10-K 1 d444568d10k.htm 10-K 10-K
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10-K

 

þ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

    

For the fiscal year ended December 30, 2012

OR

 

     TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
    

For the transition period from        to

Commission file number 000-32369

 

LOGO

AFC Enterprises, Inc.

 

Minnesota   58-2016606

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

400 Perimeter Center Terrace, Suite 1000   30346
Atlanta, Georgia   (Zip Code)
(Address of principal executive offices)  

Registrant’s telephone number, including area code:

(404) 459-4450

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

 

Title of each class

 

Name of each exchange on which registered

Common stock, $0.01 par value per share   Nasdaq Global Market

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

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

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

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.  þ

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

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  þ

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

 

Large accelerated filer  ¨

  Accelerated filer  þ   Non-accelerated filer  ¨   Smaller reporting company  ¨
  (Do not check if a smaller reporting company)  

Indicate by check mark whether the registrant is a shell company (as defined in Exchange Act rule 12b-2).    Yes  ¨    No  þ

As of July 8, 2012 (the last business day of the registrant’s second quarter for 2012), the aggregate market value of the registrant’s voting common stock held by non-affiliates of the registrant, based on the closing sale price as reported on the Nasdaq Global Market System, was approximately $565,480,010.

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

 

Class

 

Outstanding at January 25, 2013

Common stock, $0.01 par value per share   23,918,085 shares

Documents incorporated by reference: Portions of our 2013 Proxy Statement are incorporated herein by reference in Part III of this Annual Report.


Table of Contents

 

 

AFC ENTERPRISES, INC.

INDEX TO FORM 10-K

 

PART I   

Item 1.

  Business      1   

Item 1A.

  Risk Factors      8   

Item 1B.

  Unresolved Staff Comments      13   

Item 2.

  Properties      14   

Item 3.

  Legal Proceedings      14   

Item 4.

  Mine Safety Disclosures      15   
PART II   

Item 5.

  Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities      17   

Item 6.

  Selected Financial Data      19   

Item 7.

  Management’s Discussion and Analysis of Financial Condition and Results of Operations      22   

Item 7A.

  Quantitative and Qualitative Disclosures about Market Risk      40   

Item 8.

  Financial Statements and Supplementary Data      40   

Item 9.

  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure      40   

Item 9A.

  Controls and Procedures      40   

Item 9B.

  Other Information      41   
PART III   

Item 10.

  Directors, Executive Officers and Corporate Governance      42   

Item 11.

  Executive Compensation      42   

Item 12.

  Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters      42   

Item 13.

  Certain Relationships and Related Transactions, and Director Independence      42   

Item 14.

  Principal Accountant Fees and Services      42   
PART IV   

Item 15.

  Exhibits and Financial Statement Schedules      43   

 

 

 


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PART I.

Item 1.  BUSINESS

AFC Enterprises, Inc. (“AFC” or “the Company”) develops, operates, and franchises quick-service restaurants (“QSRs” or “restaurants”) under the trade names Popeyes® Chicken & Biscuits and Popeyes® Louisiana Kitchen (collectively “Popeyes”). Within Popeyes, we manage two business segments: franchise operations and company-operated restaurants. Financial information concerning these business segments can be found in Note 20 to our Consolidated Financial Statements.

Popeyes Profile

Popeyes was founded in New Orleans, Louisiana in 1972 and is the world’s second largest quick-service chicken concept based on the number of units. Within the QSR industry, Popeyes distinguishes itself with a unique “Louisiana” style menu that features spicy chicken, chicken tenders, fried shrimp and other seafood, red beans and rice and other regional items. Popeyes is a highly differentiated QSR brand with a passion for its Louisiana heritage and flavorful authentic food.

As of December 30, 2012, we operated and franchised 2,104 Popeyes restaurants in 47 states, the District of Columbia, Puerto Rico, Guam, the Cayman Islands and 26 foreign countries. The map below shows the concentration of our domestic restaurants by state.

 

LOGO

As of December 30, 2012, of our 1,634 domestic franchised restaurants, approximately 70% were concentrated in Texas, California, Louisiana, Florida, Illinois, Maryland, New York, Georgia, Virginia and Mississippi. Of our 425 international franchised restaurants, approximately 60% were located in Korea, Canada, and Turkey. Of our 45 company-operated restaurants, approximately 80% were concentrated in Louisiana and Tennessee.

Financial information concerning our domestic and international operations can be found in Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this Annual Report on Form 10-K.

 

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Our Business Strategy

Through its strategic plan, the Company has achieved momentum in growing shareholder value through intense focus on its single brand, Popeyes Louisiana Kitchen. To accelerate that momentum, the Company remains fully engaged in the execution of the original four pillars of its strategic plan launched in 2008. Those pillars are as follows:

 

   

Build a Distinctive Brand

  ¡    

With bold, flavorful food promoted by relevant advertising, national media impact and a spokesperson who resonates with a broad consumer audience, Popeyes’ emphasis on growing a distinctive brand has fueled our 10% cumulative increase in same stores sales over the last two years.

  ¡    

For four years in a row, our domestic same-store sales outpaced the chicken QSR and the entire QSR category according to independent data.

 

   

Run Great Restaurants

  ¡    

Popeyes use of metric-driven scorecards to measure each restaurant’s performance in terms of guest experience, culture, operations, sales, and profits is a key differentiator of our brand. In 2012, our enhanced Guest Experience Monitor (“GEM”) yielded higher response rates, and identified areas of opportunity to deliver service that matches the quality of our food. As of year-end, approximately 70% of guest respondents rated Popeyes service a 5 out of 5 on the guest survey.

  ¡    

We finished 2012 with over 400 restaurants in the new Popeyes Louisiana Kitchen image and approximately 100 additional restaurants in progress. We expect to have over 60% of our domestic system in the new image by the end of 2013.

 

   

Grow Restaurant Profits

  ¡    

Popeyes domestic free standing restaurants have realized restaurant profitability gains in dollars for four consecutive years.

  ¡    

Average restaurant operating profit margins, before rent, of Popeyes domestic freestanding franchised restaurants have increased to more than 20% through the end of the third quarter of 2012. Average restaurant operating profit increased by approximately $30,000 over last year, for a year-over-year growth rate of approximately 19%.

  ¡    

Our strong sales performance and continued focus on cost saving initiatives offset commodity inflation of approximately 2% for the full year 2012. For 2013, we expect commodity costs to be essentially flat year-over-year, based on current market indications.

 

   

Accelerate Quality Restaurant Openings

  ¡    

The annual new restaurant growth of our global system has averaged approximately 6% over the last 5 years.

  ¡    

As a result of rigorous site selection and strong franchisee partners, the average first year sales of Popeyes new domestic freestanding restaurants are exceeding the overall domestic system average by approximately 40%.

  ¡    

We believe the Popeyes operating system and our disciplined real estate selection will continue to deliver new Popeyes restaurants with strong returns on investment for the Company portfolio as well as for our franchisees. The contribution to earnings made by company-operated restaurants is accretive to our shareholders, and fuels our investment in our franchise system.

  ¡    

We believe the acquisition of restaurants in Minnesota and California will accelerate our development in these under-penetrated areas while providing an opportunity for growth by high performing franchisees.

  n    

Of our 2013 expected adjusted earnings per share, approximately $0.10 will be derived from one-time fees associated with the conversion of these acquired restaurants.

 

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  ¡    

Popeyes International continued its focus on strengthening existing markets and laying the groundwork for future growth. In the 4th quarter, 20 new restaurants were opened internationally, bringing total openings to 57 for the year. The initial sales results of these restaurants are trending higher than the international system average as a result of improved site selection, new restaurant marketing support and differentiated brand messaging.

In addition to these original four strategic pillars, the Company added a fifth strategic pillar during 2012 designed to sustain brand momentum and profitability in the future.

 

  n    

Creating a Culture of Servant Leaders

  ¡    

Our stated Popeyes purpose is “to inspire servant leaders to achieve superior results.” Serving others and developing leaders is the essence of what we do for a living. With our fifth pillar, we are building a culture and people capability which we believe will translate to a meaningful competitive advantage in our team members’ and guests’ experience.

The Company believes that our strategic plan will continue to keep us focused on the essential elements of chain restaurant success: a differentiated and innovative brand, a delightful guest experience in a beautiful restaurant environment, and a growing franchisee network experiencing strong profitability and sound investment returns. This is how we plan to deliver our growth goals and create value for our shareholders.

The following features of the Company are material to the execution of our initiatives and business strategies discussed above.

Our Agreements with Popeyes Franchisees

Our strategy places a heavy emphasis on increasing the number of restaurants in the Popeyes system through franchising activities. As of December 30, 2012, we had 340 franchisees operating restaurants within the Popeyes system, and several preparing to become operators. Our largest domestic franchisee operates 143 restaurants and our largest international franchisee operates 101 restaurants. The following discussion describes the standard arrangements we enter into with our Popeyes franchisees.

Domestic Development Agreements. Our domestic franchise development agreements provide for the development of a specified number of Popeyes restaurants within a defined geographic territory. Generally, these agreements call for the development of the restaurants over a specified period of time, usually three to five years, with targeted opening dates for each restaurant. Our Popeyes franchisees currently pay a development fee ranging from $7,500 to $12,500 per restaurant. Typically these development fees are paid when the agreement is executed, and are non-refundable.

International Development Agreements. Our international franchise development agreements are similar to our domestic franchise development agreements, though the development time frames can be longer with development fees of up to $15,000 for each restaurant developed. Depending on the market, limited sub-franchising rights may also be granted.

Domestic Franchise Agreements. Following the execution of a development agreement, we enter into a franchise agreement with our franchisee that conveys the right to operate a specific Popeyes restaurant at a site to be selected by the franchisee and approved by us within 180 days from the execution of the franchise agreement. Our current franchise agreements generally provide for payment of a franchise fee of $30,000 per location. Based on our development incentive programs, in some circumstances the franchise fee could be reduced or eliminated altogether.

These agreements generally require franchisees to pay a 5% royalty on net restaurant sales. In addition, franchisees must contribute to national and local advertising funds. Payments to the advertising funds are generally 4% of net restaurant sales. Some of our institutional and older franchise agreements provide for lower royalties and advertising fund contributions.

 

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International Franchise Agreements. The terms of our international franchise agreements are substantially similar to those included in our domestic franchise agreements, except that these agreements may be modified to reflect the multi-national nature of the transaction and to comply with the requirements of applicable local laws. Our current international franchise agreements generally provide for payment of a franchise fee of up to $30,000 per location. In addition, the effective royalty rates may differ from those included in domestic franchise agreements, and may be lower due to the greater number of restaurants required to be developed by our international franchisees.

All of our franchise agreements require that our franchisees operate restaurants in accordance with our defined operating procedures, adhere to the menu established by us, and meet applicable quality, service, health and cleanliness standards. We may terminate the franchise rights of any franchisee who does not comply with these standards and requirements.

Site Selection

For new domestic restaurants, we assist our franchisees in identifying and obtaining favorable sites consistent with the overall market plan for each development area. Domestically, we primarily emphasize freestanding sites with drive-thrus and “end-cap, in-line” strip-mall sites with ample parking and easy access from high traffic roads.

Each international market has its own factors that lead to venue and site determination. In international markets, we use different venues including freestanding, in-line, food court and other nontraditional venues. Market development strategies are a collaborative process between Popeyes and our franchisees so we can leverage local market knowledge.

Suppliers and Purchasing Cooperative

Suppliers. Our franchisees are required to purchase all ingredients, products, materials, supplies and other items necessary in the operation of their businesses solely from suppliers who have been approved by us. These suppliers are required to meet or exceed strict quality control standards, and they must possess adequate capacity to supply our restaurant system reliably.

Purchasing Cooperative. Supplies are generally provided to our domestic franchised and company-operated restaurants pursuant to supply agreements negotiated by Supply Management Services, Inc. (“SMS”), a not-for-profit purchasing cooperative. We, our Popeyes franchisees and the owners of restaurants of the other participating brand hold membership interests in SMS in proportion to the number of restaurants owned. As of December 30, 2012, we held one of seven seats on the SMS board of directors. Our Popeyes franchise agreements require that each domestic franchisee join SMS.

Supply Agreements. The principal raw material for a Popeyes restaurant operation is fresh chicken. Company-operated and franchised restaurants purchase their chicken from suppliers who service the Popeyes system. In order to ensure favorable pricing and to secure an adequate supply of fresh chicken, SMS has entered into supply agreements with several chicken suppliers. These contracts, which pertain to the vast majority of our system-wide purchases, are “cost-plus” contracts with prices based partially upon the cost of feed grains plus certain agreed upon non-feed and processing costs.

We have entered into long-term beverage supply arrangements with certain major beverage vendors. These contracts are customary in the QSR industry. Pursuant to the terms of these arrangements, marketing rebates are provided to the owner/operator of Popeyes restaurants based upon the volume of beverage purchases.

We also have a long-term agreement with an exclusive supplier of certain proprietary products for the Popeyes system. This supplier sells these products to our approved distributors, who in turn sell them to our franchised and company-operated Popeyes restaurants.

 

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Marketing and Advertising

Each domestic Popeyes restaurant, company-operated or franchised, contributes to an advertising fund that supports (1) branding and marketing initiatives, including the development of marketing materials that are used throughout our domestic restaurant system and (2) local marketing programs. We act as the agent for the fund and coordinate its activities. We and our Popeyes franchisees made contributions to the advertising fund of approximately $85.6 million in 2012, $73.0 million in 2011 and $67.9 million in 2010.

During 2012, 2011 and 2010, the Company and the majority of Popeyes franchisees contributed additional funds above those required under applicable franchise agreement in support of the Company’s shift in advertising funds from local media to national media advertising.

Fiscal Year and Seasonality

During 2012, our fourth fiscal quarter was 13 weeks and the fiscal year included 53 weeks. During 2011 and 2010, the fiscal year included 52 weeks and our fiscal year was composed of 13 four-week accounting periods and ends on the last Sunday in December. The first quarter of our fiscal year has four periods, or 16 weeks. All other quarters have three periods, or 12 weeks.

Seasonality has little effect on our operations.

Employees

As of January 27, 2013, we had approximately 1,280 hourly employees working in our company-operated restaurants. Additionally, we had approximately 55 employees involved in the management of our company-operated restaurants, composed of restaurant managers, multi-unit managers and field management employees. We also had approximately 195 employees responsible for corporate administration, franchise services and business development.

None of our employees are covered by a collective bargaining agreement. We believe that the dedication of our employees is critical to our success and that our relationship with our employees is good.

Intellectual Property and Other Proprietary Rights

We own a number of trademarks and service marks that have been registered with the U.S. Patent and Trademark Office, or for which we have made application to register, including the marks “AFC,” “AFC Enterprises,” “Popeyes,” “Popeyes Chicken & Biscuits,” and the brand logo for Popeyes and Popeyes Louisiana Kitchen. In addition, we have registered, or made application to register, one or more of these marks and others, or their linguistic equivalents, in foreign countries in which we do business, or are contemplating doing business. There is no assurance that we will be able to obtain the registration for the marks in every country where registration has been sought. We consider our intellectual property rights to be important to our business and we actively defend and enforce them.

Formula and Supply Agreements with Former Owner.  The Company has a formula licensing agreement with the estate of Alvin C. Copeland, the founder of Popeyes and the primary owner of Diversified Foods and Seasonings, Inc. (“Diversified”). Under this agreement, the Company has the worldwide exclusive rights to the Popeyes fried chicken recipe and certain other ingredients used in Popeyes products. The agreement provides that the Company pay the estate of Mr. Copeland approximately $3.1 million annually until March 2029. During each of 2012, 2011, and 2010, the Company expensed approximately $3.1 million under this agreement. The Company also has a supply agreement with Diversified through which the Company purchases certain proprietary spices and other products made exclusively by Diversified.

 

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International Operations

We continue to expand our international operations through franchising. As of December 30, 2012, we had 425 franchised international restaurants. During 2012, franchise revenues from these operations represented approximately 11.2% of our total franchise revenues. For each of 2012, 2011, and 2010, international revenues represented 6.9%, 7.5% and 7.2% of total revenues, respectively.

Insurance

We carry property, general liability, business interruption, crime, directors and officer’s liability, employment practices liability, environmental and workers’ compensation insurance policies, which we believe are customary for businesses of our size and type. Pursuant to the terms of their franchise agreements, our franchisees are also required to maintain certain types and levels of insurance coverage, including commercial general liability insurance, workers’ compensation insurance, all risk property and automobile insurance.

Competition

The foodservice industry, and particularly the QSR industry, is intensely competitive with respect to price, quality, name recognition, service and location. We compete against other QSRs, including chicken, hamburger, pizza, Mexican and sandwich restaurants, other purveyors of carry-out food and convenience dining establishments, including national restaurant and grocery chains. Many of our competitors possess substantially greater financial, marketing, personnel and other resources than we do.

Government Regulation

We are subject to various federal, state and local laws affecting our business, including various health, sanitation, labor, fire and safety standards. Newly constructed or remodeled restaurants are subject to state and local building code and zoning requirements. In connection with the re-imaging and alteration of our company-operated restaurants, we may be required to expend funds to meet certain federal, state and local regulations, including regulations requiring that remodeled or altered restaurants be accessible to persons with disabilities. Difficulties or failures in obtaining the required licenses or approvals could delay or prevent the opening of new restaurants in particular areas.

We are also subject to the Fair Labor Standards Act and various other laws governing such matters as minimum wage requirements, overtime and other working conditions and citizenship requirements. A significant number of our foodservice personnel are paid at rates related to the federal or state minimum wage, and increases in the minimum wage have increased our labor costs.

Many states and the Federal Trade Commission, as well as certain foreign countries, require franchisors to transmit specified disclosure documents to potential franchisees before granting a franchise. Additionally, some states and certain foreign countries require us to register our franchise disclosure documents before we may offer a franchise.

We have franchise agreements related to the operation of restaurants located on various U.S. military bases abroad which are with certain governmental agencies and are subject to renegotiation of profits or termination at the election of the U.S. government. During 2012, royalty revenues from these restaurants were approximately $1.2 million.

Enterprise Risk Management

The Company has developed and implemented an Enterprise Risk Management program. The purpose of the program is to provide the Company with a systematic approach to identify and evaluate risks to the business, and

 

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provide the Company an effective manner of risk management and control. The Enterprise Risk Management program is designed to integrate risk management into the culture and strategic decision making of the Company, and to help the organization more effectively and efficiently drive performance.

Environmental Matters

We are subject to various federal, state and local laws regulating the discharge of pollutants into the environment. We believe that we conduct our operations in substantial compliance with applicable environmental laws and regulations. Certain of our current and formerly owned and/or leased properties are known or suspected to have been used by prior owners or operators as retail gas stations and a few of these properties may have been used for other environmentally sensitive purposes. Certain of these properties previously contained underground storage tanks (“USTs”) and some of these properties may currently contain abandoned USTs. It is possible that petroleum products and other contaminants may have been released at these properties into the soil or groundwater. Under applicable federal and state environmental laws, we, as the current or former owner or operator of these sites, may be jointly and severally liable for the costs of investigation and remediation of any such contamination, as well as any other environmental conditions at our properties that are unrelated to USTs. We have obtained insurance coverage that we believe is adequate to cover any potential environmental remediation liabilities.

Available Information

We file our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports with the Securities and Exchange Commission (the “SEC”). You may obtain copies of these documents by accessing the SEC’s website at http://www.sec.gov. In addition, as soon as reasonably practicable after such materials are filed with, or furnished to, the SEC, we make copies of these documents (except for exhibits) available to the public free of charge through our web site at www.afce.com or by contacting our Secretary at our principal offices, which are located at 400 Perimeter Center Terrace, Suite 1000, Atlanta, Georgia 30346, telephone number (404) 459-4450.

 

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Item 1A.  RISK FACTORS

Certain statements we make in this filing, and other written or oral statements made by or on our behalf, may constitute “forward-looking statements” within the meaning of the federal securities laws. Words or phrases such as “should result,” “are expected to,” “we anticipate,” “we estimate,” “we project,” “we believe,” or similar expressions are intended to identify forward-looking statements. These statements are subject to certain risks and uncertainties that could cause actual results to differ materially from our historical experience and our present expectations or projections. We believe that these forward-looking statements are reasonable; however, you should not place undue reliance on such statements. Such statements speak only as of the date they are made, and we undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of future events, new information or otherwise. The following risk factors and others that we may add from time to time, are some of the factors that could cause our actual results to differ materially from the expected results described in our forward-looking statements.

If we are unable to compete successfully against other companies in the QSR industry or develop new products that appeal to consumer preferences, we could lose customers and our revenues may decline.

The QSR industry is intensely competitive with respect to price, quality, brand recognition, menu offerings, service and location. If we are unable to compete successfully against other foodservice providers, we could lose customers and our revenues may decline. We compete against other QSRs, including chicken, hamburger, pizza, Mexican and sandwich restaurants, other purveyors of carry out food, convenience dining establishments and other home meal replacement alternatives, including national restaurant and grocery store chains. Many of our competitors possess substantially greater financial, marketing, personnel and other resources than we do. There can be no assurance that consumers will continue to regard our products favorably, that we will be able to develop new products that appeal to consumer preferences, or that we will be able to continue to compete successfully in the QSR industry.

