<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
{X} Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Quarter ended March 31, 1998
{ } Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from __________ to __________
Commission File Number: 1-13747
ATLANTIC PREMIUM BRANDS, LTD.
-----------------------------------------------------
(Exact Name of registrant as specified in its charter)
DELAWARE 36-3761400
------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
650 DUNDEE ROAD, SUITE 370
NORTHBROOK, ILLINOIS 60062
- --------------------------------------- --------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (847) 480-4000
Securities registered pursuant to Section 12(b) of the Act:
COMMON STOCK, $.01 PAR VALUE
----------------------------
Title of Class
Securities registered pursuant to Section 12(g) of the Act:
NOT APPLICABLE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
---- ----
As of May 11, 1998, there were outstanding 7,400,174 shares of Common Stock,
par value $.01 per share, of the Registrant.
<PAGE> 2
PART I -- FINANCIAL INFORMATION
ITEM 1.
ATLANTIC PREMIUM BRANDS, LTD.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31, March 31,
1997 1998
----------- -----------
(Unaudited)
<S> <C> <C>
ASSETS
------
CURRENT ASSETS:
Cash $ 1,262,805 $ 2,614,673
Accounts receivable, net of allowance for doubtful accounts
of $117,000 and $129,000, respectively 9,448,489 10,831,697
Inventory 4,213,026 6,715,832
Prepaid expenses and other 672,386 840,238
----------- -----------
Total current assets 15,596,706 21,002,440
PROPERTY, PLANT AND EQUIPMENT, net 4,939,536 13,422,882
GOODWILL, net 12,790,619 12,714,395
OTHER ASSETS, net 1,626,831 2,334,373
----------- -----------
Total Assets $34,953,692 $49,474,090
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
CURRENT LIABILITIES:
Bank overdraft $ 1,491,557 $ 2,611,422
Line of credit 6,839,323 7,196,353
Current portion of long-term debt 1,659,310 709,249
Accounts payable 8,216,422 8,074,120
Accrued expenses 1,061,338 1,272,842
----------- -----------
Total current liabilities 19,267,950 19,863,986
LONG-TERM DEBT, net of current portion 6,297,288 18,225,167
WARRANTS OUTSTANDING - 1,435,000
----------- -----------
Total liabilities 25,565,238 39,524,153
----------- -----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value; 5,000,000 shares authorized;
none issued - -
Common stock, $.01 par value; 30,000,000 shares authorized;
7,373,574 shares issued in 1997 and 1998 73,770 73,770
Additional paid-in capital 12,141,176 12,153,676
Accumulated deficit (2,826,492) (2,277,509)
----------- -----------
Total Stockholders' Equity 9,388,454 9,949,937
----------- -----------
Total Liabilities and Stockholders' Equity $34,953,692 $49,474,090
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated
balance sheets.
1
<PAGE> 3
ATLANTIC PREMIUM BRANDS, LTD.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
----------------------------
1997 1998
----------- -----------
<S> <C> <C>
NET SALES $41,401,370 $41,349,414
COST OF GOODS SOLD, exclusive of depreciation shown below 36,571,827 35,949,078
----------- -----------
Gross Profit 4,829,543 5,400,336
----------- -----------
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES:
Salaries and benefits 2,052,958 2,117,714
Other operating expenses 1,975,361 2,184,844
Depreciation and amortization 310,601 428,057
----------- -----------
Total selling, general and administrative expenses 4,338,920 4,730,615
----------- -----------
Income from operations 490,623 669,721
INTEREST EXPENSE (371,321) (363,827)
OTHER INCOME 49,740 122,582
----------- -----------
Income before income tax provision 169,042 428,476
INCOME TAX BENEFIT - 315,500
----------- -----------
Net income before extraordinary loss 169,042 743,976
EXTRAORDINARY LOSS ON EARLY EXTINGUISHMENT
OF DEBT, net of income tax benefit of $122,000 - 194,993
----------- -----------
Net income $ 169,042 $ 548,983
=========== ===========
INCOME PER COMMON SHARE DATA
BASIC EPS:
Net income before extraordinary loss $ .03 $ .10
Extraordinary loss, net of tax - (.03)
----------- -----------
NET INCOME $ .03 $ .07
=========== ===========
DILUTED EPS:
Net income before extraordinary loss $ .03 $ .10
Extraordinary loss, net of tax - (.03)
----------- -----------
NET INCOME $ .03 $ .07
=========== ===========
WEIGHTED AVERAGE SHARES OUTSTANDING:
Basic calculation 6,396,610 7,373,574
=========== ===========
Diluted calculation 6,655,993 7,621,156
=========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
2
<PAGE> 4
ATLANTIC PREMIUM BRANDS, LTD.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------------------------
1997 1998
---------- -----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 169,042 $ 548,983
Adjustments to reconcile net income to cash flows provided
by operating activities, net of non-cash items and
effect of business combinations:
Extraordinary loss on early extinguishment of debt - 194,993
Depreciation and amortization 310,601 428,057
Deferred income tax benefit - (462,500)
(Increase) decrease in accounts receivable, net 2,742,313 401,859
Decrease (increase) in inventory (922,409) (750,340)
Decrease in other assets 11,168 -
Decrease (increase) in prepaid expenses and other (495,076) (132,635)
(Decrease) increase in accounts payable 1,426,505 (415,746)
Increase (decrease) in accrued expenses (647,758) (141,314)
---------- -----------
Net cash flow (used in) provided by operating activities of-
Continuing operations 2,594,386 (328,643)
Discontinued operations (78,269) -
---------- -----------
Net cash (used in) provided by operating activities 2,516,117 (328,643)
---------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of equipment (111,329) (113,039)
Cash paid for acquisition, including related costs - (11,667,181)
Other - (162,261)
---------- -----------
Net cash used in investing activities (111,329) (11,942,481)
---------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Decrease (increase) in bank overdraft, net (636,702) 1,119,865
Repayment of long-term debt (413,692) (5,087,182)
Cash paid for financing fees - (279,221)
Borrowings (payments) under line of credit (1,297,179) 357,030
Borrowings under senior subordinated note - 5,065,000
Issuance of common stock warrants - 1,435,000
Issuance of common stock options - 12,500
Borrowings under term loan - 11,000,000
---------- -----------
Net cash flows provided by (used in) financing
activities (2,347,573) 13,622,992
---------- -----------
NET INCREASE IN CASH 57,215 1,351,868
CASH, beginning of period 1,248,963 1,262,805
---------- -----------
CASH, end of period $1,306,178 $ 2,614,673
========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
3
<PAGE> 5
ATLANTIC PREMIUM BRANDS, LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1998 AND 1997
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
The accompanying consolidated financial statements present the accounts of
Atlantic Premium Brands, Ltd. (formerly Atlantic Beverage Company, Inc.) and
subsidiaries (the "Company"). All significant intercompany transactions have
been eliminated in consolidation.
The Company is engaged in the distribution of specialty nonalcoholic beverages
to the retail trade in the Baltimore and Washington, D.C. metropolitan areas
and, as a result of business combinations consummated, is engaged in the
manufacturing, marketing and distribution of meat products in Texas, Louisiana,
Kentucky, Oklahoma and surrounding states. The operating results of the
Company's food division are impacted by changes in commodity markets.
The consolidated financial statements included herein for Atlantic Premium
Brands, Ltd. have been prepared by the Company, without audit, pursuant to the
rules and regulations of the Securities and Exchange Commission. In
management's opinion, the interim financial data presented includes all
adjustments (which include only normal recurring adjustments) necessary for a
fair presentation. Certain information and footnote disclosures normally
included in the consolidated financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. However, the Company believes that the
disclosures are adequate to understand the information presented. The results
of operations for the three months ending March 31, 1998, are not necessarily
indicative of the operating results expected for the entire year. It is
suggested that these consolidated financial statements be read in conjunction
with the Company's December 31, 1997, consolidated financial statements and
notes thereto included in the Company's annual report on Form 10-K dated March
31, 1998.
Revenue Recognition
The Company records sales when product is delivered to the customers.
Discounts provided, principally volume, are accrued at the time of the sale.
