FORM 10-KSB
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended September 29, 1996
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from ____________ to ____________
Commission file number 0-18917
FAST FOOD SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3562193
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
No.)
42-40 Bell Boulevard, Bayside, New York 11361
(Address of principal executive offices) (zip code)
718-229-1113
(Registrant's telephone number,
including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
(Title of Class)
Indicate by (X) 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 and (2) has
been subject to such filing requirements for the past 90 days.
Yes / X / No / /
Check if there is no disclosure of delinquent filers in response
to Item 405 of Regulation S-B contained in this form and will not
be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by
reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB.
/ X /
State issuer's revenues for its most recent fiscal year:
$364,457.
Aggregate market value of voting stock held by non-affiliates of
the Registrant as of January 8, 1997: $315,375
Number of shares outstanding of Registrant's Common Stock as of
January 8, 1997: 2,214,400
DOCUMENTS INCORPORATED BY REFERENCE: None.
Transitional Small Business Disclosure Format: Yes / / No / X /
PART I
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ITEM 1. BUSINESS
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BACKGROUND
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Fast Food Systems, Inc. (the "Company") was incorporated in
Delaware on February 1, 1990. The Company was formed to
consolidate the businesses, assets, liabilities and operations of
Integrated Food Systems, Inc., a New Jersey corporation ("IFS"),
with the businesses, assets, liabilities and operations of up to
eighteen Wendy's Old Fashioned Hamburgers Restaurants (the
"Restaurants") operated for the benefit of fourteen limited
partnerships. The Company offered to exchange shares of its
common stock, $.01 par value per share (the "Common Stock"), for
all of the issued and outstanding common stock of IFS, which was
a wholly-owned subsidiary of Integrated Resources, Inc. ("IR").
In addition, the Company offered to exchange shares of its Common
Stock and promissory notes for the businesses, assets,
liabilities and operations of the Restaurants owned by the
limited partnerships. IFS owned general partner interests in and
managed the Restaurant operations of each of the limited
partnerships. Twelve of the fourteen limited partnerships
(encompassing fifteen Restaurants) and IR consented to the
Exchange Offer and Consolidation. On November 26, 1990 the
exchange offers were consummated, with an aggregate of 2,178,400
shares of Common Stock and promissory notes in an aggregate
principal amount of $2,005,000 being issued. The assets involved
in the exchange included twenty (fifteen partnership and five
IFS) Wendy's Restaurants, related real estate, restaurant
equipment, and other assets and liabilities.
On January 28, 1994, Lewis E. Topper, the Chairman of the Board,
President and Chief Executive Officer of the Company, consummated
a purchase agreement with IR pursuant to which Mr. Topper (i)
acquired from IR 797,400 shares of Common Stock for a purchase
price of $448,538, and (ii) received an assignment from IR of a
receivable due from the Company in the amount of $745,295, in
consideration of the payment by Mr. Topper to IR of the same
amount, representing an aggregate consideration for the
transaction of $1,193,833. Just prior to consummation of the
purchase agreement the receivable was decreased by $100,000 due
to the repayment by the Company to IR of that amount.
Upon the consummation of the exchange offers, the Company
continued to use the assets acquired in the same manner as
formerly used by the partnerships and IFS. However, during
calendar year 1995 the Company began implementing a course of
strategic downsizing pursuant to which it (i) sold nine New
Jersey Restaurants, (ii) closed the Harlem Restaurant, and (iii)
agreed, subject to stockholder approval, to sell eight Brooklyn
and Manhattan Restaurants to an affiliated party. The Company
filed a proxy statement with the Securities and Exchange
Commission which was mailed to its stockholders on January 4,
1996. The sale of the eight restaurants to Wendnew, LLC., which
had closed in escrow on October 9, 1996, was approved by the
stockholders on January 26, 1996. Subsequently on March 18,
1996, the Company closed its last operating location, the
consistently unprofitable Wendchester restaurant. See "Recent
Developments."
BUSINESS ACTIVITIES
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As a result of the Company's selling seventeen restaurants and
closing two others, the only operations that remain are its
management activities. IFS continues to manage two Wendy's
Restaurants for Wendtwo Limited Partnership as well as six
Popeye's Famous Fried Chicken and Biscuits restaurants for Fast
Food Operators, Inc., a publicly-traded company. Both of the
Wendy's Restaurants and one of the Popeye's restaurants are
subject to subcontracting agreements with others. The two
managed Wendy's Restaurants are operated under franchise
agreements granted to an IFS subsidiary by Wendy's International,
Inc. ("Wendy's"). This subsidiary of IFS serves as the general
partner of Wendtwo managing the assets of the partnership with
IFS managing the Restaurants on behalf of the partnership. (See
"Recent Developments and "Management Activities")."
The Restaurants are located in the counties Morris and Monmouth,
in New Jersey. The Popeye's Famous Fried Chicken ("Popeye's")
restaurants IFS manages are located in the counties of New York,
Kings, and Queens in New York. The Company manages the Popeye's
restaurants on behalf of Fast Food Operators, Inc. ("FFO"). The
Company is the beneficial owner of approximately 33% of the
issued and outstanding common stock of FFO, and Lewis E. Topper,
the Company's President, serves as the President, Chairman of the
Board and Chief Executive Officer of FFO.
The managed Wendtwo Restaurants are operated under a Restaurant
Franchise Agreement or Unit Franchise Agreement (the "Franchise
Agreement") granted to the IFS subsidiary (the "Franchisee")
which continues to serve as the general partner of Wendtwo with a
1% equity interest therein. The Franchise Agreement grants the
Franchisee a license to utilize Wendy's trademarks, service
marks, designs, and other proprietary rights in connection with
the operation of that Restaurant in exchange for a monthly
royalty payment to Wendy's of 4% of sales of each Restaurant or
$250, whichever is greater.
The Franchise Agreement imposes requirements on the Franchisee as
to, among other things, the preparation of food products and
quality of service, as well as general operating procedures, such
as advertising, maintenance of records and protection of
trademarks. The Franchise Agreement has a minimum term of 20
years from the opening of the Restaurant and is renewable at the
option of the Franchisee, provided certain conditions are met.
Effective October 9, 1995, the Company entered into a
subcontracting agreement for the day-to-day management of
Wendtwo's operations with a company to whom it had sold the
geographically proximate Howell and Tom's River, New Jersey
restaurants in April 1995. The Company pays a fee therefor equal
to five percent of Wendtwo's sales subject to the following
adjustments: (i) in the event that less than all of the Wendtwo
subordinated management fee is earned by IFS in any year, the
amount not earned is first deducted from the sub-contracting fee,
and (ii) IFS is granted a credit of up to $168,336, deductible
monthly from the subcontracting fee at the rate of $2,004 over
seven years except that this credit is subject to downward
adjustment if Wendtwo should pay certain unusual fees to IFS.
The Company retains the unsubordinated supervisory fee presently
aggregating $16,560 for the two Wendtwo restaurants. Net
management fees earned from Wendtwo were $69,733 in fiscal 1996.
IFS utilized $22,044 of the credit leaving a maximum remaining
credit of $146,292. (See Note 4A to the consolidated financial
statements).
MANAGEMENT ACTIVITIES
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On January 26, 1988, IFS entered into a series of transactions
with FFO, whereby IFS agreed to manage its day-to-day operations.
The management agreement was for two years and was automatically
renewable, subject to notice of non-renewal by either IFS or FFO.
As part of the transaction: (i) IFS made a $420,000 loan to FFO,
which IFS had the option to convert into 1.4 million shares of
FFO's common stock; and (ii) Lewis E. Topper, President of IFS,
joined FFO's Board of Directors and was appointed President,
Chief Operating Officer and Treasurer of FFO. Mr. Topper does not
receive any compensation from FFO. Due to the nature of the
transaction, IFS was deemed to have acquired control of FFO and,
accordingly, filed a Schedule 13D under the Securities Exchange
Act of 1934, as amended.
In 1989, the Board of Directors of FFO took the following
actions: (i) Mr. Topper was appointed to the additional offices
of Chairman of the Board and Chief Executive Officer; (ii) Daniel
Poganski was appointed Secretary and also became a director of
FFO; (iii) the management agreement with IFS, as amended, was
renewed for an additional two years; and (iv) the loan, as
amended, was extended for one year.
On December 28, 1990, IFS and FFO agreed that in exchange for the
cancellation of $210,000 of the secured debt owed by FFO to IFS
under the note, and in consideration for the cancellation of
$240,000 due and owing to IFS by FFO for working capital advances
and accrued and unpaid management fees, IFS was to be issued a
total of 3,000,000 shares, $.01 par value, of the voting common
stock of FFO, which shares, upon issuance, would constitute 33.7%
of the then-issued and outstanding shares of FFO. The issuance of
the 3,000,000 shares was subject to ratification by the
affirmative vote of the holders of a majority of FFO's
outstanding voting common stock. The 3,000,000 shares of stock to
be acquired by IFS was evidenced by a Stock Subscription
Agreement dated December 28, 1990. In addition, a new secured
promissory note was executed in favor of IFS by FFO in the amount
of $210,000. The new Note was not convertible into common stock.
The Note matured on January 26, 1992 and interest was due and
payable monthly, at a rate per annum equal to two points above
the prime-interest rate on the entire principal amount
outstanding at such time. Pursuant to a Security Agreement,
collateral for the loan included any and all assets in which FFO
currently had or thereafter acquired any right or interest.
On December 28, 1990, IFS and FFO also amended the Management
Agreement. Under the terms of such amendment IFS was to receive
$16,000 per annum, payable in equal monthly installments, for
each restaurant it managed for FFO. This amendment of the
Management Agreement eliminated incentive fees previously
provided for.
In December 1991, the Company again restructured the terms of its
$210,000 secured note due from FFO. Pursuant to the revised
terms, FFO was to pay $30,000 on January 26, 1992 and $10,000 per
month thereafter together with interest accrued at two percent
above the prime rate. All other terms of the note were unchanged.
FFO could not initially make payments due to seasonal cash flow
shortfalls, however, it did subsequently commence repayments and
as of September 1993, this note was paid in full.
On June 25, 1992, the issuance of the 3,000,000 shares of voting
common stock to IFS was ratified by FFO's shareholders at FFO's
annual meeting. The ratification was effective retroactively as
of December 28, 1990. The purchase price of the IFS Common Stock,
based upon the $450,000 principal amount of the total debt
extinguished, was $.15 per share.
Effective January 26, 1994, the Management Agreement with FFO was
amended whereby the annual per restaurant management fee was
reduced from $16,000 to $12,000. This fee reduction was in large
part due to a decrease in the supervisory staff assigned by IFS.
The Management Agreement was again amended on November 22, 1995,
effective January 26, 1996, to extend the term to January 25,
1997, and to provide for a management fee equal to the greater of
(i) Twelve Thousand ($12,000) Dollars per annum per Restaurant,
or (ii) One Hundred Eight Thousand ($108,000) Dollars per annum.
This revision resulted from the sale and/or closure by FFO during
a fourteen-month period of six restaurants managed by IFS in New
York and New Jersey and the need for the Company to ensure
sufficient fee income to justify its continued management of the
FFO restaurants.
The Company anticipates that the management agreement will be
renewed for an additional year through January 25, 1998 at its
current terms of $12,000 per Restaurant, except that the $108,000
minimum annual fee requirement will be reduced to $96,000.
EMPLOYEES
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The Company has four full-time employees. These employees are not
covered by a collective bargaining agreement. Of the Company's
employees, two persons are employed as management and office
personnel at the Company's executive office and two persons are
employed as maintenance personnel for managed restaurants.
TRADEMARKS
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The Company has no interests in any patents, trademarks or
service marks other than those licensed from Wendy's pursuant to
the Franchise Agreements. Wendy's has registered certain
trademarks and service marks in the United States Patent and
Trademark Office and in international jurisdictions, some of
which include "Wendy's", "Wendy's Old Fashioned Hamburgers", "Old
Fashioned Hamburgers", and "Quality is our Recipe."
