 28, 2008 |
|
$ |
|
|
Fair value of warrant liability at issuance |
|
|
3,512,272 |
|
Decrease in fair value at December 29, 2008 |
|
|
(3,159,024 |
) |
Decrease in fair value during the twelve months ended
December 27, 2009 |
|
|
(349,498 |
) |
Balance as of December 27, 2009 |
|
$ |
3,750 |
|
57
2009 Warrants
On March 19, 2009, the Company sold 8% Senior Secured Convertible Debentures (the Debentures) to
investors in the principal amount of $3,315,000 and issued warrants (the 2009 Warrants and,
collectively with the Debentures, the Securities) to purchase 12,750,000 shares of our Common Stock
to such investors in connection with first closing of our private placement of securities (the
2009 Offering). On April 20, 2009, the Company sold an additional $2,559,000 of Debentures in
connection with the final closing of its private offering to accredited investors. The addition of
both closings is $5,874,000 of Debentures. The Debentures bear interest at a rate of 8% and are due
three years from the date they are issued. The Debentures are convertible into shares of Common
Stock at $0.13 per share. In addition, each investor will receive 5-year detachable warrants to
purchase a number of shares of Common Stock equal to 50% of the shares underlying the Investors
Debenture. Interest on the Debentures a rate of 8% per annum is payable on a quarterly basis.
Subject to certain conditions, the Company has the right to pay
interest on the Debentures in either cash or shares of Common Stock, or in a combination of cash
and Common Stock. After the one year anniversary of the first closing of the 2009 Offering, the
Company has the right to redeem the Debentures at a 20% premium, subject to certain conditions.
Subject to certain conditions, the Company has the right to force conversion of the Debentures into
shares of Common Stock. The Company has filed a registration statement with the Securities and
Exchange Commission covering all shares of Common Stock issuable upon conversion of the Debentures
and/or exercise of the 2009 Warrants.
The Company paid Garden State Securities, Inc., the placement agent retained in connection with the
2009 Offering (the 2009 Placement Agent), (i) a commission of 10% of the aggregate subscription
amount of the Securities sold in the 2009 Offering, plus (ii) $50,000 for its legal fees and
expenses, plus (iii) a non-accountable expense allowance equal to 3% of the aggregate subscription
amount of the Securities sold in the 2009 Offering. In addition, the 2009 Placement Agent (or its
assigns) received warrants (the 2009 Placement Agent Warrants) to purchase a number of shares of
Common Stock equal to twenty percent (20%) of the maximum number of shares of Common Stock
underlying the Debentures and 2009 Warrants sold in the 2009 Offering. As a result of the
foregoing, the 2009 Placement Agent was paid a commission of $587,400 plus a non-accountable
expense allowance of $176,220 and received warrants to purchase 5,100,000 shares of Common Stock
for March 2009 first closing, and 3,936,923 for April 2009 second and final closing in connection
with the 2009 Offering. The terms of these warrants were similar to those of the 2009 Warrants.
In conjunction with the Debentures and the 2009 Warrants, the Company recorded a debt discount of
$3,130,200 associated with a beneficial conversion feature on the debt, which is being accreted
using the effective interest method over the three year term of the debentures. For the twelve
months ended December 27, 2009, the Company recorded interest expense of $310,201 in connection
with the debt discount on the warrants and the beneficial conversion feature. Of the $3,130,200 in
debt discount, $571,200 has an effective interest rate of 15.18%, and $2,559,000 has an effective
interest rate of 82.97%. The Company has undergone additional financing in order to fund future
working capital requirements.
The unamortized issuance costs of $ 750,915 associated with this Debentures, have been included in
deferred financing costs in other assets, and which are being amortized over the life of the related
debt. Amortization expense related to these costs was $266,176 for the year ended December 27, 2009,
which is included in interest expense.
58
Long-term debt consists of the following at December 27, 2009 and December 28, 2008:
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
Term note payable to bank in monthly principal
installments of $29,167 commencing January 2007
through December 2010. Interest is payable
monthly at the banks prime rate (3.25% at
December 31, 2009). The note is secured by
substantially all assets of the Company. |
|
$ |
342,072 |
|
|
$ |
692,076 |
|
|
|
|
|
|
|
|
|
|
Senior Secured Convertible Debenture $5,874,000
at 8% interest The Debentures bear interest at a
rate of 8% and are due three years from the date
they are issued. The Debentures are convertible
into shares of Common Stock at $0.13 per share.
In conjunction with the Debentures and the 2009
Warrants, the Company recorded debt discount of
$3,130,200 associated with a beneficial
conversion feature on the debt, which is being
accreted using the effective interest method
over the three year term of the debentures. The
discount is $2,829,999 at December 27, 2009. |
|
|
3,044,001 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Landmark Center acquisition promissory note with
no stated interest rate. Due upon the occurrence
of a sales event, as defined in the agreement.
The note agreement includes a restrictive
covenant requiring the Companys wholly-owned
subsidiary, KnowFat of Landmark Center, Inc., to
maintain net equity of not less than $450,000. |
|
|
450,000 |
|
|
|
450,000 |
|
|
|
|
|
|
|
|
|
|
Unsecured, non-interest bearing note payable.