Adverse publicity related to food safety and quality could result in a loss of customers and reduce our revenues.

We and our franchisees are, from time to time, the subject of complaints or litigation from guests alleging illness, injury or other food quality, health or operational concerns. Adverse publicity resulting from these allegations may harm our reputation or our franchisees’ reputation, regardless of whether the allegations are valid or not, whether we are found liable or not, or whether those concerns relate only to a single restaurant or a limited number of restaurants or many restaurants. We are also subject to potentially negative publicity from various sources, including television, social media sites, which are beyond the control of the Company. Additionally, some animal rights organizations have engaged in confrontational demonstrations at certain restaurant companies across the country. As a multi-unit restaurant company, we can be adversely affected by the publicity surrounding allegations involving illness, injury, or other food quality, health or operational concerns. Complaints, litigation or adverse publicity experienced by one or more of our franchisees could also adversely affect our business as a whole. If we have adverse publicity due to any of these concerns, we may lose customers and our revenues may decline.

Because our operating results are closely tied to the success of our franchisees, the failure or loss of one or more franchisees, operating a significant number of restaurants, could adversely affect our operating results.

Our operating results are dependent on our franchisees and, in some cases, on certain franchisees that operate a large number of restaurants. How well our franchisees operate their restaurants and their desire to maintain their franchise relationship with us is outside of our direct control. In addition, economic conditions and the availability of credit may have an adverse impact on our franchisees. Any failure of these franchisees to operate their restaurants successfully or the loss of these franchisees could adversely impact our operating results. As of December 30, 2012, we had 340 franchisees operating restaurants within the Popeyes system and several

 

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preparing to become operators. The largest of our domestic franchisees operates 143 Popeyes restaurants; and the largest of our international franchisees operates 101 Popeyes restaurants. Typically, each of our international franchisees is responsible for the development of significantly more restaurants than our domestic franchisees. As a result, our international operations are more closely tied to the success of a smaller number of franchisees than our domestic operations. There can be no assurance that our domestic and international franchisees will operate their franchises successfully or continue to maintain their franchise relationships with us.

If our franchisees are unable or unwilling to open a sufficient number of restaurants, our growth strategy could be at risk.

As of December 30, 2012, we franchised 1,634 restaurants domestically and 425 restaurants in Puerto Rico, Guam, the Cayman Islands and 26 foreign countries. Our growth strategy is significantly dependent on increasing the number of our franchised restaurants. If our franchisees are unable to open a sufficient number of restaurants, our growth strategy could be significantly impaired.

Our ability to successfully open additional franchised restaurants will depend on various factors, including the availability of suitable sites, the negotiation of acceptable leases or purchase terms for new locations, permitting and regulatory compliance, the ability to meet construction schedules, the financial and other capabilities of our franchisees, and general economic and business conditions. Many of the foregoing factors are beyond the control of our franchisees. Further, there can be no assurance that our franchisees will successfully develop or operate their restaurants in a manner consistent with our concepts and standards, or will have the business abilities or access to financial resources necessary to open the restaurants required by their agreements. Historically, there have been many instances in which Popeyes franchisees have not fulfilled their obligations under their development agreements to open new restaurants.

If the cost of chicken increases, our cost of sales will increase and our operating results could be adversely affected.

The principal raw material for Popeyes is fresh chicken. Any material increase in the costs of fresh chicken could adversely affect our operating results. Our company-operated and franchised restaurants purchase fresh chicken from various suppliers who service us from various plant locations. These costs are significantly affected by increases in the cost of chicken, which can result from a number of factors, including increases in the cost of grain, disease, declining market supply of fast-food sized chickens and other factors that affect availability. Because our purchasing agreements for fresh chicken allow the prices that we pay for chicken to fluctuate, a rise in the prices of chicken products could expose us to cost increases. If we fail to anticipate and react to increasing food costs by adjusting our purchasing practices or increasing our sales prices, our cost of sales may increase and our operating results could be adversely affected.

Disruptions in the financial markets may adversely affect the availability and cost of credit and the slower economy may impact consumer spending patterns.

The ability of our franchisees and prospective franchisees to obtain financing for development of new restaurants or reinvestment in existing restaurants depends in part upon financial and economic conditions which are beyond their control. If our franchisees are unable to obtain financing on acceptable terms to develop new restaurants or reinvest in existing restaurants, our business and financial results could be adversely affected.

Disruptions in the financial markets and the slower economy may also adversely affect consumer spending patterns. There can be no assurances that governmental or other responses to the challenging credit environment will restore consumer confidence, stabilize the markets or increase liquidity and the availability of credit. Declines in or displacement of our guests’ discretionary spending could reduce traffic in our system’s restaurants and/or limit our ability to raise prices.

 

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Changes in consumer preferences and demographic trends could result in a loss of customers and reduce our revenues.

Foodservice businesses are often affected by changes in consumer tastes, national, regional and local economic conditions, discretionary spending priorities, demographic trends, traffic patterns and the type, number and location of competing restaurants. In addition, the restaurant industry is currently under heightened legal and legislative scrutiny related to menu labeling and resulting from the perception that the practices of restaurant companies have contributed to nutritional, caloric intake, obesity, or other health concerns of their guests. If we are unable to adapt to changes in consumer preferences and trends, we may lose customers and our revenues may decline.

Currency, economic, political and other risks associated with our international operations could adversely affect our operating results.

We also face currency, economic, political, and other risks associated with our international operations. As of December 30, 2012, we had 425 franchised restaurants in Puerto Rico, Guam, the Cayman Islands and 26 foreign countries. Business at these operations is conducted in the respective local currency. The amount owed to us is based on a conversion of the royalties and other fees to U.S. dollars using the prevailing exchange rate. In particular, the royalties are based on a percentage of net sales generated by our foreign franchisees’ operations. Consequently, our revenues from international franchisees are exposed to the potentially adverse effects of our franchisees’ operations, currency exchange rates, local economic conditions, political instability and other risks associated with doing business in foreign countries. We expect that our franchise revenues generated from international operations will increase in the future, thus increasing our exposure to changes in foreign economic conditions and currency fluctuations.

Our operating results and same-store sales may fluctuate significantly and could fall below the expectations of securities analysts and investors, which could cause the market price of our common stock to decline.

Our quarterly operating results and same-store sales have fluctuated significantly in the past and may continue to fluctuate significantly in the future as a result of a variety of factors, many of which are outside of our control. If our quarterly results or same-store sales fluctuate or fall below the expectations of securities analysts and investors, the market price of our common stock could decline.

Factors that may cause our quarterly results or same-store sales to fluctuate include the following:

 

   

the opening of new restaurants by us or our franchisees;

 

   

the closing of restaurants by us or our franchisees;

 

   

volatility of gasoline prices;

 

   

increases in labor costs;

 

   

increases in the cost of commodities and paper products;

 

   

inclement weather patterns; and

 

   

economic conditions generally, and in each of the markets in which we, or our franchisees, are located.

Accordingly, results for any one quarter are not indicative of the results to be expected for any other quarter or for the full year, and same-store sales for any future period may decrease.

 

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We are subject to government regulation, and our failure to comply with existing regulations or increased regulations could adversely affect our business and operating results.

We are subject to numerous federal, state, local and foreign government laws and regulations, including those relating to:

 

   

the preparation and sale of food;

 

   

employee healthcare legislation;

 

   

franchising;

 

   

building and zoning requirements;

 

   

environmental protection;

 

   

information security and data protection;

 

   

minimum wage, overtime, immigration, unions and other labor issues;

 

   

compliance with the Americans with Disabilities Act; and

 

   

working and safety conditions.

If we fail to comply with existing or future regulations, we may be subject to governmental or judicial fines or sanctions, or we could suffer business interruption or loss. In addition, our capital expenses could increase due to remediation measures that may be required if we are found to be noncompliant with any of these laws or regulations.

We are also subject to regulation by the Federal Trade Commission and to state and foreign laws that govern the offer, sale and termination of franchises and the refusal to renew franchises. The failure to comply with these regulations in any jurisdiction or to obtain required approvals could result in a ban or temporary suspension on future franchise sales or fines or require us to make a rescission offer to franchisees, any of which could adversely affect our business and operating results.

Shortages or interruptions in the supply or delivery of fresh food products could adversely affect our operating results.

We and our franchisees are dependent on frequent deliveries of fresh food products that meet our specifications. Shortages or interruptions in the supply of fresh food products caused by unanticipated demand, natural disasters, problems in production or distribution, declining number of distributors, inclement weather or other conditions could adversely affect the availability, quality and cost of ingredients, which would adversely affect our operating results.

Instances of food-borne illness or avian flu could adversely affect the price and availability of poultry and other foods and create negative publicity which could result in a decline in our sales.

Instances of food-borne illness or avian flu could adversely affect the price and availability of poultry and other foods. As a result, Popeyes restaurants could experience a significant increase in food costs if there are additional instances of avian flu or food-borne illnesses. In addition to losses associated with higher prices and a lower supply of our food ingredients, instances of food-borne illnesses could result in negative publicity for us. This negative publicity, as well as any other negative publicity concerning food products we serve, may reduce demand for our food and could result in a decrease in guest traffic to our restaurants. A decrease in guest traffic to Popeyes restaurants as a result of these health concerns or negative publicity could result in a decline in our sales.

 

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If any member of our senior management left us, our operating results could be adversely affected, and we may not be able to attract and retain additional qualified management personnel.

We are dependent on the experience and industry knowledge of the members of our senior management team. If, for any reason, our senior executives do not continue to be active in management or if we are unable to attract and retain qualified new members of senior management, our operating results could be adversely affected. We cannot guarantee that we will be able to attract and retain additional qualified senior executives as needed. We have employment agreements with certain executives; however, these agreements do not ensure their continued employment with us.

We may not be able to adequately protect our intellectual property, which could harm the value of our Popeyes brand and branded products and adversely affect our business.

We depend in large part on our Popeyes brand and branded products and believe that they are very important to the conduct of our business. We rely on a combination of trademarks, copyrights, service marks, trade secrets and similar intellectual property rights to protect our Popeyes brand and branded products. The success of our expansion strategy depends on our continued ability to use our existing trademarks and service marks in order to increase brand awareness and further develop our branded products in both domestic and international markets. We also use our trademarks and other intellectual property on the Internet. If our efforts to protect our intellectual property are not adequate, or if any third party misappropriates or infringes on our intellectual property, either in print or on the Internet, the value of our Popeyes brand may be harmed, which could have a material adverse effect on our business, including the failure of our Popeyes brand and branded products to achieve and maintain market acceptance.

We franchise our restaurants to various franchisees. While we try to ensure that the quality of our Popeyes brand and branded products is maintained by all of our franchisees, we cannot be certain that these franchisees will not take actions that adversely affect the value of our intellectual property or reputation.

We have registered certain trademarks and have other trademark registrations pending in the U.S. and foreign jurisdictions. The trademarks that we currently use have not been registered in all of the countries in which we do business and may never be registered in all of these countries. We cannot be certain that we will be able to adequately protect our trademarks or that our use of these trademarks will not result in liability for trademark infringement, trademark dilution or unfair competition.

There can be no assurance that all of the steps we have taken to protect our intellectual property in the U.S. and foreign countries will be adequate. In addition, the laws of some foreign countries do not protect intellectual property rights to the same extent as the laws of the U.S. Further, through acquisitions of third parties, we may acquire brands and related trademarks that are subject to the same risks as the brand and trademarks we currently own.

Failure to protect our information systems against cyber attacks or information security breaches, including failure to protect the integrity and security of individually identifiable data of our customers, franchisees and employees, could expose us to litigation, damage our reputation and have a material adverse effect on our business.

We rely on computer systems and information technology to conduct our business. These systems are inherently vulnerable to disruption or failure, as well as internal and external security breaches, denial of service attacks or other disruptive problems caused by hackers. A failure of these systems could cause an interruption in our business which could have a material adverse effect on our results of operations and financial condition.

In addition, we receive and maintain certain personal information about our customers, franchisees and employees. The use of this information by us is regulated by applicable law. If our security and information

 

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systems are compromised or our business associates fail to comply with these laws and regulations and this information is obtained by unauthorized persons or used inappropriately, it could adversely affect our reputation, as well as our restaurant operations and results of operations and financial condition. Additionally, we could be subject to litigation or the imposition of penalties. As privacy and information security laws and regulations change, we may incur additional costs to ensure we remain in compliance.

Our 2010 Credit Facility may limit our ability to expand our business, and our ability to comply with the repayment requirements, covenants, tests and restrictions contained in the 2010 Credit Facility may be affected by events that are beyond our control.

The 2010 Credit Facility, as amended, contains financial and other covenants, including covenants which require us to maintain various financial ratios, limit our ability to incur additional indebtedness, restrict the amount of capital expenditures that may be incurred, restrict the payment of cash dividends and limit the amount of debt which can be loaned to our franchisees or guaranteed on their behalf. This facility also limits our ability to engage in mergers or acquisitions, sell certain assets, repurchase our stock and enter into certain lease transactions. The 2010 Credit Facility, as amended, includes customary events of default, including, but not limited to, the failure to maintain the financial ratios described above, the failure to pay any interest, principal or fees when due, the failure to perform certain covenant agreements, inaccurate or false representations or warranties, insolvency or bankruptcy, change of control, the occurrence of certain ERISA events and judgment defaults. The restrictive covenants in our 2010 Credit Facility, as amended, may limit our ability to expand our business, and our ability to comply with these provisions may be impacted by events beyond our control. A failure to comply with any of the financial and operating covenants included in the 2010 Credit Facility, as amended, would result in an event of default, permitting the lenders to accelerate the maturity of outstanding indebtedness. This acceleration could also result in the acceleration of other indebtedness that we may have outstanding at that time. Were we to default on the terms and conditions of the 2010 Credit Facility, as amended, and the debt were accelerated by the facility’s lenders, such developments would have a material adverse impact on our financial condition and our liquidity.

Item 1B.  UNRESOLVED STAFF COMMENTS

None.

 

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Item 2.  PROPERTIES

We own, lease or sublease the land and buildings for our company-operated restaurants. In addition, we own, lease or sublease land and buildings which we lease or sublease to our franchisees and third parties.

The following table sets forth the locations by state of our company-operated restaurants as of December 30, 2012:

 

      Land and
Buildings Owned
     Land and/or
Buildings Leased
     Total  

Louisiana

     4         22         26   

Tennessee

     2         7         9   

Mississippi

     0         3         3   

North Carolina

     0         2         2   

Arkansas

     0         1         1   

Indiana

     3         1         4   

Total

     9         36         45   

 

During 2012, the Company completed an acquisition of 27 restaurants in California and Minnesota, of which 18 are fee owned properties and 9 are leased. Twenty six of the restaurants will be leased to Popeyes franchisees and the remaining restaurant property will be sold. As of December 30, 2012, two of the California restaurants had been reimaged and leased to franchisees.

We typically lease our restaurants under “triple net” leases that require us to pay minimum rent, real estate taxes, maintenance costs and insurance premiums and, in some cases, percentage rent based on sales in excess of specified amounts. Generally, our leases have initial terms of 20 years, with options to renew for one or more additional periods, although the terms of our leases vary depending on the facility.

Within our franchise operations segment, our typical restaurant leases to franchisees are triple net to the franchisee, requiring them to pay minimum rent (based upon prevailing market rental rates), real estate taxes, maintenance costs and insurance premiums, as well as percentage rents based on sales in excess of specified amounts. These leases are typically cross-defaulted with the corresponding franchise agreement for that site.

As of December 30, 2012, the Company leased 12 restaurants and subleased 44 restaurants to franchisees. Additionally, we leased three properties to unrelated third parties. Of the restaurants leased or subleased to franchisees, 29 were located in Texas and 16 were located in Georgia.

As discussed in Note 9 to the Consolidated Financial Statements, all owned property is pledged as security under our 2010 Credit Facility.

We lease office space in a facility located in Atlanta, Georgia that is the headquarters for the Company. The lease for the office space expires on November 30, 2022. There are two 5 year renewal options which can be executed to extend the lease an additional 10 years at a market rate to be determined at the time of renewal.

We believe our leased and owned facilities provide sufficient space to support our corporate and operational needs.

Item 3.  LEGAL PROCEEDINGS

We are a defendant in various legal proceedings arising in the ordinary course of business, including claims resulting from “slip and fall” accidents, employment-related claims, claims from guests or employees alleging

 

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illness, injury or other food quality, health or operational concerns and claims related to franchise matters. We have established adequate reserves to provide for the defense and settlement of such matters, and we believe their ultimate resolution will not have a material adverse effect on our financial condition or our results of operations.

Item 4.  MINE SAFETY DISCLOSURES

None.

Item 4A.  EXECUTIVE OFFICERS

The following table sets forth the name, age (as of the date of this filing) and position of our current executive officers:

 

Name

     Age     

Position

Cheryl A. Bachelder

       56      

President and Chief Executive Officer

Ralph W. Bower

       50      

President-US Popeyes Louisiana Kitchen

H. Melville Hope, III

       51      

Senior Vice President and Chief Financial Officer

Richard H. Lynch

       58      

Chief Global Brand Officer

Harold M. Cohen

       49      

Senior Vice President, General Counsel, Chief Administrative Officer and Corporate Secretary

Andrew Skehan

       52      

Chief Operating Officer-International

Cheryl A. Bachelder, age 56, has served as our Chief Executive Officer since November 2007. She has served as a member of the Board of Directors since November 2006 and also serves on the Procter & Gamble APFI Advisory Board, since 2009, as well as the Board of Directors for Pier 1 Imports, since November 2012. She also served on the True Value Corporation Board of Directors, from 2006 – 2013 and the National Restaurant Association Board, May 2009 – December 2012. Ms. Bachelder served as the President and Chief Concept Officer of KFC Corporation in Louisville, Kentucky from January 2001 to September 2003.

Ralph W. Bower, age 50, has served as our President – U.S. Popeyes Louisiana Kitchen since March of 2012. Mr. Bower served as our Chief Operating Officer U.S. From March 2009 to February 2012. From February 2008 to March 2009, Mr. Bower served as our chief operations officer. From 2006 to 2008, Mr. Bower was the KFC operations leader responsible for more than 1,300 KFC franchised restaurants in the western United States. Prior to this position, he led KFC company operations in Pennsylvania, New Jersey and Delaware. From 2002 to 2003 Mr. Bower directed the guest satisfaction function for KFC. Before joining KFC, Mr. Bower was employed by Western Ohio Pizza, a franchisee of Domino’s Pizza, overseeing operations in Dayton, OH, and Indianapolis, IN. Mr. Bower began his restaurant career with the second largest Domino’s franchise organization, Team Washington, where he was a regional director.

H. Melville Hope, III, age 51, has served as our Chief Financial Officer since December 2005. From February 2004 until December 2005, Mr. Hope served as our Senior Vice President, Finance and Chief Accounting Officer. From April 2003 to February 2004, Mr. Hope was our Vice President of Finance. Prior to joining AFC, he was Chief Financial Officer for First Cambridge HCI Acquisitions, LLC, a real estate investment firm, located in Birmingham, Alabama. From 1984 to 2002, Mr. Hope was an accounting, auditing and business advisory professional for PricewaterhouseCoopers, LLP in Atlanta, Georgia, in Savannah, Georgia and in Houston, Texas where he was admitted to the partnership in 1998.

Richard H. Lynch, age 58, was appointed Chief Global Brand Officer in January 2012. From March 2008 to January 2012, Mr. Lynch served as our Chief Marketing Officer following his consultancy as interim CMO. Mr. Lynch served as Principal of Go LLC, a marketing consulting firm specializing in restaurant and food retail from July 2003 to February 2008, where he developed brand strategy and innovation plans for concepts including Burger King, Ruby Tuesday, and Buffalo Wild Wings. From November 1982 to June 2003, Mr. Lynch served as

 

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Executive Vice President at Campbell Mithun Advertising where he led the development of strategy and positioning for brands such as Domino’s Pizza, Martha Stewart Everyday and Betty Crocker.

Harold M. Cohen, age 49, has served as our Senior Vice President of Legal Affairs, Corporate Secretary and General Counsel since September 2005. Mr. Cohen has served as our Chief Administrative Officer since May 2008. Mr. Cohen has been General Counsel of Popeyes, a division of AFC Enterprises, Inc., since January 2005. He also has served as Vice President of AFC since July 2000. From April 2001 to December 2004, he served as Deputy General Counsel of AFC. From August 1995 to June 2000, he was Corporate Counsel for AFC.

Andrew Skehan, age 52, was appointed our Chief Operating Officer – International in August 2011. From October 2009 until August 2011, Mr. Skehan was Chief Operating Officer – International for Wendy’s/Arby’s Group in Atlanta, Georgia. From April 2007 until December 2008, he was President – Europe, Africa and Middle East for Quiznos Restaurants in Denver, Colorado. From April 1999 until December 2006, Mr. Skehan served as Chief Marketing Officer and subsequently Chief Operating Officer for Churchill Downs Inc. in Louisville, Kentucky.