REGULATORY MATTERS
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The Company is subject to various federal, state and local laws,
regulations and administrative practices regulating equal
employment and safety standards. The Company is subject to the
Fair Labor Standards Act, which governs minimum wages, overtime
and other working conditions.
NASDAQ LISTING
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In October 1991, the Company filed an application to have its
Common Stock listed on the National Association of Securities
Dealers Automated Quotations ("NASDAQ") system. The application
was denied on January 10, 1992, due to changes in the basic
listing requirements and maintenance standards, and the
establishment of a minimum bid price of $3.00 per share. This
denial does not prevent the Company from reapplying to NASDAQ in
the future. The Company's Common Stock is currently listed on
the NASD's OTC Bulletin Board and the National Quotations Bureau
("NQB") Pink Sheets.
RECENT DEVELOPMENTS
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During the second and third fiscal quarters of fiscal 1995, the
Company consummated the sale of seven of its New Jersey-based
Wendy's Restaurants, which were located in Matawan/Keyport;
Tinton Falls; East Brunswick; Piscataway; Metuchen; Tom's River;
and, Howell. On June 29, 1995, the Company closed its Harlem,
New York restaurant. On November 10, 1995, the Company
consummated the sale of its Woodbridge, New Jersey restaurant.
On December 22, 1995 the Company consummated the sale of its
Sayreville, New Jersey restaurant. The sale of these nine
restaurants resulted in aggregate gross cash proceeds to the
Company of approximately $2,400,000. These proceeds were used to
repay shareholder debt in full; pay down trade payables; and,
make return of capital distributions to stockholders of $.30 and
$.20 in May and July of 1995, respectively, and $.20 in November
of 1995. As a result of these transactions, the Company received
secured promissory notes aggregating $1,175,000, payable in
aggregate monthly installments of $17,095 (including interest
thereon at 10% per annum). These notes have maturity dates of
May, 2003 and March, 2005, and are secured by all assets of the
applicable restaurants sold.
The Company and IFS entered into an Asset Purchase Agreement
dated as of September 18, 1995 by which the Company and IFS
subsequently sold substantially all of their remaining assets
consisting of eight Wendy's Fast Food Hamburger Restaurants
located at Albee Square Mall, Brooklyn; 2137 Nostrand Avenue,
Brooklyn; 505 Utica Avenue, Brooklyn; 469 Flatbush Avenue,
Brooklyn; 1916 Linden Boulevard, Brooklyn; 425 Fulton Street,
Brooklyn; 971 Flatbush Avenue, Brooklyn; and, 3939 Broadway, New
York (the "Restaurants") to Wendnew, L.L.C., a New York limited
liability company. The sale required the approval of the
stockholders of the Company; a definitive proxy statement, as
filed with the Securities and Exchange Commission, was mailed to
stockholders on January 4, 1996. At the related meeting held on
January 26, 1996, the stockholders approved the sale.
In consideration for the purchase of the Assets, the purchaser
paid the Company an aggregate of $1,800,000, consisting of (i)
$900,000 in cash, (ii) $750,000 in a seven year, secured and
personally guaranteed promissory note and (iii) a 15 year,
$150,000 purchase money mortgage plus certain closing
adjustments. The remaining principal amount of the $750,000 note
was subject to forgiveness if the term of the lease for the
Fulton Street Restaurant premises was not extended prior to the
expiration of its current term in April, 1999. On December 20,
1995, a lease extension was agreed to at a cost to the Company of
$28,050 -thereby obviating a loss contingency of $430,913.
Of the net proceeds of the sale, the Company utilized (i)
approximately $236,000 to pay existing obligations, including
amounts owed to suppliers and service providers, as well as
expenses and costs incurred in connection with the sale and other
matters, including legal fees, and (ii) $664,320 for payment of a
return of capital distribution to the holders of the Company's
Common Stock in the amount of $.30 per share of common stock,
paid shortly after the consummation of the sale.
Following the consummation of the sale, the Company offered
Wendnew certain five percent prepayment discounts. On February
21, 1996, a $332,500 prepayment, net of a $17,500 discount, was
made on the larger note. The balance of the other note in the
amount of $148,160 was prepaid on April 8, 1996, less a $7,408
discount.
On March 18, 1996, the Company closed the consistently
unprofitable Wendchester restaurant, its last owned operating
location. The Company sustained a loss of $85,825 thereon,
consisting of the write-off of the undepreciated improvements and
non-salvageable equipment thereat in the amount of $50,225, less
salvage proceeds of $3,650; the forfeited security deposit
therefor of $21,250 and a newly agreed termination penalty of
$18,000.
The Company remains a party to two restaurant management
agreements although its day-to-day duties with respect to the
management of Wendtwo's restaurants have been subcontracted to
another party. The Company may eventually seek to subcontract,
sell or assign its management agreement with FFO. In any event,
as the proceeds of regular collections on installment notes
receivable, or prepayments at discounts if offered and availed of
thereon are received, the Company anticipates making further
return of capital distributions. However, management of the
Company has no present intention to dissolve the Company or to
engage in a going private transaction.
ITEM 2. PROPERTIES
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The Company's lease for its executive offices at 42-40 Bell
Boulevard, Bayside, New York has been extended through May 31,
1997 at an annual rental of $17,000. Such premises comprise
approximately 700 square feet.
The lease for the Company's administrative offices in Florida,
New York expired January 31, 1996 and was not renewed.
The Company has no other properties. All other leases were
assigned and/or sold in connection with the sales of the
restaurants. The Company remains contingently liable on a few of
such leases but the chance of any actual liability resulting
therefrom is considered remote.
ITEM 3. LEGAL PROCEEDINGS
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As of January 8, 1997, there were no material legal proceedings
pending involving the Company or any of its subsidiaries.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
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No matters were submitted to a vote of security-holders during
the fourth quarter of the fiscal period covered by this report.
On January 26, 1996, the Company held a special meeting of its
stockholders for the purpose of voting upon the following
proposal: The sale by the Company and its wholly-owned
subsidiary, Integrated Food Systems, Inc. of substantially all of
the assets of the Company and IFS that are related to eight
Wendy's Old Fashioned Hamburgers Restaurants located in Brooklyn,
New York and New York, New York to Wendnew, LLC, a New York
limited liability company, for $1,800,000 (subject to adjustment
at closing) in cash, a promissory note, a purchase money
mortgage and the assumption of specified liabilities related to
the Restaurants, said transaction to be effected pursuant to an
Asset Purchase Agreement dated as of September 18, 1995 among the
Company, Integrated Food Systems, inc. and Wendnew, LLC. The
Company solicited proxies from its stockholders pursuant to
definitive proxy materials filed with the Securities and Exchange
Commission on January 5, 1996.
An aggregate of 1,474,247 shares of the Company's common stock
were voted at the meeting in person or by proxy, representing
approximately 66.58% of all shares of common stock outstanding.
Of these shares, 1,436,368 voted in favor of the proposal
(representing approximately 97.43% of all shares voting and
approximately 64.86% of all shares outstanding), 33,905 voted
against the proposal (representing approximately 2.30% of all
shares voting and approximately 1.53% of all shares outstanding),
and 3,974 abstained (representing approximately 0.27% of all
shares voting and approximately 0.18% of all shares outstanding).
No other proposals were voted on at the meeting.
PART II
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ITEM 5. MARKET FOR THE COMPANY'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
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a) The Company's Common Stock is traded in the over-the-counter
market. The following table sets forth, for the periods
indicated, the range of high and low respective bids for the
Company's Common Stock. These quotes reflect inter-dealer prices
without retail markup, markdown or commission and may not
necessarily represent actual transactions. Although the Company's
Common Stock has been listed on the NQB Pink Sheets since April
1992, the Company's market makers have not published any quotes
in the Pink Sheets. The Company's Common Stock is also listed on
NASD's OTC Bulletin Board, but is not active.
Quarter Ended Low High
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December 25, 1994 $.50 $.9375
March 26, 1995 $.50 $.875
June 25, 1995 $.50 $.9375
September 24, 1995 $.50 $1.00
December 31, 1996 $.125 $.375
March 31, 1996 $.125 $.375
June 30, 1996 $.125 $.375
September 29, 1996 $.125 $.375
b) As of January 8, 1997, the aggregate number of holders of
record of the Company's Common Stock was approximately 360.
c) In May, 1995, the Company paid its stockholders of record on
May 22, 1995, a return of capital distribution of $.30 per share.
In July of 1995, the Company paid its stockholders of record on
July 7, 1995, a return of capital distribution of $.20 per share.
On November 13, 1995, the Board of Directors declared a return of
capital dividend in an amount of $.20 per share of common stock,
payable to shareholders of record on November 24, 1995, which was
paid by the Company on November 28, 1995. On January 26, 1996,
the Company declared a $.30 per share return of capital
distribution, payable to shareholders of record as of February
12, 1996. The distribution was paid on February 16, 1996.
Management intends to apply its future management fee revenues
and note collection proceeds (including applicable interest
income) first to the payment of on-going expenses, and second to
the payment of additional distributions to its stockholders; the
timing and amount of these distributions will vary due to various
factors.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
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RESULTS OF OPERATIONS
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Fiscal 1996 Compared to Fiscal 1995
During fiscal 1996, the Company sold ten restaurants; the sale of
the last eight of these was approved by the Company's
stockholders at a special meeting thereof on January 26, 1996.
On March 18, 1996 the Company closed its last operating location,
the consistently unprofitable Wendchester restaurant. In
accordance with generally accepted accounting principles, the
operations of all owned restaurants are reported as discontinued
operations for all periods presented.
The Company's present activities consist of (i) managing two
Wendy's Restaurants for Wendtwo Limited Partnership, (in which
IFS owns a one percent equity interest) for which the day-to-day
management duties were sub-contracted on October 9, 1995 to the
purchaser of the geographically proximate Tom's River and Howell
Wendy's Restaurants in New Jersey; (ii) managing six Popeye's
Famous Fried Chicken and Biscuits restaurants for FFO, in which
IFS owns a 33.7% equity interest; (iii) collecting on its various
notes receivable. Such notes, all secured by the assets sold and
bearing interest at 10% per annum, aggregated $1,422,616 at
September 29, 1996 and are payable in monthly installments of
$29,546 through maturities in 2003 through 2005. In February and
April of 1996, Wendnew availed itself of five percent prepayment
discounts totalling $24,908 on gross payments of $498,160. (See
Note 3 to the Consolidated Financial Statements). The Company
may offer additional prepayment discounts to its debtors in the
future. (See Liquidity and Capital Resources).
Net management fees for fiscal 1996 and 1995 consisted of the
following:
1996 1995
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FFO:
Current year's fee $ 98,000 $109,000
Realization of fee reserved
in prior year - 85,000
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Total FFO - 194,000
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Wendtwo:
Gross subordinated fee 157,134 156,672
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Subcontracting fee 126,005 -
Less: Subcontracting credit 22,044 -
-------- --------
Net subcontracting fee 103,961 -
-------- --------
Net subordinated fee 53,173 156,672
Supervisory fee 16,560 16,560
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Total Wendtwo 69,733 173,232
-------- --------
Total management fees $167,733 $367,232
======== ========
For the FFO management agreement renewal effective January 26,
1997, the Company anticipates that the $12,000 annual fee per
restaurant will be retained but that the minimum annual fee
requirement of $108,000 will be reduced to $96,000. The FFO fee
in fiscal 1996 was less than the minimum because the minimum fee
requirement did not go into effect until January 26, 1996.
Based on a constant level of sales, the net Wendtwo fee going
forward should approminate $67,000 per year; the higher amount in
fiscal 1996 was attributable to the first two weeks of the year
which were before the sub-contracting agreement went into effect.
The Company utilized eleven months of the credit in 1996; the
maximum amount remaining is $146,292.
The Company, in the future, may seek to sell or assign the
management agreements for Wendtwo and FFO.