Cash
Cash consists of cash held in various deposit accounts with financial
institutions. As of March 31, 1998, $175,000 was restricted to meet minimum
balance funding requirements.
4
<PAGE> 6
Inventory
Inventory is stated at the lower of cost or market. It is comprised of raw
materials, finished goods and inventory supplies. Cost is determined using the
first-in, first-out method (FIFO). Inventory consisted of the following as of:
<TABLE>
<CAPTION>
December 31, March 31,
1997 1998
----------- ----------
<S> <C> <C>
Raw materials $ 297,297 $ 261,670
Finished goods 3,380,766 5,094,471
Packaging supplies 534,963 1,359,691
----------- ----------
Total inventory $4,213,026 $6,715,832
=========== ==========
</TABLE>
Property, Plant and Equipment
Property, plant and equipment are stated at cost, net of applicable
depreciation. Depreciation is provided using the straight-line method over
the following useful lives.
Buildings and building improvements 5-30 years
Machinery and equipment 5-10 years
Furniture and fixtures 5 years
Leasehold improvements 2-5 years
Vehicles 5-10 years
Other Assets
Other assets consist of noncompete agreements, deferred acquisition costs, cash
surrender value of life insurance, distribution, exclusivity and license
agreements and deferred financing costs (see Note 5). Noncompete agreements
and distribution, exclusivity and license agreements are being amortized over
2-5 years using the straight-line method. The deferred financing costs, net of
related accumulated amortization, related to extinguished debt were written off
in March 1998 (see Note 5).
Goodwill
Goodwill recorded in connection with business combinations is being amortized
using the straight-line method over 5 to 40 years.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities as of the date of the financial statements
and the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
5
<PAGE> 7
Earnings Per Share
The weighted average shares used to calculate basic and diluted earnings per
share for the three months ended March 31, 1997 and 1998, in accordance with
SFAS No. 128 are as follows:
<TABLE>
<CAPTION>
1997 1998
--------- ---------
<S> <C> <C>
Common stock outstanding 6,396,610 7,373,574
--------- ---------
Weighted average shares outstanding for basic EPS 6,396,610 7,373,574
Diluted effect of common stock equivalents 259,383 247,582
--------- ---------
Weighted average shares outstanding for dilutive EPS 6,655,993 7,621,156
========= =========
</TABLE>
Options to purchase 126,050 shares of common stock at $3.63 per share were
outstanding during the first quarter of 1998 but were not included in the
computation of diluted EPS because the options' exercise price was greater than
the average market price of the common shares during the quarter.
Put warrants to purchase up to a maximum of 1,095,700 shares of common stock,
as of March 31, 1998 at $3.38 per share were outstanding during the first
quarter of 1998 but were not included in the computation of diluted EPS because
the warrants' exercise price was greater than the average market price of the
common shares during the quarter.
Accounting Pronouncements
During June 1997, the FASB issued Statement No. 130 (SFAS No. 130), "Reporting
Comprehensive Income," which establishes standards for reporting and display of
comprehensive income and its components in a full set of general purpose
financial statements. SFAS No. 130 is effective for fiscal years beginning
after December 15, 1997. Management has determined that the implementation of
SFAS No. 130 will not have any impact on the Company's financial statements.
During July 1997, the FASB issued Statement No. 131 (SFAS No. 131),
"Disclosures About Segments of an Enterprise and Related Information," which
establishes a new approach for determining segments within a company and
reporting information on those segments. SFAS No. 131 is effective for fiscal
years beginning after December 15, 1997. Management has not yet determined
whether the implementation of SFAS No. 131 will have any impact on the
Company's current method of disclosing business segment information.
2. CONTINGENCIES:
Lawsuits and claims are filed against the Company from time to time in the
ordinary course of business. These actions are in various preliminary stages
and no judgments or decisions have been rendered by hearing boards or courts.
Management, after reviewing developments to date with legal counsel, is of the
opinion that the outcome of such matters will not have a material adverse
effect on the Company's financial position or results of operations.
6
<PAGE> 8
3. BUSINESS COMBINATIONS:
As of March 20, 1998, the Company acquired substantially all of the assets and
certain liabilities of J.C. Potter, a food processing business in Durant,
Oklahoma, specializing in a line of premium products including breakfast
sausage, link sausage and sausage and biscuits. In connection with the Potter
transaction, the Company paid $11,667,181 in cash, plus related transaction
costs. The business combination was accounted for using the purchase method of
accounting, whereby the purchase price is allocated to the assets acquired and
liabilities assumed based upon fair value. The purchase price was allocated as
follows:
<TABLE>
<CAPTION>
<S> <C>
Cash paid $10,495,407
Transaction costs 1,171,774
-----------
Total purchase price $11,667,181
===========
Current assets acquired $ 3,572,750
Noncurrent assets acquired 8,720,693
Current liabilities acquired (626,262)
-----------
Net assets acquired $11,667,181
===========
</TABLE>
4. DEBT REFINANCING:
On March 20, 1998, the Company refinanced its senior revolver and term debt.
The new debt consists of an $11 million term note, a $15 million line of credit
and $6.5 million Senior Subordinated Note with detachable put warrants.
The new term debt bears interest at either the bank's prime rate plus 1% or
Adjusted LIBOR plus 2.5%, at the Company's option. This loan is due in varying
amounts monthly through March 2003 and is secured by all assets of the Company.
Under the terms of the new line of credit agreement, the Company is permitted
to borrow up to $15,000,000, subject to advance formulas based on accounts
receivable, inventory and letter of credit obligations outstanding through
March 2003. Amounts borrowed are due on demand and bear interest at either the
bank's prime rate plus 1% or adjusted LIBOR plus 2.5%. Interest is payable
monthly and amounts are secured by all assets of the Company.
The $6.5 million Senior Subordinated Note, maturing on March 31, 2005 bears
interest at 10%. Principal is payable in quarterly installments beginning June
30, 2003. The subordinated debt was issued with detachable put warrants to
purchase 666,947 shares of nonvoting common stock at $3.38 per share and a
contingent warrant to purchase up to a maximum of 428,753 shares of nonvoting
common stock at $3.38 per share based upon the equity value of the Company on
certain dates. The warrants have been recorded at an estimated fair value of
$1,435,000, resulting in a discount on the Senior Subordinated Note of the
same amount. This discount is being amortized over the seven year term of the
note as additional interest expense. For the period ended March 31, 1998,
amortization of the debt discount was approximately $5,700.
In connection with this debt refinancing, the Company recorded an extraordinary
loss of $194,993 related to the write off of deferred financing costs, net of
an income tax benefit of $122,000. Also, the Company incurred additional
financing costs which have been deferred and are being amortized over the terms
of the related debt.
5. INCOME TAXES:
As of December 31, 1997, the Company had recorded a valuation allowance of
$462,500 against its net deferred tax assets in accordance with Statement of
Financial Accounting Standards No. 109, "Accounting for Income Taxes."
However, after considering the Company's recent historical results and future
projections of taxable income, the Company believes that it is more likely than
not that the deferred tax assets will be realized prior to expiration of such
assets. As a result, the Company has reversed this allowance as of March 31,
1998, by recording a benefit for deferred income taxes.
7
<PAGE> 9
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
General
In 1996 the Company implemented a new corporate strategy that resulted
in the acquisition of five food businesses. Each of these businesses represents
a local or regional branded processed meat company. In addition to significantly
increasing the Company's size, the newly acquired businesses have created a
broader platform for future growth.
In order to acquire and operate its food businesses, the Company formed
four new subsidiaries during 1996: Prefco Corp., Carlton Foods Corp., Richards
Cajun Foods Corp., and Grogan's Farm, Inc. On March 20, 1998, the Company
formed a fifth new subsidiary to operate the business of the J.C. Potter
Sausage Company.
The Company continues to operate as a distributor of non-alcoholic
beverages in the Baltimore and Washington D.C. metropolitan areas. This
business represents the Company's Beverage Division, while the five
subsidiaries collectively represent the Company's Food Division.