 

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PART II.

 

Item 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Our common stock currently trades on the NASDAQ Global Market under the symbol “AFCE.”

The following table sets forth the high and low per share sales prices of our common stock, by quarter, for fiscal years 2012 and 2011.

 

      2012      2011  
(Dollars per share)    High      Low      High      Low  

First Quarter

   $   17.77       $   13.68       $   16.11       $   13.27   

Second Quarter

   $ 24.49       $ 15.99       $ 17.57       $ 14.01   

Third Quarter

   $ 26.79       $ 20.74       $ 17.12       $ 11.57   

Fourth Quarter

   $ 27.89       $ 24.36       $ 16.17       $ 11.57   

Share Repurchases

A share repurchase program approved by the Board of Directors is presently in place. On February 13, 2013 the Board of Directors approved an additional $50.0 million for the share repurchase program. As of February 27, 2013, the remaining dollar amount of shares that may be repurchased under the program was approximately $51.4 million. See Note 12 to our Consolidated Financial Statements.

During 2012, we repurchased and retired 741,228 shares of common stock for approximately $15.2 million. During 2011, we repurchased and retired 1,465,436 shares of common stock for approximately $22.3 million. During fiscal 2010 no shares of common stock were repurchased or retired.

Pursuant to the terms of the Company’s 2010 Credit Facility, the Company may repurchase its common shares when the Total Leverage ratio is less than 2.00 to 1. The Total Leverage Ratio at December 30, 2012 is 1.20 to 1.

During the fourth quarter of 2012, we repurchased 143,683 of our common shares as scheduled below:

 

Period

   Number of
Shares
Repurchased
     Average
Price
Paid
Per
Share
     Total
Number of
Shares
Repurchased
as Part of a
Publicly
Announced
Plan
     Maximum
Value of
Shares that
May Yet

Be
Repurchased
Under the
Plan
 

Period 11

           

10/01/12 – 10/28/12

          $             $     5,148,966   

Period 12

           

10/29/12 – 11/25/12

     44,731       $ 25.80         44,731       $ 3,994,964   

Period 13

           

11/26/12 – 12/30/12

     98,952       $ 25.94         98,952       $ 1,427,848   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     143,683       $     25.90         143,683       $ 1,427,848   
  

 

 

    

 

 

    

 

 

    

 

 

 

On February 13, 2013 the Board of Directors approved an additional $50.0 million for the share repurchase program.

           

 

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Shareholders of Record

As of January 27, 2013, we had 112 shareholders of record of our common stock.

Dividend Policy

We anticipate that we will retain any future earnings to support operations and to finance the growth and development of our business, and we do not expect to pay cash dividends in the foreseeable future. Any future determination relating to our dividend policy will be made at the discretion of our Board of Directors and will depend on a number of factors, including future earnings, capital requirements, financial conditions, plans for share repurchases, future prospects and other factors that the Board of Directors may deem relevant. Other than a special cash dividend, we have never declared or paid cash dividends on our common stock.

Stock Performance Graph

The following stock performance graph compares the performance of our common stock to the Standard & Poor’s 500 Stock Index (“S&P 500 Index”) and a peer group index for the period from December 30, 2007 through December 30, 2012 and further assumes the reinvestment of all dividends.

Comparison of Cumulative Five Year Total Return

 

LOGO

 

Company Name / Index

  12/30/2007     12/28/2008     12/27/2009     12/26/2010     12/25/2011     12/30/2012  

AFC Enterprises, Inc.

    100        42        80        140        141        244   

S&P 500 Index

    100        60        80        91        94        106   

Peer Group Index

    100        76        89        121        147        168   

Our Peer Group Index is composed of the following quick service restaurant companies: Domino’s Pizza Inc., Jack In the Box Inc., Papa Johns International Inc., Sonic Corp., Wendy’s International Inc. (included through 9/29/08, when it was acquired by Triarc Companies, Inc.), and YUM! Brands Inc.

 

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Item 6.  SELECTED FINANCIAL DATA

The following data was derived from our Consolidated Financial Statements. Such data should be read in conjunction with our Consolidated Financial Statements and the notes thereto and our “Management’s Discussion and Analysis of Financial Condition and Results of Operations” at Item 7 of this Annual Report.

 

(In millions, except per share data)    2012     2011      2010      2009      2008  

Summary of continuing operations:

             

Revenues:(1)

             

Sales by company-operated restaurants

   $   64.0      $   54.6       $   52.7       $   57.4       $   78.3   

Franchise revenues(2)

     110.5        95.0         89.4         86.0         84.6   

Rent and other revenues

     4.3        4.2         4.3         4.6         3.9   
  

 

 

 

Total revenues

   $ 178.8        153.8         146.4         148.0         166.8   
  

 

 

 

Expenses:

             

Restaurant employee, occupancy and other expenses

     31.2        26.1         25.8         29.5         41.4   

Restaurant food, beverages and packaging

     21.7        18.3         16.8         18.9         27.1   

Rent and other occupancy expenses

     2.9        2.7         2.1         2.6         2.4   

General and administrative expenses

     67.6        61.3         56.4         56.0         53.9   

Depreciation and amortization

     4.6        4.2         3.9         4.4         6.3   

Other expenses (income), net(3)

     (0.5     0.5         0.2         (2.1      (4.6
  

 

 

 

Total expenses

     127.5        113.1         105.2         109.3         126.5   
  

 

 

 

Operating profit

     51.3        40.7         41.2         38.7         40.3   

Interest expense, net(4)

     3.6        3.7         8.0         8.4         8.1   
  

 

 

 

Income before income taxes

     47.7        37.0         33.2         30.3         32.2   

Income tax expense

     17.3        12.8         10.3         11.5         12.8   
  

 

 

 

Net income

   $ 30.4      $ 24.2       $ 22.9       $ 18.8       $ 19.4   
  

 

 

 

Earnings per common share, basic

   $ 1.27      $ 0.99       $ 0.91       $ 0.74       $ 0.76   

Earnings per common share, diluted

   $ 1.24      $ 0.97       $ 0.90       $ 0.74       $ 0.76   

Weighted average shares outstanding:

             

Basic

     23.9        24.5         25.3         25.3         25.6   

Diluted

     24.5        25.0         25.5         25.4         25.7   

Summary of cash flow data:

             

Special cash dividend

   $      $       $       $       $ 0.5   

Share repurchases

     15.2        22.3                         19.0   

Year-end balance sheet data:

             

Total assets

   $   172.4      $   135.6       $   123.9       $   116.6       $   132.0   

Total debt

     72.8        64.0         66.0         82.6         119.2   

 

(1)

Factors that impact the comparability of revenues for the years presented include:

 

  (a)

The effects of restaurant openings, closings, unit conversions, franchisee sales and same-store sales (see “Summary of System-Wide Data” later in this Item 6).

 

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  (b)

The Company’s fiscal year ends on the last Sunday in December. The 2012 fiscal year consisted of 53 weeks. All other fiscal years presented consisted of 52 weeks each. The 53rd week in 2012 increased sales by company-operated restaurants by approximately $1.2 million and increased franchise revenues by approximately $1.7 million.

 

  (c)

The Company opened 2 new restaurants in Q4 2011 and 5 new restaurants in Q4 2012 resulting in increased revenue of $5.5 million in 2012 compared to 2011.

 

  (d)

The Company opened 3 new restaurants in Q4 2010 and Q4 2011 resulting in increased revenue of $1.3 million in 2011 compared to 2010.

 

  (e)

On January 26, 2009, the Company completed the re-franchising of 3 company-operated restaurants in its Nashville, Tennessee market resulting in a decrease in 2010 revenues of $0.3 million as compared to 2009 (net of franchise royalties earned), and a decrease in 2009 revenues of $3.1 million (net of franchise royalties earned) as compared to 2008.

 

  (f)

On June 8, 2009, the Company completed the re-franchising of 13 company-operated restaurants in its Atlanta, Georgia market resulting in a decrease in 2010 revenues of $6.2 million (net of franchise royalties earned) as compared to 2009 and a decrease in 2009 revenues of $6.8 million (net of franchise royalties earned) as compared to 2008.

 

  (g)

On September 8, 2008, the Company completed the re-franchising and sale of 11 company-operated restaurants in its Atlanta, Georgia market resulting in a decrease in 2009 revenue of $9.2 million (net of franchise royalties earned) compared to 2008.

 

(2)

Franchise revenues are principally composed of royalty payments from franchisees that are determined based on franchise net restaurant sales and are generally 5% of franchise net restaurant sales. While franchise sales are not recorded as revenue by the Company, management believes they are important in understanding the Company’s financial performance because these sales are indicative of the Company’s health, given the Company’s strategic focus on growing its overall business through franchising. Total franchisee sales were $2.189 billion in 2012, $1.932 billion in 2011, $1.811 billion in 2010, $1.716 billion in 2009, and $1.663 billion in 2008.

 

(3)

Factors that impact the comparability of Other expenses (income), net for the years presented include:

 

  (a)

During 2011, the Company sold two properties to a franchisee for approximately $0.7 million and recognized a gain of $0.5 million.

 

  (b)

The Company recognized $0.8 million in expense for the corporate support center relocation in 2011.

 

  (c)

During 2012, 2011, 2010 and 2009, there were no significant expenses (income) associated with shareholder litigation. During 2008, our expenses (income) associated with litigation related costs (proceeds) were approximately $(12.9) million. The substantially higher income in 2008 relates to recoveries from claims against certain director and officers liability insurance policies.

 

  (d)

During 2009, the Company sold ten real estate properties for a gain of approximately $3.6 million.

 

  (e)

During 2012, 2011, 2010, 2009 and 2008 disposals of fixed assets were approximately $0.3 million, $0.5 million, $0.7 million, $0.6 million, and $9.5 million, respectively. Of the 2008 impairments, $9.2 million were associated with the re-franchising of company-operated restaurants in Atlanta, Georgia and Nashville, Tennessee.

 

(4)

Factors that impact the comparability of Interest expense, net for the years presented include:

 

  (a)

In 2011, interest from term loans decreased $3.2 million compared to 2010 primarily due to lower interest rates from the Credit Facility refinanced in 2010. See Note 9 for details on the Credit Facility.

 

  (b)

During 2010 we expensed $0.6 million as a component of Interest expense, net in connection with the re-financing of our new credit facility. During 2009 we expensed $1.9 million as a component of Interest expense, net in connection with the third amendment and restatement of the 2005 Credit Facility.

 

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Summary of System-Wide Data

The following table presents financial and operating data for the Popeyes restaurants we operate and those that we franchise. The data presented is unaudited. Data for franchised restaurants is derived from information provided by our franchisees. We present this data because it includes important operational measures relevant to the QSR industry.

 

           
      2012     2011     2010     2009     2008  

Global system-wide sales increase

     13.5%        6.6%        5.1%        1.8%        0.6

Total domestic same-store sales increase (decrease)

     7.5%        3.0%        2.5%        0.6%        (2.2)

International same-store sales increase (decrease)

     2.6%        3.3%        3.1%        1.9%        4.1

Total global same-store sales increase (decrease)(1)

     6.9%        3.1%        2.6%        0.7%        (1.7)

Company-operated restaurants (all domestic)

          

Restaurants at beginning of year

     40        38        37        55        65   

New restaurant openings

     5        2        1               1   

Restaurant conversions, net(2)

                          (16     (11)   

Permanent closings

                          (2     (3)   

Temporary (closings)/re-openings, net(3)

                                 3   
  

 

 

 

Restaurants at end of year

     45        40        38        37        55   
  

 

 

 

Franchised restaurants (domestic and international)

          

Restaurants at beginning of year

     1,995        1,939        1,906        1,867        1,840   

New restaurant openings

     136        138        105        95        139   

Restaurant conversions, net(2)

                          16        11   

Permanent closings

     (75)        (75)        (67     (79     (117)   

Temporary (closings)/re-openings, net(3)

     3        (7)        (5     7        (6)   
  

 

 

 

Restaurants at end of year

     2,059        1,995        1,939        1,906        1,867   
  

 

 

 
Total system restaurants      2,104        2,035        1,977        1,943        1,922   
  

 

 

 

New franchised restaurant openings

          

Domestic

     79        71        44        39        72   

International

     57        67        61        56        67   
  

 

 

 

Total new franchised restaurant openings

     136        138        105        95        139   
  

 

 

 

Franchised restaurants

          

Domestic

     1,634        1,587        1,542        1,539        1,527   

International

     425        408        397        367        340   
  

 

 

 

Restaurants at end of year

     2,059        1,995        1,939        1,906        1,867   

 

(1)

New restaurants are included in the computation of same-store sales after they have been open 15 months. Unit conversions are included immediately upon conversion.

 

(2)

Unit conversions include the sale or purchase of Company-operated restaurants to/from a franchisee.

 

(3)

Temporary closings are presented net of re-openings. Most temporary closings arise due to the re-imaging or the rebuilding of older restaurants.

 

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Item 7.

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion and analysis should be read in conjunction with our Selected Financial Data, our Consolidated Financial Statements and our Risk Factors that are included elsewhere in this filing.

Our discussion contains forward-looking statements based upon current expectations that involve risks and uncertainties, such as our plans, objectives, expectations and intentions. Actual results and the timing of events could differ materially from those anticipated in these forward-looking statements, as a result of a number of factors including those factors set forth in Item 1A. of this Annual Report and other factors presented throughout this filing.

Nature of Business

AFC develops, operates, and franchises quick-service restaurants under the trade names Popeyes® Chicken & Biscuits and Popeyes® Louisiana Kitchen (collectively “Popeyes”) in 47 states, the District of Columbia, Puerto Rico, Guam, the Cayman Islands, and 26 foreign countries. Popeyes has two reportable business segments: franchise operations and company-operated restaurants. Financial information concerning these business segments can be found at Note 20 to our Consolidated Financial Statements.

Management Overview of 2012 Results

Our fiscal year 2012 results and highlights include the following.

 

 

Reported net income was $30.4 million, or $1.24 per diluted share, compared to $24.2 million, or $0.97 per diluted share, in 2011. Adjusted earnings per diluted share, which included approximately $0.01 for the 53rd week of operations, were $1.24 compared to $0.99 in 2011, a 25% increase. Adjusted earnings per diluted share is a supplemental non-GAAP measure of performance. See the heading entitled “Management’s Use of Non-GAAP Financial Measures”.

 

 

Global same-store sales increased 6.9%, compared to a 3.1% increase last year.

 

 

System-wide sales increased 13.5%, compared to a 6.6% increase in 2011.

 

 

The Popeyes system opened 141 restaurants, compared to 140 last year, and permanently closed 75 restaurants, resulting in 66 net openings, compared to 65 in 2011.

 

 

General and administrative expenses were $67.6 million, at 3.0% of system-wide sales compared to $61.3 million at 3.1% of system-wide sales in 2011.

 

 

Operating EBITDA of $55.9 million was 31.3% of total revenues, compared to $45.4 million, at 29.5% of total revenues last year. Operating EBITDA is a supplemental non-GAAP measure of performance. See the heading entitled “Management’s Use of Non-GAAP Financial Measures.”

 

 

Free cash flow was $36.7 million, compared to $28.5 million in 2011. As a percentage of total revenue, free cash flow increased to 20.5%, compared to 18.5% last year. Free cash flow is a supplemental non-GAAP measure of performance. See the heading entitled “Management’s Use of Non-GAAP Financial Measures”.

2012 Same-Store Sales

Global same-store sales increased 6.9%, compared to a 3.1% increase in 2011. Total domestic same-store sales increased 7.5%, compared to a 3.0% increase last year. This positive sales growth reflects Popeyes continued introduction of highly innovative new products, supported by expanded relevant advertising and strengthened restaurant execution.

 

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International same-store sales increased 2.6%, compared to a 3.3% increase last year, the sixth consecutive year of positive same-store sales.

For additional information on our business strategies, see the discussion under the heading “Our Business Strategy” in Item 1 to this Annual Report on Form 10-K.

As it concerns our expected same-store sales results for 2013, see the discussion under the heading “Operating and Financial Outlook for 2013” later in this Item 7.

2012 Unit Growth

The Popeyes system opened 141 restaurants in 2012, which included 84 domestic and 57 international restaurants, compared to 140 openings in 2011. The Popeyes system permanently closed 75 restaurants in fiscal 2012, resulting in 66 net restaurant openings, compared to 65 net openings last year. These closures included 29 domestic and 46 international restaurants.

Factors Affecting Comparability of Consolidated Results of Operations: 2012, 2011 and 2010

For 2012, 2011, and 2010, the following items and events affect comparability of reported operating results:

 

   

The Company’s fiscal year ends on the last Sunday in December. The 2012 fiscal year consisted of 53 weeks. All other fiscal years presented consisted of 52 weeks each. The 53rd week in 2012 increased sales by company-operated restaurants by approximately $1.2 million and increased franchise revenues by approximately $1.7 million. The net impact of the 53rd week earnings per share was approximately $0.01 per diluted share.

 

   

During 2012, 2011 and 2010, the company built five, two new restaurants and one new restaurant, respectively.

 

   

During 2011, the Company recognized $0.8 million of work opportunity tax credits related to prior years.

 

   

The Company recognized $0.8 million in expense for the corporate support center relocation in 2011.

 

   

During 2010 we expensed $0.6 million as a component of Interest expense, net in connection with our new credit facility.

 

   

During 2010, we recorded a tax benefit of $1.4 million, related to the completion of a federal income tax audit for years 2004 and 2005.

Comparisons of Fiscal Years 2012 and 2011

Sales by Company-Operated Restaurants

Sales by company-operated restaurants were $64.0 million in 2012, a $9.4 million increase from 2011. The increase was primarily due to new restaurants opened and a 5.3% increase in same-store sales.

Franchise Revenues

Franchise revenues have three basic components: (1) ongoing royalty payments that are determined based on a percentage of franchisee sales; (2) franchise fees associated with new restaurant openings; and (3) development fees associated with the opening of new franchised restaurants in a given market. Royalty revenues are the largest component of franchise revenues, constituting more than 90%.

Franchise revenues were $110.5 million in 2012, a $15.5 million increase from 2011. The increase was primarily due to an increase in royalties, resulting primarily from an increase in franchise same-store sales of 7.5% during 2012 and new franchised restaurants.

 

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Company Operated Restaurant Profit

Company-operated restaurant operating profit of $11.1 million was 17.3% of sales, compared to $10.2 million and 18.7% of sales last year. The $0.9 million increase in Company-operated restaurant operating profit was primarily due to same-store sales of 5.3% and two new restaurant openings in 2011. The 2012 operating profit includes approximately $0.3 million in pre-opening costs associated with opening 5 new restaurants. The 2011 restaurant operating profit includes a $0.5 million favorable adjustment to insurance reserves. Excluding the effects of pre-opening costs in 2012 and the change in estimated insurance reserves in 2011, Company-operated restaurant operating profit margin would have been 17.8% in both 2012 and 2011. Company-operated restaurant operating profit margin is a supplemental non-GAAP measure of performance. See the heading entitled “Management’s Use of Non-GAAP Financial Measures.”

General and Administrative Expenses

General and administrative expenses were $67.6 million at 3.0% of system-wide sales in 2012, a $6.3 million increase from 2011. This increase was primarily attributable to:

 

   

$3.1 million increase in short-term and long-term employee incentive costs,

 

   

$1.0 million increase in restaurant support and pre-opening costs in new company-operated markets,

 

   

$0.9 million increase in domestic new restaurant development and reimage expenses,

 

   

$0.5 million in legal fees related to licensing arrangements,

 

   

$0.6 million increase in franchisee restaurant support services and new restaurant opening support costs, and

 

   

$0.2 million increase in global support center and other general administrative expenses, net.

General and administrative expenses remain among the most efficient in the industry at approximately 3.0% and 3.1% of system wide sales during 2012 and 2011, respectively.

Other Expenses (Income), Net

Other income was $0.5 million in income in 2012 compared to other expenses of $0.5 million last year. Fiscal 2012 results include $0.9 million in gains on sale of real estate assets to franchisees, partially offset by $0.4 million loss on disposal of property and equipment and other expenses, net. In 2011, the Company recognized $0.8 million in expenses for the global support center relocation, offset by a $0.8 net gain on the sale of assets and $0.5 million in disposals of property and equipment and other expenses, net.

See Note 16 to our Consolidated Financial Statements for a description of Other expenses (income), net for 2012 and 2011.

 

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Operating Profit

Operating profit in 2012 was $51.3 million, a $10.6 million increase compared to 2011. Operating EBITDA was $55.9 million compared to $45.4 million in 2011. Fluctuations in the components of revenue and expense giving rise to these changes are discussed above. The following is an analysis of the fluctuations in operating profit by business segment. Operating profit for each reportable segment includes operating results directly attributable to each segment plus a 5% inter-company royalty charge from franchise operations to company-operated restaurants.