Interest income increased by $121,832 or 204% to $181,645 in 1996
from $59,813 in 1995, due to the addition of the interest-bearing
Wendnew receivable effective October 9, 1995 and the full year's
interest earned on the other notes which arose in fiscal 1995.
Other income attributable to continuing operations declined by
$239,689, or 94%, to $15,079 in 1996 from $254,768 in 1995.
Consulting income, whose assignment to the Company by its
President and Chief Executive Officer ceased on November 1, 1995
when the officer's employment agreement was amended, fell by
$146,625 to $13,575. The balance of the decline in this account
was in gains on equity investments in managed entities, which
declined by $93,064 to $1,504. (See Note 11B to the Consolidated
Financial Statements).
General and administrative expenses decreased by $772,080, or
57%, to $572,371 in 1996 from $1,344,451 in 1995. Approximately
four-fifths of such decline is attributable to reductions in
executive and managerial payroll, with the balance of the
decrease due to various cost savings measures effected throughout
the administrative function.
The salary of the Company's President, which had been scheduled
to increase from $220,000 to $230,000 on November 25, 1995, was
reduced to $50,000 effective November 1, 1995 and was further
reduced to $40,000 effective January 1, 1997.
The Company now has only one office, presently requiring an
annual rental of $17,000. The administrative office lease
expired without renewal in January 1996.
Most accounting and administrative activities previously
supervised by the Company's controller are now provided at an
annual fixed fee of $60,000 by a service company owned by such
individual.
Various other general and administrative-type expenses have
decreased as a natural consequence of the Company's substantially
diminished operations. Notable examples are: Professional fees
which were more than halved from $155,870 to $76,857; and travel
and automobile expenses which declined by two-thirds to $28,860
from $90,414.
Interest expense, other than interest expense imputed on
officer's loans that were fully repaid during fiscal 1995,
decreased by $2,429 to $5,056 in 1996 from $7,485 in 1995. Such
expense was incurred on advances payable to Wendtwo, which were
repaid during fiscal 1996. The Company has no interest-bearing
debt remaining at September 29, 1996.
Other expenses decreased by $87,627, or 72%, to $33,782 in 1996
from $121,409 in 1995. The 1995 amount was entirely attributable
to the write-off of advances to the terminated Wendyank managed
partnership. The amount in 1996 consists of the debt prepayment
discounts given of $24,908 and the loss on the equity investment
in FFO. (See Note 11A to the Consolidated Financial Statements).
Accordingly, the Company's continuing operations lost $246,752 in
1996 compared to $808,011 in 1995.
The loss from discontinued operations was $95,146 in 1996,
including a net loss on the sale of assets of $40,351, and
$1,623,106 in 1995, including a net loss on the sale of assets of
$1,944,487. As of September 29, 1996, all discontinued
operations had been either sold or disposed of.
The Company incurred no income tax expense in either year. At
September 29, 1996, the Company has an aggregate net operating
tax loss carryforward of $2,023,000. Deferred income tax assets
related to the loss carryforward and other temporary book/tax
differences aggregating $950,900 have been almost completely
offset by valuation allowances. (See Notes 2F and 10F to the
Consolidated Financial Statements).
Net loss decreased from $2,431,117 or $1.11 per share in 1995 to
$341,898 or $.15 per share in 1996.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
The Company's financial condition changed significantly during
fiscal 1996 as a result of the sale of substantially all of its
assets. The Company's working capital improved by $748,000 from a
deficit of $518,000 at September 24, 1995 to a surplus of
$230,000 at September 29, 1996. Significant items comprising such
improvement (other than the effect of the net loss) were: (i)
proceeds of asset sales totalling $1,632,000; (ii) the receipt
and current maturities of note payments totalling $648,000; and
(iii) the payment of return of capital distributions to
shareholders aggregating $1,107,200.
The Company's cash balance decreased by $92,000 to $59,000 at
September 26, 1996 from $151,000 at September 24, 1995.
Operating activities required $1,243,000 of which approximately
$378,000 was attributable to restaurant operations and management
activities as adjusted for the effects of asset sales, non-cash
expenses and investee losses. Changes in applicable asset and
liability accounts related to operations required $865,000,
principally for repayment of trade debt and other current
obligations.
Investing activities provided $2,258,000 attributable principally
to the receipt of $2,226,000 of asset sale proceeds and note
receivable collections. Property acquisitions and lease
termination costs required $4,000 and $18,000, respectively, with
other routine items requiring $23,000. Distributions from
managed entities provided $77,000 including a one-time return of
capital distribution from FFO of $75,000.
Financing activities required $1,107,000, paid to shareholders as
a return of capital distribution.
As payments on notes receivable are collected, including prepaid
amounts at discounted terms if offered, the Company, subject to
necessary cash reserves, expects to make additional return of
capital distributions; however, management has no intention of
dissolving the Company or entering into a going-private
transaction.
INFLATION
- ---------
In the Company's most recent fiscal year, inflation was not a
significant factor and is not expected to be so in the future due
to the Company's substantially diminished operations.
ITEM 7. FINANCIAL STATEMENTS
- ----------------------------
INDEX TO FINANCIAL STATEMENTS
-----------------------------
Page
----
Included in Part II, Item 7 of this report:
Independent Auditor's Report F-1
Consolidated Balance Sheet as of September 29, 1996 F-2
Consolidated Statement of Operations for the
Years Ended September 29, 1996 and
September 24, 1995 F-3
Consolidated Statement of Stockholders' Equity for
the Years Ended September 29, 1996 and
September 24, 1995 F-4
Consolidated Statement of Cash Flows for the
Years Ended September 29, 1996 and
September 24, 1995 F-5
to F-6
Notes to Consolidated Financial Statements F-7
to F-21
INDEPENDENT AUDITOR'S REPORT
============================
Board of Directors
Fast Food Systems, Inc.
Bayside, New York
I have audited the accompanying consolidated balance sheet
of Fast Food Systems, Inc. and Subsidiaries as of September 29,
1996, and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the years in the
two-year period ended September 29, 1996. These financial
statements are the responsibility of the Company's management.
My responsibility is to express an opinion on these financial
statements based on my audit.
I conducted my audit in accordance with generally accepted
auditing standards. Those standards require that I plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. I believe that my
audit provides a reasonable basis for my opinion.
In my opinion, the consolidated financial statements
referred to above present fairly, in all material respects, the
consolidated financial position of Fast Food Systems, Inc. and
Subsidiaries as of September 29, 1996, and the results of their
consolidated operations and cash flows for each of the years in
the two-year period ended September 29, 1996, in conformity with
generally accepted accounting principles.
/S/ ERIC L. WESTON
Certified Public Accountant
Westbury, New York
October 30, 1996
Fast Food Systems, Inc. and Subsidiaries
Consolidated Balance Sheet
September 29, 1996
ASSETS
Current assets:
Cash and cash equivalents - (Note 2A) $ 59,162
Notes receivable - (Note 3) 149,283
Due from managed entities - (Note 4) 29,589
Prepaid expenses and taxes 15,949
Miscellaneous receivables 13,357
-----------
Total current assets 267,340
-----------
Property and equipment, net of accumulated
depreciation - (Notes 2B, 2C, 5 and 9) 46,456
-----------
Other assets:
Notes receivable, less current maturities - (Note 3) 1,273,333
Interests in managed entities - (Notes 6, 8B, 8C and
10A) 230,084
Security deposits 1,242
-----------
Total other assets 1,504,659
-----------
TOTAL ASSETS $ 1,818,455
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 37,548
-----------
Total liabilities 37,548
-----------
Commitments and contingencies - (Notes 8 and 10)
Stockholders' equity - (Notes 1, 7 and 10D):
Common stock, $.01 par value; 5,000,000 shares auth-
orized; 2,214,400 shares issued and outstanding 22,144
Additional paid-in capital - (Notes 7B and 8A) 7,306,481
Retained earnings (deficit) (5,547,718)
-----------
Total stockholders' equity 1,780,907
-----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 1,818,455
===========
See accompanying notes to the consolidated financial statements.
Fast Food Systems, Inc. And Subsidiaries
Consolidated Statement of Operations
Years Ended September 29, 1996 and September 24, 1995
1996 1995
---- ----
Continuing operations:
Revenues:
Management fees $ 167,733 $ 367,232
Interest income 181,645 59,813
Other income (Note 11B) 15,079 254,768
----------- -----------
364,457 681,813
----------- -----------
Expenses:
General and administrative
expenses 572,371 1,344,451
Interest expense 5,056 23,964
Other expenses (Note 11A) 33,782 121,409
----------- -----------
611,209 1,489,824
----------- -----------
Loss from continuing operations ( 246,752) ( 808,011)
Loss from discontinued operations,
including impairment loss of
$1,893,488 recognized in 1995 on
assets prior to sale
(Notes 9 and 12) ( 95,146) (1,623,106)
----------- -----------
Net loss $( 341,898) $(2,431,117)
=========== ===========
Net loss per share $ ( .15) $ (1.11)
=========== ===========
See accompanying notes to the consolidated financial statements.
<TABLE>
Fast Food Systems, Inc. and Subsidiaries
Consolidated Statement of Stockholders' Equity
Two Years Ended September 29, 1996
<CAPTION>
Common Stock Additional Retained Total
------------------- Paid-In Earnings Stockholders'
Shares Amount Capital (Deficit) Equity
------- ------- ---------- --------- ------------
<S> <C> <C> <C> <C> <C>
Balances,
September 26,
1994 2,178,400 $21,784 $ 9,468,762 $(2,774,703) $ 6,715,843
Exercise of
stock options
-(Note 7A) 36,000 360 35,640 36,000
Imputed capital
contribution by
shareholder -
Notes (2D and 8A) 16,479 16,479
Return of capital
distributions -
(Note 7B) (1,107,200) (1,107,200)
Net loss for the
year ended
September 24, 1995 (2,431,117) (2,431,117)
--------- ------ ---------- ----------- ----------
BALANCES,
SEPTEMBER 24,
1995 2,214,400 22,144 8,413,681 (5,205,820) 3,230,005
Return of capital
distributions -
(Note 7B) (1,107,200) (1,107,200)
Net loss for the
year ended
September 29, 1996 ( 341,898) ( 341,898)
--------- ------- ----------- ----------- ---------
BALANCES,
SEPTEMBER 29,
1996 2,214,400 $22,144 $ 7,306,481 $(5,547,718)$ 1,780,907
========= ======= =========== =========== ===========
See accompanying notes to the consolidated financial statements.
</TABLE>
Fast Food Systems, Inc. And Subsidiaries
Consolidated Statement of Cash Flows
Years Ended September 29, 1996 and September 24, 1995
1996 1995
------------- -------------
Cash flows from operating activities:
Net loss $( 341,898) $ 2,431,117)
----------- -----------
Adjustments to reconcile net loss
to net cash provided (required)
by operating activities:
Depreciation and amortization 22,831 750,312
Impairment of long-lived assets - 1,893,488
Deferred credits applied ( 106,812) 109,980)
Loss on asset dispositions 40,351 46,845
Imputed interest expense - 16,479
Loss (gain) from managed entities 7,370 ( 94,568)
Decrease (increase) in due
to/from managed entities ( 177,047) 436,696
Decrease in inventory 31,167 80,465
Decrease (increase) in other
current assets ( 1,756) 217,024
Decrease in accounts payable ( 544,232) ( 331,091)
Decrease in taxes payable,
other than on income ( 104,441) ( 67,011)
Decrease in accrued payroll ( 68,544) ( 127,459)
----------- -----------
Total adjustments ( 901,113) 2,711,200
----------- -----------
Net cash provided (required) by
operating activities (1,243,011) 280,083
----------- -----------
Cash flows from investing activities:
Proceeds of asset dispositions,
net of related costs 1,632,106 1,740,000
Acquisition of tangible and
intangible property ( 3,910) ( 343,973)
Lease termination costs paid ( 18,000) ( 56,509)
Collections on notes receivable 594,095 33,381
Distributions from managed entities 76,870 1,870
Change in security deposits and other ( 22,733) ( 999)
----------- -----------
Net cash provided by investing
activities 2,258,428 1,373,770
----------- -----------
Cash flows from financing activities:
Loan repayments to shareholder - ( 545,295)
Principal payments on long-term debt - ( 41,594)
Proceeds of stock option exercise - 36,000
Return of capital distributions paid (1,107,200) (1,107,200)
----------- -----------
Net cash required by financing
activities (1,107,200) (1,658,089)
----------- -----------
Net decrease in cash $( 91,783) $( 4,236)
=========== ===========
See accompanying notes to the consolidated financial statements.