This note payable is due on demand. Interest
imputed on the note using a discount rate of 5%
totaled $59,597, which is being amortized over
the term of the note. |
|
|
56,033 |
|
|
|
51,787 |
|
|
|
|
|
|
|
|
|
|
Indebtedness incurred in connection with the
acquisition of the two franchisee locations. No
stated interest rate; this note payable is due
on demand. |
|
|
2,137 |
|
|
|
2,137 |
|
|
|
|
|
|
|
|
|
|
Note payable to the Watertown landlord in
connection with the acquisition of the training
center in 2004. The note is payable in monthly
installments of $2,566 including interest at 5%
through April 2010. |
|
|
7,640 |
|
|
|
37,396 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,901,883 |
|
|
|
1,233,396 |
|
|
|
|
|
|
|
|
|
|
Less current portion |
|
|
857,882 |
|
|
|
883,684 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt |
|
$ |
3,044,001 |
|
|
$ |
349,712 |
|
|
|
|
|
|
|
|
Maturities of long-term debt at December 27, 2009 are as follows:
|
|
|
|
|
Year ending December 31, |
|
|
|
|
|
|
|
|
|
2010 |
|
$ |
857,882 |
|
2011 |
|
|
|
|
2012 |
|
|
3,044,001 |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
3,901,883 |
|
|
|
|
|
59
6. Capital Lease Obligations
The Company leases certain equipment under capital leases. The equipment has been recorded at the
present value of the total lease payments using discount rates ranging from 13.9% to 17.95%.
Future minimum lease payments under these leases are as follows:
|
|
|
|
|
Year ending December 31, |
|
|
|
|
|
|
|
|
|
2010 |
|
$ |
70,143 |
|
2011 |
|
|
28,547 |
|
2012 |
|
|
10,576 |
|
Thereafter |
|
|
5,288 |
|
|
|
|
|
|
|
|
114,554 |
|
Less imputed interest |
|
|
16,663 |
|
|
|
|
|
|
|
|
97,891 |
|
Less current portion |
|
|
58,820 |
|
|
|
|
|
|
|
|
|
|
Long-term portion of capital lease obligations |
|
$ |
39,071 |
|
|
|
|
|
The recorded cost and accumulated amortization of the equipment acquired are $199,947 and $85,531,
respectively as of December 27, 2009.
7. Capital Stock
On December 18, 2007, the Company, through a wholly-owned subsidiary, merged with and into KnowFat
Franchise Company, Inc.
Share Transactions Prior to the Merger
During 2007, prior to the Merger, KnowFat issued 1,412,903 shares of common stock comprised of
41,746 shares issued to consultants and vendors and 1,371,157 shares issued to George Foreman
Ventures LLC (GFV) pursuant to the terms of a Services Agreement which became effective June 12,
2007. The 41,746 shares issued to consultants and vendors were valued at $31,237, or $0.75 per
share.
Under the terms of the Services Agreement with GFV, KnowFat also agreed to (i) issue GFV an
additional 152,351 shares of common stock promptly following the sale of the 600th
franchise, provided the sale of such franchise occurs by December 31, 2009 and (ii) pay GFV a
royalty equal to 0.2% of aggregate net sales, in exchange for the performance of certain services
by George Foreman and a limited license to use Mr. Foremans name and likeness in connection with
the promotion of restaurants operated by KnowFat and its franchisees. At December 27, 2009,
1,142,631 shares of common stock issued to GFV were vested. The remaining 228,526 shares of common
stock issued to vest over four years in accordance with the following schedule:
|
|
|
|
|
Vesting Date |
|
Number of Shares |
|
June 13, 2010 |
|
|
152,351 |
|
June 11, 2011 |
|
|
76,175 |
|
In the event there is a change of control after December 18, 2007, as defined in the Services
Agreement, GFV has the right to return 50% of the shares of common stock received in exchange for a
prospective increase in the royalty rate to 0.5%.
Advertising, marketing and promotion expenses for the year ended December 27, 2009 include $16,758
representing the fair value of 152,351 shares that vested on June 13, 2009.
60
Shares Issued in Connection with the Merger
On December 18, 2007, pursuant to the terms of an Agreement and Plan of Merger and Reorganization,
the Company, through a wholly-owned subsidiary, merged with and into KnowFat Franchise Company,
Inc. Following the merger, UFood continued KnowFats business operations as a franchisor and
operator of fast-casual food service restaurants. Concurrently with the closing of the Merger and
in contemplation of the Merger, the Company
consummated a private offering (the Offering). Total amount of units sold in this offering during
2007 and 2008 was 10,941,000 units. Each Unit consists of one share of Common Stock and a warrant
to purchase one-half, or 50%, of a share of Common Stock. The warrants (Investor Warrants) are
exercisable for a period of five years at an exercise price of $1.25 per whole share of Common
Stock.
On the Closing Date and in connection with the Merger, $2,000,000 of Investor Notes issued by UFood
in 2007 together with accrued interest of $40,087 automatically converted into 4,080,175 Units at a
conversion rate of $0.50 per Unit.
As a result of the foregoing, on the Closing Date, an aggregate of 12,500,000 shares of Common
Stock were issuable to former KnowFat stockholders and upon exercise of outstanding KnowFat options
and warrants. Of these, 11,500,983 shares of Common Stock were issued, and an aggregate of 391,791
and 607,226 shares of Common Stock were reserved for issuance upon the exercise of the New Options
and New Warrants, respectively. UFoods stockholders before the merger retained 7,500,000 shares of
Common Stock after the Merger.