 

(Dollars in millions)    2012     2011      Fluctuation    

As a

Percent

 

Franchise operations

   $ 51.0      $ 40.2       $ 10.8        26.9%   

Company-operated restaurants

     4.4        5.2         (0.8     (15.3%)   
  

 

 

 

Operating profit before unallocated expenses

     55.4        45.4         10.0        22.0%   

Less unallocated expenses:

         

Depreciation and amortization

     4.6        4.2         0.4        10.0%   

Other expenses (income), net

     (0.5     0.5         1.0        200.0%   

Total

   $   51.3      $   40.7       $   10.6        26.0%   

The $10.8 million growth in franchise operations was primarily due to the $15.5 million increase in franchise revenue partially offset by increases in general and administrative expenses related to short-term and long-term employee incentive costs, domestic new restaurant development and reimage expenses, legal fees and franchise restaurant support services and new restaurant opening support costs.

Company-operated restaurants segment operating profit was $4.4 million, a $0.8 million or 15.3%, decrease from 2011. For 2012, company-operated restaurant operating profit was $11.1 million, a $0.9 million increase compared to 2011. Company-operated restaurant operating profit was offset by a $0.9 million planned increase in restaurant support and pre-opening costs in new company-operated markets Indianapolis and Charlotte, a $0.4 million increase in training, assessments and support costs in the New Orleans and Memphis company-operated restaurants and a $0.4 million increase in the intercompany royalty charge due to growth in revenues.

Income Tax Expense

Income tax expense was $17.3 million, yielding an effective tax rate of 36.3%, compared to an effective tax rate of 34.6% in 2011. The prior year income tax expense included a tax benefit of $0.8 million, or 2.2%, for work opportunity tax credits related to prior years. Excluding the impact of these tax credits, the 2012 effective rate was lower than 2011 due to minor favorable adjustments to income tax reserves, partially offset by higher state income taxes. The effective rates differ from statutory rates due to adjustments in estimated tax reserves, tax credits and permanent differences between reported income and taxable income for tax purposes.

Comparisons of Fiscal Years 2011 and 2010

Sales by Company-Operated Restaurants

Sales by company-operated restaurants were $54.6 million in 2011, a $1.9 million increase from 2010. The increase was primarily due to new restaurants opened and the 1.1% increase in same-store sales.

Franchise Revenues

Franchise revenues were $95.0 million in 2011, a $5.6 million increase from 2010. The increase was primarily due to an increase in royalties, resulting primarily from an increase in franchise same-store sales during 2011 and new franchised restaurants.

 

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Rent and Other Revenues

Rent and other revenues are primarily composed of rental income associated with properties leased or subleased to franchisees and is recognized on the straight-line basis over the lease term. Rent and other revenues were $4.2 million in 2011, a $0.1 million decrease from 2010.

Company Operated Restaurant Profit

Company-operated restaurant operating profit of $10.2 million was 18.7% of sales, compared to $10.1 million and 19.2% of sales last year. The 50 basis point decrease in Company-operated restaurant operating profit margin for fiscal year 2011 was due to inflation in commodity costs of approximately 8% which were partially offset by nominal menu price increases, supply chain savings and efficiencies in labor and other non-food related costs. Company-operated restaurant operating profit margin is a supplemental non-GAAP measure of performance. See the heading entitled “Management’s Use of Non-GAAP Financial Measures” in this Item 7.

Rent and Other Occupancy Expenses

Rent and other occupancy expenses were $2.7 million in 2011, a $0.6 million increase from 2010 primarily due to deferred rent credits recognized related to an assignment of a lease to a franchisee during 2010.

General and Administrative Expenses

General and administrative expenses were $61.3 million at 3.1% of system-wide sales in 2011, a $4.9 million increase from 2010.

This increase was primarily attributable to:

 

   

$1.7 million increase in international expenses including salary and personnel related costs, travel and other general and administrative costs,

 

   

$1.2 million increase in domestic new restaurant development expenses,

 

   

$0.9 million increase in franchisee restaurant support services and new restaurant opening support costs,

 

   

$0.7 million increase in information technology expenses, and

 

   

$0.4 million increase in incentive and stock-based compensation expense and other general administrative expenses, net.

General and administrative expenses were approximately 3.1% and 3.0% of system wide sales during 2011 and 2010, respectively.

Other Expenses (Income), Net

Other expenses were $0.5 million, compared to other expenses of $0.2 million in the previous year. In 2011, the Company recognized $0.8 million in expenses for the corporate support center relocation, offset by a $0.8 net gain on the sale of assets and $0.5 million in impairments and disposal of fixed assets and other expenses.

See Note 16 to our Consolidated Financial Statements for a description of Other expenses (income), net for 2011 and 2010.

Operating Profit

Operating profit of $40.7 million was $0.5 million less than in 2010 and Operating EBITDA was $45.4 million compared to $45.3 million. Higher revenues were offset by strategic investments to accelerate global sales and new restaurant development and by higher commodity costs in company-operated restaurants. Fluctuations in the various components of revenue and expense giving rise to this change are discussed above.

 

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The following is an analysis of the fluctuations in operating profit by business segment.

Operating profit for each reportable segment includes operating results directly allocable to each segment plus a 5% inter-company royalty charge from franchise operations to company-operated restaurants.

 

(Dollars in millions)    2011      2010      Fluctuation    

As a

Percent

 

Franchise operations

   $ 40.2       $ 39.7       $ 0.5        1.3%   

Company-operated restaurants

     5.2         5.6         (0.4     (7.1%)   
  

 

 

 

Operating profit before unallocated expenses

     45.4         45.3         0.1        0.2%   

Less unallocated expenses:

          

Depreciation and amortization

     4.2         3.9         0.3        0.7%   

Other expenses (income), net

     0.5         0.2         0.3        150.0%   

Total

   $   40.7       $   41.2       $   (0.5     (1.2%)   

The $0.5 million growth in franchise operations was primarily due to the $5.6 million increase in franchise revenue partially offset by increases in general and administrative expenses related to international franchise operations, domestic new restaurant development expenses, franchise restaurant support services and new restaurant opening support costs, information technology expenses and incentive and stock-based compensation expenses.

Company-operated restaurants segment operating profit was $5.2 million, a $0.4 million or 7.1%, decrease from 2010. For 2011, company-operated restaurant operating profit was $10.2 million, a $0.1 million increase compared to 2010. Company-operated restaurant operating profit was offset by a $0.1 million planned increase in restaurant support and pre-opening costs in our Indianapolis company-operated market, a $0.1 million increase in the intercompany royalty charge due to growth in revenues and a $0.3 million increase in information technology support and other general and administrative expenses, net.

Interest Expense, Net

Interest expense, net was $3.7 million, a $4.3 million decrease from 2010. This decrease was primarily due to lower average interest rates under the Company’s new 2010 credit facility and lower average debt balances outstanding.

Income Tax Expense

Income tax expense was $12.8 million, yielding an effective tax rate of 34.6%, compared to an effective tax rate of 31.0% in the prior year. In 2010, the Company recorded a tax benefit of $1.4 million, or $0.05 per diluted share, related to the completion of a federal income tax audit for years 2004 and 2005. Excluding the tax benefit of $1.4 million during 2010, the 2010 effective tax rate would have been 35.2%. The Company’s effective tax rate differs from statutory rates due primarily to adjustments in estimated tax reserves and other permanent differences.

Liquidity and Capital Resources

We finance our business activities primarily with:

 

   

Cash flows generated from our operating activities, and

 

   

Borrowings under our 2010 Credit Facility.

 

 

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Based primarily upon our generation of cash flows from operations, coupled with our existing cash reserves (approximately $17.0 million available as of December 30, 2012), and available borrowings under our 2010 Credit Facility (approximately $22.6 million available as of December 30, 2012), we believe that we will have adequate cash flow (primarily from operating cash flows) to meet our anticipated future requirements for working capital, various contractual obligations and expected capital expenditures for 2013.

Under the 2010 Credit Facility, we have the negotiated the right to increase our Revolving Loan Commitment by up to an additional $20 million, which would give the Company a total of $42.6 million available under the 2010 Credit Facility.

On December 23, 2010, the Company entered into the 2010 Credit Facility and refinanced the 2005 Credit Facility with proceeds drawn at closing.

Key terms in the 2010 Credit Facility are discussed in the Long Term Debt section in this Item 7.

See Note 9 for a discussion of the 2010 Credit Facility.

Our franchise model provides strong, diverse and reliable cash flows. Net cash provided by operating activities of the Company was $40.2 million and $32.1 million for 2012 and 2011, respectively. The increase in cash provided by operating activities was primarily attributable to: (1) higher revenues and (2) operating profit. See our Company’s Consolidated Statements of Cash Flows in our Consolidated Financial Statements.

Our cash flows and available borrowings allow us to pursue our growth strategies. Our priorities in the use of available cash are:

 

   

reinvestment in core business activities that promote the Company’s strategic initiatives,

 

   

repurchase of shares of our common stock (subject to the restrictions under our 2010 Credit Facility) and

 

   

reduction of long-term debt.

Our investment in core business activities includes our obligation to maintain and reimage our company-operated restaurants, construct company-operated restaurants and provide operations support to our franchise system.

Information regarding increased capital spending planned during 2013 is discussed under the heading entitled Operational and Financial Outlook for 2013 within this Item 7.

Under the terms of the Company’s 2010 Credit Facility, quarterly principal payments of $1.5 million will be due during 2013 and 2014, and $4.5 million during 2015.

Total Leverage Ratio is defined as the ratio of the Company’s Consolidated Total Indebtedness to Consolidated EBITDA for the four immediately preceding fiscal quarters. Consolidated Total Indebtedness means, as at any date of determination, the aggregate principal amount of Indebtedness of the Company and its Subsidiaries.

Minimum Fixed Charge Coverage Ratio is defined as the ratio of the company’s Consolidated EBITDA plus Consolidated Rental Expense less provisions for current taxes less Consolidated Capital Expenditures to Consolidated Fixed Charges. Consolidated Fixed Charges is defined as the sum of aggregate amounts of scheduled principal payments made during such period on Indebtedness, including Capital Lease Obligations, Consolidated Cash Interest, and Consolidated Rental Expense.

 

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At December 30, 2012 the Company was compliant with all debt covenant requirements. The Company’s Total Leverage Ratio was 1.20 to 1.0 compared to a covenant requirement of less than 2.75 to 1.0 and the Minimum Fixed Charge Coverage Ratio was 2.75 to 1.0 compared to a covenant requirement of greater than 1.25 to 1.0.

During 2012, we amended the 2010 Credit Facility definition of Consolidated Capital Expenditures to exclude the purchase price paid for Permitted Acquisitions. Also, the definition of Consolidated Capital Expenditures was amended to exclude up to $15.0 million of expenditures for capital or other pre-opening expenses specifically related to the conversion and reimaging of restaurants in California and Minnesota through the end of fiscal 2013.

On November 13, 2012 the Company completed a $13.8 million acquisition of 27 restaurants in California and Minnesota. The restaurants were previously in the trade image of another quick service restaurant concept. Twenty-six (26) of the acquired restaurants are being converted into the Popeyes Louisiana Kitchen image at a cost of approximately $11.0 million. Following the conversion, the restaurants will be leased to Popeyes franchisees to operate under a standard franchise agreement. The remaining restaurant property will be sold. As of December 30, 2012, two of the California restaurants had been converted and leased to a franchisee.

On November 7, 2012, the Company entered into a new agreement with the King Features Syndicate Division of Hearst Holdings, Inc., licensor of the Popeye® the Sailorman and associated cartoon characters. As part of the new agreement, the parties agreed to dismiss the pending declaratory judgment action related to their previous license agreement. The new agreement confirms the expiration of the previous license agreement and the parties agree to cooperate with each other to protect their respective intellectual property rights on a world-wide basis. A one–time $7.0 million payment made to King Features, as well as the associated legal fees of $1.0 million, were recorded as an indefinite-lived intangible asset.

The Company’s Board of Directors has approved a share repurchase program. On February 13, 2013 the Board of Directors approved an additional $50.0 million for the share repurchase program. As of February 27, 2013, the remaining dollar amount of shares that may be repurchased under the program was approximately $51.4 million. See Note 12 to our Consolidated Financial Statements.

During 2012 and 2011, we repurchased and retired 741,228 and 1,465,436 shares of common stock for approximately $15.2 million and $22.3 million, respectively. During fiscal 2010, no shares of common stock were repurchased or retired.

Pursuant to the terms of the Company’s 2010 Credit Facility, the Company may repurchase its common shares when the Total Leverage ratio is less than 2.00 to 1.0

Operating and Financial Outlook for 2013

The Company is providing certain targets regarding its expectations for fiscal 2013.

 

   

Same-store sales growth in the range of 3 to 4%.

   

New restaurant openings in the range of 175 to 195, and net restaurant openings in the range of 85 to 115, for a net unit growth rate of 4 to 5.5%.

  ¡    

During 2013, the Company expects to open and operate 6-10 new restaurants.

  ¡    

Also included in 2013 openings are 24 of the restaurants acquired in Minnesota and California which will be converted to Popeyes primarily in the second and third quarters. Following the conversion, the restaurants will be leased to Popeyes franchisees to operate under a standard franchise agreements. One remaining acquired restaurant property will be sold.

 

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General and administrative expenses are expected to increase to $72 to $74 million as we continue our investment in strategic initiatives and human capital. General and administrative expenses are expected to remain at approximately 3.0% of system-wide sales.

   

Capital expenditures for the year are expected to be $24 to $28 million, including the conversion of acquired restaurants in California and Minnesota and the development of Company-operated restaurants.

   

Adjusted earnings per diluted share in the range of $1.37 to $1.42, a 10 to 14% increase over 2012, after including the effect of the following two items:

  ¡    

In 2013, the Company plans to repurchase $15 to $20 million in outstanding shares, compared to $15.2 million in 2012.

  ¡    

The Company’s effective income tax rate in 2013 is expected to be approximately 37%, compared to 36.3% in 2012

Long-Term Guidance

Consistent with previous guidance, over the course of the upcoming five years, the Company believes the execution of its Strategic Plan will deliver on an average annualized basis the following results: same-store sales growth of 1 to 3%; net unit growth of 4 to 6%; and earnings per diluted share growth of 13 to 15%.

Contractual Obligations

The following table summarizes our contractual obligations, due over the next five years and thereafter, as of December 30, 2012:

 

(In millions)    2013      2014     2015     2016     2017    

There-

after

     Total  

Long-term debt, excluding capital leases(1)

   $ 6.0       $ 6.3      $ 56.8      $ 0.3      $ 0.3      $ 0.8       $ 70.5   

Interest on long-term debt, excluding capital leases(1)

     2.3         2.1        2.1        0.1        0.1        0.1         6.8   

Leases(2)

     6.4         6.9        6.6        6.2        5.9        75.6         107.6   

Copeland formula agreement(3)

     3.1         3.1        3.1        3.1        3.1        33.9         49.4   

Information technology outsourcing(3)

     1.4                                             1.4   

Business process services(3)

     1.5         1.5        0.5                              3.5   

Total(4)

   $   20.7       $ 19.9      $ 69.1      $     9.7      $ 9.4      $   110.4       $   239.2   

 

(1)

For variable rate debt, the Company estimated average outstanding balances for the respective periods and applied interest rates in effect at December 30, 2012. See Note 9 to our Consolidated Financial Statements for information concerning the terms of our 2010 Credit Facility, as amended and restated, and the 2011 interest rate swap agreements.

 

(2)

Of the $107.6 million of minimum lease payments, $101.1 million of those payments relate to operating leases and the remaining $6.5 million of payments relate to capital leases. See Note 10 to our Consolidated Financial Statements.

 

(3)

See Note 15 to our Consolidated Financial Statements.

 

(4)

We have not included in the contractual obligations table approximately $1.3 million for uncertain tax positions we have taken on a tax return. These liabilities may increase or decrease over time as a result of tax examinations, and given the status of the examinations, we cannot reliably estimate the amount or period of cash settlement, if any, with the respective taxing authorities. These liabilities also include amounts that are temporary in nature and for which we anticipate that over time there will be no net cash outflow.

 

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Share Repurchase Program

During 2012 and 2011, we repurchased and retired 741,228 and 1,465,436 shares of common stock for approximately $15.2 and $22.3 million, respectively. During fiscal 2010 no shares of common stock were repurchased or retired.

On February 13, 2013 the Board of Directors approved an additional $50.0 million for the share repurchase program. As of February 27, 2013, the remaining shares that may be repurchased under the program was approximately $51.4 million.

Pursuant to the terms of the Company’s 2010 Credit Facility, the Company may repurchase its common stock when the Total Leverage Ratio is less than 2.00 to 1.0 The Total Leverage Ratio at December 30, 2012 is 1.20 to 1.0.

Capital Expenditures

Our capital expenditures consist primarily of re-imaging activities associated with company-operated restaurants, new restaurant construction and development, equipment replacements, investments in information technology, intangible assets and other property and equipment. Capital expenditures related to re-imaging activities consist of significant renovations, upgrades and improvements, which on a per restaurant basis typically cost between $70,000 and $130,000. Capital expenditures associated with new freestanding restaurant construction typically cost, on a per restaurant basis, between $0.7 million and $1.1 million.

During 2012, we invested approximately $27.3 million in various capital projects, comprised of $16.9 for the acquisition and conversion of restaurants in California and Minnesota, $7.2 million for the construction of five new restaurants located in Indianapolis and Charlotte, $1.1 million for information technology hardware and software, $0.6 million for reimaging activities at company restaurants, and $1.5 million in other capital assets to repair and rebuild damaged restaurants, and to maintain, replace and extend the lives of Company-operated QSR equipment and facilities.

During 2011, we invested approximately $10.4 million in various capital projects, comprised of $1.5 million for the construction of two new restaurants located in Indianapolis and New Orleans, $0.2 million for information technology hardware and software, $1.5 million for reimaging activities at company restaurants, $6.1 million for the construction of the new corporate office, $0.6 million for new point of sale equipment at company-operated restaurants, and $0.5 million in other capital assets to repair and rebuild damaged restaurants, and to maintain, replace and extend the lives of company-operated QSR equipment and facilities. Approximately $2.8 million was received in tenant improvement allowances for the construction of the new corporate office reducing the total cash outlay for capital projects from $10.4 million to $7.6 million.

During 2010, we invested approximately $3.2 million in various capital projects, comprised of $1.4 million for information technology hardware and software at Company-operated restaurants and the corporate office, $1.2 million for restaurant reimaging and corporate office construction and $0.6 million in other capital assets to maintain, replace and extend the lives of company-operated QSR equipment and facilities.

Substantially all of our capital expenditures have been financed using cash provided from operating activities and borrowings under our bank credit facilities.

See Operating and Financial Outlook for 2012 for a discussion of expected capital expenditures during 2012.

Off-Balance Sheet Arrangements

The Company has no significant Off-Balance Sheet Arrangements.

 

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Long Term Debt

2010 Credit Facility.    On December 23, 2010, the Company entered into a bank credit facility with a group of lenders consisting of a five year $60.0 million dollar revolving credit facility and a five year $40.0 million dollar term loan. The 2005 Credit Facility was retired with proceeds from the 2010 Credit Facility.

Key terms in the 2010 Credit Facility include the following:

 

   

The term loan and revolving credit facility maturity date is December 23, 2015.

 

   

The Company must maintain a Total Leverage Ratio of < 2.75 to 1.0.

 

   

The interest rate is LIBOR plus 250 basis points.

 

   

The Company must maintain a Minimum Fixed Charge Coverage Ratio of > 1.25 to 1.0.

 

   

The Company may repurchase and retire its common shares at any time the Total Leverage Ratio is less than 2.00 to 1.0.

 

   

The Company may make Permitted Acquisitions at any time the Total Leverage Ratio is less than 2.50 to 1.0.

In connection with the refinancing during 2010, the Company expensed $0.6 million associated with the extinguishment of the Term B Loan, which is reported as a component of “Interest expense, net.” Additionally, the Company capitalized approximately $1.2 million of fees related to the new facility as debt issuance costs which will be amortized over the remaining life of the facility utilizing the effective interest method for the term loan and the straight-line method for the revolving credit facility.

The revolving credit facility and term loan bear interest based upon alternative indices (LIBOR, Federal Funds Effective Rate, Prime Rate and a Base CD rate) plus an applicable margin as specified in the facility. The margins on the term and revolving credit facility may fluctuate because of changes in certain financial leverage ratios and the Company’s compliance with applicable covenants of the 2010 Credit Facility. The Company also pays a quarterly commitment fee of 0.5% on the unused portions of the revolving credit facility. As of December 30, 2012, the Company had $37.0 million of loans outstanding under its revolving credit facility. Under the terms of the revolving credit facility, the Company may obtain other short-term borrowings of up to $10.0 million and letters of credit up to $25.0 million. Collectively, these other borrowings and letters of credit may not exceed the amount of unused borrowings under the 2010 Credit Facility. As of December 30, 2012, the Company had $0.4 million of outstanding letters of credit. Availability for short-term borrowings and letters of credit under the revolving credit facility was $22.6 million.