Fast Food Systems, Inc. and Subsidiaries
Consolidated Statement of Cash Flows (continued)
Years Ended September 29, 1996 and September 24, 1995
1996 1995
------------- -------------
Net decrease in cash(forward) $ ( 91,783) $( 4,236)
Cash, beginning of year 150,945 155,181
------------ -----------
Cash, end of year $ 59,162 $ 150,945
============ ===========
Additional Cash Flow Information:
Interest expense paid during
the year $ 5,096 $ 100,286
============ ===========
Non-cash investing and financing activities:
Receivables arising from asset sales $ 900,000 $ 1,175,000
============ ===========
Net book value of property sold $ 2,741,358 $ 3,040,843
============ ===========
Other restaurant assets sold:
Inventory $ 68,346 $ 10,394
============ ===========
Prepayments $ 101,954 $ 5,915
============ ===========
Security deposits $ 47,133 $ 13,000
============ ===========
Intangible assets written off $ 115,738 $ 952,202
============ ===========
Capitalized lease debt extinguished $ 399,570 $ 1,259,102
============ ===========
Asset write-offs incurred on lease
extension (1996)/termination (1995) $ 21,760 $ 197,087
============ ===========
Accrued expenses assumed
by purchasers $ 81,344 $ -
============ ===========
Deferred credits assumed
by purchasers $ 108,559 $ -
============ ===========
Discounts granted on note
prepayments $ 24,908 $ -
============ ===========
Deferred gains realized $ - $ 52,849
============ ===========
Imputed equity contribution $ - $ 16,479
============ ===========
See accompanying notes to the consolidated financial statements.
Fast Food Systems, Inc. And Subsidiaries
Notes to Consolidated Financial Statements
NOTE 1 - ORGANIZATION AND BASIS OF PRESENTATION
(A) Organization:
Fast Food Systems, Inc. was incorporated in Delaware on
February 1, 1990. The Company thereafter acquired all the
outstanding shares of Integrated Food Systems, Inc. ("IFS")
and also acquired all of the assets and assumed the
liabilities of fifteen Wendy's Old Fashioned Hamburgers
Restaurants owned by twelve limited partnerships that had
been managed by IFS.
In fiscal 1995 the Company and IFS commenced a course of
strategic downsizing, pursuant to which seven New Jersey
restaurants were sold and one IFS Manhattan location was
closed. In the first quarter of fiscal 1996, the Company
sold two more New Jersey restaurants and sought shareholder
proxy approval to sell its eight Brooklyn and Manhattan
restaurants. Such sale closed on October 9, 1995 pending
shareholder approval which was obtained on January 26, 1996.
On March 18, 1996 the Company closed its last owned
operating location, the consistently unprofitable
Wendchester restaurant. (See Note 9).
IFS manages certain fast food restaurants for others. IFS
continues to manage two Wendy's restaurants for Wendtwo.
The managed Wendyank restaurant ceased operations on
February 22, 1995. IFS has one remaining active wholly-owned
subsidiary, which is the corporate general partner of
Wendtwo Limited Partnership with a one percent general
partner interest. IFS also has a 33.7% equity interest in
and presently manages six Popeye's Famous Fried Chicken
Restaurants for Fast Food Operators, Inc. ("FFO"). The
Company has subcontracted certain management activities to
others. (See Notes 2E, 4, 6, 8B, 8C, 10A, 10B and 11).
(B) Basis of Presentation:
All intercompany balances and transactions are eliminated in
consolidation. The operations of all owned restaurants are
reported as discontinued operations for all periods
presented. (See Note 12).
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) Cash and Cash Equivalents:
The Company considers all liquid investment instruments with
maturities of three months or less at date of purchase to be
the equivalent of cash for balance sheet and cash flow
presentation.
(B) Property, Equipment and Depreciation:
Property and equipment are recorded at cost. Depreciation
is provided by application of the straight-line and
declining balance methods over the estimated useful lives of
the assets. At September 29, 1996, the only remaining class
of assets is office equipment and furniture with an
estimated useful life of five to seven years. Maintenance
costs are charged to expense as incurred. Renewals and
betterments are capitalized. When depreciable assets are
retired or disposed of, the cost and related accumulated
depreciation are eliminated and the resulting gain or loss
is reflected in income.
(C) Recognition of Impairment on Certain Assets and Related Intangibles:
When proposed, the Company's sale of substantially all of
its assets indicated significant asset impairment losses due
to the carrying value of the assets being sold and related
intangibles materially exceeding the agreed to sales prices
- particularly with respect to the eight Brooklyn and
Manhattan restaurants requiring shareholder proxy approval -
and the amount estimated to be realized from the disposition
of the Wendchester restaurant. Such impairment losses were
recognized in the 1995 financial statements since the
contracted sales prices clearly indicated a decline in the
value of the related assets as of or prior to the 1995
fiscal year-end and such decline was deemed to be other than
temporary.
(D) Imputed Interest Expense on Shareholder's Loans:
Interest expense on a non-interest bearing loan payable to
the Company's principal corporate officer was imputed at
approximately eight percent per annum through July 1995 when
the loan balance was repaid in full. An amount equivalent
to such imputed interest was credited to additional paid-in
capital. (See Note 8A).
(E) Income (Loss) from Managed Entities:
The Company accounts for income (loss) from Wendtwo Limited
Partnership attributable to the general partner interest of
IFS' wholly-owned subsidiary by application of the equity
method. The Wendyank partnership terminated in February
1995. The Company utilizes the same method to account for
its equity interest in Fast Food Operators, Inc. (See Notes
6, 8B, 8C, 10A, 10B, and 11).
(F) Income Taxes:
The Company is subject to federal, state and local taxes on
income. The Company accounts for income taxes pursuant to
the liability method as required by Financial Accounting
Standard No. 109. (See Note 10F).
The Company is also subject to various state and local
corporate franchise taxes. Such taxes, not constituting a
tax on income, are included in general and administrative
expenses.
(G) Loss Per Share:
Loss per share is calculated by dividing the net loss by the
number of weighted average shares outstanding in each year:
2,214,400 in 1996 and 2,192,110 in 1995.
(H) Fiscal Year:
The Company's fiscal year ends on the last Sunday of
September. Fiscal 1996 and 1995 comprised 53 weeks and 52
weeks, respectively.
NOTE 3 - NOTES RECEIVABLE
The Company consummated the sale of the Wendtrip Aberdeen
and Tinton restaurants on March 13, 1995 and the sale of the
Wendway and Wendwick restaurants on April 7, 1995. Included
in the consideration for such sales were 10% secured,
installment promissory notes aggregating $375,000 for the
Wendtrip restaurants and $800,000 for the other two
restaurants payable over terms of ten and eight years,
respectively. The loans, which are secured by the assets
sold, are receivable in equal monthly installments of $4,956
and $12,139, respectively.
The consideration for the sale of the eight Brooklyn and
Manhattan restaurants to Wendnew, LLC. included two 10%
promissory notes for $750,000 and $150,000, respectively.
The $750,000 note was subject to a credit of $430,913 in the
event a lease extension for the Wendton restaurant could not
be obtained. A lease extension agreed to on December 20,
1995 at a cost to the Company of $28,050 obviated the loss
contingency. The Company also offered Wendnew, LLC. certain
five percent prepayment discounts which were taken. A
$332,500 prepayment, net of a $17,500 discount was made on
the larger note on February 21, 1996. The balance of the
other note in the amount of $148,160 was prepaid on April 8,
1996, less a $7,408 discount. (See Note 11A).
The annual maturities receivable on the various notes are as
follows:
Year Ending Wendtrip Wendway/ Wendnew,
September Restaurants Wendwick LLC. Total
----------- ----------- -------- -------- -----
1997 $ 26,709 $ 78,532 $ 44,042 $ 149,283
1998 29,506 86,755 48,653 164,914
1999 32,596 95,840 53,748 182,184
2000 36,009 105,876 59,376 201,261
2001 39,779 116,962 65,593 222,334
2002 43,945 129,209 72,462 245,616
2003 48,547 93,572 32,389 174,508
2004 53,630 - - 53,630
2005 28,886 - - 28,886
-------- -------- -------- ----------
Total $339,607 $706,746 $376,263 $1,422,616
======== ======== ======== ==========
NOTE 4 - DUE FROM MANAGED ENTITIES
(A) Due from Limited Partnership:
IFS has a continuing management agreement for the two
Wendy's Restaurants owned by Wendtwo Limited Partnership,
which has as its sole general partner a wholly-owned
subsidiary of IFS. A similar management agreement ended on
February 22, 1995 when the managed Wendyank restaurant
closed and that partnership terminated.
The one remaining management agreement with Wendtwo provides
for a monthly management fee, equal to 6% of gross sales,
subordinated to the payment of an annual preferred return on
the partners' original capital contributions at the rate of
12%. The agreement also provides for subordinated incentive
fees payable from available cash flow and special fees
payable from sale or refinancing proceeds of the
restaurants, also subordinated to the monthly management
fees. IFS provides an allowance for uncollectible
management fees when available cash flow generated by the
partnership is insufficient to pay both the preferred return
and the monthly fee based on gross sales. The agreement
further provides for an unsubordinated monthly fee for
supervision provided by IFS. Such monthly fee is $690 per
restaurant.
On October 9, 1995, IFS entered into a subcontracting
agreement with the purchaser of the Howell and Tom's River
restaurants for the day-to-day management of Wendtwo. For
such services, IFS pays a fee equal to five percent of
Wendtwo's sales subject to Wendtwo's having sufficient cash
flow to pay its preferred return distribution to its
partners as well as the six percent subordinated management
fee to IFS. IFS also received an aggregate credit of up to
$168,336, deductible from the fee at the monthly rate of
$2,004 for up to seven years. Such credit is subject to
downward adjustment in the event of certain unusual fee
payments by Wendtwo to IFS. IFS utilized $22,044 of the
credit in fiscal 1996 leaving a maximum remaining credit of
$146,292. (See Note 10B).
Net management fees from managed partnerships including
supervisory fees and net of amounts paid pursuant to the
subcontracting agreement were $69,733 and $173,232 for
fiscal 1996 and 1995, respectively. All of such fees were
earned from Wendtwo. IFS historically provided an allowance
for the entire Wendyank subordinated management fee.
At September 29, 1996 $15,271 was due from Wendtwo.
(B) Due from Fast Food Operators, Inc. ("FFO"):
IFS manages FFO pursuant to a management agreement which has been
renewed annually for the past several years. As
amended effective January 26, 1996 the per store fee
continued at $12,000 per year except that the aggregate fee
may not be less than $108,000. (See Notes 6B, 8C and 10A).
For fiscal 1996 and 1995, the net management fee from FFO
was $98,000 and $194,000, respectively. The 1995 fee
includes the realization of $85,000 of prior fees for which
an allowance for uncollectibles had been provided. At
September 29, 1996, $14,318 was due from FFO.
NOTE 5 - PROPERTY AND EQUIPMENT
At September 29, 1996, property and equipment consist of the
following:
Office equipment and furniture $360,251
Less: Accumulated depreciation 313,795
--------
Net property and equipment $ 46,456
========
NOTE 6 - INTERESTS IN MANAGED ENTITIES
(A) Interest in Limited Partnership:
IFS owns a 1% general partner interest in the managed
Wendtwo Limited Partnership. The investment therein,
accounted for by the equity method, was $6,111 at September
29, 1996 and $6,477 at September 24, 1995. (See Notes 4A,
8B and 10B).