Acquisition
On March 20 ,1998, the Company acquired substantially all of the assets
of J.C. Potter Sausage Company, a branded food processing company based in
Durant, Oklahoma, in consideration for approximately $13.0 million cash plus
related transaction costs. In connection with this acquisition, the Company
borrowed approximately $6.5 million in subordinated debt from Banc One Capital
Corporation. The subordinated debt included detachable common stock warrants.
The Company also refinanced its senior revolver and term debt through Fleet
Capital. The new senior debt facility (the "Fleet Facility") provided a term
loan of $11 million, which was approximately $6.0 million greater than the
balance previously outstanding under the LaSalle Facility.
8
<PAGE> 10
Results of Operations
All of the acquisitions completed during 1996 were recorded utilizing
the purchase method of accounting. Therefore results of the acquired businesses
prior to the effective date of such acquisitions are not included in the
Company's Results of Operations.
During 1996, 1997 and 1998, the Company's Carlton subsidiary and the
Company's Grogan's subsidiary both sold product to the Company's Prefco
subsidiary. During 1998 the Company's Potter subsidiary sold product to both
the Company's Carlton and Prefco subsidiaries and purchased product from the
Company's Grogan subsidiary. The Company's financial statements do not reflect
this activity, as it is eliminated on a consolidated basis.
Quarter Ended March 31, 1998 Compared to Quarter Ended March 31, 1997
Net Sales. Net sales decreased by approximately $52 thousand or .1%
from approximately $41.4 million for the quarter ended March 31, 1997 to
approximately $41.3 million for the quarter ended March 31, 1998. Sales of the
Company's Food Division increased by approximately .1%, while sales of the
Company's Beverage Division decreased by approximately 2%.
Gross Profit. Gross profit increased by approximately $0.6 million or
11.8% from approximately $4.8 million for the quarter ended March 31, 1997 to
approximately $5.4 million for the quarter ended March 31, 1998. This increase
reflects a decline in sales but an improvement in the margins for the Beverage
Division, declining raw material costs associated with the Company's Food
Division, and the inclusion of Potter's results for 10 days in the first
quarter of 1998.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased approximately $0.4 million from approximately
$4.3 million for the quarter ended March 31, 1997 to approximately $4.7 million
for the quarter ended March 31, 1998. This increase reflects an increase in
marketing related expenses and the inclusion of Potter's results for 10 days in
the first quarter of 1998.
Income from Operations. Income from operations increased approximately
$0.2 million from approximately $0.5 million for the quarter ended March 31,
1997 to approximately $0.7 million for the quarter ended March 31, 1998. This
increase is attributable to factors discussed above in Gross Profit and the
Selling, General and Administrative Expenses.
Interest Expense. Interest expense was approximately $0.4 million for
both the quarter ended March 31, 1998 and the comparable period in 1997.
Extraordinary Item. During the quarter ended March 31, 1998 the Company
recorded a one-time extraordinary expense of $0.3 million resulting from the
early extinquishment of debt and the related unamortized cost of acquiring the
LaSalle Facility which was refinanced through the Fleet Facility. This
extraordinary expense was recorded net of the related tax benefit of $0.1
million.
Tax Benefit. The income tax benefit increased from zero for the quarter
ended March 31, 1997 to approximately $0.3 million for the quarter ended March
31, 1998. Based on the Company's historical results, including the first quarter
results, and current financial projections, management believes it is more
likely than not that the deferred tax asset will be fully realized. Accordingly,
management concluded that the valuation allowance on its deferred tax assets was
no longer necessary. The reversal of the valuation allowance was recorded as a
benefit from income taxes.
Net Income. Net income increased approximately $0.4 million from
approximately $0.2 million for the quarter ended March 31, 1997 to
approximately $0.6 million for the quarter ended March 31, 1998.
9
<PAGE> 11
This increase is primarily attributable to the factors discussed above in
Income from Operations, Extraordinary Item and Tax Benefit.
Liquidity and Capital Resources
Cash provided by operating activities for the quarter ended March 31,
1998 was approximately $0.3 million. This amount was principally affected by net
income, the add-back of depreciation, amortization, the deferred income tax
benefit and non-cash interest, increases in inventory, prepaid expenses, and
decreases in accounts receivable, accounts payable and accrued expenses. Cash
used in investing activities for the quarter ended March 31, 1998 was
approximately $11.9 million and reflected the acquisition of equipment and the
payment of cash in connection with business combinations. Cash provided by
financing activities was approximately $13.6 million and was principally
affected by the refinancing of the LaSalle Facility with the Fleet Facility, the
borrowings under the senior subordinated note and the related common stock
warrants, payments on the Company's term debt and line of credit and a decrease
in the bank overdraft balance. Net cash increase during the period was
approximately $1.4 million.
As of March 31, 1998, the Company had outstanding under the Fleet
Facility approximately $11 million in term debt, $6.5 million of Senior
Subordinated Debt owed to Banc One, approximately $7 million in line-of-credit
borrowings and approximately $2.7 million of subordinated debt owed to former
owners of Prefco, Richard's, Grogan's and Partin's, principal on which is due in
2001. Monthly interest payments, currently reflecting an average rate of
approximately 7.7%, are being made on the subordinated debt owed to former
owners. The new term debt and new line of credit agreement bear interest at
either the bank's prime rate plus 1% or Adjusted LIBOR plus 2.5% at the
Company's option. The new Senior Subordinated Note bears interest at 10%.
The Company believes that cash generated from operations and bank
borrowings will be sufficient to fund its debt service, working capital
requirements and capital expenditures as currently contemplated for 1998. This
is a forward-looking statement and is inherently uncertain. Actual results may
differ materially. The Company's ability to fund its working capital
requirements and capital expenditures will depend in large part on the Company's
compliance with covenants in the Fleet Facility. No assurance can be given that
the Company will remain in compliance with such covenants throughout the term of
the Fleet Facility.
The Company's balance sheet as of March 31, 1998 reflected a net
deferred tax asset of approximately $0.6 million. A valuation allowance that
existed as of December 31, 1997 was reversed because, based on the weight of
all available evidence, management believes it is more likely than not that the
remaining deferred tax asset will be fully realized.
In the first quarter of 1998, the Company acquired substantially all of
the assets of J.C. Potter Sausage Company, a branded food processing company
based in Durant, Oklahoma, in consideration for approximately $13.0 million
cash plus related transaction costs. In connection with this acquisition, the
Company borrowed approximately $6.5 million in subordinated debt from Banc One
Capital Corporation. The subordinated debt included detachable common stock
warrants. The Company also refinanced its senior revolver and term debt through
Fleet Capital. The new senior revolver facility (the "Fleet Facility") provided
a line of credit balance as of March 31, 1998 of approximately $7 million, which
was $0.4 million greater than the balance previously outstanding under the
LaSalle Facility. The new senior debt facility provided a term loan of $11
million, which was approximately $6.0 million greater than the balance
previously outstanding under the LaSalle Facility.
The Company, from time to time, reviews the possible acquisition of
other products or businesses. The Company's ability to expand successfully
through acquisition depends on many factors, including the successful
identification and acquisition of products or businesses and the Company's
ability to integrate and operate the acquired products or businesses
successfully. There can be no assurance that the Company will be successful in
acquiring or integrating any such products or businesses.
10
<PAGE> 12
Seasonality
Consumer demand for beverage products distributed by the Company tends
to be greater during warmer months. Accordingly, the Company's beverage sales
and profits are generally highest in the second and third calendar quarters.
Management believes that this effect will be mitigated by the results of its
food operations which are less dependent on seasonal factors.
Forward Looking Statements
The Company wants to provide stockholders and investors with more
meaningful and useful information. Therefore, this Quarterly Report on Form
10-Q contains forward looking information and describes the Company's belief
concerning future business conditions and the outlook for the Company based on
currently available information. Whenever possible, the Company has identified
these "forward looking" statements by words such as "believes," "estimates,"
"will be, " and similar expressions. These forward looking statements are
subject to risks and uncertainties which would cause the Company's actual
results or performance to differ materially from those expressed in these
statements. These risks and uncertainties include the following: risks
associated with acquisitions, including integration of acquired businesses; new
product development and other aspects of the Company's business strategy;
uncertainty as to evolving consumer preferences; seasonality of demand for
certain products; customer and supplier concentration; the impact of
competition; and sensitivity to such factors as weather and raw material costs.