Warrants
At December 27, 2009, warrants to purchase 45,651,911 shares of UFood Common Stock were issued and
outstanding as follows:
|
|
|
|
|
|
|
|
|
Description |
|
Number of Warrants |
|
|
Exercise Price |
|
|
|
|
|
|
|
|
|
|
New Warrants |
|
|
607,226 |
|
|
$ |
1.00 |
|
|
|
|
|
|
|
|
|
|
Placement Agent Warrants |
|
|
2,988,200 |
|
|
$ |
0.49 |
|
|
|
|
|
|
|
|
|
|
Vendor Warrants |
|
|
2,916,666 |
|
|
$ |
1.25 |
|
|
|
|
|
|
|
|
|
|
Investor Notes warrants |
|
|
2,040,088 |
|
|
$ |
0.59 |
|
|
|
|
|
|
|
|
|
|
Investor Warrants |
|
|
5,470,500 |
|
|
$ |
0.59 |
|
|
|
|
|
|
|
|
|
|
2009 Warrants |
|
|
22,592,308 |
|
|
$ |
0.14 |
|
|
|
|
|
|
|
|
|
|
2009 Placement Agent W |
|
|
9,036,923 |
|
|
$ |
0.14 |
|
|
|
|
|
|
|
|
|
|
Total |
|
|
45,651,911 |
|
|
|
|
|
|
|
|
|
|
|
|
|
In connection with the Merger, all of KnowFats issued and outstanding warrants converted into New
Warrants to purchase shares of the Companys Common Stock. The number of shares of Common Stock
issuable under the New Warrants was calculated based on the terms of the original KnowFat warrants,
as adjusted by the Conversion Ratio. Immediately prior to the consummation of the Merger, the
exercise price of all outstanding KnowFat warrants was adjusted to $1.00, and such exercise price
was not affected by the conversion ratio in the Merger. In addition, the warrant issued to an
officer of the Company in 2006 to purchase up to 184,533 shares of KnowFat common stock for his
personal guaranty of the Companys obligations to TD BankNorth, N.A. was exchanged for a New
Warrant with an exercise price of $1.00.
In connection with the conversion of the $2,000,000 of Investor Notes, the Company issued 2008
Investor Warrants in the amount 2,040,088 to the purchasers of the Investor Notes. The 2008
Investor Warrants have an exercise price of $1.25 and expire in five years. The sale of 10,941,000
Units included the issuance of 5,470,500 2008
Investor Warrants. The 2008 Investor Warrants have an exercise price of $1.25 and expire in five
years. As a result of the Companys recent private placement, the exercise price of the 2008
Investor Warrants was reduced to $0.59 pursuant to the terms of such warrants.
61
In connection with the Companys sale of $2,000,000 of Investor Notes and the sale of 10,941,000
Units, the Placement Agent was issued warrants to purchase 800,000 and 2,188,200 shares,
respectively, of UFood Common Stock at an exercise price of $1.00. The warrants issued to the
Placement Agent expire seven years from the date they were issued. As a result of the Companys
recent private placement, the exercise price of the 2008 Placement Agent Warrants was reduced to
$0.49 pursuant to the terms of such warrants.
8. Stock-Based Compensation
At December 27,2009, the Company has two share-based, shareholder approved employee compensation
plans, the 2004 Stock Option Plan (2004 Plan) and the 2007 Equity Incentive Plan (2007 Plan, and
together with the 2004 Plan, the Equity Plans), which are described below. During 2009 and 2008,
the Company recognized $483,625 and $996,792 of compensation expense for awards under the Equity
Plans. In May 13, 2009, the Board of Directors approved the cancelation of the stock options
granted to employees and officers and the grant of the same amount of stock options at an exercise
price of $0.20.
The Company estimates the fair value of the stock options using a Black Scholes option pricing
model with the assumptions noted in the following table. Key inputs used to estimate the fair value
of stock options include the exercise price of the award, the expected option term, the expected
volatility of the Companys stock over the options expected term, the risk-free interest rate over
the options expected term, and the Companys expected annual dividend yield.
The fair value of each stock option grant was estimated on the date of grant using the following
assumptions:
|
|
|
|
|
|
|
2009 |
|
2008 |
|
|
|
|
|
Expected term (years) |
|
6 |
|
6 |
Expected volatility |
|
36.53% |
|
45% |
Risk-free interest rate |
|
0.89% |
|
4.37% |
Expected annual dividend |
|
None |
|
None |
The expected term is based on the weighted average midpoint between vesting and the contractual
term. Expected volatility is based on the historical volatility of published common stock prices
over the last six years of comparable publicly held companies. The risk-free interest rate for the
expected term of the stock option is based on the U.S. Treasury yield. The Company believes that
the valuation technique and the approach utilized to develop the underlying assumptions are
appropriate in calculating the fair values of stock options granted for the years ended December
27, 2009 and December 28, 2008. Estimates of fair value are not intended to predict actual future
events or the value ultimately realized by persons who receive equity awards.