(B) Investment in Fast Food Operators, Inc.:
IFS owns 3,000,000 common shares of FFO, constituting a
33.7% equity interest therein. At September 29, 1996 and
September 24, 1995, IFS has recorded its proportionate share
of FFO's net income or loss, amounting to a loss of $8,874
for fiscal 1996 and income of $93,503 for fiscal 1995. The
carrying value of IFS's interest was $223,973 at September
29, 1996 and $307,847 at September 24, 1995. FFO paid a
return of capital distribution of $.025 per share on
December 21, 1995; the Company accordingly credited its
investment account for an aggregate of $75,000. (See Notes
4B, 8C and 10A).
NOTE 7 - CAPITAL STOCK TRANSACTIONS
(A) Exercise of Stock Options:
On May 9, 1995, the Company's three executive offers
exercised, at an exercise price of $1.00 each, an aggregate
of 36,000 incentive stock options held by them. The net
proceeds of $36,000 were credited to common stock and
additional paid-in capital for $360 and $35,640,
respectively. (See Note 10D).
(B) Return of Capital Distributions:
On November 13, 1995, the Company's Board of Directors
declared a $.20 per share return of capital distribution to
shareholders of record on November 24, 1995, payable
principally from the proceeds of the sale of the Wendbridge
restaurant. The distribution was paid on November 28, 1995.
On January 26, 1996, the Company declared a $.30 per share
return of capital distribution aggregating $664,320 payable
from the Wendnew proceeds to shareholders of record as of
February 12, 1996. The distribution was paid on February
16, 1996.
On May 9, 1995 and June 27, 1995, the Company's Board of
Directors declared return of capital distributions of $.30
and $.20, respectively, for all outstanding common shares of
record as of May 22, 1995 and July 7, 1995. Such dividends
totalling $664,320 and $442,880 were paid on May 26, 1995
and July 11, 1995, respectively.
NOTE 8 - RELATED PARTY TRANSACTIONS
(A) Imputed Interest on Stockholder Loans:
Interest of $16,479 imputed on outstanding stockholder loans
was credited to additional paid-in capital in fiscal 1995;
the loans were fully repaid during that period.
(B) Managed Limited Partnerships:
On February 22, 1995, the Wendyank restaurant ceased
operations and the partnership terminated. IFS sustained a
loss of $121,409 on amounts advanced to and/or paid on
behalf of Wendyank which the partnership was unable to
repay. IFS continues to have a one percent general partner
interest in and manage the operations of Wendtwo Limited
Partnership which owns two restaurants. (See Notes 1, 4A,
6A, 10B and 11).
At times IFS had borrowed working capital advances from
Wendtwo. At September 29, 1996, such advances were fully
repaid and Wendtwo owed the Company accrued fees of $15,271.
Interest of $5,056 and $7,485, respectively, was accrued at
5.5% for the 1996 and 1995 fiscal years.
(C) Fast Food Operators, Inc.
IFS has entered into various agreements as amended with FFO
D/B/A Popeye's Famous Fried Chicken of New York, including a
convertible loan payable to IFS, stock options and a
management agreement for FFO's restaurants. FFO issued
3,000,000 of its common shares to IFS in satisfaction of
$450,000 of indebtedness, ratified by FFO's stockholders in
June 1992. At September 29, 1996, FFO owed IFS $14,318 for
current management fees and miscellaneous items. (See Notes
4B, 6B and 10A).
(D) Sale of Brooklyn and Manhattan Restaurants:
The Company's sold eight New York City restaurants to a
former officer and director of the Company. (See Notes 1A
and 9A).
NOTE 9 - SALE OF SUBSTANTIALLY ALL ASSETS
(A) Sale of Eight New York City Restaurants to Wendnew, LLC.:
On October 9, 1995, the sale of eight New York City
restaurants was closed in escrow pending the required proxy
vote to be taken at a special meeting of the Company's
shareholders. All sale proceeds and related documents were
delivered into escrow. The Company's Vice Pesident resigned
to become a manager of the purchaser and the purchaser
accordingly assumed provisional control of the eight
restaurants' operations, finances and record keeping. The
Company realized neither gain nor loss on such transaction
as the carrying value of the property, equipment and
intangibles sold less the book value of liabilities and
deferred credits assumed by the purchaser had been reduced
to equal the consideration for the sale.
The purchase price for the eight restaurants was $1,800,000
plus closing adjustments for certain current assets and
security deposits. One-half of the consideration was due in
cash and the balance in two secured, 10% notes, one for
$750,000 payable over seven years, and one for $150,000
payable over fifteen years. The larger note was subject to
cancellation of its outstanding balance if the lease for the
Wendton restaurant was not extended for a minimum of three
years beyond its scheduled expiration of April 30, 1999.
The unamortized balance subject to cancellation at such date
was estimated to be $430,913. The $750,000 note is
personally guaranteed by three of the purchaser's officers
and/or equity holders, one of whom resigned his position as
an officer and director of the Company subsequent to year-end
to become a manager of the purchaser. The other two
guarantor/equity holders have had certain business dealings
with the Company and/or its President and Chief Executive
Officer.
The sale of these eight restaurants required the approval of
a majority of the Company's outstanding common shares and
the Company accordingly filed a proxy statement with the
Securities and Exchange Commission.
The aggregate consideration agreed to for the sale of these
restaurants was substantially below the then carrying value
of the restaurant's property, equipment and related
intangibles. The Company determined that such difference
reflected a permanent decline in the value of the restaurant
assets and related intangibles and recorded impairments in
such assets during fiscal 1995. (See Note 9E).
On December 20, 1995, the Company, Wendnew and the lessor of
the Wendton restaurant agreed to terms for a ten-year
extension of the restaurant's lease. The Company had to
surrender its security deposit of $10,000 and the accrued
interest thereon in the amount of $11,760. The Company also
had to pay $9,000 for a retroactive rent increase of which
$2,710 was charged to Wendnew for the period they operated
the restaurant. The aggregate $28,050 cost to the Company
of obtaining the lease extension has been charged as a loss
on the sale of the restaurants to Wendnew.
However, securing the lease extension removes a contingency
loss to the Company of approximately $430,913 representing
the estimated forgiveness of debt that would have been
required if the lease were not extended for at least three
years beyond its scheduled April 30, 1999 expiration.
Approval of the sale by the Company's shareholders was
obtained on January 26, 1996. On such date the Company
received the escrowed proceeds and three installment
payments on the $150,000 mortgage note. The Company agreed
to defer principal payments on the $750,000 term note until
March 1, 1996. The Company did receive payment of accrued
interest on such note of approximately $18,000. The Company
also offered Wendnew certain 5% discounts which were
subsequently taken. (See Note 3).
(B) Sale of Wendbridge (New Jersey) Restaurant:
On November 10, 1995, the sale of the Wendbridge restaurant
was consummated at an all-cash price of $562,500 plus
closing adjustments. Such sale resulted in neither gain nor
loss to the Company as the restaurant's intangible franchise
affiliation value ("IFAV") had been written down to equate
the restaurant's aggregate carrying value to its contracted
sales price at September 24, 1995. (See Notes 2C and 9E).
(C) Sale of Sayreville (New Jersey) Restaurant:
On December 22, 1995, the Company consummated the sale of
the Sayreville restaurant, agreed to on December 12, 1995.
The Company received gross proceeds of $100,000 less certain
minor closing adjustments and recorded a gain of $73,524.
(D) Closing of Wendchester Restaurant:
On March 18, 1996, the Company closed the consistently
unprofitable Wendchester restaurant, its last owned
operating location. The Company sustained a loss of $85,825
thereon, consisting of the write-off of the undepreciated
improvements and non-salvageable equipment thereat in the
amount of $50,225, less salvage proceeds of $3,650; the
forfeited security deposit therefor of $21,250 and a newly
agreed termination penalty of $18,000.
The Company had written off as of June 25, 1995 its
unamortized IFAV of $71,825 based on an assessment made at
that time that such IFAV was fully impaired. At September
24, 1995 the Company estimated that it would be able to
recover $50,000 for the restaurant's equipment and leasehold
improvements, in addition to closing adjustments. The
applicable impairments in asset values were also recorded at
September 24, 1995. (See Note 9E).
(E) Recognition of Impaired Assets:
At September 24, 1995, the write-downs for the losses to be
incurred on the sale of eight Brooklyn and Manhattan
restaurants requiring shareholder approval as well as on the
Wendbridge and Wendchester restaurants were recorded as
follows:
Assets Brooklyn/ Wend- Wend-
Impaired Manhattan bridge chester(a) Total
-------- --------- ------ ------- -----
Land, building and
improvements, net $ 574,299 $ - $ 83,820 $ 658,119
Equipment, net 67,562 - 24,625 92,187
Leasehold costs 31,494 - - 31,494
Technical assis-
tance fees 38,990 - - 38,990
Excess of cost over
fair value of
assets acquired 16,193 - - 16,193
Intangible franchise
affiliation value 894,851(b) 89,829 71,825(b) 1,056,505
---------- ------- -------- ----------
Total $1,623,389 $89,829 $180,270 $1,893,488
========== ======= ======== ==========
(a) After applicable writedowns, the property and equipment of the
Wendchester restaurant was carried at an estimated realizable value of
$50,000 at September 24 1995. (See Note 9D).
(b) $269,025 of the impairment of IFAV for the Brooklyn and Manhattan
restaurants reported herein and all of the Wendchester IFAV
impairment had been recognized at June 25, 1995 based on the Company's
measurement criteria for assessing IFAV recoverability.
NOTE 10- COMMITMENTS AND CONTINGENCIES
(A) Management Agreement with Fast Food Operators, Inc.:
At September 29, 1996, IFS managed six restaurants for FFO,
of which one was subject to a subcontracting agreement. The
amended management agreement with FFO provides for an annual
fee of $12,000 per restaurant subject to an annual minimum
of $108,000. Prior agreements applicable to other matters
have all either expired or been satisfied pursuant to
amended terms. (See Notes 4B, 6B and 8C).
(B) Unearned Management Fees:
IFS's agreements with Wendtwo Limited Partnership provides
that the subordinated management fee can only be paid if
sufficient cash is available after the preferred return to
partners is paid. The current year's fee can be paid in any
year in which that year's preferred return is paid.
Previous years' unpaid fees can only be paid after all
previous unpaid preferred returns are paid. Such unpaid
fees are $132,786 at September 29, 1996. If paid by
Wendtwo, the Company's subcontracting agreement with the
purchaser of the Howell and Tom's River restaurants for the
management of Wendtwo's day-to-day operations requires that
the $132,786 be apportioned between the parties using an
interest-adjusted amortization based on the number of
monthly $2,004 credits taken by the Company.
The management agreement with Wendtwo also provides for
incentive fees payable from available cash flow in excess of
that needed to pay the preferred return and the subordinated
management fee. A further condition to this fee is that all
prior preferred returns and subordinated fees be paid first.
Special service fees are payable from available proceeds of
restaurant property sales or refinancings except that in
addition to the required payments which must precede
incentive fees, the partners' original capital contributions
must also first be returned. The subcontracting agreement
assigns the right to receive such fees to the subcontractor.
(C) Operating Lease Agreement:
The lease for the Company's executive offices has been
extended through May 31, 1997 at an annual rental of
$17,000.
The Company and/or IFS remain contingently liable on certain
leases for restaurant premises previously operated by the
Company whose operations were sold to others during fiscal
1996 and 1995. The Company does not anticipate that any
actual liability will result from such contingencies.