Readers are encouraged to review the Company's Annual Report on Form 10-K and
its Report on Form 8-K dated June 4, 1997 filed with the Securities and
Exchange Commission for a more complete description of these factors. The
Company assumes no obligation to update the information contained in this
Quarterly Report on Form 10-Q.
11
<PAGE> 13
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
None.
ITEM 2. CHANGES IN SECURITIES.
On March 20, 1998, the Company sold a Common Stock Purchase Warrant (the
"Warrant") and a Contingent Common Stock Purchase Warrant (the "Contingent
Warrant," and collectively with the Warrant, the "Warrants") to Banc One
Capital Partners, LLC ("Banc One") for an aggregate purchase price of $100.
The Warrants were sold to Banc One with a $6.5 million Senior Subordinated Note
pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), to partially finance the Company's March 20, 1998 acquisiton
of substantially all of the assets of J.C. Potter Sausage Company. The Company
did not offer these securities in a public offering and it relied upon Banc
One's representation that it is an accredited investor within the definition of
Regulation D under the Securities Act.
The Warrant is exercisable for 666,947 shares of nonvoting common stock at
a per share exercise price of $3.38, subject to adjustment. The Contingent
Warrant becomes exercisable on March 20, 2003 (unless this date is accelerated
pursuant to the terms of the Contingent Warrant) for a number of shares of
nonvoting common stock which varies depending upon an equity valuation of the
Company as of March 20, 2003 (or such earlier date that the Contingent Warrant
becomes exercisable) at a per share exercise price of $3.38, subject to
adjustment.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTER TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION.
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits: The following are filed as Exhibits to this Quarterly
Report on Form 10-Q:
Exhibit
Number Description
------- -----------
2 Asset Purchase Agreement dated as of March 6, 1998 among
Potter's Acquisition Corp., J.C. Potter Sausage Company,
Potter's Farm, Inc., Potter Rendering Co. and Potter Leasing
Company, Ltd.
3(i) Certificate of Incorporation of the Company, including all
amendments thereto
3(ii) By-Laws of the Company
12
<PAGE> 14
4.1 Secured Promissory Note dated as of March 20, 1998 of the
Company and certain of its subsidiaries payable to Fleet
Capital Corporation in the original principal amount of
$11,000,000
4.2 Loan and Security Agreement dated as of March 20, 1998 among
Fleet Capital Corporation, the Company and certain of its
subsidiaries
4.3 Stock Pledge Agreement dated as of March 20, 1998 between the
Company and Fleet Capital Corporation
4.4 Atlantic Premium Brands, Ltd. and Subsidiaries Senior
Subordinated Note and Warrant Purchase Agreement dated as of
March 20, 1998 among the Company, certain of its subsidiaries
and Banc One Capital Partners, LLC ("Banc One")
4.5 Senior Subordinated Note due March 31, 2005 of the Company
payable to Banc One dated as of March 20, 1998 in the original
principal amount of $6,500,000
4.6 Atlantic Premium Brands, Ltd. Warrant Certificate
Common Stock Purchase Warrant of Banc One dated as of March
20, 1998
4.7 Atlantic Premium Brands, Ltd. Warrant Certificate Contingent
Common Stock Purchase Warrant of Banc One dated as of
March 20, 1998
4.8 Put Option Agreement dated as of March 20, 1998 between
the Company and Banc One
4.9 Registration Rights Agreement dated as of March 20, 1998
between the Company and Banc One
4.10 Shareholders Agreement dated as of March 20, 1998
among the Company, certain of its shareholders and Banc One
4.11 Preemptive Rights Agreement dated as of March 20,
1998 between the Company and Banc One
4.12 Debt Subordination Agreement dated as of March 20, 1998
among Banc One, the Company, certain of its subsidiaries and
Fleet Capital Corporation
4.13 Lien Subordination Agreement dated as of March 20, 1998
between Fleet Capital Corporation and Banc One
10 Employment Agreement dated as of April 6, 1998 between the
Company and Thomas M. Dalton
11 Statement Regarding Computation of Per Share Earnings for the
three months ended March 31, 1998
27 Financial Data Schedule
(b) Reports on Form 8-K:
None.
13
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ATLANTIC PREMIUM BRANDS, LTD.
Date: May 15,1998
By: /s/ Thomas M. Dalton
-----------------------------------
Thomas M. Dalton, Chief Financial
Officer and Senior Vice President
(On behalf of Registrant and as
Chief Accounting Officer)
14
<PAGE> 16
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- ----------------------------------------------------------------
2 Asset Purchase Agreement dated as of March 6, 1998 among
Potter's Acquisition Corp., J.C. Potter Sausage Company,
Potter's Farm, Inc., Potter Rendering Co. and Potter Leasing
Company, Ltd. (1)
3(i) Certificate of Incorporation of the Company, including all
amendments thereto (2)
3(ii) By-Laws of the Company (2)
4.1 Secured Promissory Note dated as of March 20, 1998 of the Company
and certain of its subsidiaries payable to Fleet Capital
Corporation in the original principal amount of $11,000,000 (1)
4.2 Loan and Security Agreement dated as of March 20, 1998 among
Fleet Capital Corporation, the Company and certain of its
subsidiaries (1)
4.3 Stock Pledge Agreement dated as of March 20, 1998 between the
Company and Fleet Capital Corporation (1)
4.4 Atlantic Premium Brands, Ltd. and Subsidiaries Senior
Subordinated Note and Warrant Purchase Agreement dated as of
March 20, 1998 among the Company, certain of its subsidiaries
Banc One Capital Partners, LLC ("Banc One") (1)
4.5 Senior Subordinated Note due March 31, 2005 of the Company
payable to Banc One dated as of March 20, 1998 in the original
principal amount of $6,500,000 (1)
4.6 Atlantic Premium Brands, Ltd. Warrant Certificate Common Stock
Purchase Warrant of Banc One dated as of March 20, 1998 (1)
4.7 Atlantic Premium Brands, Ltd. Warrant Certificate Contingent
Common Stock Purchase Warrant of Banc One dated as of March 20,
1998 (1)
4.8 Put Option Agreement dated as of March 20, 1998 between the
Company and Banc One (1)
4.9 Registration Rights Agreement dated as of March 20, 1998 between
the Company and Banc One (1)
4.10 Shareholders Agreement dated as of March 20, 1998 among the
Company, certain of its shareholders and Banc One (1)
4.11 Preemptive Rights Agreement dated as of March 20, 1998 between
the Company and Banc One (1)
4.12 Debt Subordination Agreement dated as of March 20, 1998 among
Banc One, the Company, certain of its subsidiaries and Fleet
Capital Corporation (1)
<PAGE> 17
Exhibit
Number Description
- ------- ---------------------------------------------------------
4.13 Lien Subordination Agreement dated as of March 20, 1998 between
Fleet Capital Corporation and Banc One (1)
10 Employment Agreement dated as of April 6, 1998 between
the Company and Thomas M. Dalton *
11 Statement Regarding Computation of Per Share Earnings
for the three months ended March 31, 1998 *
27 Financial Data Schedule *
______________________
* Filed herewith.
(1) Filed as an exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 and incorporated herein by reference.
(2) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996 and incorporated herein by reference.
<PAGE> 1
EXHIBIT 10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into this 6th day
of April, 1998, between ATLANTIC PREMIUM BRANDS, LTD., a Delaware corporation
(the "COMPANY") and THOMAS M. DALTON ("EXECUTIVE").
RECITALS
WHEREAS, the Company is engaged in the business (the "BUSINESS") of
distributing, marketing and selling prepared food and beverage products and
related products and services;
WHEREAS, Executive is skilled and experienced in the Business;
WHEREAS, the Company desires to employ Executive and recognizes that
certain inducements must be offered to Executive in order for the Company to
retain Executive's services;
WHEREAS, Executive and the Company are desirous of entering into an
agreement providing for the employment by the Company of Executive on the terms
provided herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and promises contained herein, the parties agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive and
Executive hereby accepts employment by the Company, subject to the terms and
conditions set forth in this Agreement.