62
The 2004 Plan
Under the terms of the 2004 Plan, the Company was authorized to grant incentive stock options
(ISOs), non-qualified stock options and restricted stock for up to 32,757 shares of common stock
in the aggregate, to employees, officers,
directors, consultants and agents of the Company. The Company believes that such awards align the
interests of its employees with those of its shareholders. In general, stock option awards under
the 2004 Plan are granted with an exercise price equal to the fair value of the Companys stock at
the date of grant, vest over a three-year period and expire ten years from the date of grant. As a
result of the Merger, no awards will be made under the 2004 Plan after December 18, 2007; A summary
of option activity under the 2004 Plan during 2008 and 2007 is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
Average |
|
|
|
|
|
|
|
|
|
|
Average |
|
|
Remaining |
|
|
Aggregate |
|
|
|
Number of |
|
|
Exercise |
|
|
Contractual |
|
|
Intrinsic |
|
Options |
|
Shares |
|
|
Price |
|
|
Term |
|
|
Value |
|
Outstanding at December 30, 2007 |
|
|
304,702 |
|
|
$ |
0.61 |
|
|
|
8.8 |
|
|
$ |
146,257 |
|
Granted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercised |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forfeited |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 28, 2008 |
|
|
304,702 |
|
|
$ |
0.61 |
|
|
|
7.8 |
|
|
$ |
-0- |
|
Canceled |
|
|
(181,980 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
Exercised |
|
|
(7,618 |
) |
|
|
|
|
|
|
|
|
|
|
709 |
|
Forfeited |
|
|
(82,347 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 27, 2009 |
|
|
32,757 |
|
|
$ |
0.01 |
|
|
|
5.0 |
|
|
$ |
2,293 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at December 27, 2009 |
|
|
32,757 |
|
|
$ |
0.01 |
|
|
|
5.0 |
|
|
$ |
2,293 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 27, 2009,
all of the options outstanding under the 2004 Plan were vested. The
intrinsic value of stock option exercises was $709 during the fiscal
year ended December 27, 2008. There was no
unrecognized compensation expense related to options outstanding under the 2004 Plan at December
27, 2009.
The 2007 Plan
The 2007 Plan was approved in contemplation of the Merger. There were no awards under the 2007 Plan
prior to December 18, 2007, the Closing Date of the Merger. Awards of ISOs, non-qualified stock
options, stock appreciation rights, restricted stock units, restricted stock or performance units
may be made under the 2007 Plan of up to a maximum of 6,000,000 shares of Common Stock to
employees, directors, consultants and agents of the Company. The Company believes awards under the
2007 Plan align the interests of its employees with those of its shareholders. At December 27,
2009, 3,919,990 stock options were outstanding under the 2007 Plan.
63
Activity under the 2007 Plan from December 18, 2007, the Merger Date, through December 28, 2008 is
presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
Average |
|
|
|
|
|
|
|
|
|
|
Average |
|
|
Remaining |
|
|
Aggregate |
|
|
|
Number of |
|
|
Exercise |
|
|
Contractual |
|
|
Intrinsic |
|
Options |
|
Shares |
|
|
Price |
|
|
Term |
|
|
Value |
|
Outstanding at December 30, 2007 |
|
|
1,950,000 |
|
|
$ |
1.00 |
|
|
|
10.0 |
|
|
$ |
175,500 |
|
Granted |
|
|
897,920 |
|
|
$ |
1.22 |
|
|
|
10.0 |
|
|
|
|
|
Exercised |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forfeited |
|
|
(2,000 |
) |
|
$ |
1.22 |
|
|
|
10.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 28, 2008 |
|
|
2,845,920 |
|
|
$ |
1.22 |
|
|
|
8.8 |
|
|
|
-0- |
|
Granted |
|
|
3,979,990 |
|
|
$ |
0.20 |
|
|
|
8.2 |
|
|
|
|
|
Canceled |
|
|
(2,360,920 |
) |
|
$ |
1.22 |
|
|
|
|
|
|
|
|
|
Forfeited |
|
|
(545,000 |
) |
|
$ |
1.11 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 27, 2009 |
|
|
3,919,990 |
|
|
$ |
0.20 |
|
|
|
8.2 |
|
|
|
-0- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at December 27, 2009 |
|
|
3,380,681 |
|
|
$ |
0.20 |
|
|
|
8.8 |
|
|
$ |
-0- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The weighted average grant date fair value of options granted during 2009 and 2008 under the 2007
Plan was $0.03 and $0.60 respectively. At December 27, 2009 there was $215,614 of total
unrecognized compensation cost related to non-vested options granted under the 2007 Plan. This cost
will be recognized over approximately eighteen months.
On February 12, 2008, the Companys board of directors approved a 3,000,000 increase in the number
of shares of Common Stock reserved for issuance under the 2007 Plan to 6,000,000 shares. The
increase was subject to approval by a majority of shares represented at the Companys annual
meeting and was obtained in August 29, 2009.
9. Income Taxes
On January 1, 2007, the Company adopted the provisions of ASC 740, Income Taxes which requires that
the impact of tax positions taken by the Company be recognized in the financial statements if they
are more likely than not of being sustained based upon the technical merits of the position. The
Company has a valuation allowance against the full amount of its net deferred taxes. The Company
currently provides a valuation allowance against deferred taxes when it is more likely than not
that some portion, or all, of its deferred tax assets will not be realized. The implementation of
ASC 740 had no impact on the Companys financial statements due to the valuation allowances that
have historically been provided against all deferred tax assets.
No provision for current income taxes has been recorded for 2009 and 2008 due to the Companys
cumulative net losses. Significant components of deferred tax assets are net operating loss
carryforwards; start-up costs and organizational costs capitalized for tax purposes, and deferred
revenue. Significant components of deferred tax liabilities are depreciation of property and
equipment. The net deferred tax assets are fully reserved by a valuation allowance due to the
uncertainty of realizing the tax benefit of the deferred tax assets.