The components of rent expense are as follows:
Minimum Contingent
Rentals Rentals Total
------- ---------- -------
Year ended September 29, 1996 $107,321 $ 39,108 $ 146,429
======== ======== ==========
Year ended September 24, 1995 $913,404 $661,601 $1,575,005
======== ======== ==========
(D) Employee Incentive Stock Option Plan:
The Company has an employee incentive stock option plan,
adopted in March 1992. The plan provides for the grant of
options, intended to qualify as "Incentive Stock Options"
within the meaning of Section 422 of the Internal Revenue
Code. Under the plan, options may be granted to employees
to purchase up to 200,000 shares of the Company's $.01 par
value common stock. The plan is administered by a committee
consisting of not less than two disinterested directors of
the Company. Members of the committee may not receive
options. The aggregate fair market value (determined as of
the time an option is granted) of shares with respect to
which any individual employee may be granted options and
which become exercisable for the first time in any one
calendar year may not exceed $100,000. The exercise price
of options must at least be equal to the fair market value
of the shares at the time of grant.
Such fair market value is the average of the closing bid and
asked NASDAQ prices or if the stock is not quoted on NASDAQ
by the most recent closing asked price as quoted by the
National Quotation Bureau. If options are granted to an
individual owning ten percent or more of the Company's
common stock, the exercise price must at least equal 110% of
the shares' fair market value at the date of grant. Options
may not be exercised more than ten years from date of grant
except for options granted to a ten percent or more
stockholder which may not be exercised more than five years
from date of grant. Exercise rights vest twenty percent a
year for the first through fifth anniversary of the grant.
Payment for shares on exercise of options may be in cash or
at the discretion of the committee by shares of common stock
of the Company held at least one year and valued at their
then fair market value or by recourse note secured by the
shares, payable over not more than five years and bearing
interest at a rate high enough to avoid imputation of
interest under the Internal Revenue Code.
Options are generally non-transferable and are exercisable
only while the holder is employed by the Company. Options
become immediately exercisable if certain changes occur in
the organization, ownership or Board of Directors of the
Company.
The only grant of options under the plan occurred in May
1992 when the Company issued options to purchase 173,400
shares of stock exercisable at $1.00 per share, including
options to purchase 90,000 shares issued to the Company's
officers. During fiscal 1996, 1995 and for all periods
prior thereto, options to purchase 57,000 shares, 28,900
shares, and 26,500 shares, respectively, were cancelled due
to the termination of their holders' employment. In fiscal
1995, 36,000 options were exercised by the Company's three
executive officers. Accordingly, at September 29, 1996,
options to purchase 25,000 shares were outstanding.
(E) Employment Agreement:
Effective November 1, 1995, the employment agreement of the
Company's President and Chief Executive Officer was amended
pursuant to which the officer's salary was reduced from
$220,000 (it had been scheduled to increase to $230,000 on
November 26, 1995) to $50,000 and the contribution by the
officer of his consulting income earned from Wendy's
franchisees outside of the Company's market area ($160,200
in fiscal 1995) ceased. The agreement expires November 25,
1996; however, the Company expects it will be renewed on an
annual basis at no more than the current amount. (See Note
8A).
(F) Income Taxes:
The Company files a consolidated tax return encompassing all
of its subsidiaries. Combined filings are made for certain
of the Company's state and local tax jurisdictions. The
Company did not incur any income tax expense or benefit in
fiscal 1996 or 1995. Reconciliation of the benefit for
taxes on income to the expected tax computed by applying the
U.S. federal income tax rate to loss before benefit for
income taxes for the fiscal years ended September 1996 and
1995 is as follows:
Percent of Pre-Tax Income
-------------------------
1996 1995
------ ------
Computed expected tax benefit (34.0) (34.0)
Net operating loss - providing
no federal income tax benefit 34.0 34.0
----- ----
- -
===== =====
At September 29, 1996, the Company has an aggregate net
operating loss carryforward of approximately $2,023,000
which may be carried forward, subject to certain
limitations, to offset future federal, state and local
taxable income. Such loss carryforward expires in years
2006 through 2011.
The Company accounts for income taxes pursuant to Financial
Accounting Standard No. 109 ("FAS 109"). FAS 109 requires
recognition of deferred tax assets and liabilities for the
expected future tax consequences of events that have been
included in the Company's financial statements or tax
returns. Under this method, deferred tax assets and
liabilities are determined based on the differences between
the financial accounting and tax bases of assets and
liabilities using enacted tax rates in effect for the year
in which the differences are expected to reverse. Also, a
valuation allowance is provided for that portion of deferred
tax assets which do not meet a "more likely than not"
expectation of realization.
The tax effects of temporary differences that give rise to
deferred tax assets (before valuation allowances) and
deferred tax liabilities at September 29, 1996 as well as
the components of the deferred income tax provision
(benefit) for fiscal 1996 and 1995 are as follows:
Assets/
Liabilities Provision/(Benefit)
----------- ------------------
1996 1996 1995
---- ---- ----
Assets
Current:
Due from managed entities $ - $ - $ 23,500
Current maturities of debt - - 4,800
Accrued payroll - - 25,000
--------
Total current deferred tax
assets -
--------
Non-current:
Due from managed entities 54,700 ( 500) 40,900
Interests in managed entities 62,300 ( 600) 13,800
Deferred costs and expenses,
net of accumulated
amortization - - ( 7,400)
Long-term debt - - 151,700
Net operating loss
carryforward 833,900 ( 7,600) 108,100
---------
Total non-current deferred
tax assets 950,900
---------
Total deferred tax assets $ 950,900
=========
Liabilities
-----------
Non-current:
Property and equipment,
net of accumulated
depreciation $ 8,700 8,700 (360,400)
========= -------- --------
Net deferred income taxes $ - $ -
======== ========
During the year ended September 29, 1996, the valuation
allowance decreased by $179,300 to $942,200. The net
deferred tax asset at September 29, 1996 was therefore
$8,700, all of which was non-current.
The components by jurisdiction for fiscal 1996 and 1995 were
as follows:
1996 1995
---- ----
Provision (benefit):
Federal $(1,000) $ 34,100
State and local 1,000 (34,100)
------- --------
Total $ - $ -
======= ========
(G) Litigation:
The Company is a party to various routine litigation
incidental to the ordinary course of business. Management
does not anticipate any of such proceedings, individually or
in the aggregate, to result in any material liability in
excess of available coverage.
NOTE 11- OTHER EXPENSES AND OTHER INCOME
(A) Other Expenses:
Other expenses consist of the folllowing:
Fiscal Year Ended September
---------------------------
1996 1995
---- ----
Discounts given on note
prepayments (Note 3) $ 24,908 $ -
Loss on advances to
terminated managed
partnership* - 121,409
Loss on investment in
Fast Food Operators, Inc.
(Notes 6B and 11B) 8,874 -
-------- --------
Total other expense $ 33,782 $121,409
======== ========
* On February 22, 1995 the Wendyank restaurant ceased
operations and such managed partnership terminated. At the
date of its termination, the partnership owed $70,409 of
working capital advances which it was unable to repay. In
addition, as the closing of the restaurant also resulted in
the termination of Wendyank's sublease with Fast Food
Operators, IFS was required to pay on behalf of Wendyank a
$51,000 early lease termination fee. The aggregate loss on
the termination of the partnership in February 1995 was
accordingly $121,409.
(B) Other Income:
Other income consists of the following:
1996 1995
---- ----
Consulting income (1) $ 13,575 $160,200
Gains on equity investments
in managed entities (2) 1,504 94,568
-------- --------
Total other income $ 15,079 $254,768
======== ========
(1) Consulting income, earned by the Company's President for
services provided to other Wendy's franchisees outside of
the markets in which the Company operates, was assigned to
the Company in accordance with the terms of such officer's
employment agreement. Such assignment terminated when the
officer's employment agreement was amended. (See Note 10E).
(2) In 1996 this account reflects the Company's share of
Wendtwo's earnings. In 1995 this account consists of
$93,503 earned from Fast Food Operators, Inc. and $1,065
earned from Wendtwo. (See Notes 6A, 6B and 11A).
NOTE 12- DISCONTINUED OPERATIONS
Loss from discontinued operations for fiscal 1996 and 1995
is comprised of the following:
1996 1995
---- ----
Sales $1,103,236 $17,638,675
Other income 81,819 103,119
---------- -----------
1,185,055 17,741,794
---------- -----------
Cost of sales 387,156 5,861,008
Store labor expenses 422,922 5,136,206
Store operating/occupancy
expenses 310,771 4,470,757
Advertising and royalty expenses 89,692 1,514,379
General and administrative
expenses 29,309 345,262
Interest expense - 92,801
Net loss on sale of assets
including impairment of
$1,893,488 recognized on
assets prior to sale in
1995 (Note 9) 40,351 1,944,487
---------- -----------
1,280,201 19,364,900
---------- -----------
Loss from discontinued
operations $ (95,146) $(1,623,106)
========== ===========
ITEM 8. CHANGES AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
- -----------------------------------------------------------------
None.
PART III
--------
ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- ----------------------------------------------------------
As of January 8, 1997, the directors and officers of the Company
were:
Term to
Name Age Position(s) Expire
- ---- --- ----------- -------
Lewis E. Topper 46 Chairman of the Board,
Chief Executive Officer, 1999
President, Chief Financial
Officer, Chief Accounting
Officer, Treasurer and
Director
Daniel A. Poganski 35 Secretary, Assistant Vice
President and Director 1997
Lewis E. Topper has been the Chairman of the Board, Chief
Executive Officer, President, Chief Financial Officer, Chief
Accounting Officer, Treasurer and a director of the Company since
its inception in February 1990. He has been the President of IFS,
currently a wholly-owned subsidiary of the Company, since
December 1985. He is a past President of the Wendy's New York
Advertising Cooperative. He has been a Certified Public
Accountant since 1977 and is a graduate of Baruch College. Mr.
Topper is also the Chairman of the Board, President, Chief
Executive Officer, Treasurer and Director of FFO. IFS provides
management services to FFO. Mr. Topper receives no compensation
from FFO. Mr. Topper is also Chairman of the Board and Secretary
of 26 companies that operate 113 Wendy's restaurants, all of
which are situated outside of the New York Metropolitan Area.
Mr. Topper holds a minority stockholder interest in each of these
companies and is a co-franchise owner under their respective
franchise agreements. Mr. Topper also receives consulting fees
from each of these companies. These management fees were
assigned to IFS by Mr. Topper until November 1, 1995, on which
date his employment agreement was amended. In the future, Mr.
Topper may become involved with additional Wendy's operations
outside of the New York Metropolitan Area.
Daniel A. Poganski has been the Assistant Vice President and
Secretary of the Company since its inception in February 1990,
and served as a director of the Company from its inception until
November 26, 1990. On December 18, 1991. Mr. Poganski was again
elected to the Board of Directors. Mr. Poganski joined IFS in
1989 and has been the Secretary and Controller of IFS since April
1989. In January of 1997, in connection with the Company's
reorganization of its administrative offices, Mr. Poganski
resigned as a full-time employee of the Company. He retained his
positions as officer and director and now provides virtually all
management accounting and administrative services through his own
service company, A & B Accounting Services, at an annual fee to
the Company of $60,000. Mr. Poganski has also served as the
Controller of FFO since 1988 and as the Secretary of FFO since
October 1989. He is a graduate of Moorhead State University and
is a Certified Public Accountant.
Gary M. Monie, a Vice President and a director of the Company
since its inception in February 1990, provisionally resigned from
these positions to become the Manager of Wendnew upon the closing
in escrow of the sale on October 9, 1995. When the sale was
consummated, his resignation became permanent. He had been
employed by IFS since October 1984, serving as supervisor, senior
supervisor and Director of Operations.
The Company is indemnifying and holding harmless the Directors of
the Company against any liability, damages or expenses to the
maximum extent permitted under Delaware law.
ITEM 10. EXECUTIVE COMPENSATION
- -------------------------------
The following table sets forth the compensation paid or accrued
by the Company during the three fiscal years ended September
1996, 1995 and 1994 to the Company's Chief Executive Officer.