2. TERM OF EMPLOYMENT.
(a) Initial Term. The initial term of Executive's employment hereunder
(the "INITIAL TERM") shall commence on April 6, 1998 (the "EFFECTIVE DATE") and
shall continue until April 6, 2001, unless sooner terminated in accordance with
the provisions hereof. The period commencing on the Effective Date and ending
on the date this Agreement expires or is sooner terminated is referred to as
the "EMPLOYMENT PERIOD".
(b) Automatic Renewal. The Initial Term shall be extended
automatically for additional one year periods commencing on the third
anniversary date of the Effective Date and each one-year anniversary
thereafter, unless, no later than six months prior to such date, either party
gives notice to the other party that he or it does not intend to renew this
Agreement.
3. TITLE AND DUTIES. During the Employment Period, Executive's title
shall be Senior Vice President and Chief Financial Officer of the Company and
he shall possess such powers and duties as are normally incident to such
positions, as provided in the by-laws of the Company and
1
<PAGE> 2
in accordance with the Delaware General Corporation Law. Executive shall
justly and faithfully discharge his duties and responsibilities in a diligent
manner, devoting such time and attention to the affairs of the Company as he
shall reasonably determine to be necessary and appropriate, and shall comply
with the reasonable rules, regulations and policies of the Company; provided,
however, the Company understands that Executive may be required, under his
contract with the SNA Nut Company Inc., to provide testimony at trial or in
depositions in connection with pending litigation and that Executive will use
his vacation time to the extent any such testimony is required to be given
during normal business hours. During the Employment Period, Executive shall
report to Alan Sussna and the Board of Directors of the Company.
4. COMPENSATION. Subject to the following provisions of this Agreement,
during the Employment Period, Executive shall be compensated for his
services as follows:
(a) Base Amount. During the Employment Period, Executive shall receive
from the Company an annual salary, payable in accordance with the regularly
established payroll policy of the Company, in an amount equal to $150,000,
which amount shall increase annually to reflect normal cost-of-living
adjustments and may increase at such times and in such amounts as are
determined by the Compensation Committee of the Board of Directors (the "BASE
AMOUNT"). The Base Amount shall be subject to normal payroll deductions
applicable to all employees of the Company.
(b) Bonus. In addition to the Base Salary, during the Employment Period
Executive shall be entitled to receive an annual lump sum bonus payment from
the Company of up to 30% of the Base Amount (the "BONUS"), with the Bonus to be
based upon criteria (e.g., management objectives and operating cash flow)
agreed to by the Company and Executive in a separate letter agreement. The
Bonus shall be paid by the Company to the Executive on an annual basis during
the Employment Period, no later than 30 days after the Company has completed
its audit for an applicable fiscal year, but in no event later than April 15 of
each year for the preceding fiscal year, and shall be deemed accrued as of
December 31 of the year for which it is calculated. The Bonus for 1998 shall
be pro rated on a daily basis from April 6, 1998.
(c) Stock Option. Effective as of April 1, 1998, the Company shall grant
to Executive the option (the "OPTION") to purchase 75,000 shares of Common
Stock (the "OPTION SHARES"), at the exercise price of $3.375 per share,
pursuant to a Stock Option Agreement in the form of Exhibit A attached hereto
and the Company's Stock Option Plan (the "STOCK OPTION PLAN"). The Option
shall vest and become exercisable as follows:
<TABLE>
<CAPTION>
Vesting Dates Percentage of Option Shares Vesting
------------- -----------------------------------
<S> <C>
April 1, 1999 33 1/3%
April 1, 2000 33 1/3 %
April 1, 2001 33 1/3%
</TABLE>
2
<PAGE> 3
provided, however, that to the extent it is not then vested and exercisable,
the Option shall vest and become exercisable in the following amounts upon the
occurrence of any of the following events:
i. On and after the last day of any continuous 10-day period
(excluding any days in which no shares of Common Stock are traded) during
which the average of the bid and asked closing prices at which one share
of Common Stock is traded on the over-the counter market, as reported on
NASDAQ, averages (over such period):
Average Price Per Share During Period Percentage of Option Shares Vesting
$5.375 to $7.99 33 1/3%
$8.00 to $11.99 33 1/3%
$12.00 and above 33 1/3%
the number of Option Shares corresponding to such percentages shall vest
and become exercisable.
ii. At such time as 1.) the Sterling Group shall reduce its
aggregate beneficial ownership of Common Stock to less than 15%
("STERLING EXIT") and 2.) another shareholder with aggregate beneficial
ownership of 5% or more exists (other than by way of such shareholder
selling his or her company), 100% of the Option Shares shall vest and
become exercisable. For purposes of this Agreement, the Sterling Group
consists of Douglas Becker, Eric D. Becker, Merrick M. Elfman, Bruce
Goldman, Rudolf Christopher Hoehn-Saric, and Steven M. Taslitz, as well
as their spouses and dependent children or trusts established their
benefit.
iii. Upon a Change in Control of the Company, where "CHANGE OF
CONTROL" means the earlier of (a) the date on which any person or entity,
or person or entities acting in concert, shall acquire the beneficial
ownership of shares of capital stock or other securities having more than
50% of the voting power (with respect to the election of directors) then
outstanding or (b) the date on which any person or entity, or persons or
entities acting in concert, shall first disclose any intent to commence
an offer to tender for shares of capital stock or other securities having
more than 50% of the voting power, 100% of the Option Shares shall vest
and become exercisable.
Notwithstanding the foregoing, (a) in the event, and only to the extent, that
any of the Option Shares become vested and exercisable on an accelerated basis
as provided in subsections (i), (ii) and (iii) above, the annual April 1
vesting shall not occur, and (b)Executive shall forfeit all Option Shares
(whether or not then vested and exercisable) if he resigns without Good Reason
(as hereafter defined) before April 1, 1999.
As soon as possible (but in no event later than 90 days from the date
hereof, the Company shall cause the Option Shares to be registered (pursuant to
a Form S-8 or any successor form) under the Securities Act of 1933.
3
<PAGE> 4
(d) Benefit Plans, Additional Benefit.
i. During the Employment Period, Executive shall be entitled to
immediately and fully participate in any profit sharing plan, retirement
plan, group life insurance plan or other insurance plan or medical
expense plan maintained by the Company or any subsidiary of the Company
for its executive employees (the "BENEFIT PLANS"). Executive's
participation in the medical Benefit Plans shall include coverage for his
spouse and dependents. Executive will apply the cash allowance provided
in Section 4(d)ii. to pay the necessary premiums of those Benefit Plans
that provide health, dental, disability or life insurance coverage to
Executive, his spouse and dependents. The Benefit Plans are subject to
change from time to time at the sole discretion of the board of directors
of the company maintaining such plans, provided that in any such event,
the Company shall provide a substitute plan or other form of compensation
that provides substantially the same or greater benefits as then enjoyed
by Executive and his spouse and dependents, as applicable.
ii. Every month during the Employment Period, the Company shall pay
to Executive a cash allowance of $1,500, which Executive may use to pay
expenses relating to his employment, including but not limited to benefits
premiums, accounting fees, financial advisory fees, car payments, and dues,
as determined in his sole discretion.
(e) Vacation. For each year of the Employment Period, Executive shall
earn and be entitled to take not less than four weeks of vacation. Executive's
compensation shall be paid in full during such vacations. Executive shall be
entitled to be paid for any unused vacation. Each vacation shall be taken by
Executive at such times as are reasonably agreeable to Executive and the
Company.
(f) Expenses. The Company shall reimburse Executive for all reasonable
out of pocket expenses incurred by him in connection with the performance of
his duties hereunder which reimbursement shall be made upon the presentation by
Executive to the Company of proper receipts or other proof of expenditure, and
otherwise in accordance with the Company's standard practices (applied
prospectively only) for reimbursement of its senior executives as determined by
the Board of Directors.
(g) Other Benefits. Executive shall be entitled to such additional
perquisites as may be customarily granted by the Company to its senior
executives generally.