Net deferred tax assets (liabilities) at December 27, 2009 and December 28, 2008 are as follows:
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
Deferred Taxes |
|
Federal |
|
|
Federal |
|
Net Fixed Assets |
|
|
543,000 |
|
|
|
518,000 |
|
Net Intangible Assets |
|
|
255,000 |
|
|
|
315,000 |
|
Deferred Revenues |
|
|
54,000 |
|
|
|
238,000 |
|
Bad Debt Reserve |
|
|
29,000 |
|
|
|
20,000 |
|
Deferred Rent |
|
|
94,000 |
|
|
|
77,000 |
|
Option Expenses on NQs |
|
|
279,000 |
|
|
|
256,000 |
|
Net Operating Loss Carryforwards |
|
|
7,939,000 |
|
|
|
6,756,000 |
|
Other |
|
|
8,000 |
|
|
|
12,000 |
|
|
|
|
|
|
|
|
Total |
|
|
9,201,000 |
|
|
|
8,192,000 |
|
|
|
|
|
|
|
|
|
|
Deferred Taxes |
|
State |
|
|
State |
|
Net Fixed Assets |
|
|
100,000 |
|
|
|
96,000 |
|
Net Intangible Assets |
|
|
47,000 |
|
|
|
58,000 |
|
Deferred Revenues |
|
|
10,000 |
|
|
|
44,000 |
|
Bad Debt Reserve |
|
|
5,000 |
|
|
|
4,000 |
|
Deferred Rent |
|
|
17,000 |
|
|
|
14,000 |
|
Option Expenses on NQs |
|
|
51,000 |
|
|
|
47,000 |
|
Net Operating Loss Carryforwards |
|
|
1,437,000 |
|
|
|
1,230,000 |
|
Other |
|
|
1,000 |
|
|
|
2,000 |
|
|
|
|
|
|
|
|
Total |
|
|
1,668,000 |
|
|
|
1,495,000 |
|
|
|
|
|
|
|
|
Total Deferred Taxes |
|
|
10,869,000 |
|
|
|
9,687,000 |
|
Valuation Allowance |
|
|
(10,869,000 |
) |
|
|
(9,687,000 |
) |
|
|
|
|
|
|
|
Total Deferred Taxes |
|
|
|
|
|
|
--- |
|
|
|
|
|
|
|
|
64
The components of income tax benefit (expense) are as follows:
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
Federal |
|
|
|
|
|
|
|
|
Deferred |
|
|
|
|
|
|
|
|
Net operating loss carryforward |
|
$ |
1,183,000 |
|
|
$ |
2,370,000 |
|
Other |
|
|
(175,000 |
) |
|
|
899,000 |
|
|
|
|
|
|
|
|
|
|
|
1,008,000 |
|
|
|
3,269,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
State |
|
|
|
|
|
|
|
|
Deferred |
|
|
|
|
|
|
|
|
Net operating loss carryforward |
|
|
207,000 |
|
|
|
424,000 |
|
Other |
|
|
(31,000 |
) |
|
|
166,000 |
|
|
|
|
|
|
|
|
|
|
|
176,000 |
|
|
|
590,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax benefit before adjustment to valuation allowance |
|
|
1,184,000 |
|
|
|
3,859,000 |
|
Adjustment to valuation allowance |
|
|
(1,184,000 |
) |
|
|
(3,859,000 |
) |
|
|
|
|
|
|
|
Net tax benefit |
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
The Companys effective income tax rate differs from the federal statutory income tax rate as
follows for the fiscal years ended December 27, 2009 and December 28, 2008.
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
Federal tax provision rate |
|
|
34 |
% |
|
|
34 |
% |
State tax provision, net of federal provision |
|
|
6 |
% |
|
|
6 |
% |
Change in valuation allowance |
|
|
(40 |
%) |
|
|
(40 |
%) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Management has evaluated the evidence bearing upon the realization of its deferred tax assets and
has determined that it is more likely than not that the Company will not recognize the benefits of
federal and state deferred tax assets. As a result, management has recorded a full valuation
allowance. If the Company should generate sustained future taxable income against which these tax
attributes might be applied, some portion or all of the valuation allowance would be reversed.
The Companys income tax returns have not been audited by the Internal Revenue Service (IRS) or any
state taxing authority. The years 2006 through 2009 remain open to examination by the IRS and
state taxing authority. The Company believes it is not subject to any tax exposure beyond the
preceding discussion. The Companys policy is to recognize interest and penalties accrued on any
unrecognized tax benefits as a component of income tax expense. As of the date ASC 740 was
adopted, we did not have any accrued interest or penalties associated with any unrecognized tax
benefits, nor was any interest expense recognized during the years ended December 27, 2009 and
December 28, 2008.
Federal and state net operating loss carryforwards expire in 2027 and 2012, respectively. Ownership
changes, as defined in Section 382 of the Internal Revenue Code, may have limited the amount of net
operating loss carryforwards that may be utilized annually to offset future taxable income.
Subsequent ownership changes could further affect the limitation in future years.
65
10. Concentration of Credit Risk
Financial instruments that potentially expose the Company to concentrations of credit risk include
cash and cash equivalents, which occasionally exceed current federal deposit insurance limits.
Substantially all of the cash and cash equivalents are maintained in a certain large commercial
bank. Senior management continually reviews the financial stability of this institution.
11. Commitments and Contingencies
Leases
The Company rents store and office locations under non-cancelable operating leases and tenant at
will arrangements. The agreements expire on various dates through December 2016, and some include
options to extend. The leases require the Company to pay its share of the operating expenses of the
leased properties, including taxes, utilities and insurance.
Future minimum payments at December 27, 2009 under non-cancelable leases are as follows:
|
|
|
|
|
Year ending, |
|
|
|
|
|
|
|
|
|
2010 |
|
$ |
656,000 |
|
2011 |
|
|
670,000 |
|
2012 |
|
|
687,000 |
|
2013 |
|
|
695,000 |
|
2014 |
|
|
421,000 |
|
Thereafter |
|
|
236,000 |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
3,365,000 |
|
|
|
|
|
Employment Agreements
On October 15, 2007, in contemplation of the Merger that took place in December, 2007, the Company
entered into employment agreements with its chief executive and its vice president of business
development. Each agreement is for a term of three years and provides for the payment of a base
salary and benefits, an annual bonus to be determined by the Companys Board of Directors, an
equity award under the Companys 2007 Equity Incentive Plan and, in the case of the Companys chief
executive, a payment for each franchise sold.