The 2010 Credit Facility is secured by a first priority security interest in substantially all of the Company’s assets. The 2010 Credit Facility contains financial and other covenants, including covenants requiring the Company to maintain various financial ratios, limiting its ability to incur additional indebtedness, restricting the amount of capital expenditures that may be incurred, restricting the payment of cash dividends, and limiting the amount of debt which can be loaned to the Company’s franchisees or guaranteed on their behalf. This facility also limits the Company’s ability to engage in mergers or acquisitions, sell certain assets, repurchase its common stock and enter into certain lease transactions. The 2010 Credit Facility includes customary events of default, including, but not limited to, the failure to pay any interest, principal or fees when due, the failure to perform certain covenant agreements, inaccurate or false representations or warranties, insolvency or bankruptcy, change of control, the occurrence of certain ERISA events and judgment defaults.

Under the terms of the Company’s 2010 Credit Facility, quarterly principal payments of $1.5 million will be due during 2013 and 2014, and $4.5 million during 2015.

 

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As of December 30, 2012, the Company was in compliance with the financial and other covenants of the 2010 Credit Facility. As of December 30, 2012 and December 25, 2011, the Company’s weighted average interest rate for all outstanding indebtedness under the 2010 Credit Facility were 3.7% and 3.8% respectively.

Fair Value of Debt The fair values of each of our long-term debt instruments are based on the amount of future cash flows associated with each instrument, discounted using our current borrowing rate for similar debt instruments of comparable maturity. The estimated fair values of our term loan and capital lease obligations approximated their carrying values as of December 30, 2012.

Impact of Inflation

The impact of inflation on the cost of food, labor, fuel and energy costs, and other commodities has impacted our operating expenses. To the extent permitted by the competitive environment in which we operate, increased costs are partially recovered through menu price increases coupled with purchasing prices and productivity improvements.

Tax Matters

We are involved in U.S., state and local tax audits for income, franchise, property and sales and use taxes. In general, the statute of limitations remains open with respect to tax returns that were filed for each tax year after 2008. However, upon notice of a pending tax audit, we often agree to extend the statute of limitations to allow for complete and accurate tax audits to be performed. The U.S. federal tax years 2010 through 2011 are open to audit. In general, the state tax years open to audit range from 2008 through 2011.

Market Risk

We are exposed to market risk from changes in certain commodity prices, foreign currency exchange rates and interest rates. All of these market risks arise in the normal course of business, as we do not engage in speculative trading activities. The following analysis provides quantitative information regarding these risks.

Commodity Market Risk.  We are exposed to market risk from changes in poultry and other commodity prices. Fresh chicken is the principal raw material for our Popeyes operations, constituting more than 40% of our combined “Restaurant food, beverages and packaging” costs. These costs are significantly affected by fluctuations in the cost of chicken, which can result from a number of factors, including increases in the cost of grain, disease, declining market supply of fast-food sized chickens and other factors that affect availability, and greater international demand for domestic chicken products. We are affected by fluctuations in the cost of other commodities including shortening, wheat, gas and utility price fluctuations. Our ability to recover increased costs through higher pricing is limited by the competitive environment in which we operate.

In order to ensure favorable pricing for fresh chicken purchases and to maintain an adequate supply of fresh chicken for the Popeyes system, Supply Management Services, Inc. (a not-for-profit purchasing cooperative of which we are a member) has entered into chicken purchasing contracts with chicken suppliers. The contracts, which pertain to the vast majority of our system-wide purchases for Popeyes are “cost-plus” contracts that utilize prices based upon the cost of feed grains plus certain agreed upon non-feed and processing costs. In order to stabilize pricing for the Popeyes system, Supply Management Services, Inc. has entered into commodity pricing agreements for certain commodities including corn, soy, and wheat which impact the price of poultry and other food costs. Current commodity coverage is 100% of Q1 needs and approximately 25% of Q2 needs at levels equal to or slightly lower than in Q4 2012.

Foreign Currency Exchange Rate Risk.  We are exposed to foreign currency exchange risk from the potential changes in foreign currency rates that directly impact our royalty revenues and cash flows from our international franchise operations. In 2012, franchise revenues from these foreign currency based operations represented

 

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approximately 7.8% of our total franchise revenues. For each of 2012, 2011, and 2010, foreign-sourced revenues represented approximately 6.9%, 7.5%, and 7.2%, of our total revenues, respectively. All other things being equal, for the fiscal year ended December 30, 2012, operating profit would have decreased by approximately $0.7 million if all foreign currencies had uniformly weakened 10% relative to the U.S. Dollar.

As of December 30, 2012, approximately $1.1 million of our accounts receivable were denominated in foreign currencies. During 2012 the net loss from the exchange rate was insignificant. Our international franchised operations are in 26 foreign countries with approximately 50% or our revenues from international royalties originating from restaurants in Korea, Canada and Turkey.

Interest Rate Risk.  Our net exposure to interest rate risk consists of our borrowings under our 2010 Credit Facility, as amended and restated. Borrowings made pursuant to that facility include interest rates that are benchmarked to U.S. and European short-term floating interest rates. As of December 30, 2012, the balances outstanding under our 2010 Credit Facility, totaled $68.3 million. The impact on our annual results of operations of a hypothetical one-point interest rate change on the outstanding balances under our 2010 Credit Facility would be approximately $0.4 million.

Critical Accounting Policies and Estimates

Our significant accounting policies are presented in Note 2 to our Consolidated Financial Statements. Of our significant accounting policies, we believe the following involve a higher degree of risk, judgment and/or complexity. These policies involve estimations of the effect of matters that are inherently uncertain and may significantly impact our quarterly or annual results of operations or financial condition. Changes in the estimates and judgments could significantly affect our results of operations, financial condition and cash flows in future years.

Impairment of Long-Lived Assets.  We evaluate property and equipment for impairment during the fourth quarter of each year or when circumstances arise indicating that a particular asset may be impaired. For property and equipment at company-operated restaurants, we perform our annual impairment evaluation on an individual restaurant basis. We evaluate restaurants using a “two-year history of operating losses” as our primary indicator of potential impairment. We evaluate recoverability based on the restaurant’s forecasted undiscounted cash flows for the expected remaining useful life of the unit, which incorporate our best estimate of sales growth and margin improvement based upon our plans for the restaurant and actual results at comparable restaurants. The carrying values of restaurant assets that are not considered recoverable are written down to their estimated fair market value, which we generally measure by discounting estimated future cash flows. We performed our annual evaluation of property and equivalent during the fourth quarter 2012 and determined that no impairment was indicated.

Estimates of future cash flows are highly subjective judgments and can be significantly impacted by changes in the business or economic conditions. The discount rate used in the fair value calculations is our estimate of the required rate of return that a third party would expect to receive when purchasing a similar restaurant and the related long-lived assets. We believe the discount is commensurate with the risks and uncertainty inherent in the forecasted cash flows.

Impairment of Goodwill and Trademarks.  We evaluate goodwill and trademarks for impairment on an annual basis (during the fourth quarter of each year) or more frequently when circumstances arise indicating that a particular asset may be impaired. Our goodwill impairment evaluation includes a comparison of the fair value of our reporting units with their carrying value. Our reporting units are our business segments. Intangible assets, including goodwill, are allocated to each reporting unit. The estimated fair value of each reporting unit is the amount for which the reporting unit could be sold in a current transaction between willing parties. We estimate the fair value of our reporting units using a discounted cash flow model or market price, if available. The operating assumptions used in the discounted cash flow model are generally consistent with the reporting unit’s past performance and with the projections and assumptions that are used in our current operating plans. Such

 

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assumptions are subject to change as a result of changing economic and competitive conditions. The discount rate is our estimate of the required rate of return that a third-party buyer would expect to receive when purchasing a business from us that constitutes a reporting unit. We believe the discount rate is commensurate with the risks and uncertainty inherent in the forecasted cash flows. If a reporting unit’s carrying value exceeds its fair value, goodwill is written down to its implied fair value. The Company follows a similar analysis for the evaluation of trademarks, but that analysis is performed on a company-wide basis.

During the fourth quarter of fiscal year 2012, we performed our annual assessment of recoverability of goodwill and trademarks and determined that no impairment was indicated. Our Company-operated restaurants segment has goodwill of $2.2 million as of the end of 2012. The assumptions used in determining fair value for this reporting unit are generally consistent with the reporting unit’s past performance and with the projections and assumptions that are used in the Company’s current operating plans. While our operating assumptions reflect what we believe are reasonable and achievable growth rates, failure to realize these growth rates could result in future impairment of the recorded goodwill. If we believe the risks inherent in the business increase, the resulting change in the discount rate could also result in future impairment of the recorded goodwill.

Fair Value Measurements. Fair value is the price the Company would receive to sell an asset or pay to transfer a liability (exit price) in an orderly transaction between market participants. For those assets and liabilities recorded or disclosed at fair value, we determine fair value based upon the quoted market price, if available. If a quoted market price is not available for identical assets, we determine fair value based upon the quoted market price of similar assets or the present value of expected future cash flows considering the risks involved, including counterparty performance risk if appropriate, and using discount rates appropriate for the duration. The fair values are assigned a level within the fair value hierarchy, depending on the source of the inputs into the calculation.

 

Level 1

   Inputs based upon quoted prices in active markets for identical assets.

Level 2

   Inputs other than quoted prices included within Level 1 that are observable for the asset, either directly or indirectly.

Level 3

   Inputs that are unobservable for the asset.

Allowances for Accounts and Notes Receivable and Contingent Liabilities. We reserve a franchisee’s receivable balance based upon pre-defined aging criteria and upon the occurrence of other events that indicate that we may or may not collect the balance due. In the case of notes receivable, we perform this evaluation on a note-by-note basis, whereas this analysis is performed in the aggregate for accounts receivable. We provide for an allowance for uncollectibility based on such reviews. See Note 2 to the Consolidated Financial Statements for information concerning our allowance account for both accounts receivable and notes receivable.

With respect to contingent liabilities, we similarly reserve for such contingencies when we are able to assess that an expected loss is both probable and reasonably estimable.

Leases.  When determining the lease term, we often include option periods for which failure to renew the lease imposes a penalty in such an amount that a renewal appears, at the inception of the lease, to be reasonably assured. We record rent expense for leases that contain scheduled rent increases on a straight-line basis over the lease term, including any option periods considered in the determination of that lease term. Contingent rentals are generally based on sales levels in excess of stipulated amounts, and thus are not considered minimum lease payments and are included in rent expense as they accrue.

Deferred Tax Assets and Tax Reserves.  We make certain estimates and judgments in determining income tax expense for financial statement purposes. These estimates and judgments occur in the calculation of certain tax assets and liabilities, which arise from differences in the timing of recognition of revenue and expense for tax and financial statement purposes.

 

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We assess the likelihood that we will be able to recover our deferred tax assets. We consider historical levels of income, expectations and risks associated with estimates of future taxable income and ongoing prudent and feasible tax planning strategies in assessing the need for the valuation allowance. If recovery is not likely, we increase our provision for taxes by recording a valuation allowance against the deferred tax assets that we estimate will not ultimately be recoverable. We carried a valuation allowance on our deferred tax assets of $5.9 million at December 30, 2012 and $5.5 million at December 25, 2011, based on our view that it is more likely than not that we will not be able to take a tax benefit for certain state operating loss carryforwards which continue to expire.

The Company recognizes the benefit of positions taken or expected to be taken in a tax return in the financial statements when it is more likely than not (i.e. a likelihood of more than fifty percent) that the position would be sustained upon examination by tax authorities. A recognized tax position is then measured at the largest amount of benefit that is greater than fifty percent likely of being realized upon settlement. Changes in judgment that result in subsequent recognition, derecognition or change in a measurement of a tax position taken in a prior annual period (including any related interest and penalties) is recognized as a discrete item in the interim period in which the change occurs. At December 30, 2012, we had approximately $1.3 million of unrecognized tax benefits, $0.2 million of which, if recognized, would affect the effective tax rate. At December 30, 2012, the Company had approximately $0.1 million of accrued interest and penalties related to uncertain tax positions.

See Note 18 to the Consolidated Financial Statements for a further discussion of our income taxes.

Stock-Based Compensation Expense The Company measures and recognizes stock-based compensation expense at fair value for all share-based payments, including stock options, restricted stock awards and restricted share units. The fair value of stock options with only service conditions are estimated using a Black-Scholes option-pricing model. The fair value of stock options with service and market conditions are valued utilizing a Monte Carlo simulation embedded in a lattice model. The fair value of stock-based compensation is amortized on the graded vesting attribution method. Our option pricing models require various highly subjective and judgmental assumptions including risk-free interest rates, expected volatility of our stock price, expected forfeiture rates, expected dividend yield and expected term. If any of the assumptions used in the models change significantly, share-based compensation expense may differ materially in the future from that recorded in the current period. Our specific weighted average assumptions used to estimate the fair value of stock-based employee compensation are set forth in Note 13 to the Consolidated Financial Statements.

Derivative Financial Instruments We use interest rate swap agreements to reduce our interest rate risk on our floating rate debt under the terms of the 2010 Credit Facility. We recognize all derivatives on the balance sheet at fair value. At inception and on an on-going basis, we assess whether each derivative that qualifies for hedge accounting continues to be highly effective in offsetting changes in the cash flows of the hedged item. If the derivative meets the hedge criteria as defined by certain accounting standards, changes in the fair value of the derivative are recognized in “Accumulated other comprehensive loss” until the hedged item is recognized in earnings. The ineffective portion of a derivative’s change in fair value, if any, is immediately recognized in earnings.

As a result of the use of derivative instruments, we are exposed to risk that the counterparties will fail to meet their contractual obligations. Recent adverse developments in the global financial and credit markets could negatively impact the creditworthiness of our counterparties and cause one or more of our counterparties to fail to perform as expected. To mitigate the counterparty credit risk, we only enter into contracts with carefully selected major financial institutions based upon their credit ratings and other factors, and continually assess the creditworthiness of counterparties. To date, all counterparties have performed in accordance with their contractual obligations.

 

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Recent Accounting Standards

In July 2012, the FASB issued guidance on testing indefinite-lived intangible assets for impairment. The guidance allows an entity the option first to assess qualitative factors to determine whether the existence of events and circumstances indicates that it is more likely than not that the indefinite-lived intangible asset is impaired. If, after assessing the totality of events and circumstances, an entity concludes that is not more likely than not that the indefinite-lived intangible asset is impaired, then the entity is not required to take further action. However, if an entity concludes otherwise, then it is required to determine the fair value of the indefinite-lived intangible asset and perform the quantitative impairment test by comparing the fair value with the carrying amount. This guidance is effective for annual and interim impairment tests performed for fiscal years beginning after September 15, 2012. We do not expect the adoption of this guidance to have a material impact on our operating results.

Management’s Use of Non-GAAP Financial Measures

Adjusted earnings per diluted share, Operating EBITDA, Company-operated restaurant operating profit margins and Free cash flow are supplemental non-GAAP financial measures. The Company uses adjusted earnings per diluted share, Operating EBITDA, Company-operated restaurant operating profit margins and Free cash flow in addition to net income, operating profit and cash flows from operating activities, to assess its performance and believes it is important for investors to be able to evaluate the Company using the same measures used by management. The Company believes these measures are important indicators of its operational strength and performance of its business because they provide a link between profitability and operating cash flow. Adjusted earnings per diluted share, Operating EBITDA, Company-operated restaurant operating profit margins and Free cash flow as calculated by the Company are not necessarily comparable to similarly titled measures reported by other companies. In addition, adjusted earnings per diluted share, Operating EBITDA, Company-operated restaurant operating profit margins and Free cash flow: (a) do not represent net income, cash flows from operations or earnings per share as defined by GAAP; (b) are not necessarily indicative of cash available to fund cash flow needs; and (c) should not be considered as an alternative to net income, earnings per share, operating profit, cash flows from operating activities or other financial information determined under GAAP.

Adjusted Earnings Per Diluted Share: Calculation and Definition

The Company defines adjusted earnings for the periods presented as the Company’s reported net income after adjusting for certain non-operating items consisting of the following:

(i) other expense (income), net, as follows:

 

   

Fiscal 2012 includes $0.9 million in gains on sale of real estate assets to franchisees partially offset by $0.3 million loss on disposals of property and equipment and $0.1 of million hurricane-related expenses, net.

   

Fiscal 2011 includes $0.8 million in expenses for the global service center relocation, and $0.5 million in disposals of fixed assets offset by a $0.8 million net gain on the sale of assets;

(ii) for fiscal 2011, $0.5 million in accelerated depreciation related to the Company’s relocation to a new global corporate service center;

(iii) for fiscal 2012, $0.5 million in legal fees related to licensing arrangements and

(iv) the tax effect of these adjustments.

Adjusted earnings per diluted share provides the per share effect of adjusted net income on a diluted basis. The following table reconciles on a historical basis fiscal 2012 and fiscal 2011, the Company’s adjusted

 

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earnings per diluted share on a consolidated basis to the line on its consolidated statement of operations entitled net income, which the Company believes is the most directly comparable GAAP measure on its consolidated statement of operations to adjusted earnings per diluted share:

 

(in millions, except per share data)        Fiscal 2012             Fiscal 2011      

Net income

   $ 30.4      $ 24.2   

Other expense (income), net

     (0.5     0.5   
Accelerated depreciation related to the Company’s
relocation to a new Global Service Center
     -            0.5   

Fees related to licensing arrangements

     0.5        -       

Tax effect

     -            (0.5

Adjusted net income

   $ 30.4      $ 24.7   

Adjusted earnings per diluted share

   $ 1.24        $0.9

Weighted average diluted shares outstanding

     24.5          25.0   

Operating EBITDA: Calculation and Definition

The Company defines Operating EBITDA as “earnings before interest expense, taxes, depreciation and amortization, other expenses (income), net and legal fees related to licensing arrangements.” The following table reconciles on a historical basis for 2012 and 2011, the Company’s earnings before interest expense, taxes, depreciation and amortization, other expenses (income), net and legal fees related to licensing arrangements (“Operating EBITDA”) on a consolidated basis to the line on its consolidated statement of operations entitled net income, which the Company believes is the most directly comparable GAAP measure on its consolidated statement of operations to Operating EBITDA. “Operating EBITDA” as a percentage of “Total Revenues” is defined as “Operating EBITDA” divided by “Total Revenues”.

 

     
(dollars in millions)    Fiscal 2012     Fiscal 2011  

Net income

   $ 30.4      $ 24.2   

Interest expense, net

     3.6        3.7   

Income tax expense

     17.3        12.8   

Depreciation and amortization

     4.6        4.2   

Other expenses (income), net

     (0.5     0.5   

Legal fees related to licensing arrangements

     0.5        -       

Operating EBITDA

   $ 55.9      $ 45.4   

Total Revenues

   $     178.8      $     153.8   

Operating EBITDA as a percentage of Total Revenues

     31.3     29.5

 

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Company-Operated Restaurant Operating Profit Margin: Calculation and Definition

The Company defines adjusted company-operated restaurant operating profit as “sales by company-operated restaurants” minus “restaurant employee, occupancy and other expenses” minus “restaurant food, beverages and packaging”. The following table reconciles on a historical basis for 2012 and 2011, the Company’s company-operated restaurant operating profit to the line item on its consolidated statement of operations entitled “sales by company-operated restaurants,” which the Company believes is the most directly comparable GAAP measure on its consolidated statement of operations to “Company-operated restaurant operating profit”. Company-operated restaurant operating profit margin is defined as Company-operated restaurant operating profit divided by “sales by company-operated restaurants”.

 

     
(dollars in millions)    Fiscal 2012     Fiscal 2011  

Sales by company-operated restaurants

   $     64.0      $     54.6   

Restaurant employee, occupancy and other expenses

     (31.2     (26.1

Restaurant food, beverages and packaging

     (21.7     (18.3

Company-operated restaurant operating profit

   $ 11.1      $ 10.2   
Company-operated restaurant operating profit margin      17.3     18.7

Free Cash Flow: Calculation and Definition

The Company defines Free Cash Flow as “net income” plus “depreciation and amortization,” plus “stock-based compensation expense,” minus “maintenance capital expenditures” (which includes: for fiscal 2012 $0.6 million in Company-operated restaurant reimages, $1.1 million of information technology hardware and software and $1.5 million in other capital assets to maintain, replace and extend the lives of Company-operated restaurant facilities, and for fiscal 2011 $1.5 million in Company-operated restaurant reimages, $0.8 million of information technology hardware and software and $0.5 million in other capital assets to maintain, replace and extend the lives of Company-operated restaurant facilities). In 2012, maintenance capital expenditures exclude $16.9 million related to the acquired restaurants in Minnesota and California and $7.2 million for the construction of new company-operated restaurants. In 2011, maintenance capital expenditures exclude $3.3 million related to the construction of the new corporate office, and $1.5 million for the construction of new Company-operated restaurants.

The following table reconciles on a historical basis for fiscal 2012 and fiscal 2011, the Company’s free cash flow on a consolidated basis to the line on its consolidated statement of operations entitled net income, which the Company believes is the most directly comparable GAAP measure on its consolidated statement of operations to free cash flow. “Free Cash Flow as a percentage of total revenue (Free Cash Flow Margin)” is defined as “Free Cash Flow” divided by “Total revenue.”