5. TERMINATION. The Employment Period shall terminate effective on
the date of the earliest to occur of the following events:
(a) Just Cause. The Employment Period may be terminated at the option of
the Company for "JUST CAUSE" (as such term is hereinafter defined), effective as
of the date the Company gives written notice to Executive setting forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination ("NOTICE OF TERMINATION"). As used herein, the term "JUST CAUSE"
means:
4
<PAGE> 5
i. Executive's conviction of or entry of a plea of guilty or nolo
contendere to a felony (unless the act giving rise thereto was committed
by Executive in the good faith belief that Executive's actions (A) were
in the best interest of the Company, and (B) would not violate criminal
law), or other criminal act involving moral turpitude;
ii. Executive's willful misconduct or gross negligence resulting in
a material breach of his duties hereunder (including fiduciary duties and
such other duties relating to his employment by the Company as are imposed
by applicable law), or any other willful and material breach by Executive
of this Agreement, except by reason of illness or accident, which shall
continue for a period of 15 days after the receipt of written notice from
the Company;
iii. A material conflict of interest that arises because Executive is
directly or indirectly a party to a transaction with the Company, except
for a material conflict of interest of which the Company has been notified
and the Company has agreed to allow;
iv. Executive's refusal, after receipt of written notice from the
Board of Directors, to perform specific directives of the Board of
Directors which are reasonably intended to cause the Company to comply
with applicable laws, rules, regulations, requests of government agencies,
or the like, provided that such directives are consistent with
applicable law and the scope and nature of Executive's duties as set
forth herein, or to comply with the written internal policies and
procedures of the Company and its subsidiaries; and
v. Executive's habitual drunkenness or illegal use of controlled
substances which interferes with the performance of his duties hereunder.
(b) Operating Just Cause. The Employment Period may be terminated at the
option of the Company for "OPERATING JUST CAUSE" (as such term is hereinafter
defined), effective as of the date the Company gives Notice of Termination to
Executive. As used herein, the term "OPERATING JUST CAUSE" means the Company's
failure to achieve at least 70% of the operating income projected for a fiscal
year, as set forth in the Company's budget for the fiscal years of the
Employment Period as prepared by Company management and approved by the Board
of Directors, as such operating earnings may be adjusted to take into account
acquisitions and divestitures of the Company.
(c) Death or Disability. The Employment Period shall terminate
automatically, effective upon the death of Executive. If Executive is unable
to perform the essential functions of his employment position, due to a
disability of Executive that cannot be reasonably accommodated by the Company,
the Company may terminate Executive effective upon Notice of Termination.
(d) Voluntary Resignation. Executive may resign his employment at any
time, effective upon written notice to the Company.
5
<PAGE> 6
(e) Without Cause. The Company may terminate Executive at any time,
effective upon the date of Notice of Termination.
(f) Good Reason. The Employment Period may be terminated at the option of
the Executive for "GOOD REASON" (as such term is defined in Section 6(d)
below), effective upon written notice to the Company setting forth in
reasonable detail the facts and circumstances claimed to provide a basis for
such termination.
6. SEPARATION BENEFITS. Executive shall be entitled to receive
separation benefits in such events and in such amounts as are set forth in this
Section 6.
(a) Termination Without Just Cause or for Good Reason Before First
Anniversary. If, prior to the first anniversary of the Effective Date,
Executive resigns from employment with the Company for Good Reason (as defined
below in Section 6(d)) or is terminated by the Company without Just Cause, he
(or his surviving spouse, estate or personal representative, as applicable)
shall be entitled to receive:
i. an amount equal to one-fourth of both the Base Amount (i.e.,
three months salary) if the Company is then in default, beyond any
applicable cure period, of any of the financial covenants contained in the
Company's loan agreement with its senior institutional lender, or, if the
Company is not then in default, then an amount equal to one-half of the
Base Amount (i.e., six months salary), without discount, payable in
accordance with the regularly established payroll policy of the Company;
ii. a lump sum cash payment in an amount equal to the annual Bonus
payment to which Executive would have been entitled in accordance with
Section 4(b), without discount, had he continued in the employ of the
Company for the full fiscal year in which his employment is terminated,
pro rated on a daily basis through the actual date of termination,
payable by the Company in accordance with the terms of Section 4(b);
iii. for the longest period of time as is permitted by COBRA law, the
Company shall permit, at the Company's expense, Executive, his spouse and
dependents, as applicable (the "BENEFIT PARTICIPANTS"), to participate in
all group medical and health insurance plans and employee benefit plans,
programs and arrangements now or hereafter made available to the senior
executive employees of the Company (the "PLANS") (including but not
limited to such Plans in which Executive was entitled to participate,
pursuant to Section 4(d), immediately prior to the date of termination),
in the same manner provided to its other senior executive employees;
provided, however, that this Section shall not apply in the event that (i)
the Company shall hereafter terminate the applicable Plan or (ii) the
participation of the Benefit Participants in such Plan is prohibited by
law or, if applicable, would disqualify such Plan as a tax qualified plan
pursuant to the Code, or (iii) the participation of the Benefit
Participants violates the general terms and provisions of such applicable
Plan. In the event that any of the Benefit Participants' participation in
such Plans is prohibited by law or, if applicable, would disqualify the
Plan as a tax qualified plan, the Company shall permit the Benefit
Participants to acquire substantially comparable coverage or benefits, at
the Company's
6
<PAGE> 7
expense, from a source of Executive's or his spouse's choosing,
notwithstanding the fact that such coverage or benefit will result in a
higher cost than if provided under a Company Plan. However, in no event
will the Benefit Participants receive from the Company the coverage and
benefits contemplated by this Section if the Benefit Participants receive
such coverage and benefits from any other source.
(b) Termination Without Just Cause or for Good Reason After First
Anniversary. If, on or after the first anniversary of the Effective Date,
Executive resigns from employment with the Company for Good Reason (as defined
below in Section 6(d)) or is terminated by the Company without Just Cause, he
(or his surviving spouse, estate or personal representative, as applicable)
shall be entitled to receive:
i. an amount equal to (x) one-half of the Base Amount (i.e., six
months salary), without discount, if Executive's employment is terminated
on or after the first anniversary and before the second anniversary of the
Effective Date, or (y) the Base Amount, without discount, if Executive's
employment is terminated on or after the second anniversary of the
Effective Date, payable in accordance with the regularly established
payroll policy of the Company;
ii. a lump sum cash payment in an amount equal to the annual Bonus
payment to which Executive would have been entitled in accordance with
Section 4(b), without discount, had he continued in the employ of the
Company for the full fiscal year in which his employment is terminated,
pro rated on a daily basis through the actual date of termination,
payable by the Company in accordance with the terms of Section 4(b);
iii. for the longest period of time as is permitted by COBRA law,
the Company shall permit, at the Company's expense, Executive, his spouse
and dependents, as applicable (the "BENEFIT PARTICIPANTS"), to
participate in all group medical and health insurance plans and employee
benefit plans, programs and arrangements now or hereafter made available
to the senior executive employees of the Company (the "PLANS") (including
but not limited to such Plans in which Executive was entitled to
participate, pursuant to Section 4(f), immediately prior to the date of
termination), in the same manner provided to its other senior executive
employees; provided, however, that this Section shall not apply in the
event that (i) the Company shall hereafter terminate the applicable Plan
or (ii) the participation of the Benefit Participants in such Plan is
prohibited by law or, if applicable, would disqualify such Plan as a tax
qualified plan pursuant to the Code, or (iii) the participation of the
Benefit Participants violates the general terms and provisions of such
applicable Plan. In the event that any of the Benefit Participants'
participation in such Plans is prohibited by law or, if applicable, would
disqualify the Plan as a tax qualified plan, the Company shall permit the
Benefit Participants to acquire substantially comparable coverage or
benefits, at the Company's expense, from a source of Executive's or his
spouse's choosing, notwithstanding the fact that such coverage or benefit
will result in a higher cost than if provided under a Company Plan.