In October 2007, in contemplation of the Merger, UFood entered into an employment agreement with
its chief executive officer. Under the terms of the agreement, the Company agreed to pay the
executive a fee of $10,000 upon the consummation by the Company of the sale of a franchise
restaurant. To the extent any franchise transaction is part of an Area Development Agreement,
$5,000 of the fee is payable in cash and the remainder is payable in shares of the Companys Common
Stock. The franchise and development fee arrangement included in the executives employment
agreement replaced a similar arrangement covering the period preceding the Merger, except that
franchise and development fees earned prior to the Merger were payable 100% in cash. During 2009
and 2008, the Company recorded franchise and development fee expenses of $15,000 and $40,000,
respectively, which half of the expenses were paid in cash and the other half with shares of common
stock at the closing price of the date of the transaction.
66
The agreements further provide that if the executives employment is terminated by the Company
without cause, or by the executive as a result of constructive termination by the Company, or as a
result of the executives death or
disability, the Company is obligated to pay severance (consisting of salary and benefits as in
effect at the time of termination) to the executive (or the executives legal representatives) for
a period equal to the lesser of 12 months or the then remaining balance of the employment term. One
of the employment agreements provides that if the executive terminates his employment voluntarily
at a point more than 30 days after the effective date of the registration statement by which the
Units sold in the Offering are registered for resale, the executive is entitled to the same
termination benefits he would be entitled to if his employment is terminated by the Company without
cause.
Key man insurance
The Company has obtained Key Man insurance on the Chairman and CEO of the Company with a base face
amount of $2,500,000 with no surrender value as of December 27, 2009.
Legal matters
We are subject to legal proceedings and claims which arise in the normal course of business.
Although there can be no assurance as to the ultimate outcome, we generally have denied, or believe
we have a meritorious defense and will deny, liability in all significant cases pending against us,
including the matters described below, and we intend to defend vigorously each such case. Based on
information currently available, we believe the amount, or range, of reasonably possible losses in
connection with the actions against us, including the matters described below, in excess of
established reserves, in the aggregate, not to be material to our consolidated financial condition
or cash flows. However, losses may be material to our operating results for any particular future
period, depending on the level of our income for such period. In the opinion of management, the
ultimate liabilities with respect to these actions will not have a material adverse effect on the
Companys financial position, results of operations or cash flow.
Subcontractors Claims
In connection with the build-out of the Premises, several of the subcontractors that performed work
at the Premises claimed that the general contractor failed or refused to pay amounts due them.
Accordingly, such subcontractors asserted mechanics liens totaling $253,431 (the Lien Amounts)
against our leasehold interest in the Premises. In April 2008, pursuant to the terms of the
Sublease Agreement, we obtained target lien dissolution bonds in order to dissolve the liens
against our leasehold interest in the Premises. The lien bond surety required the Company to post
cash collateral in the amount of 120% of the Lien Amounts. The general contractor on the project
was responsible for the amounts claimed by the subcontractors and was previously forced into
involuntary bankruptcy. We have paid the general contractor and intend to assert claims against the
general contractor for, among other things, the amounts claimed by the subcontractors. In January,
2009, we settled with the subcontractors. The subcontractor liens have been removed and the bond
and cash collateral related to this matter have been released.
12. Supplemental Disclosures of Cash Flow Information:
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
Cash paid during the year for interest |
|
$ |
78,532 |
|
|
$ |
76,602 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Summary of non-cash investing and financing activities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment acquired with capital lease |
|
$ |
12,357 |
|
|
$ |
65,756 |
|
|
|
|
|
|
|
|
67
13.
Loss per share
The amounts used for basic and diluted per share calculations are as follows:
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
Net loss allocable to common stockholders |
|
$ |
(3,957,351 |
) |
|
$ |
(9,875,305 |
) |
|
|
|
|
|
|
|
Weighted average number of shares
outstanding basic and diluted |
|
|
35,320,547 |
|
|
|
33,851,004 |
|
|
|
|
|
|
|
|
Basic and diluted loss per common share |
|
$ |
(0.11 |
) |
|
$ |
(0.29 |
) |
|
|
|
|
|
|
|
Our diluted earnings (loss) per share is the same as our basic loss per share since the effect of
the assumed exercise of options and warrants to purchase common stock is anti-dilutive. A total of
49,065,349 and 16,530,174 potential common shares from the assumed exercise of options and warrants
were excluded from the calculation of diluted net loss per share for the years ended December 27,
2009 and December 28, 2008, respectively, because their inclusion would have been anti-dilutive.
14. Segment Data
The Company operates two business segments; Store Operations and Franchise Operations. The Store
Operations segment comprises the operating activities of restaurants owned or operated by the
Company. The Franchise Operations segment is comprised of the operating activities of the
franchise business unit which licenses qualified operators to conduct business under the Knowfat
and UFood Grill tradenames and also costs to monitor the operations of these business units. Under
the terms of the franchise agreements, the licensed operators pay royalties and fees to the Company
in return for the use of the Knowfat and UFood Grill tradenames.
The accounting policies of the segments are the same as those described in Note 2. Interest
expense has been allocated based on operating results and total assets employed in each segment.
Inter-segment transactions are uncommon and not material. Therefore, they have not been separately
reflected in the financial table below. The totals of the reportable segments revenues, net loss
and assets agree with the comparable amounts contained in the Companys audited financial
statements.