 

     
(dollars in millions)    Fiscal 2012     Fiscal 2011  

Net income

   $     30.4      $     24.2   

Depreciation and amortization

     4.6        4.2   

Stock-based compensation expense

     4.9        2.9   

Maintenance capital expenditures

     (3.2     (2.8
Free cash flow    $ 36.7      $ 28.5   
Total Revenue    $ 178.8      $ 153.8   
Free cash flow as a percentage of total revenue (Free cash flow margin)      20.5     18.5

 

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Forward-Looking Statements

Forward-Looking Statement: Certain statements in this Annual Report on Form 10-K contain “forward-looking statements” within the meaning of the federal securities laws. Statements regarding future events and developments and our future performance, as well as management’s current expectations, beliefs, plans, estimates or projections relating to the future, are forward-looking statements within the meaning of these laws. These forward-looking statements are subject to a number of risks and uncertainties. Examples of such statements in this Annual Report on Form 10-K include discussions regarding the Company’s planned implementation of its strategic plan, expectations regarding future growth, planned share repurchases, projections and expectations regarding same-store sales for fiscal 2013 and beyond, the Company’s ability to improve restaurant level margins, guidance for new restaurant openings and closures, effective income tax rate, and the Company’s anticipated 2013 and long-term performance, including projections regarding general and administrative expenses, net earnings per diluted share, operating profit, operating EBITDA and similar statements of belief or expectation regarding future events. Among the important factors that could cause actual results to differ materially from those indicated by such forward-looking statements are: competition from other restaurant concepts and food retailers, continued disruptions in the financial markets, the loss of franchisees and other business partners, labor shortages or increased labor costs, increased costs of our principal food products, changes in consumer preferences and demographic trends, as well as concerns about health or food quality, instances of avian flu or other food-borne illnesses, general economic conditions, the loss of senior management and the inability to attract and retain additional qualified management personnel, limitations on our business under our credit facility, our ability to comply with the repayment requirements, covenants, tests and restrictions contained in our credit facility, failure of our franchisees, a decline in the number of franchised units, a decline in our ability to franchise new units, slowed expansion into new markets, unexpected and adverse fluctuations in quarterly results, increased government regulation, effects of volatile gasoline prices, supply and delivery shortages or interruptions, currency, economic and political factors that affect our international operations, inadequate protection of our intellectual property and liabilities for environmental contamination and the other risk factors detailed in this Annual Report on Form 10-K and other documents we file with the Securities and Exchange Commission. Therefore, you should not place undue reliance on any forward-looking statements.

Item 7A.  QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Information about market risk can be found in Item 7 of this report under the heading “Market Risk” and is hereby incorporated by reference into this Item 7A.

Item 8.  FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

Our Consolidated Financial Statements can be found beginning on Page F-1 of this Annual Report, and the relevant portions of those statements and the accompanying notes are hereby incorporated by reference into this Item 8.

 

Item 9.

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

None.

Item 9A.  CONTROLS AND PROCEDURES

(a)  Disclosure Controls and Procedures

Disclosure controls and procedures are controls and other procedures of a registrant designed to ensure that information required to be disclosed by the registrant in the reports that it files or submits under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) is recorded, processed, summarized and reported,

 

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within the time periods specified in the SEC’s rules and forms and that such information is accumulated and communicated to a registrant’s management, including its principal executive and financial officers, as appropriate, to allow for timely decisions regarding required disclosures.

(b)  Our Evaluation of AFC’s Disclosure Controls and Procedures

We evaluated the effectiveness of the design and operation of AFC’s disclosure controls and procedures as of December 30, 2012, as required by Rule 13a-15(b) and 15d-15(b) of the Exchange Act. This evaluation was carried out under the supervision and with the participation of our management, including our Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”).

Based on management’s assessment, the CEO and CFO concluded that the Company’s disclosure controls and procedures were effective as of December 30, 2012 to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms and accumulated and communicated to the Company’s management, including its principal executive and principal financial officers as appropriate to allow timely decisions regarding required disclosures.

(c)  Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act. The Company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the Company’s financial statements for external reporting purposes in accordance with generally accepted accounting principles.

Internal control over financial reporting has inherent limitations. Internal control over financial reporting is a process that involves human diligence and compliance and is subject to lapses in judgment and breakdowns resulting from human failures. Internal control over financial reporting also can be circumvented by collusion or improper management override. Because of such limitations, there is a risk that material misstatements may not be prevented or detected on a timely basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting process. Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk.

Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 30, 2012, using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control-Integrated Framework. This evaluation was carried out under the supervision and with the participation of our management, including our CEO and CFO. Based on this assessment, management concluded that as of December 30, 2012, the Company’s internal control over financial reporting is effective.

PricewaterhouseCoopers, LLP, our independent registered public accounting firm that audited our consolidated financial statements included in this Annual Report, has also audited the Company’s internal control over financial reporting as of December 30, 2012. This report can be found on Page F-1 of this Annual Report.

(d)  Changes in Internal Control Over Financial Reporting

During the fourth quarter of 2012, there was no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

Item 9B.  OTHER INFORMATION

None.

 

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PART III.

Item 10.  DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

Information regarding our directors, executive officers, audit committee and our audit committee financial expert required by this Item 10 will be included in our definitive Proxy Statement for the 2013 Annual Meeting of Shareholders and such disclosure is incorporated herein by reference. Biographical information on our executive officers is contained in Item 4A of this Annual Report on Form 10-K and is incorporated herein by reference.

We have adopted an Honor Code that applies to our directors and all of our employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. A copy of the Honor Code is available on our website at www.afce.com. Copies will be furnished upon request. You may mail your requests to the following address: Attn: Office of General Counsel, 400 Perimeter Center Terrace, Suite 1000, Atlanta GA, 30346. If we make any amendments to the Honor Code other than technical, administrative, or other non-substantive amendments, or grant any waivers from the Honor Code, we will disclose the nature of the amendment or waiver, its effective date and to whom it applies on our website or in a report on Form 8-K filed with the SEC.

Item 11.  EXECUTIVE COMPENSATION

Information regarding executive compensation required by this Item 11 will be included in our definitive Proxy Statement for the 2013 Annual Meeting of Shareholders and such disclosure is incorporated herein by reference.

 

Item 12.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

Information regarding security ownership of certain beneficial owners and management and related stockholder matters required by this Item 12 will be included in our definitive Proxy Statement for the 2013 Annual Meeting of Stockholders and such disclosure is incorporated herein by reference.

 

Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

Information regarding certain relationships and related transactions and director independence required by this Item 13 will be included in our definitive Proxy Statement for the 2013 Annual Meeting of Stockholders and such disclosure is incorporated herein by reference.

Item 14.  PRINCIPAL ACCOUNTANT FEES AND SERVICES

The Company’s independent registered public accounting firm is PricewaterhouseCoopers LLP. Information regarding principal accountant fees and services required by this Item 14 will be included in our definitive Proxy Statement for the 2013 Annual Meeting of Shareholders and such disclosure is incorporated herein by reference.

 

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PART IV.

Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

(a)  Financial Statements

The following consolidated financial statements appear beginning on Page F-1 of the report:

 

    Pages  

Report of Independent Registered Public Accounting Firm

    F-1   

Consolidated Balance Sheets as of December 30, 2012 and December 25, 2011

    F-2   

Consolidated Statements of Operations for Fiscal Years 2012, 2011, and 2010

    F-3   

Consolidated Statements of Comprehensive Income for Fiscal Years 2012, 2011, and 2010

    F-4   

Consolidated Statements of Changes in Shareholders’ Equity for Fiscal Years 2012, 2011, and 2010

    F-5   

Consolidated Statements of Cash Flows for Fiscal Years 2012, 2011, and 2010

    F-6   

Notes to the Consolidated Financial Statements

    F-7   

We have omitted all other schedules because the conditions requiring their filing do not exist or because the required information appears in our Consolidated Financial Statements, including the notes to those statements.

(b)  Exhibits

 

Exhibit

Number

 

Description

2.1(z)   Asset Purchase Agreement among AFC Enterprises, Inc. and Wagstaff Management Corporation, Wagstaff Minnesota, Inc., Wagstaff Properties Minnesota, LLC, D&D Property Investments, LLC, Wagstaff Properties, LLC, and D&D Food Management, Inc., dated October 11, 2012. (Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon request.)
3.1(c)   Articles of Incorporation of AFC Enterprises, Inc., as amended, dated June 24, 2002.
3.2(u)   Amended and Restated Bylaws of AFC Enterprises, Inc.
4.1(n)   Form of registrant’s common stock certificate.
10.1(e)   Form of Popeyes Development Agreement, as amended.
10.2(e)   Form of Popeyes Franchise Agreement.
10.3(a)   Formula Agreement dated July 2, 1979 among Alvin C. Copeland, Gilbert E. Copeland, Mary L. Copeland, Catherine Copeland, Russell J. Jones, A. Copeland Enterprises, Inc. and Popeyes Famous Fried Chicken, Inc., as amended to date.
10.4(a)   Supply Agreement dated March 21, 1989 between New Orleans Spice Company, Inc. and Biscuit Investments, Inc.
10.5(a)   Recipe Royalty Agreement dated March 21, 1989 by and among Alvin C. Copeland, New Orleans Spice Company, Inc. and Biscuit Investments, Inc.
10.6(d)   Licensing Agreement dated March 11, 1976 between King Features Syndicate Division of The Hearst Corporation and A. Copeland Enterprises, Inc. as amended through November 29, 2009.
10.7(a)   Assignment and Amendment dated January 1, 1981 between A. Copeland Enterprises, Inc., Popeyes Famous Fried Chicken, Inc. and King Features Syndicate Division of The Hearst Corporation.
10.8(a)   Letter Agreement dated September 17, 1981 between King Features Syndicate Division of The Hearst Corporation, A. Copeland Enterprises, Inc. and Popeyes Famous Fried Chicken, Inc.

 

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Exhibit

Number

 

Description

10.9(a)   License Agreement dated December 19, 1985 by and between King Features Syndicate, Inc., The Hearst Corporation, Popeyes, Inc. and A. Copeland Enterprises, Inc.
10.10(a)   Letter Agreement dated July 20, 1987 by and between King Features Syndicate, Division of The Hearst Corporation, Popeyes, Inc. and A. Copeland Enterprises, Inc.
10.11(m)   Amendment dated January 1, 2002 by and between Hearst Holdings, Inc., King Features Syndicate Division and AFC Enterprises, Inc.
10.12(a)   1992 Stock Option Plan of AFC, effective as of November 5, 1992, as amended to date.*
10.13(a)   1996 Nonqualified Performance Stock Option Plan — Executive of AFC, effective as of April 11, 1996.*
10.14(a)   1996 Nonqualified Performance Stock Option Plan — General of AFC, effective as of April 11, 1996.*
10.15(a)   1996 Nonqualified Stock Option Plan of AFC, effective as of April 11, 1996.*
10.16(a)   Form of Nonqualified Stock Option Agreement — General between AFC and stock option participants.*
10.17(a)   Form of Nonqualified Stock Option Agreement — Executive between AFC and certain key executives.*
10.18(a)   1996 Employee Stock Bonus Plan — Executive of AFC effective as of April 11, 1996.*
10.19(a)   1996 Employee Stock Bonus Plan — General of AFC effective as of April 11, 1996.*
10.20(a)   Form of Stock Bonus Agreement — Executive between AFC and certain executive officers.*
10.21(a)   Form of Stock Bonus Agreement — General between AFC and certain executive officers.*
10.22(a)   Form of Secured Promissory Note issued by certain members of management.*
10.23(a)   Form of Stock Pledge Agreement between AFC and certain members of management.*
10.24(a)   Settlement Agreement between Alvin C. Copeland, Diversified Foods and Seasonings, Inc., Flavorite Laboratories, Inc. and AFC dated May 29, 1997.
10.25(a)   Indemnification Agreement dated April 11, 1996 by and between AFC and John M. Roth.*
10.26(a)   Indemnification Agreement dated May 1, 1996 by and between AFC and Kelvin J. Pennington.*
10.27(a)   Indemnification Agreement dated April 11, 1996 by and between AFC and Frank J. Belatti.*
10.28(e)   Substitute Nonqualified Stock Option Plan, effective March 17, 1998.*
10.29(f)   Indemnification Agreement dated May 16, 2001 by and between AFC and Victor Arias Jr.*
10.30(f)   Indemnification Agreement dated May 16, 2001 by and between AFC and Carolyn Hogan Byrd.*
10.31(f)   Indemnification Agreement dated August 9, 2001 by and between AFC and R. William Ide, III.*
10.32(g)   AFC Enterprises, Inc. Employee Stock Purchase Plan.*
10.33(g)   AFC Enterprises, Inc. 2002 Incentive Stock Plan.*
10.34(d)   AFC Enterprises, Inc. Annual Executive Bonus Program.*
10.35(h)   Royalty and Supply Agreement dated July 15, 2010 between the Company and Diversified Seasoning, Inc. †
10.36(o)   Indemnity Agreement dated October 14, 2004 by and between AFC Enterprises, Inc. and Supply Management Services, Inc.
10.37(o)   Indemnity Agreement dated February 5, 2004 by and between AFC Enterprises, Inc., Cajun Operating Company and Supply Management Services, Inc.

 

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Table of Contents

Exhibit

Number

 

Description

10.38(v)   Third Amended and Restated Credit Agreement dated as of August 14, 2009 among AFC Enterprises, Inc., the Lenders party thereto, JPMorgan Chase Bank, NA, JP Morgan Securities Inc. and Bank of America, N.A.
10.39(i)   Fourth Amendment to the 1992 Stock Option Plan of America’s Favorite Chicken Company.
10.40(i)   Fifth Amendment to the America’s Favorite Chicken Company 1996 Nonqualified Performance Stock Option Plan — General.*
10.41(i)   Amendment No. 1 to the America’s Favorite Chicken Company 1996 Nonqualified Stock Option Plan.*
10.42(i)   Second Amendment to the America’s Favorite Chicken Company 1996 Nonqualified Performance Stock Option Plan — Executive.*
10.43(i)   Second Amendment to the AFC Enterprises, Inc. 2002 Incentive Stock Plan.*
10.44(i)   Indemnification Agreement between AFC and Peter Starrett dated December 1, 2000.
10.45(p)   Indemnification Agreement dated November 28, 2006 by and between AFC and John M. Cranor, III.*
10.46(p)   Indemnification Agreement dated November 28, 2006 by and between AFC and Cheryl A. Bachelder.*
10.47(q)   Popeyes Chicken and Biscuits 2006 Bonus Plan.*
10.48(q)   Employment Agreement dated as of March 14, 2007 between AFC Enterprises, Inc. and James W. Lyons.*
10.49(q)   Employment Agreement dated as of March 14, 2007 between AFC Enterprises, Inc. and Robert Calderin.*
10.50(j)   Credit Agreement dated as of December 23, 2010.
10.51(r)   Non-Qualified Stock Option Certificate for Cheryl Bachelder (time-based vesting).*
10.52(r)   Non-Qualified Stock Option Certificate for Cheryl Bachelder (performance-based vesting).*
10.53(s)   Employment Agreement dated as of October 9, 2007 between AFC Enterprises, Inc. and Cheryl A. Bachelder.
10.54(l)   Accelerated Stock Repurchase Agreement by and between AFC Enterprises, Inc. and J.P. Morgan Securities Inc., as agent for JPMorgan Chase Bank, National Association, London Branch dated March 12, 2008.
10.55(t)   Amended and Restated Employment Agreement dated as of November 12, 2008 between the Company and Harold M. Cohen.
10.56(t)   Amended and Restated Employment Agreement dated as of November 12, 2008 between the Company and Henry Hope, III.
10.57(b)   Employment Agreement effective as of February 4, 2008 between the Company and Richard Lynch.*
10.58(w)   Employment Agreement effective as of April 20, 2009 between the Company and Ralph Bower.*
10.59(k)   Indemnification Agreement by and between the Company and Krishnan Anand dated November 2, 2010.*
10.60(x)   Employment Agreement by and between the Company and Andrew Skehan, dated August 17, 2011.
10.61(y)   First Amendment to the AFC Enterprises, Inc. 2006 Incentive Stock Plan.

 

45


Table of Contents

Exhibit

Number

 

Description

10.62(aa)   Promotion Letter Agreement among the Company and Ralph Bower.*
10.63(bb)   Form of Performance-Based Restricted Stock Unit Grant Certificate.*
11.1**   Statement regarding computation of per share earnings.
23.1   Consent of PricewaterhouseCoopers LLP
31.1   Certification Pursuant to Rule 13a-14(a), as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2   Certification Pursuant to Rule 13a-14(a), as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1   Certification of Chief Executive Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2   Certification of Chief Financial Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101   The following financial information for the Company, formatted in XBRL (Extensible Business Reporting Language): (i) the Condensed Consolidated Balance Sheets, (ii) the Condensed Consolidated Statements of Operations, (iii) the Condensed Consolidated Statement of Changes in Shareholders’ Equity, (iv) the Condensed Consolidated Statements of Cash Flows, and (v) the Notes to the Unaudited Condensed Consolidated Financial Statements.

 

 

Certain portions of this exhibit have been granted confidential treatment.

 *

Management contract, compensatory plan or arrangement required to be filed as an exhibit.

 

**

Data required by FASB authoritative guidance for Earnings per Share, is provided in Note 19 to our Consolidated Financial Statements in this Annual Report.

 

(a)

Filed as an exhibit to the Registration Statement of AFC on Form S-4/A (Registration No. 333-29731) on July 2, 1997 and incorporated by reference herein.

 

(b)

Filed as an exhibit to the Form 10-K of AFC for the fiscal year ended December 28, 2008 on March 11, 2009 and incorporated by reference herein.

 

(c)

Filed as an exhibit to the Form 10-Q of AFC for the quarter ended July 14, 2002, on August 14, 2002 and incorporated by reference herein.

 

(d)

Filed as an exhibit to the Form 10-Q of AFC for the quarter ended April 18, 2010 on May 26, 2010 and incorporated by reference herein.

 

(e)

Filed as an exhibit to the Registration Statement of AFC on Form S-1/A (Registration No. 333-52608) on January 22, 2001 and incorporated by reference herein.

 

(f)

Filed as an exhibit to the Registration Statement of AFC on Form S-1 (Registration No. 333-73182) on November 13, 2001 and incorporated by reference herein.

 

(g)

Filed as an exhibit to the Proxy Statement and Notice of 2002 Annual Shareholders Meeting of AFC on April 12, 2002 and incorporated by reference herein.

 

(h)

Filed as an exhibit to the Form 10-Q of AFC for the quarter ended July 11, 2010 on August 18, 2010 and incorporated by reference herein.

 

(i)

Filed as an exhibit to the Form 10-Q of AFC for the quarter ended April 17, 2005, on May 27, 2005, and incorporated by reference herein.

 

(j)

Filed as an exhibit to the Form 8-K of AFC filed on December 29, 2010 and incorporated by reference herein.

 

46


Table of Contents
(k)

Filed as an exhibit to the Form 8-K of AFC filed on November 3, 2010 and incorporated by reference herein.

 

(l)

Filed as an exhibit to the Form 8-K of AFC filed on March 13, 2008 and incorporated by reference herein

 

(m)

Filed as an exhibit to the Form 10-K of AFC for the fiscal year ended December 28, 2003, on March 29, 2004 and incorporated by reference herein.

 

(n)

Filed as an exhibit to the Registration Statement of AFC on Form S-1/A (Registration No. 333-52608) on February 28, 2001 and incorporated by reference herein.

 

(o)

Filed as an exhibit to the Form 10-K of AFC for the fiscal year ended December 26, 2004 on March 28, 2005 and incorporated by reference herein.

 

(p)

Filed as an exhibit to the Form 8-K of AFC filed November 29, 2006 and incorporated by reference herein.

 

(q)

Filed as an exhibit to the Form 10-K of AFC for the fiscal year ended December 31, 2006 and incorporated by reference herein.

 

(r)

Filed as an exhibit to the Form 8-K of AFC filed November 7, 2007 and incorporated by reference herein.

 

(s)

Filed as an exhibit to the Form 8-K of AFC filed October 12, 2007 and incorporated by reference herein.

 

(t)

Filed as an exhibit to the Form 10-Q of AFC for the quarter ended October 5, 2008 on November 12, 2008 and incorporated by reference herein.

 

(u)

Filed an exhibit to the Form 8-K of AFC filed on April 16, 2008 and incorporated by reference herein.

 

(v)

Filed as an Exhibit to the Form 8-K of AFC filed on August 20, 2009 and incorporated by reference herein.

 

(w)

Filed as an Exhibit to the Form 8-K of AFC filed on April 21, 2009 and incorporated by reference herein.

 

(x)

Filed as an Exhibit to the Form 8-K of AFC filed on August 19, 2011 and incorporated by reference herein.

 

(y)

Filed as an Exhibit to the Proxy Statement and Notice of 2011 Annual Shareholders Meeting of AFC on April 20, 2011 and incorporated by reference herein.