However, in no event will the Benefit Participants receive from the
Company the coverage and benefits contemplated by this Section if the
Benefit Participants receive such coverage and benefits from any other
source.
7
<PAGE> 8
(c) Other Termination Events. In the event that Executive's employment
is terminated by the Company with Just Cause, by Executive without Good
Reason, or upon the death of Executive, then Executive thereupon shall forfeit
his right to any compensation, perquisites and benefits under this Agreement,
except any rights Executive has under the Stock Option Plan, provided, however,
that the Company shall pay to Executive (or if he shall have died, his
surviving spouse, or if he leaves no spouse, his personal representative, as
successor in interest) the value of any accrued salary and other compensation
due to Executive pursuant to Section 4 above through the date of termination.
(d) Good Reason Defined. For purposes of this Agreement, "GOOD REASON"
means: (i) a reduction in Executive's title, duties, or working conditions
without Executive's consent; or (ii) a decrease in the Base Amount; or (iii)
the relocation of Executive's office to premises located outside of the Greater
Chicago, Illinois Metropolitan Area; or (iv) a failure by the Company to comply
with any material provision of this Agreement which has not been cured within
15 days after written notice of such noncompliance has been given by Executive
to the Company; or (v) a Sterling Exit (as defined in Section 4(c)(ii)); or
(vi) a Change of Control of the Company (as defined in Section 4(c)(iii)).
(e) Effect of Termination. Notwithstanding anything to the contrary
contained herein, should Executive's employment with the Company be terminated
for any reason whatsoever:
i. Anti-Disparagement. Etc. The Company (on behalf of itself and
its directors, officers, employees and agents) and the Executive agree that
they will not, under any circumstances, disparage, criticize or denigrate
the talents, skills, prospects, abilities, integrity or character of the
Executive, the Company, its management, directors, employees, agents or
representatives (including those of the Company's affiliates). They
further agree that they will not, at any time after the date hereof and
without the other's written consent, contact any past, present or
prospective customer, supplier, employee, employer or agent or
representative of the Company or the Executive with the intent or purpose
of injuring the reputation, business or business relationships of the
Company or the Executive. The provisions of this Section shall survive
the execution and termination hereof, irrespective of the reason for such
termination.
ii. Offices, Etc. Executive will no longer have an office at the
Company's places of business, and except as previously agreed in writing
by the Company, will not visit such places. In addition, Executive will
resign from all offices or directorships held at the time of termination.
8
<PAGE> 9
7. RESTRICTIVE COVENANTS. Executive hereby agrees:
(a) Nondisclosure. Executive acknowledges that he has been and will
be entrusted with trade secrets, marketing, operating and strategic plans,
customer and supplier lists, proprietary information and other confidential or
specialized data and/or information relative to the business of the Company and
its predecessors and subsidiaries (for purposes of this Section 7, the
"COMPANY" shall include its predecessors and subsidiaries), whether now
existing or to be developed or created after the date of this Agreement
(collectively, "TRADE SECRETS"). Executive shall at all times during the
Employment Period and thereafter hold in strictest confidence any and all Trade
Secrets that may have come or may come into his possession or within his
knowledge concerning the products, services, processes, businesses, suppliers,
customers and clients of the company or its affiliates and their predecessors.
Executive agrees that neither he nor any person or enterprise controlled by him
will for any reason directly or indirectly, for himself or for the benefit of
any other person, use, copy, divulge or otherwise disseminate or disclose any
of the Trade Secrets owned or used by, or licensed to, the Company or any of
its affiliates or otherwise relating to the Company or its business, provided
that Executive may disclose Trade Secrets pursuant to an order by a court of
competent jurisdiction, provided, further, that Executive shall give the
Company notice of such order and any court pleading requesting such disclosure,
in order to provide the Company with an opportunity to prevent such disclosure
or procure an appropriate protective order.
(b) Customers. Executive acknowledges that customer accounts of the
Company and its predecessors are and will at all times be the sole and separate
property of the Company, in which Executive has no rights whatsoever, and all
activities of or work performed by Executive pursuant hereto or as an employee
of the Company or its predecessors have been and in the future will be
performed for the benefit of the Company and the goodwill resulting from
Executive's efforts is and at all times will be the sole and separate property
of the Company, which goodwill is intended to be protected, in part, by this
Section.
(c) Non-Solicitation. Executive agrees that from the commencement
date of the Employment Period and continuing for a period of three years
following the termination of the Employment Period for whatever reason,
neither he nor any person or enterprise controlled by him will solicit or hire
or contract with, for employment, consulting or any other reason, any director,
officer, shareholder, department head, salesman and each of their assistants
who was employed by the Company or its predecessors at any time within one year
prior to the time of the act of solicitation or hire; provided, however, that
this non-solicitation provision shall not extend past the Employment Period in
the event that this Agreement is terminated by the Company without Just Cause;
provided, further, that this non-solicitation provision shall not apply to any
person who responds to a general employment advertisement and who was not
employed by the Company or its predecessors at any time within the previous one
year period.
(d) Non-Competition. Executive agrees that from the commencement
date of the Employment Period and continuing for a period of two years
following the termination of the Employment Period for whatever reason,
neither he or any person or enterprise controlled by him will become a
stockholder, director, officer, agent, employee or representative of or
consultant to a corporation or member of a partnership, engage as a sole
proprietor in any business, act as
9
<PAGE> 10
a consultant to any of the foregoing or otherwise engage directly or indirectly
in any enterprise which competes with the Company in any business in which the
Company is engaged (whether or not such business is subsequently carried on by
the Company) in any geographic territory in which the Company does business on
the date the Employment Period ends; provided, however, that the foregoing
shall not prohibit the ownership of less than two percent (2%) of the
outstanding shares of the stock of any company engaged in any business, which
shares are regularly traded on a national securities exchange or in any
over-the-counter market. Provided further, that this non-competition provision
shall not extend past the Employment Period in the event that this Agreement is
terminated by the Company without Just Cause.
(e) Survival. The provisions of this Section shall survive the
termination of this Agreement and Executive's employment with the Company,
irrespective of the reason therefor.
8. REMEDIES. If, at any time, Executive violates or threatens to violate
to any material extent the covenants set forth in Section 7, the Company shall
have the right to seek injunctive relief or any other appropriate equitable
remedy, without any bond or other security being required, in any federal or
state court sitting in the City of Chicago, Illinois, notwithstanding the
arbitration obligations set forth in Section 16, below, provided, however, that
the applicable time periods set forth in Sections 7(c) and (d) will be tolled
pending the final resolution of any such action that is actually filed by the
Company. Executive acknowledges that the Company would be irreparably injured
by a violation of Section 7.
9. INVENTIONS. Executive hereby assigns to the Company all of his rights,
title and interest in and to all inventions, discoveries, processes, designs,
marketing strategies, and other intellectual property (hereinafter referred to
collectively as the "INVENTIONS"), and all improvements on existing Inventions
made or discovered by Executive during the Employment Period. Promptly upon
the development or making of any such Invention or improvement thereon,
Executive shall disclose the same to the Company and shall execute and deliver
to the Company such reasonable documents as it may request to confirm the
assignment of Executive's rights therein and, if requested by the Company,
shall assist the Company in applying for and prosecuting any patents which may
be available in respect thereof. The Company acknowledges and hereby notifies
Executive that this Section 9 does not apply to an Invention for which no
equipment, supplies, facility or trade secret information of the Company was
used and which was developed entirely on Executive's own time, unless (a) the
Invention relates to (i) the business of the Company, or (ii) the Company's
actual or demonstrably anticipated research or development, or (b) the
Invention results from any work performed by Executive for the Company.
10. AMENDMENT AND TERMINATION. This Agreement may not be amended or
otherwise modified, except in a definitive writing signed by the parties
hereto.
10
<PAGE> 11
11. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if given in writing and personally delivered or
sent by registered or certified mail, return receipt requested, or by
facsimile, telegram or telex followed by a confirmation letter sent by
registered or certified mail, return receipt requested, addressed as follows:
If to the Company: Atlantic Premium Brands, Ltd.