Segment information for the Companys two business segments follows:
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
Store operations |
|
$ |
4,632,651 |
|
|
$ |
5,462,915 |
|
Franchise operations |
|
|
429,537 |
|
|
|
361,128 |
|
|
|
|
|
|
|
|
Total revenue |
|
$ |
5,062,188 |
|
|
$ |
5,824,042 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment loss: |
|
|
|
|
|
|
|
|
Store operations |
|
$ |
(13,056 |
) |
|
$ |
(2,781,278 |
) |
Franchise operations |
|
|
(842,440 |
) |
|
|
(1,517,876 |
) |
|
|
|
|
|
|
|
Total segment loss |
|
$ |
(855,496 |
) |
|
$ |
(4,299,154 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
68
|
|
|
|
|
|
|
|
|
|
|
2009 |
|
|
2008 |
|
Advertising, marketing and promotion |
|
$ |
219,360 |
|
|
$ |
887,259 |
|
Depreciation and amortization |
|
|
407,593 |
|
|
|
500,153 |
|
Unallocated general and administrative expenses |
|
|
1,982,728 |
|
|
|
4,262,055 |
|
Interest (income) expense |
|
|
934,307 |
|
|
|
(4,013 |
) |
Other (income) expenses, net |
|
|
(442,133 |
) |
|
|
(69,303 |
) |
|
|
|
|
|
|
|
Net loss |
|
$ |
(3,957,351 |
) |
|
$ |
(9,875,305 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization: |
|
|
|
|
|
|
|
|
Store operations |
|
$ |
364,757 |
|
|
$ |
458,063 |
|
Franchise operations |
|
|
42,836 |
|
|
|
42,091 |
|
|
|
|
|
|
|
|
Total depreciation and amortization |
|
$ |
407,593 |
|
|
$ |
500,154 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures: |
|
|
|
|
|
|
|
|
Store operations |
|
$ |
108,102 |
|
|
$ |
704,027 |
|
Franchise operations |
|
|
8,808 |
|
|
|
153,954 |
|
|
|
|
|
|
|
|
Total capital expenditures |
|
$ |
116,910 |
|
|
$ |
857,981 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment assets: |
|
|
|
|
|
|
|
|
Store operations |
|
$ |
1,682,070 |
|
|
$ |
2,050,990 |
|
Franchise operations |
|
|
3,310,269 |
|
|
|
1,591,676 |
|
|
|
|
|
|
|
|
Total segment assets |
|
$ |
4,992,339 |
|
|
$ |
3,642,666 |
|
|
|
|
|
|
|
|
16. Subsequent Events
On February 11, 2010, we signed a franchisee agreement with Ms. Dee Robinson for a potential
location at the Cleveland, OH Airport. On March 7, 2010, the franchisee-owned outlet in Sacramento,
CA closed.
69
|
|
|
Item 9. |
|
Changes In and Disagreements with Accountants on Accounting and Financial Disclosure |
None.
|
|
|
Item 9A. |
|
Controls and Procedures |
Evaluation of Disclosure Controls and Procedures.
We have established disclosure controls and procedures to ensure that material information relating to the Company,
including its consolidated subsidiaries is made known to the officers who certify our financial reports and to other
members of management and the Board of Directors. Based on their evaluations as of December 27, 2009, our Chief
Executive Officer (CEO) and Chief Financial Officer (CFO) have concluded that our disclosure controls and procedures
(as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) were not effective, due to our material weakness
in internal control over financial reporting described below, in ensuring that the information required to be disclosed
by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the SEC rules and forms and that such information is accumulated and communicated
to our management, including our CEO and CFO, as appropriate to allow timely decisions regarding required disclosures.
Managements
Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting
for our Company. Internal control over financial reporting is defined as a process designed by, or under the
supervision of, a Companys principal executive and principal financial officers and effected by the Companys board of
directors, management and other personnel, 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 and includes those policies and procedures that:
|
|
|
|
|
|
|
pertain to the maintenance of records that, in
reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the
Company; |
|
|
|
|
|
|
|
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 in
accordance with authorizations of management and
directors of the Company; and |
|
|
|
|
|
|
|
provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use or
disposition of the Companys 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
misstatements. 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.
Our management, under the supervision of and with the participation of the Chief Executive Officer and Chief
Financial Officer, assessed the effectiveness of our internal control over financial reporting as of December 27,
2009. In making this assessment, our management used the criteria set forth by the Committee of Sponsoring
Organizations (COSO) of the Treadway Commission in Internal Control An Integrated Framework (September
1992). Because of the material weakness existed and continues to exist due to our inability to perform sufficient
testing of internal controls over financial reporting, management concluded that, as of December 27, 2009, our internal
controls over financial reporting were not effective.
Remediation Plans
Management, in coordination with the input, oversight and support of our Audit Committee, has contracted with a
Consultant to assist us in our controls re-design and testing and remediation efforts. As a result of the testing of
Internal Controls over Financial Reporting, the Company may determine additional material weaknesses. While we expect
these remedial actions to be implemented as soon as possible, these actions will not be in place to help us certify
that any material weaknesses have been fully remediated as of the end of calendar year 2010. We will continue to
develop our remediation plans and implement additional measures into calendar year 2011. Management will actively
address operational and internal control remediation efforts. Management will report quarterly to our Audit Committee
on the status of the remediation efforts.