Annual Compensation
-------------------
Other
Annual All other
Name and Compen- Compen-
Principal Position Year Salary $ Bonus $ sation $ sation $
- ------------------ ---- -------- ------- -------- ---------
Lewis Topper, 1996 68,978 - 14,818 -
Chairman and 1995 222,456 60,000 14,427 -
Chief Executive 1994 212,351 90,000 13,860 -
Information relating to long-term compensation, awards of
restricted stock and/or securities underlying options and SARs,
and long-term incentive plan payouts, has been omitted from the
tabular presentation as there has been no such compensation
awarded, earned or paid.
Lewis E. Topper is the Chairman of the Board and Secretary of 26
companies that operate 113 Wendy's restaurants outside of the New
York Metropolitan Area, for which Mr. Topper receives consulting
fees. Until October 31, 1995, these consulting fees were
assigned to the Company in accordance with the terms of Mr.
Topper's Employment Agreement with the Company. Effective
November 1, 1995, such agreement was amended, as described below,
and among other things, the assignment of consulting fees by Mr.
Topper was terminated.
The following fees were assigned in the last three fiscal years:
1996: $13,575; 1995: $160,200; and 1994: $136,800.
EMPLOYMENT AGREEMENT
- --------------------
The Company's Employment Agreement with Lewis E. Topper was
renewed effective November 26, 1993 for a three-year term, with
annual salaries of $210,000, $220,000 and $230,000, respectively.
Mr. Topper is also entitled to receive: A non-accountable
automobile allowance; four weeks vacation; usual Company health
and insurance benefits; a yearly bonus at the discretion of the
Board of Directors; and the right to receive stock options as
determined by the Board of Directors. Due to the limited nature
of the Company's operations following closing of the sale to
Wendnew in escrow on October 9, 1995, Mr. Topper, agreed
effective November 1, 1995 to decrease his base annual salary
from $220,000 to $50,000, while remaining in his current
positions with the Company on an "as needed" basis. In
consideration of such reduction, the Company has agreed to waive
its right to further assignments by Mr. Topper to the Company of
his outside consulting fee income, earned from Wendy's
restaurants located outside of the Company's market area and
owned and/or operated by various companies in which Mr. Topper
holds equity interests.
Effective as of November 26, 1996 the employment agreement has
been renewed through December 31, 1997, except that for calendar
1997, the amount has been reduced to $40,000 per year.
STOCK OPTION PLAN
- -----------------
On March 10, 1992, the Board of Directors adopted the 1992
Incentive Stock Option Plan (the "Plan"). The stockholders
approved the Plan at the Annual Meeting of Stockholders held on
May 20, 1992. Under the Plan, which has a term of ten years from
its adoption by the Board of Directors, the Company may grant
stock options to persons who are now or who during the term of
the Plan become key employees (including those who are also
directors). Stock options granted under the Plan are intended to
qualify as incentive stock options under Section 422 of the
Internal Revenue Code of 1986 (the "Code"), for federal income
tax purposes. However, incentive stock options cannot be granted
to any person who is not an employee of the Company.
The Plan is administered by a Stock Option Committee of two
individuals appointed by the Board (the "Committee"). Members of
the Committee shall be directors who are not executive officers
of the Company and not eligible to be granted options under the
Plan. They shall be "disinterested persons" within the meaning of
Rule 16b-3 adopted pursuant to the Securities Exchange Act of
1934, as amended. Since January, 1994, there has been an
insufficient number of members of the Board of Directors
qualified to serve on the Committee. Accordingly, no additional
options have been granted, and the Company is unable to
determine when, or in fact whether, the Committee will be
reconstituted and additional stock options granted under the
Plan.
The Plan provides that the Committee may grant stock options with
respect to a maximum of 200,000 shares of Common Stock at any one
time (subject to certain adjustments for dilution and capital
changes). If any option terminates or lapses unexercised or
uncancelled, then the shares subject thereto will be available
for further issuance under the Plan. The Company will receive no
cash payments in connection with the grant of options under the
Plan.
Generally, the exercise price per share under stock options
granted under the Plan may not be less than the fair market value
of a share of Common Stock on the date the options are granted.
However, the exercise price under an incentive stock option
granted to a person already owning stock representing more than
10% of the total voting power of the Company's equity securities
must equal at least 110% of the fair market value of the Common
Stock on the grant date. The aggregate fair market value
(determined at the date of grant) of the shares of Common Stock
covered by incentive stock options granted to any one person
which become exercisable in any one calendar year cannot exceed
$100,000.
The maximum term of any stock option granted under the Plan is
ten years (or five years for 10% stockholders). Unless the
Committee establishes different terms. an option granted under
the Plan will not be exercisable until one year after it is
granted, and normally will be exercisable only in increments of
20% of the underlying shares for each year that it is
outstanding. Options also will only be exercisable while the
holder is an employee of the Company, and upon the termination of
such relationship, the options shall lapse after the earlier of
the end of the 30th business day following such termination or
the stated expiration date of such options (unless such
termination is for cause, in which case all options of the holder
shall lapse immediately); provided, however, that if such
termination is due to retirement upon the holder's attaining an
age of 65 years, total disability of the holder, or the death of
the holder, the options shall lapse after the earlier of the end
of the third month following such termination or the stated
expiration date of such options.
The Plan also provides that the unexercised portions of options
granted under the Plan will become immediately exercisable in
full regardless of their other terms, if (i) the Company is to be
dissolved or liquidated, or (ii) the Company enters into a
merger, consolidation or reorganization in which either it is not
the surviving corporation or it becomes a wholly-owned subsidiary
of another corporation, or (iii) a tender offer is made for the
Common Stock, or (iv) a majority of the Board of Directors is
replaced within a twelve-month period, unless the new directors
were nominated by the Company's management, or (v) any person
previously unaffiliated with the Company, other than as a
stockholder, becomes the holder of 25% or more of the Company's
voting securities. Also, if one of the foregoing events occurs,
and if the Company's counsel is of the opinion that an officer
holding an option under the Plan would be subject to "shortswing
profit" liability under Section 16(b) of the Securities Exchange
Act of 1934, as amended (the "Act"), if he were to exercise the
option and then sell or deliver the shares so received in the
transaction described above, then in lieu of exercising the
option, the officer would be entitled to surrender the option to
the Company. Upon the surrender, for each share subject to the
then unexercised portion of the option, the Company would pay
cash to the officer equal to the difference between the amount
per share he would have received in the transaction described
above and the exercise price under the surrendered option. The
Board of Directors believes that these provisions for
acceleration and surrender will enhance the incentive features of
options granted under the Plan, primarily by permitting option
holders to participate in an extraordinary transaction rather
than lose the benefits of their options.
Stock options cannot be transferred except by will or the laws of
intestacy, or pursuant to a qualified domestic relations order,
and during the holder's life can only be exercised by the holder.
Generally, the exercise price of an option granted under the Plan
must be paid in cash. However, the Committee may provide when the
option is granted that the exercise price can be paid in whole or
in part by the delivery of shares of Common Stock valued at their
current fair market value, provided that the holder has owned
such Common Stock for at least one year. The Committee may also
provide at the time the option is granted that the exercise price
can be paid in whole or in part by delivery of the holder's full
recourse promissory note, bearing an interest rate at least equal
to the rate required pursuant to the Code to avoid the imputation
of interest thereunder, and secured by a pledge of the shares
being acquired upon the exercise and such other collateral as the
Committee approves.
The Committee in its discretion may impose limitations in
addition to those described above on options granted under the
Plan.
Each agreement for a stock option granted under the Plan will
contain customary antidilution provisions and customary
representations and covenants relating to compliance with
applicable securities laws.
Stock options granted under the Plan and the shares of Common
Stock subject thereto will not be registered under the Securities
Act of 1933, as amended, on the grounds that the grant of such
options and issuance of shares of Common Stock upon exercise are
exempt as transactions by an issuer not involving a public
offering.
Under the terms of the Plan, the Board of Directors may amend the
Plan at any time so long as any amendment does not affect
outstanding stock options without the holder's consent. The Board
of Directors must obtain the affirmative vote of a majority of
all issued and outstanding shares of Common Stock in order to (i)
increase the total number of shares of Common Stock for which
stock options may be granted and outstanding under the Plan in
the aggregate or to any one person, (ii) change the minimum
exercise price per share payable upon exercise of stock options
under the Plan, (iii) change the designation of the class of
persons eligible to receive stock options under the Plan, (iv)
permit any member of the Committee to receive an option under the
Plan, (v) permit an option or rights to be exercised earlier than
one year after it is granted, (vi) extend the termination date of
the Plan, or (vii) take any other action with respect to the Plan
which under the Code would be deemed the adoption of a new plan
or which, under Rule 16b-3, would require approval of the
stockholders.
The following table sets forth the number of shares subject to
options granted to each of the executive officers and all other
employees of the Company which are outstanding as of September
29, 1996:
Number Exercise
Name of Shares Price
- ---- --------- --------
Lewis E. Topper 21,000 $1.00/share
All other employees 4,000 $1.00/share
-------
TOTAL 25,000
=======
No options were granted during the year ended September 29, 1996.
The above options were all granted on May 20, 1992. Options to
purchase an additional 112,400 shares under the plan were also
granted to other employees at such date; however, they have
lapsed due to the termination of their holders' employment.
During the 1995 fiscal year 36,000 options issued under the plan
were exercised, each at a price of $1.00 per share. The
individuals exercising such options and the number of options
exercised were as follows: Lewis E. Topper: 14,000; Gary M.
Monie: 12,000; and Daniel A. Poganski: 10,000.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
- ------------------------------------------------------------
(a) The following table sets forth certain information regarding
ownership of the Company's Common Stock as of January 8, 1997 by
each person who is known by the Company to beneficially own more
than 5% of its Common Stock.
Amount of Common Stock Percent
Name and Address Beneficially Owned of Class
- ---------------- ---------------------- --------
Lewis E. Topper 950,459 42.65%
Fast Food Systems. Inc.
42-40 Bell Boulevard
Bayside, New York 11361
(b) The following table sets forth certain information regarding
beneficial ownership of the Company's Common Stock as of January
8, 1997 by each director of the Company and the directors and
executive officers as a group:
Amount of Common Stock Percent
Name and Address Beneficially Owned of Class
- ---------------- --------------------- ---------
Lewis E. Topper 950,459 (1) 42.65%
Fast Food Systems. Inc.
42-40 Bell Boulevard
Bayside, New York 11361
Daniel A. Poganski 10,000 0.45%
A & B Accounting Services
No. 1 Commercial Drive
Florida, NY 10921
All Executive Officers
and Directors as a Group
(2 Persons) 960,459 (1) 43.10%
(1) Includes shares issuable upon exercise of vested options
issued under the Plan to purchase 14,000 shares of Common
Stock. Does not include shares issuable upon future vesting
and exercise of non-vested options issued under the Plan to
purchase 7,000 shares of Common Stock, which options are not
exercisable within 60 days.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- -------------------------------------------------------
On January 28, 1994, Lewis E. Topper received an assignment from
IR of a receivable due from the Company in the amount of
$745,295, in consideration of the payment by Mr. Topper to IR of
the same amount. While the purchase agreement relative to this
transaction reflects the amount due from the Company as $845,295,
this amount was decreased by the sum of $100,000 due to the
repayment by the Company, just prior to consummation of the
purchase agreement, of $100,000 of the debt owed to IR. As of
September 24, 1995, the Company had repaid to Mr. Topper all
amounts due and owing pursuant to this obligation.
Gary M. Monie, a former officer and director of the Company
resigned those positions on October 9, 1995 to become a Manager
of Wendnew, to whom the Company sold eight New York City
restaurants. Mr. Monie is also an equity holder in Wendnew.
The Company paid A & B Accounting Services, a sole proprietorship
of Daniel A. Poganski, $45,000 in fiscal 1996 for management
accounting and administrative services, pursuant to an agreement
providing for an annual fee therefor of $60,000.
PART IV
-------
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
- -----------------------------------------
(a) Exhibits
--------
DESIGNATION DESCRIPTION
- ----------- ------------
3.1 (1) Certificate of Incorporation of the Company, as
amended.