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
Attn: Alan Sussna
Facsimile: (847) 480-0199
If to Executive: Thomas M. Dalton
5321 Fenview Court
Long Grove, Illinois 60047
Facsimile: (847) 821-8274
With a copy to: Gordon & Einstein, Ltd.
224 East Ontario Street
Chicago, Illinois 60611
Attn: Jean M. Einstein
Facsimile: (312) 280-9599
12. NONASSIGNMENT. The interests of Executive under this Agreement are
unique and of a personal service nature, are not subject to the claims of his
creditors and may not be voluntarily or involuntarily assigned, alienated or
encumbered.
13. SUCCESSORS. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business.
14. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require,
and this Agreement shall be construed and enforced as if such provision had
been included herein as so modified in scope or application, or had not been
included herein, as the case may be. Should this Agreement, or any one or more
of its provisions hereof, be held to be invalid, illegal or unenforceable
within any governmental jurisdiction or subdivision thereof, the Agreement or
any such provision or provisions shall not as a consequence thereof be deemed
to be invalid, illegal or unenforceable in any other governmental jurisdiction
or subdivision thereof.
15. ENTIRE AGREEMENT; CANCELLATION. This Agreement contains the entire
agreement and understanding of the parties and supersedes all prior
discussions, agreements, and understandings between the parties relating to the
subject matter hereof.
11
<PAGE> 12
16. RESOLUTION OF DISPUTES. Except as provided in Section 8 above, any
dispute arising out of, connected with, related or incidental to this Agreement
and the documents or instruments delivered in connection herewith, shall be
submitted to arbitration in accordance with the terms of this Section. The
party who is alleging that a dispute exists (the "COMPLAINANT") shall send a
notice of such dispute to the other party (the "RESPONDENT"), which notice
shall set forth in detail the dispute, the parties involved and the position of
the Complainant with respect thereto. The notice shall also include a list of
five retired judges selected through JAMS-Endispute, Inc. ("JAMS"), 70 West
Madison, Chicago, Illinois. Within seven days of receiving such notice, the
Respondent shall either accept one of the judges on the list and so inform the
Complainant or deliver via facsimile to the Complainant a list of five judges
selected by the Respondent from the panel at JAMS. If the Respondent rejects
the judges on the Complainant's list and delivers to Complainant its own list
of judges, Complainant, within seven days of receiving Respondent's list, shall
inform Respondent as to whether it will accept one of the judges on
Respondent's list.
Should the parties be unable to agree on an arbitrator, then Complainant
shall request that JAMS furnish a list of ten names of available judges to each
party. Within seven days of JAMS's mailing of the list, the parties shall meet
telephonically to designate an arbitrator. Respondent shall first strike one
name from the list and then Complainant shall strike one name. Thereafter,
Respondent and Complainant shall alternately strike names from the list until
one name remains. The last remaining judge on the list shall be designated as
the arbitrator for this action.
The arbitrator so selected shall schedule a hearing in Chicago on the
disputed issues within 45 days after his appointment, and the arbitrator shall
render his decision after the hearing, in writing, as expeditiously as is
possible, and shall be delivered to the parties. The arbitrator shall render
his decision based on written materials supplied by the parties to the
arbitrator as well as the respective oral presentations of the parties at the
hearing, and no party shall be entitled to discovery in such matter, except for
a single request for documents to be made within ten days after the request for
arbitration, which if not made within such time period shall be deemed waived.
Each party shall supply a copy of any written materials to be submitted to the
arbitrator at least ten days prior to the scheduled hearing. The parties agree
that the arbitrator shall not have any power or authority to award punitive
damages. A default judgment may be entered against any party who fails to
appear at the arbitration hearing. Such decision and determination shall be
final and unappealable and shall be filed as a judgment of record in any
jurisdiction designated by the successful party. All charges and fees charged
by JAMS and/or the arbitrator (whether demanded in advance or at completion of
the proceedings) shall be shared equally by each side. However, all such
charges and fees, as well as any other taxable costs, may be allocated between
the respective sides by the arbitrator as a part of any award herein. The
parties hereto agree that this paragraph has been included to rapidly and
inexpensively resolve any disputes between them with respect to the matters
described above, and that this paragraph shall be grounds for dismissal of any
court action commenced by any party with respect to a dispute arising out of
such matters. The parties agree that any arbitration shall be governed by and
pursuant to the Illinois Uniform Arbitration Act, as amended, and the rules and
regulations promulgated thereunder.
12
<PAGE> 13
17. INSURANCE. The Company may, at its election and for its benefit,
insure Executive against disability, accidental loss or death and Executive
shall submit to such physical examinations and supply such information as may
be required in connection therewith.
18. NO CONFLICTING AGREEMENTS. Executive represents and warrants that he
is not a party to any agreement, contract or understanding, of any kind, that
would in any way restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions hereof.
19. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which taken together shall constitute one and the same original agreement of
the parties hereto.
20. GOVERNING LAW. This Agreement, and all matters or disputes relating
to the validity, construction, performance or enforcement hereof, shall be
governed, construed and controlled by and under the laws of the State of
Illinois without regard to principles of conflicts of law.
21. CONSENT TO JURISDICTION. The parties hereto hereby irrevocably submit
themselves to the exclusive jurisdiction of the courts of the State of Illinois
located in the City of Chicago and to the jurisdiction of the United States
District Court for the Northern District of Illinois for the purpose of
bringing any action that may be brought in connection with the provisions
hereof and shall not assert any claim that they are not subject to the
jurisdiction of such courts, that the venue is improper, that the forum is
inconvenient or any similar objection, claim or argument. Service of process
on any of the parties hereto with regard to any such action may be made by
mailing the process to such party by regular or certified mail to the address
of such party set forth herein or to any subsequent address to which notices
shall be sent.
IN WITNESS WHEREOF, Executive has set his hand to this EMPLOYMENT
AGREEMENT, and the Company has caused these presents to be executed in its name
and on its behalf, all as of the day and year first above written.
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ ALAN F. SUSSNA
---------------------------------------
Its: President and Chief Executive Officer
--------------------------------------
/s/ THOMAS M. DALTON
------------------------------------------
THOMAS M. DALTON
13
<PAGE> 1
EXHIBIT 11
ATLANTIC PREMIUM BRANDS, LTD.
COMPUTATION OF EARNINGS PER SHARE
<TABLE>
<CAPTION>
For the Three
Months Ended
March 31,
1998
------------
<S> <C>
INCOME BEFORE EXTRAORDINARY LOSS $ 743,976
EXTRAORDINARY LOSS, net (194,993)
----------
Net income $ 548,983
==========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING (DILUTED CALCULATION) 7,621,156
==========
INCOME PER COMMON SHARE BEFORE EXTRAORDINARY LOSS $ .10
EXTRAORDINARY LOSS PER COMMON SHARE (.03)
----------
Net income per common share $ .07
==========
COMPUTATION OF WEIGHTED AVERAGE COMMON
SHARES OUTSTANDING:
Shares outstanding as of December 31, 1997 and March 31, 1998 (Basic
Calculation) 7,373,574
Impact of dilutive stock options as of March 31, 1998 247,582
----------
Weighted average common shares outstanding (Diluted Calculation) 7,621,156
==========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<CASH> 2,614,673
<SECURITIES> 0
<RECEIVABLES> 10,960,697
<ALLOWANCES> 129,000
<INVENTORY> 6,715,832
<CURRENT-ASSETS> 21,002,440
<PP&E> 13,422,882
<DEPRECIATION> 0
<TOTAL-ASSETS> 49,474,090
<CURRENT-LIABILITIES> 19,863,986
<BONDS> 0
0
0
<COMMON> 73,770
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 49,474,090
<SALES> 41,349,414
<TOTAL-REVENUES> 0
<CGS> 35,949,078
<TOTAL-COSTS> 4,730,615
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 363,827
<INCOME-PRETAX> 428,476
<INCOME-TAX> 315,500
<INCOME-CONTINUING> 743,976
<DISCONTINUED> 0
<EXTRAORDINARY> 194,993
<CHANGES> 0
<NET-INCOME> 548,983
<EPS-PRIMARY> .07
<EPS-DILUTED> .07
</TABLE>