If the remedial measures described above are insufficient to address any of the identified material weaknesses or
are not implemented effectively, or additional deficiencies arise in the future, material misstatements in our interim
or annual financial statements may occur in the future. We are currently working to improve and simplify our internal
processes and implement enhanced controls, as discussed above, to address the material weaknesses in our internal
control over financial reporting and to remedy the ineffectiveness of our disclosure controls and procedures.
70
This annual report does not include an attestation report of our registered independent public
accounting firm regarding internal control over financial reporting. Managements report was not
subject to attestation by our registered independent public accounting firm pursuant to temporary
rules of the SEC that permit us to provide only managements report in this annual report.
Changes in internal control over financial reporting.
There were no changes in our internal control over financial reporting that occurred during the
most recent fiscal quarter that have materially affected, or are reasonably likely to materially
affect, our internal control over financial reporting.
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Item 9B. |
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Other Information |
None.
71
PART III
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ITEM 10. |
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DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
Incorporated by reference from the information in the Companys proxy statement for the 2010 Annual
Meeting of Stockholders, which the Company will file with the Securities and Exchange Commission
within 120 days of the end of the fiscal year to which this report relates.
The Company has adopted a code of ethics, called the Standards of Business Conduct that applies to
its officers, including its principal executive, financial and accounting officers, and its
directors and employees. The Company has posted the Standards of Business Conduct on its Internet
website at www.ufoodgrill.com under the Corporate Governance section of the About Us Investor
Relations webpage. The Company intends to make all required disclosures concerning any amendments
to, or waivers from, the Standards of Business Conduct on its Internet website.
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ITEM 11. |
|
EXECUTIVE COMPENSATION |
Incorporated by reference from the information in the Companys proxy statement for the 2010 Annual
Meeting of Stockholders, which the Company will file with the Securities and Exchange Commission
within 120 days of the end of the fiscal year to which this report relates.
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ITEM 12. |
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS |
Incorporated by reference from the information in the Companys proxy statement for the 2010 Annual
Meeting of Stockholders, which the Company will file with the Securities and Exchange Commission
within 120 days of the end of the fiscal year to which this report relates.
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ITEM 13. |
|
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE |
Incorporated by reference from the information in the Companys proxy statement for the 2010 Annual
Meeting of Stockholders, which the Company will file with the Securities and Exchange Commission
within 120 days of the end of the fiscal year to which this report relates.
|
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ITEM 14. |
|
PRINCIPAL ACCOUNTANT FEES AND SERVICES |
Incorporated by reference from the information in the Companys proxy statement for the 2010 Annual
Meeting of Stockholders, which the Company will file with the Securities and Exchange Commission
within 120 days of the end of the fiscal year to which this report relates.
72
PART
IV
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Item 15. |
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Exhibits, Financial
Statement Schedules |
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(a) |
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The following documents are filed as part of this report: |
|
(1) |
|
Consolidated financial statements (included in Part II, Item 8): |
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Report of Independent Registered Public Accounting Firm |
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|
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Consolidated Balance Sheets as of December 27, 2009 and December 28, 2008 |
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Consolidated Statements of Operations for the Fiscal Years Ended
December 27, 2009 and December 28, 2008 |
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Consolidated Statements of Stockholders Equity (Deficit) for the
Fiscal Years Ended December 27, 2009 and December 28, 2008 |
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Consolidated Statements of Cash Flows for the Fiscal Years Ended
December 27, 2009 and December 28, 2008 |
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Notes to Consolidated Financial Statements |
|
(2) |
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Consolidated financial statement schedules |
|
(3) |
|
Exhibits included herein: |
|
|
|
See Exhibit Index below for exhibits filed as part of this
Annual Report on Form 10-K. |
73
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.
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UFOOD RESTAURANT GROUP, INC.
|
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Date: February 14, 2011 |
By: |
/s/ George Naddaff |
|
|
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George Naddaff |
|
|
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Chairman and Chief Executive Officer |
|
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed
below by the following persons on behalf of the registrant and in the capacities and on the dates
indicated.
|
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Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ George Naddaff
|
|
|
|
|
George Naddaff
|
|
Chairman of the
Board and Chief
Executive Officer
(Principal
Executive Officer)
|
|
February 14, 2011 |
|
|
|
|
|
/s/ Charles A. Cocotas
|
|
|
|
|
Charles A. Cocotas
|
|
President and Chief
Operating Officer,
Director
|
|
February 14, 2011 |
|
|
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|
/s/ Irma Norton
|
|
|
|
|
Irma Norton
|
|
Chief Financial
Officer (Principal
Financial Officer)
|
|
February 14, 2011 |
/s/ Mark Giresi |
|
|
|
|
Mark Giresi
|
|
Director
|
|
February 14, 2011 |
|
|
|
|
|
/s/ Robert Grayson |
|
|
|
|
Robert Grayson
|
|
Director
|
|
February 14, 2011 |
|
|
|
|
|
Keith Mueller
|
|
Director
|
|
February 14, 2011 |
|
|
|
|
|
|
|
|
|
|
Rick Golden
|
|
Director
|
|
February 14, 2011 |
74
|
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21 |
|
|
Subsidiaries of the Registrant* |
|
|
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|
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31.1 |
|
|
Certification of CEO required by Section 302 of the Sarbanes-Oxley Act of 2002* |
|
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31.2 |
|
|
Certification of CFO required by Section 302 of the Sarbanes-Oxley Act of 2002* |
|
|
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|
32.1 |
|
|
Certification of CEO required by Section 906 of the Sarbanes-Oxley Act of 2002* |
|
|
|
|
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32.2 |
|
|
Certification of CFO required by Section 906 of the Sarbanes-Oxley Act of 2002* |
75