 

(z)

Filed as Exhibit 2.1 to the Form 8-K of AFC filed on October 16, 2012 and incorporated by reference herein.

 

(aa)

Filed as Exhibit 10.1 to the Form 10-Q of AFC for the quarter ended April 15, 2012 and incorporated by reference herein.

 

(bb)

Filed as Exhibit 10.2 to the Form 10-Q of AFC for the quarter ended April 15, 2012 and incorporated by reference herein.

 

 

 

 

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Table of Contents

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on the 27th day of February 2013.

 

AFC ENTERPRISES, INC.
By:  

/s/  CHERYL A. BACHELDER

  Cheryl A. Bachelder
  Chief Executive Officer

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

  

Title(s)

 

Date

/s/  CHERYL A. BACHELDER

Cheryl A. Bachelder

   Chief Executive Officer (Principal
Executive Officer)
  February 27, 2013

/s/  H. MELVILLE HOPE

H. Melville Hope

   Chief Financial Officer (Principal
Financial and Accounting Officer)
  February 27, 2013

/s/  JOHN M. CRANOR, III

John M. Cranor, III

  

Director, Chairman of the Board

  February 27, 2013

/s/  KRISHNAN ANAND

Krishnan Anand

  

Director

  February 27, 2013

/s/  VICTOR ARIAS, JR.

Victor Arias, Jr.

  

Director

  February 27, 2013

/s/  CAROLYN H. BYRD

Carolyn H. Byrd

  

Director

  February 27, 2013

/s/  JOHN F. HOFFNER

John F. Hoffner

  

Director

  February 27, 2013

/s/  R. WILLIAM IDE, III

R. William Ide, III

  

Director

  February 27, 2013

/s/  KELVIN J. PENNINGTON

Kelvin J. Pennington

  

Director

  February 27, 2013

 

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Table of Contents

Report of Independent Registered Public Accounting Firm

To the Board of Directors and Shareholders of AFC Enterprises, Inc.:

In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of operations, comprehensive income, changes in shareholders’ equity, and cash flows present fairly, in all material respects, the financial position of AFC Enterprises, Inc. and its subsidiaries at December 30, 2012 and December 25, 2011, and the results of their operations and their cash flows for each of the three years in the period ended December 30, 2012 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 30, 2012, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for these financial statements, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included Management’s Report on Internal Control over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on these financial statements and on the Company’s internal control over financial reporting based on our integrated audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ PricewaterhouseCoopers LLP

Atlanta, GA

February 27, 2013

 

F-1


Table of Contents

AFC Enterprises, Inc.

Consolidated Balance Sheets

As of December 30, 2012, and December 25, 2011

(In millions, except share data)

 

    2012     2011  

Current assets:

   

Cash and cash equivalents

   $ 17.0        $ 17.6   

Accounts and current notes receivable, net

    7.3        7.0   

Other current assets

    4.2        4.8   

Advertising cooperative assets, restricted

    25.7        18.9   
 

 

 

 

Total current assets

    54.2        48.3   
 

 

 

 

Long-term assets:

   

Property and equipment, net

    51.3        27.4   

Goodwill

    11.1        11.1   

Trademarks and other intangible assets, net

    53.9        46.5   

Other long-term assets, net

    1.9        2.3   
 

 

 

 

Total long-term assets

    118.2        87.3   
 

 

 

 

Total assets

   $ 172.4        $ 135.6   
 

 

 

 

Current liabilities:

   

Accounts payable

   $ 7.6        $ 6.1   

Other current liabilities

    5.9        8.2   

Current debt maturities

    6.0        5.2   

Advertising cooperative liabilities

    25.7        18.9   
 

 

 

 

Total current liabilities

    45.2        38.4   
 

 

 

 

Long-term liabilities:

   

Long-term debt

    66.8        58.8   

Deferred credits and other long-term liabilities

    26.2        24.6   
 

 

 

 

Total long-term liabilities

    93.0        83.4   
 

 

 

 

Commitments and contingencies

   

Shareholders’ equity:

   

Preferred stock ($.01 par value; 2,500,000 shares authorized; 0 issued and outstanding)

             

Common stock ($.01 par value; 150,000,000 shares authorized; 23,907,428 and 24,383,274 shares issued and outstanding at the end of fiscal years 2012 and 2011, respectively)

    0.2        0.2   

Capital in excess of par value

    87.6        97.6   

Accumulated deficit

    (52.8     (83.2

Accumulated other comprehensive loss

    (0.8     (0.8
 

 

 

 

Total shareholders’ equity

    34.2        13.8   
 

 

 

 

Total liabilities and shareholders’ equity

   $     172.4        $     135.6   
 

 

 

 

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

 

F-2


Table of Contents

AFC Enterprises, Inc.

Consolidated Statements of Operations

For Fiscal Years 2012, 2011, and 2010

(In millions, except per share data)

 

    2012     2011      2010  

Revenues:

      

Sales by company-operated restaurants

  $ 64.0      $ 54.6       $ 52.7   

Franchise revenues

    110.5        95.0         89.4   

Rent and other revenues

    4.3        4.2         4.3   
 

 

 

 

Total revenues

    178.8        153.8         146.4   
 

 

 

 

Expenses:

      

Restaurant employee, occupancy and other expenses

    31.2        26.1         25.8   

Restaurant food, beverages and packaging

    21.7        18.3         16.8   

Rent and other occupancy expenses

    2.9        2.7         2.1   

General and administrative expenses

    67.6        61.3         56.4   

Depreciation and amortization

    4.6        4.2         3.9   

Other expenses (income), net

    (0.5     0.5         0.2   
 

 

 

 

Total expenses

    127.5        113.1         105.2   
 

 

 

 

Operating profit

    51.3        40.7         41.2   

Interest expense, net

    3.6        3.7         8.0   
 

 

 

 

Income before income taxes

    47.7        37.0         33.2   

Income tax expense

    17.3        12.8         10.3   
 

 

 

 

Net income

  $ 30.4      $ 24.2       $ 22.9   
 

 

 

 

Earnings per common share, basic:

  $ 1.27      $ 0.99       $ 0.91   
 

 

 

 

Earnings per common share, diluted:

  $ 1.24      $ 0.97       $ 0.90   
 

 

 

 

Weighted-average shares outstanding:

      

Basic

    23.9        24.5         25.3   

Diluted

    24.5        25.0         25.5   

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

 

F-3


Table of Contents

AFC Enterprises, Inc.

Consolidated Statements of Comprehensive Income

For Fiscal Years 2012, 2011, and 2010

(In millions)

 

     2012      2011     2010  

Net income

   $ 30.4       $   24.2      $   22.9   

Other comprehensive income

       

Net change in fair value of cash flow hedge

             (1.3       

Reclassification adjustments for derivative losses included in earnings

             0.1        0.6   
  

 

 

    

 

 

   

 

 

 

Other comprehensive income, before income tax

             (1.2     0.6   

Income tax on other comprehensive income

             0.5        (0.2
  

 

 

    

 

 

   

 

 

 

Other comprehensive income, net of income taxes

             (0.7     0.4   
  

 

 

    

 

 

   

 

 

 

Comprehensive income

   $ 30.4       $ 23.5      $ 23.3   
  

 

 

    

 

 

   

 

 

 

 

 

 

 

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

 

F-4


Table of Contents

AFC Enterprises, Inc.

Consolidated Statements of Changes in Shareholders’ Equity

For Fiscal Years 2012, 2011, and 2010

(Dollars in millions)

 

     Common Stock     Capital in
Excess of

Par Value
    Accumulated
Deficit
    Accumulated
Other

Comprehensive
(Loss)
    Total  
     Number of
Shares
    Amount          

Balance at December 27, 2009

    25,455,917      $           0.3      $       112.3      $ (130.3   $ (0.5   $ (18.2

Net income

                                   22.9               22.9   

Other comprehensive income, net of tax

                                              0.4              0.4   

Cancellation of shares

    137,775               1.5                      1.5   

Issuance of restricted stock awards, net of forfeitures

    92,013               (0.1                   (0.1

Stock-based compensation expense

                  2.7                      2.7   
 

 

 

 

Balance at December 26, 2010

    25,685,705      $ 0.3      $ 116.4      $ (107.4   $ (0.1   $ 9.2   

Net income

                         24.2               24.2   

Other comprehensive income, net of tax

                                (0.7     (0.7

Repurchases and retirement of shares

    (1,465,436     (0.1     (22.2                   (22.3

Excess tax benefit from stock-based compensation

                  0.1                      0.1   

Issuance of common stock under stock option plans

    59,407               0.6                      0.6   

Issuance of restricted stock awards, net of forfeitures

    103,598               (0.2                   (0.2

Stock-based compensation expense

                  2.9                      2.9   
 

 

 

 

Balance at December 25, 2011

    24,383,274      $ 0.2      $ 97.6      $ (83.2   $ (0.8   $ 13.8   

Net income

                         30.4               30.4   

Other comprehensive income, net of tax

                                         

Repurchases and retirement of shares

    (741,228            (15.2                   (15.2

Excess tax benefit from stock-based compensation

                  0.4                      0.4   

Issuance of common stock under stock option plans

    108,935               1.3                      1.3   

Issuance of restricted stock awards, net of forfeitures

    156,447               (1.4                   (1.4

Stock-based compensation expense

                  4.9                      4.9   
 

 

 

 

Balance at December 30, 2012

    23,907,428      $ 0.2      $ 87.6      $ (52.8   $ (0.8   $ 34.2   

 

 

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

 

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Table of Contents

AFC Enterprises, Inc.

Consolidated Statements of Cash Flows

For Fiscal Years 2012, 2011, and 2010

(In millions)

 

     2012     2011     2010  

Cash flows provided by (used in) operating activities:

      

Net income

   $ 30.4      $ 24.2      $ 22.9   

Adjustments to reconcile net income to net cash provided by (used in) operating activities:

      

Depreciation and amortization

     4.6        4.2        3.9   

Disposals of property and equipment

     0.3        0.5        0.7   

Net gain on sale of assets

     (0.9     (0.8     (0.5

Deferred income taxes

     2.2        1.3        1.5   

Non-cash interest expense, net

     0.4        0.5        1.7   

Provision for credit losses (recoveries)

     (0.1     (0.3     (0.5

Excess tax benefit from share-based payment arrangements

     (0.4     (0.1       

Stock-based compensation expense

     4.9        2.9        2.7   

Change in operating assets and liabilities:

      

Accounts receivable

     (0.2     (1.4     1.5   

Other operating assets

     0.8        (0.2     (1.7

Accounts payable and other operating liabilities

     (1.8     1.3        (3.8
  

 

 

 

Net cash provided by operating activities

       40.2          32.1          28.4   
  

 

 

 

Cash flows provided by (used in) investing activities:

      

Capital expenditures

     (27.3     (7.6     (3.2

Proceeds from dispositions of property and equipment

     0.4        0.7          

Investment in trademark

     (8.0              

Proceeds from notes receivable and other investing activities

            0.3        3.0   
  

 

 

 

Net cash provided by (used in) investing activities

     (34.9     (6.6     (0.2
  

 

 

 

Cash flows provided by (used in) financing activities:

      

Principal payments — 2005 credit facility (term loan)

                   (78.3

Principal payments — 2010 credit facility (term loan)

     (5.0     (3.8       

Borrowings under 2010 credit facility (term loan)

                   40.0   

Borrowings under 2010 revolving credit facility

     13.0        2.0        22.0   

Excess tax benefits from share-based payment arrangements

     0.4        0.1          

Share repurchases

     (15.2     (22.3       

Proceeds from exercise of employee stock options

     1.3        0.6        1.5   

Debt issuance costs

                   (1.2

Other financing activities, net

     (0.4     (0.4     (0.4
  

 

 

 

Net cash used in financing activities

     (5.9     (23.8     (16.4
  

 

 

 

Net increase (decrease) in cash and cash equivalents

     (0.6     1.7        11.8   

Cash and cash equivalents at beginning of year

     17.6        15.9        4.1   
  

 

 

 

Cash and cash equivalents at end of year

   $ 17.0      $ 17.6      $ 15.9   
  

 

 

 

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

 

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010

Note 1 — Description of Business

AFC Enterprises, Inc. (“AFC” or “the Company”) develops, operates and franchises quick-service restaurants under the trade name Popeyes® Chicken & Biscuits and Popeyes® Louisiana Kitchen (collectively “Popeyes”) in 47 states, the District of Columbia, three territories, and 26 foreign countries.

Note 2 — Summary of Significant Accounting Policies

Principles of Consolidation. The consolidated financial statements include the accounts of AFC and its wholly-owned subsidiaries. All significant intercompany balances and transactions are eliminated in consolidation.

Use of Estimates. The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires the Company’s management to make estimates and assumptions that affect the reported amounts of assets and liabilities. These estimates affect the disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during each reporting period. Actual results could differ from those estimates.

Fiscal Year.  The Company has a 52/53-week fiscal year that ends on the last Sunday in December. Fiscal year 2012 consisted of 53 weeks. The 2011 and 2010 fiscal years both consisted of 52 weeks.

Cash and Cash Equivalents. The Company considers all money market investment instruments and certificates of deposit with original maturities of three months or less to be cash equivalents. Under the terms of the Company’s bank agreements, outstanding checks in excess of the cash balances in the Company’s primary disbursement accounts create a bank overdraft liability. Bank overdrafts were insignificant for both fiscal years 2012 and 2011.

Supplemental Cash Flow Information.

 

       

(in millions)

 

   2012      2011     2010  

Interest paid

   $ 2.9       $ 2.4      $ 6.4   

Corporate office lease tenant improvement allowances and incentives

             (3.0       

Property acquired under capital lease obligation

     1.0                  

Income taxes paid, net

     12.5         10.6        10.3   

Accounts Receivable, Net.  At December 30, 2012 and December 25, 2011, accounts receivable, net were $7.3 million and $7.0 million, respectively. Accounts receivable consist primarily of amounts due from franchisees related to royalties, and rents, and various miscellaneous items. The accounts receivable balance is stated net of an allowance for doubtful accounts. The Company reserves a franchisee’s receivable balance based upon pre-defined aging criteria and upon the occurrence of other events that indicate that it may or may not collect the balance due. During 2012, 2011, and 2010, changes in the allowance for doubtful accounts were as follows:

 

       

(in millions)

 

   2012     2011     2010  

Balance, beginning of year

   $ 0.6      $ 1.2      $ 2.1   

Provisions for credit recoveries (losses)

     (0.1     (0.3     (0.5

Write-offs

     (0.3     (0.3     (0.4

Balance, end of year

   $ 0.2      $ 0.6      $ 1.2   

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

Notes Receivable, Net.  Notes receivable consist of notes from franchisees to finance certain past due franchise revenues and rents. The notes receivable balance is stated net of an allowance for uncollectible amounts which is evaluated each reporting period on a note-by-note basis. At December 30, 2012 and December 25, 2011, all notes receivable were fully reserved. The balance in the allowance account at both December 30, 2012 and December 25, 2011, was approximately $0.9 million.

Inventories.  Inventories are stated at the lower of cost (first-in, first-out method) or net realizable value and consist principally of food, beverage items, paper and supplies. At December 30, 2012 and December 25, 2011, inventories of $0.5 million and $0.4 million, respectively, were included as a component of “Other current assets.”

Property and Equipment.  Property and equipment is stated at cost less accumulated depreciation.

Provisions for depreciation are made using the straight-line method over an asset’s estimated useful life: 7-35 years for buildings; 5-15 years for equipment; and in the case of leasehold improvements and capital lease assets, the lesser of the economic life of the asset or the lease term (generally 3-20 years). During 2012, 2011, and 2010, depreciation expense was approximately $4.0 million, $3.7 million, and $3.3 million, respectively.

The Company evaluates property and equipment for impairment during the fourth quarter of each year or when circumstances arise indicating that a particular asset may be impaired. For property and equipment at company-operated restaurants, annual impairment evaluations are performed on an individual restaurant basis. The Company evaluates restaurants using a “two-year history of operating losses” as our primary indicator of potential impairment. The Company evaluates recoverability based on the restaurant’s forecasted undiscounted cash flows for the expected remaining useful life of the unit, which incorporate our best estimate of sales growth and margin improvement based upon our plans for the restaurant and actual results at comparable restaurants. The carrying values of restaurant assets that are not considered recoverable are written down to their estimated fair market value, which are generally measured by discounting estimated future cash flows.

Goodwill, Trademarks, and Other Intangible Assets.  Amounts assigned to goodwill arose from the allocation of reorganization value when the Company emerged from bankruptcy in 1992 and from business combinations accounted for by the purchase method. Amounts assigned to trademarks arose from the allocation of reorganization value when the Company emerged from bankruptcy in 1992. These assets are deemed indefinite-lived assets and are not amortized for financial reporting purposes. See Note 6 for further disclosure.

The Company’s finite-lived intangible assets (primarily re-acquired franchise rights) are amortized on a straight-line basis over 10 to 20 years based on the remaining life of the original franchise agreement or lease agreement.

The Company evaluates goodwill and trademarks for impairment on an annual basis (during the fourth quarter of each year) or more frequently when circumstances arise indicating that a particular asset may be impaired. The impairment evaluation for goodwill includes a comparison of the fair value of each of the Company’s reporting units with their carrying value. The Company’s reporting units are its business segments. Goodwill is allocated to each reporting unit for purposes of this analysis. Goodwill associated with bankruptcy reorganization value is assigned to reporting units using a relative fair value approach. Goodwill associated with a business combination is allocated to the reporting unit or a component of the reporting unit expected to benefit from the synergies of the combination. The fair value of each reporting unit is the amount for which the reporting unit could be sold in a current transaction between willing parties. The Company estimates the fair value of its reporting units using a discounted cash flow model. The operating assumptions used in the discounted cash flow model are generally

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

consistent with the reporting unit’s past performance and with the projections and assumptions that are used in the Company’s current operating plans. Such assumptions are subject to change as a result of changing economic and competitive conditions. If a reporting unit’s carrying value exceeds its fair value, goodwill is written down to its implied fair value. The Company follows a similar analysis for the evaluation of trademarks, but that analysis is performed on a consolidated basis. During 2012, 2011, and 2010, there was no impairment of goodwill or trademarks identified during the Company’s annual impairment testing.

Costs incurred to renew or extend the term of recognized intangibles are expensed as incurred and reported as a component of “General and administrative expenses.”

Fair Value Measurements.  Fair value is the price the Company would receive to sell an asset or pay to transfer a liability (exit price) in an orderly transaction between market participants. For those assets and liabilities recorded or disclosed at fair value, we determine fair value based upon the quoted market price, if available. If a quoted market price is not available for identical assets, we determine fair value based upon the quoted market price of similar assets or the present value of expected future cash flows considering the risks involved, including counterparty performance risk if appropriate, and using discount rates appropriate for the duration. The fair values are assigned a level within the fair value hierarchy, depending on the source of the inputs into the calculation.

 

Level 1

  

Inputs based upon quoted prices in active markets for identical assets.

Level 2

  

Inputs other than quoted prices included within Level 1 that are observable for the asset, either directly or indirectly.

Level 3

  

Inputs that are unobservable for the asset.

Debt Issuance Costs.  Costs incurred securing new debt facilities are capitalized and then amortized utilizing a method that approximates the effective interest method for term loans and the straight-line method for revolving credit facilities. Absent a basis for cost deferral, debt amendment fees are expensed as incurred. In the Company’s Consolidated Statements of Operations, the amortization of debt issuance costs, any write-off of debt issuance costs when a debt facility is modified or prematurely paid off, and debt amendment fees are included as a component of “Interest expense, net.”

Advertising Cooperative.  The Company maintains an advertising cooperative that receives contributions from the Company and from its franchisees, based upon a percentage of restaurant sales, as required by their franchise agreements. This cooperative is used exclusively for marketing of the Popeyes brand. The Company acts as an agent for the franchisees with regards to their contributions to the advertising cooperative.

In the Company’s consolidated financial statements, contributions received and expenses of the advertising cooperative are excluded from the Company’s Consolidated Statements of Operations and the Consolidated Statements of Cash Flow. The Company reports all assets and liabilities of the advertising cooperative as “Advertising cooperative assets, restricted” and “Advertising cooperative liabilities” in the Consolidated Balance Sheet. The advertising cooperatives assets, consisting primarily of cash and accounts receivable from the franchisees, can only be used for selected purposes and are considered restricted. The advertising cooperative liabilities represent the corresponding obligation arising from the receipt of the contributions to purchase advertising and promotional programs.

The Company’s contributions to the advertising cooperative based on company-operated restaurant sales are reflected in the Company’s Consolidated Statements of Operations as a component of “Restaurant employee, occupancy and other expenses.” Additional contributions to the advertising cooperative for national media

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

advertising and other marketing related costs are expensed as a component of “General and administrative expenses.” During 2012, 2011, and 2010, the Company’s advertising costs were approximately $2.3 million, $2.4 million, and $2.3 million, respectively.

Leases.  When determining the lease term, the Company includes option periods for which failure to renew the lease imposes economic penalty on the Company in such an amount that a renewal appears, at the inception of the lease, to be reasonably assured. The lease term commences on the date when the Company has the right to control the use of the leased property, which can occur before the rent payments are due under the terms of the lease.