3.2 (1) By-Laws of the Company.
10.1(1) Employment Agreement between the Registrant and Lewis
E. Topper.
10.2(1) Lease Agreement for premises at 2137 Nostrand
Avenue. Brooklyn, New York, as amended.
10.3(1) Lease Agreement for premises at 425 Fulton Avenue,
Brooklyn, New York, as amended.
10.4(1) Lease Agreement for premises at Albee Square Mall,
Brooklyn, New York, as amended.
10.5(1) Lease Agreement for premises at 469 Flatbush Avenue,
Brooklyn, New York, as amended.
10.6(1) Lease Agreement for premises at 1916 Linden Avenue.
Brooklyn, New York, as amended.
10.7(1) Lease Agreement for premises at 131 Woodbridge
Center Drive, Woodbridge, New Jersey, as amended.
10.8(1) Lease Agreement for premises at 1010 Stelton Road,
Piscataway, New Jersey, as amended.
10.9(1) Lease Agreement for premises at 77 Route U.S. 1,
Metuchen, New Jersey, as amended.
10.10(1) Lease Agreement for premises at Route 9, Freehold, New
Jersey, as amended.
10.11(1) Lease Agreement for premises at 999 Route 9,
Sayreville, New Jersey, as amended.
10.12(1) Lease Agreement for premises at 301 U.S. Route 10,
Roxbury, New Jersey, as amended.
10.13(1) Lease Agreement for premises at 683 Highway 18, East
Brunswick, New Jersey, as amended.
10.14(1) Lease Agreement for premises at Seaview Square Mall,
Ocean, New Jersey, as amended.
10.15(1) Lease Agreement for premises at 2628 Broadway, New
York, New York, as amended.
10.16(1) Lease Agreement for premises at 2879 Adam Clayton
Powell Boulevard, New York, New York, as amended.
10.17(1) Lease Agreement for premises at 3939 Broadway, New
York, New York, as amended.
10.18(1) Lease Agreement for premises at 416 Westchester Avenue,
Bronx, New York, as amended.
10.19(1) Lease Agreement for premises at 4648 East 161st Street,
Bronx, New York as amended.
10.20(1) Lease Agreement for premises at 235 Park Avenue South,
New York, New York, as amended.
10.21(1) Deed for premises at 505 Utica Avenue, Brooklyn, New
York, as amended.*
10.22(1) Deed for premises at 971 Flatbush Avenue, Brooklyn,
New York, as amended.
10.23(1) Deed for premises at 1730 N. Olden Avenue, Ewing, New
Jersey, as amended with related mortgage agreement.*
10.24(1) Deed for premises at 2049 Route 9, Howell, New Jersey,
as amended with related mortgage agreement.****
10.25(1) Deed for premises at 388 Highway 35, Keyport, New
Jersey, as amended with related mortgage agreement.*
10.26(1) Deed for premises at 600 Shrewsbury Avenue, Tinton
Fails, New Jersey, as amended with related mortgage
agreement.*
10.27(1) Cooperative Advertising Agreement.
10.28(1) Form of Unit Franchise Agreement.
10.29(1) Form of Restaurant Franchise Agreement.
10.30(1) Appraisal of Marshall & Stevens Incorporated.
10.31(1) Revised Wendy's International, Inc. Agreement and
Consent to Assignment.
10.32(1) Promissory Note Payable to L&M Associates.
10.33(1) Promissory Note Payable to Norman Bobrow dated March 1,
1989.
10.34(1) Promissory Note Payable to lsrael Discount Bank dated
July 1987.
10.35(2) Secured Promissory Note, dated December 28, 1990 from
FFO to IFS.
10.36(2) Amendment to Loan Agreement, dated as of December 28,
1990 between FFO and IFS.
10.37(2) Amendment to Security Agreement, dated as of December
28, 1990.
10.38(2) Stock Subscription Agreement, dated as of December 28,
1990.
10.39(2) Amendment to Management Agreement, dated as of December
28, 1990.
10.40(2) Omnibus Agreement, dated as of December 28, 1990.
10.41(2) Secured Promissory Note, dated January 26, 1988, from
FFO to IFS.
10.42(2) Loan Agreement, dated January 26, 1988, between FFO and
IFS.
10.43(2) Security Agreement, dated January 26, 1988, between FFO
and IFS.
10.44(2) Management Agreement, dated January 26, 1988, between
IFS and FFO.
10.45(2) Amended Secured Promissory Note, dated January 26,
1990, from FFO to IFS.
10 46(2) Amendment to Loan Agreement, dated January 26, 1990,
between FFO and IFS.
10.47(2) Amendment to Security Agreement, dated January 26,
1990, between FFO and IFS.
10.48(2) Amendment to Management Agreement, dated January 26,
1990, between FFO and IFS.
10.49(3) Lease Agreement for premises at No. 1 Commercial Drive,
Florida, New York.
10.50(4) Lease Agreement for premises at 42-40 Bell Boulevard,
Bayside, New York.
10.51(4) Lease Agreement for premises at 505 Utica Avenue,
Brooklyn, New York.
10.52(4) Lease Agreement for premises at 1730 N. Olden Avenue,
Ewing, New Jersey.**
10.53(4) Lease Agreement for premises at 388 Highway 35,
Keyport, New Jersey.
10.54(4) Lease Agreement for premises at 600 Shrewsbury Avenue,
Tinton Falls, New Jersey.
10.55(4) Deed, dated November 21, 1991, conveying premises at
505 Utica Avenue, Brooklyn, New York to Restaurant
Finance Corporation.
10.56(4) Deed, dated September 24, 1991, conveying premises at
1730 N. Olden Avenue, Ewing, New Jersey to Restaurant
Finance Corporation.
10.57(4) Deed, dated September 24, 1991, conveying premises at
388 Highway 35, Keyport, New Jersey to Restaurant
Finance Corporation.
10.58(4) Deed, dated September 24, 1991, conveying premises at
600 Shrewsbury Avenue, Tinton Falls, New Jersey to
Restaurant Finance Corporation.
10.59(4) Guarantees of Lewis Topper of lease agreements for
premises at 505 Utica Avenue, Brooklyn, New York; 1730
N. Olden Avenue, Ewing, New Jersey; 388 Highway 35,
Keyport, New Jersey; and 600 Shrewsbury Avenue, Tinton
Falls, New Jersey.
10.60(5) Amended Loan Agreement, dated December 30, 1991,
between FFO and IFS.
10.61(5) Sublease Agreement for portion of premises at 2137
Nostrand Avenue, Brooklyn, New York between IFS and
FFO.
10.62(5) Asset Purchase Agreement, dated as of November 30,
1992, for sale of the Ewing, New Jersey, Wendy's
Restaurant to Wendy's.
10.63(6) New Lease Agreement for premises at 999 Route 9,
Sayreville, New Jersey.***
10.64(6) Lease Agreement for premises at 446 Route 37 East,
Tom's River, New Jersey.
10.65(7) Agreement and Consent to Assignment dated January 20,
1994 among the Company, Lewis Topper, IR, Wendy's and
other parties.
10.66(8) Lease Agreement for premises at 6791 Route 9 North,
Howell Township, New Jersey.
10.67(8) Amendment to Management Agreement, dated January 26,
1994, between IFS and FFO.
10.68(9) Asset Purchase Agreement dated December 29, 1994 for
the sale of the Keyport (Aberdeen) and Tinton Falls,
New Jersey Wendy's restaurants.
10.69(9) Asset Purchase Agreement dated January 18, 1995 for
the sale of the East Brunswick, New Jersey Wendy's
restaurant.
10.70(9) Asset Purchase Agreement dated January 18, 1995 for
the sale of the Piscataway, New Jersey Wendy's
restaurant.
10.71(10) Amendment to Management Agreement, dated January 26,
1995, between IFS and FFO.
10.72(10) Asset Purchase Agreement dated April 24, 1995 for the
sale of the Tom's River and Howell, New Jersey Wendy's
restaurants.
10.73(11) Asset Purchase Agreement dated March 23, 1995 for the
sale of the Metuchen, New Jersey Wendy's restaurant.
10.74(10) Amendment to Lease Agreement for premises at 999 Route
9, Sayreville, New Jersey.
10.75(10) Termination Agreement dated July 1, 1995 for lease
of the Harlem, New York restaurant.
10.76(12) Asset Purchase Agreement dated March 23, 1995 for the
sale of the Woodbridge, New Jersey Wendy's restaurant.
10.77(13) Asset Purchase Agreement dated September 18, 1995 for
the sale of eight restaurants located in Brooklyn, New
York and New York, New York.
10.78(10) Agreement between Integrated Food Systems, Inc. and
Wendhow Corp. dated as of October 9, 1995 for the
subcontracting of Wendtwo Limited Partnership
management obligations.
10.79(10) Amendment to Lewis E. Topper Employment Agreement dated
as of November 1, 1995.
10.80(10) Amendment to Management Agreement, dated November
22, 1995, between IFS and FFO.
22.1(1) Subsidiaries of the Registrant.
- ----------------------------------
*These four properties were sold and leased back from the
purchaser in September and November, 1991. See Exhibits 10.51,
10.52, 10.53 and 10.54 for the applicable lease agreements.
**On November 30, 1992, the Company sold all of its rights and
interest in the Ewing Wendtrip Restaurant to Wendy's, which
action thereby terminated the lease.
(footnotes continued on following page)
***The previous lease for this location listed at Exhibit 10.11
was terminated due to condemnation proceedings.
****This property was sold and leased back from the purchaser on
February 10, 1994. See Exhibit 10.66 for the applicable lease
agreement.
(1) Filed as an exhibit to the Company's Registration
Statement on Form S-4 (Registration No. 33-33404) which
is hereby incorporated by reference thereto.
(2) Filed as an exhibit to the Company's Report on Form 8-K
dated January 5, 1991 which is hereby incorporated by
reference thereto.
(3) Filed as an exhibit to the Company's Report on Form 10-K
for the transition period ended November 25, 1990.
(4) Filed as an exhibit to the Company's Report on Form 10-K
dated September 29, 1991.
(5) Filed as an exhibit to the Company's Report on Form 10-K
dated September 27, 1992.
(6) Filed as an exhibit to the Company's Report on Form 10-K
dated September 26, 1993.
(7) Filed as an exhibit to the Company's Report on Form 10-Q
for the quarter ended December 26, 1993.
(8) Filed as an exhibit to the Company's Report on Form 10-K
dated September 25, 1994.
(9) Filed as an exhibit to the Company's Report on Form 8-K
dated January 18, 1995 which is hereby incorporated by
reference thereto.
(10) Filed as an exhibit to the Company's report on Form 10-K
dated September 24, 1995.
(11) Filed as an exhibit to the Company's Report on Form 8-K
dated April 7, 1995 which is hereby incorporated by
reference thereto.
(12) Filed as an exhibit to the Company's Report on Form 8-K
dated November 10, 1995 which is hereby incorporated by
reference thereto.
(13) Filed as an exhibit to the Company's Report on Form 8-K
dated September 18, 1995 which is hereby incorporated by
reference thereto.
(b) Reports on Form 8-K
-------------------
None.
In accordance with Section 13 or 15(d) of the Exchange Act, the
Registrant duly caused this Report to be signed on its behalf by
the undersigned, thereunto duly authorized.
FAST FOOD SYSTEMS, INC.
By:/s/Lewis E. Topper
------------------
Lewis E. Topper, President
Dated: January 10, 1997
In accordance with the Exchange Act, this Report has been signed
below by the following persons on behalf of the Registrant and in
the capacities and on the date indicated.
Name Title Date
- ---- ----- ----
/s/Lewis E. Topper Director, Chairman January 10, 1997
- ------------------ of the Board,
Lewi E. Topper President and Chief
Executive Officer,
Principal
Financial and
Accounting Officer
/s/Daniel A. Poganski Secretary, January 10, 1997
- --------------------- Assistant Vice
Daniel A. Poganski Vice President and
Director
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