The Company records rent expense for leases that contain scheduled rent increases on a straight-line basis over the lease term, including any option periods considered in the determination of that lease term. Contingent rentals are generally based on sales levels in excess of stipulated amounts, and thus are not considered minimum lease payments and are included in rent expense as they accrue.

Tenant improvement allowances and other lease incentives are recognized as reductions to rent expense on a straight-line basis over the lease term.

Accumulated Other Comprehensive Income (Loss).  Comprehensive income (loss) is net income plus the change in fair value of the Company’s cash flow hedge discussed in Note 9 plus derivative (gains) or losses realized in earnings during the period. Amounts included in accumulated other comprehensive income (loss) for the Company’s derivative instruments are recorded net of the related income tax effects.

As of December 30, 2012 and December 25, 2011, accumulated other comprehensive loss consisted of net unrealized loss on an interest rate swap agreements. See Note 9 for further discussion of the Company’s interest rate swap agreements.

Revenue Recognition — Sales by Company-Operated Restaurants.  Revenues from the sale of food and beverage products are recognized on a cash basis. The Company presents sales net of sales tax and other sales related taxes.

Revenue Recognition — Franchise Operations.  Revenues from franchising activities include development fees associated with a franchisee’s planned development of a specified number of restaurants within a defined geographic territory, franchise fees associated with the opening of new restaurants, and ongoing royalty fees which are generally based on five percent of net restaurant sales. Development fees and franchise fees are recorded as deferred franchise revenue when received and are recognized as revenue when the restaurants covered by the fees are opened or all material services or conditions relating to the fees have been substantially performed or satisfied by the Company. The Company recognizes royalty revenues as earned. Franchise renewal fees are recognized when a renewal agreement becomes effective.

Rent and Other Revenues.  Rent and other revenues are composed of rental income associated with properties leased or subleased to franchisees. Rental income is recognized on the straight-line basis over the lease term.

Cash Consideration from Vendors.  The Company has entered into long-term beverage supply agreements with certain major beverage vendors. Pursuant to the terms of these arrangements, marketing rebates are provided to the Company and its advertising fund from the beverage vendors based upon the dollar volume of purchases for company-operated restaurants and franchised restaurants. For Company-operated restaurants, these incentives are recognized as earned throughout the year and are classified as a reduction of “Restaurant food,

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

beverages and packaging” in the Consolidated Statements of Operations. The incentives recognized by company-operated restaurants were approximately $0.6 million, $0.6 million, and $0.5 million, in 2012, 2011, and 2010, respectively. Rebates earned and contributed to the cooperative advertising fund are excluded from the Company’s Consolidated Statements of Operations.

Gains and Losses Associated With Re-franchising.  From time to time, the Company engages in re-franchising transactions. Typically, these transactions involve the sale of a company-operated restaurant to an existing or new franchisee.

The Company defers gains on the sale of company-operated restaurants when the Company has continuing involvement in the assets sold beyond the customary franchisor role. The Company’s continuing involvement generally includes seller financing or the leasing of real estate to the franchisee. Deferred gains are recognized over the remaining term of the continuing involvement. Losses are recognized immediately.

There were no sales of company-operated restaurants in 2012, 2011, or 2010. During 2012, 2011 and 2010, previously deferred gains of approximately $0.6 million, $0.3 million, and $0.5 million, respectively, were recognized in income as a component of “Other expenses (income), net” in the accompanying Consolidated Statements of Operations.

Research and Development.  Research and development costs are expensed as incurred. During 2012, 2011, and 2010, such costs were approximately $1.8 million, $2.3 million, and $1.9 million, respectively.

Foreign Currency Transactions. Substantially all of the Company’s foreign-sourced revenues (principally royalties from international franchisees) are recorded in U.S. dollars. The aggregate effects of any exchange gains or losses are included in the accompanying Consolidated Statements of Operations as a component of “General and administrative expenses.” The net foreign currency gains and losses were insignificant in 2012 and 2010. The net foreign currency loss was $0.1 million in 2011.

Income Taxes.  Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss, capital loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. The Company provides a valuation allowance against deferred tax assets if, based on the weight of available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized.

The Company recognizes the benefit of positions taken or expected to be taken in a tax return in the financial statements when it is more likely than not (i.e. a likelihood of more than fifty percent) that the position would be sustained upon examination by tax authorities. A recognized tax position is then measured at the largest amount of benefit that is greater than fifty percent likely of being realized upon settlement. Changes in judgment that result in subsequent recognition, derecognition or change in a measurement of a tax position taken in a prior annual period (including any related interest and penalties) is recognized as a discrete item in the interim period in which the change occurs.

See Note 18 for additional information regarding income taxes.

Stock-Based Compensation Expense.  The Company measures and recognizes compensation cost at fair value for all share-based payments, including stock options, restricted share awards and restricted share units. The fair value of stock options with service and market conditions is valued utilizing a Monte Carlo simulation embedded

 

F-11


Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

in a lattice model. The fair value of stock options with only service conditions are estimated using a Black-Scholes option-pricing model. Restricted share awards and restricted share units are valued at the market price of the Company’s shares on the grant date. The fair value of stock-based compensation is amortized on the graded vesting attribution method. The Company issues new shares for common stock upon exercise of stock options.

The Company recorded $4.9 million ($3.1 million net of tax), $2.9 million ($1.9 million net of tax), and $2.7 million ($1.7 million net of tax), in total stock-based compensation expense during 2012, 2011, and 2010, respectively.

Subsequent Events.  The Company discloses material events that occur after the balance sheet date but before the financial statements are issued. In general, these events are recognized if the condition existed at the date of the balance sheet, but not recognized if the condition did not exist at the balance sheet date. The Company discloses non-recognized events if required to keep the financial statements from being misleading.

Derivative Financial Instruments.  The Company used interest rate swap agreements to reduce its interest rate risk on its floating rate debt under the terms of its 2010 and 2005 amended credit facility. The Company recognizes all derivatives on the balance sheet at fair value. At inception and on an on-going basis, the Company assesses whether each derivative that qualifies for hedge accounting continues to be highly effective in offsetting changes in the cash flows of the hedged item. If the derivative meets the hedge criteria as defined by certain accounting standards, changes in the fair value of the derivative are recognized in accumulated other comprehensive income (loss) until the hedged item is recognized in earnings. The ineffective portion of a derivative’s change in fair value, if any, is immediately recognized in earnings.

Note 3 — Recent Accounting Pronouncements That the Company Has Not Yet Adopted

In July 2012, the FASB issued guidance on testing indefinite-lived intangible assets for impairment. The guidance allows an entity the option first to assess qualitative factors to determine whether the existence of events and circumstances indicates that it is more likely than not that the indefinite-lived intangible asset is impaired. If, after assessing the totality of events and circumstances, an entity concludes that is not more likely than not that the indefinite-lived intangible asset is impaired, then the entity is not required to take further action. However, if an entity concludes otherwise, then it is required to determine the fair value of the indefinite-lived intangible asset and perform the quantitative impairment test by comparing the fair value with the carrying amount. This guidance is effective for annual and interim impairment tests performed for fiscal years beginning after September 15, 2012. We do not expect the adoption of this guidance to have a material impact on our operating results.

Note 4 — Other Current Assets

 

(in millions)    2012      2011  

Deferred tax assets

   $ 0.3       $ 0.4   

Prepaid income taxes

             1.4   

Prepaid expenses and other current assets

     3.9         3.0   
     $     4.2       $     4.8   

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

Note 5— Property and Equipment, Net

 

(in millions)    2012     2011  

Land

   $ 12.1      $ 3.0   

Buildings and improvements

     43.2        29.7   

Equipment

     23.3        19.2   

Properties held for sale and other

     0.7        0.1   
  

 

 

 
     79.3        52.0   

Less accumulated depreciation and amortization

     (28.0     (24.6
     $     51.3      $     27.4   

At December 30, 2012 and December 25, 2011, property and equipment, net included capital lease assets with a gross book value of $1.8 million and $0.1 million accumulated amortization.

On November 13, 2012 the Company completed a $13.8 million acquisition of 27 restaurants in Minnesota and California. The restaurants were in the trade image of another quick service restaurant concept. Twenty-six of the acquired restaurants are being converted into the Popeyes Louisiana Kitchen image at a cost of approximately $11.0 million. Following the conversion, the restaurants will be leased to Popeyes franchisees to operate under our standard franchise agreement. The remaining restaurant property will be sold. As of December 30, 2012, two of the California restaurants had been converted and leased to a franchisee.

The following table summarizes the allocation of the $14.6 million total cost of the acquisition including the $13.8 million purchase price:

 

Land    $ 7.5   

Building and improvements

     6.5   

Properties held for sale and other

     0.6   
  

 

 

 

Total cost

   $ 14.6   
  

 

 

 

Note 6 — Trademarks and Other Intangible Assets, Net

 

(in millions)    2012     2011  

Non-amortizable intangible assets:

    

Trademarks

   $ 50.0      $ 42.0   

Other

     0.6        0.6   
  

 

 

 
     50.6        42.6   

Amortizable intangible assets:

    

Re-acquired franchise rights

     7.1        7.1   

Accumulated amortization

     (3.8     (3.2
  

 

 

 
       3.3        3.9   
     $     53.9      $     46.5   

Amortization expense was approximately $0.6 million, $0.5 million, and $0.6 million, for 2012, 2011, and 2010, respectively. Estimated amortization expense is expected to be approximately $0.5 million in 2013 through 2017. The remaining weighted average amortization period for these assets is 7 years.

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

On November 7, 2012, the Company entered into a new agreement with the King Features Syndicate Division of Hearst Holdings, Inc., licensor of the Popeye® the Sailorman and associated cartoon characters. As part of the new agreement, the parties agreed to dismiss the pending declaratory judgment action related to their previous license agreement. The new agreement confirms the expiration of the previous license agreement and the parties agree to cooperate with each other to protect their respective intellectual property rights on a world-wide basis. A one–time $7.0 million payment made to King Features, as well as the associated legal fees of $1.0 million, were recorded as an indefinite-lived intangible asset.

Note 7 — Other Current Liabilities

 

(in millions)    2012      2011  

Accrued wages, bonuses and severances

   $ 2.6       $ 5.0   

Other

     3.3         3.2   
     $     5.9       $     8.2   

Note 8 — Fair Value Measurements

The following table reflects assets and liabilities that are measured and carried at fair value on a recurring basis as of December 30, 2012 and December 25, 2011:

 

    

Quoted Prices in Active
Markets for Identical
Asset or Liability

(Level 1)

   

Significant Other
Observable Inputs

(Level 2)

   

Significant
Unobservable
Inputs

(Level 3)

    Carrying
Value
 

December 30, 2012

       

Financial Assets

       

Cash and cash equivalents

  $ 17.0      $      $  —      $ 17.0   

Restricted cash (advertising cooperative assets)

    4.3                      4.3   

Total assets at fair value

  $  21.3      $      $      $ 21.3   

Financial Liabilities

       

Interest rate swap agreement (Note 9)

  $      $ 1.3      $      $ 1.3   

Long term debt and other borrowings

            74.4                72.8   

Total liabilities at fair value

  $      $  75.7      $  —      $  74.1   

 

    

Quoted Prices in Active
Markets for Identical
Asset or Liability

(Level 1)

   

Significant Other
Observable Inputs

(Level 2)

   

Significant
Unobservable
Inputs

(Level 3)

    Carrying
Value
 

December 25, 2011

       

Financial Assets

       

Cash and cash equivalents

  $ 17.7      $      $  —      $ 17.7   

Restricted cash (advertising cooperative assets)

    4.3                      4.3   

Total assets at fair value

  $  22.0      $      $      $ 22.0   

Financial Liabilities

       

Interest rate swap agreement (Note 9)

  $      $ 1.3      $      $ 1.3   

Long term debt and other borrowings

            66.2                64.0   

Total liabilities at fair value

  $      $  67.5      $  —      $  65.3   

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

At December 30, 2012 and December 25, 2011, the fair value of the Company’s current assets and current liabilities approximates carrying value because of the short-term nature of these instruments.

The fair value of the Company’s interest rate swap is based on the sum of all future net present value cash flows. The future cash flows are derived based on the terms of our interest rate swap, as well as considering published discount factors, and projected London Interbank Offered Rates (“LIBOR”). The fair values of each of the Company’s long-term debt instruments are based on the amount of future cash flows associated with each instrument, discounted using the Company’s current borrowing rate for similar debt instruments of comparable maturity.

Note 9 — Long-Term Debt and Other Borrowings

 

(in millions)    2012     2011  

2010 Credit Facilities:

    

Revolving credit facility

   $ 37.0      $ 24.0   

Term loan

     31.3        36.3   

Capital lease obligations

     2.3        1.4   

Other notes

     2.2        2.3   
  

 

 

 
     72.8        64.0   
  

 

 

 

Less current portion

     (6.0     (5.2
     $     66.8      $     58.8   

2010 Credit Facility.  On December 23, 2010, the Company entered into a bank credit facility with a group of lenders consisting of a five year $60.0 million dollar revolving credit facility and a five year $40.0 million dollar term loan. The Company drew $40 million under the term loan and $22 million under the revolving credit facility. The 2005 Credit Facility was retired with proceeds from the 2010 Credit Facility.

Key terms in the 2010 Credit Facility include the following:

 

   

The term loan and revolving credit facility maturity date is December 23, 2015.

 

   

The Company must maintain a Total Leverage Ratio of < 2.75 to 1.0.

 

   

The interest rate is LIBOR plus 250 basis points.

 

   

The Company must maintain a Minimum Fixed Charge Coverage Ratio of > 1.25 to 1.0.

 

   

The Company may repurchase and retire its common shares at any time the Total Leverage Ratio is less than 2.00 to 1.0.

 

   

The Company may make Permitted Acquisitions at any time the Total Leverage Ratio is less than 2.50 to 1.0.

In connection with the refinancing during 2010, the Company expensed $0.6 million associated with the extinguishment of the Term B Loan, which is reported as a component of “Interest expense, net.” Additionally, the Company capitalized approximately $1.2 million of fees related to the new facility as debt issuance costs which will be amortized over the remaining life of the facility utilizing the effective interest method for the term loan and the straight-line method for the revolving credit facility.

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

The revolving credit facility and term loan bear interest based upon alternative indices (LIBOR, Federal Funds Effective Rate, Prime Rate and a Base CD rate) plus an applicable margin as specified in the facility. The margins on the term and revolving credit facility may fluctuate because of changes in certain financial leverage ratios and the Company’s compliance with applicable covenants of the 2010 Credit Facility. The Company also pays a quarterly commitment fee of 0.5% on the unused portions of the revolving credit facility. As of December 30, 2012, the Company had $37.0 million of loans outstanding under its revolving credit facility. Under the terms of the revolving credit facility, the Company may obtain other short-term borrowings of up to $10.0 million and letters of credit up to $25.0 million. Collectively, these other borrowings and letters of credit may not exceed the amount of unused borrowings under the 2010 Credit Facility. As of December 30, 2012, the Company had $0.4 million of outstanding letters of credit. Availability for short-term borrowings and letters of credit under the revolving credit facility was $22.6 million.

The 2010 Credit Facility is secured by a first priority security interest in substantially all of the Company’s assets. The 2010 Credit Facility contains financial and other covenants, including covenants requiring the Company to maintain various financial ratios, limiting its ability to incur additional indebtedness, restricting the amount of capital expenditures that may be incurred, restricting the payment of cash dividends, and limiting the amount of debt which can be loaned to the Company’s franchisees or guaranteed on their behalf. This facility also limits the Company’s ability to engage in mergers or acquisitions, sell certain assets, repurchase its common stock and enter into certain lease transactions. The 2010 Credit Facility includes customary events of default, including, but not limited to, the failure to pay any interest, principal or fees when due, the failure to perform certain covenant agreements, inaccurate or false representations or warranties, insolvency or bankruptcy, change of control, the occurrence of certain ERISA events and judgment defaults.

Under the terms of the Company’s 2010 Credit Facility, quarterly principal payments of $1.5 million will be due during 2013 and 2014, and $4.5 million during 2015.

As of December 30, 2012, the Company was in compliance with the financial and other covenants of the 2010 Credit Facility. As of December 30, 2012 and December 25, 2011, the Company’s weighted average interest rate for all outstanding indebtedness under the 2010 Credit Facility were 3.7% and 3.8% respectively.

Future Debt Maturities. At December 30, 2012, aggregate future debt maturities, excluding capital lease obligations, were as follows:

 

  (in millions)        

  2013

     $  6.0   

  2014

     6.3   

  2015

     56.8   

  2016

     0.3   

  2017

     0.3   

  Thereafter

     0.8   
       $  70.5   

Interest Rate Swap Agreements. The Company uses interest rate swap agreements to fix the interest rate exposure on a portion of its outstanding term loan debt. On February 22, 2011, the Company entered into new interest rate swap agreements limiting the interest rate exposure on $30 million of our floating rate debt to a fixed rate of 4.79%. The term of the swap agreements expires March 31, 2015.

 

F-16


Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

On September 10, 2009, the Company entered into interest rate swap agreements limiting the interest rate exposure on $30 million of the term loan debt to a fixed rate of 7.40%. The term of the swap agreements expired August 31, 2011.

The following tables summarize the fair value of the Company’s interest rate swap agreements and the effect on the financial statements:

Fair Values of Derivative Instruments

 

      Derivative Liabilities            
(In millions)    Balance Sheet Location    12/30/12    12/25/11

Interest rate swap agreements

   Deferred credits and other long-term liabilities    $  1.3    $  1.3

The Effect of Derivative Instruments on the Statement of Operations

 

      Amount of Gain (Loss) recognized into
AOCI
    

Amount of Gain (Loss)
Reclassified from AOCI to
Income

 
  (In millions)        2012              2011         2010            2012      2011      2010  
  Interest rate swap
  agreements, net of tax
   $       $ (0.8   $       Interest expense, net    $       $ (0.1    $ (0.6
     $       $ (0.8   $            $       $ (0.1    $ (0.6

Net interest expense associated with these agreements was approximately $0.6 million, $0.7 million, and $0.7 million in 2012, 2011, and 2010, respectively.

Fair Value of Debt The fair values of each of our long-term debt instruments are based on the amount of future cash flows associated with each instrument, discounted using our current borrowing rate for similar debt instruments of comparable maturity. The estimated fair values of our term loan and capital lease obligations approximated their carrying values as of December 30, 2012.

Note 10 — Leases

The Company leases property and equipment associated with its (1) corporate facilities; (2) company-operated restaurants; (3) certain former company-operated restaurants that are now operated by franchisees and the property subleased to the franchisee; and (4) certain former company-operated restaurants that are now subleased to a third party.

 

F-17


Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

At December 30, 2012, future minimum payments under capital and non-cancelable operating leases were as follows:

 

  (in millions)   

Capital

Leases

    

Operating

Leases

 

  2013

   $ 0.3       $ 6.1   

  2014

     0.3         6.6   

  2015

     0.3         6.3   

  2016

     0.3         5.9   

  2017

     0.2         5.7   

  Thereafter

     5.1         70.5   
  

 

 

 

  Future minimum lease payments

     6.5         101.1   

  Less amounts representing interest

     4.2           
     $ 2.3       $ 101.1   

During 2012, 2011, and 2010, rental expense was approximately $5.9 million, $5.9 million, and $4.6 million, respectively, including contingent rentals of $0.2 million, $0.2 million, and $0.2 million, respectively. At December 30, 2012, the implicit rate of interest on capital leases ranged from 8.1% to 16.0%.

The Company leases certain restaurant properties and subleases other restaurant properties to franchisees. At December 30, 2012, the aggregate gross book value and net book value of owned properties that were leased to franchisees was approximately $3.2 million and $2.7 million, respectively. During 2012, 2011, and 2010, rental income from these leases and subleases was approximately $4.3 million, and $4.1 million, and $4.2 million, respectively. At December 30, 2012, future minimum rental income associated with these leases and subleases, are approximately $2.9 million in 2013, $2.6 million in 2014, $2.3 million in 2015, $2.0 million in 2016, $1.7 million in 2017, and $7.3 million thereafter.

Note 11 — Deferred Credits and Other Long-Term Liabilities

 

     
  (in millions)    2012      2011  

  Deferred franchise revenues

   $ 2.4       $ 2.4   

  Deferred gains on unit conversions

     1.1         1.7   

  Deferred rentals

     7.0         6.1   

  Above-market rent obligations

     2.7         2.7   

  Deferred income taxes

     9.3         6.8   

  Other

     3.7         4.9   
     $ 26.2       $ 24.6   

Note 12 — Common Stock

Share Repurchase Program. The Company’s Board of Directors has approved a share repurchase program. On February 13, 2013 the Board of Directors approved an additional $50.0 million for the share repurchase program. During 2012 and 2011, we repurchased and retired 741,228 and 1,465,436 shares of common stock for approximately $15.2 and $22.3 million, respectively. During fiscal 2010 no shares of common stock were repurchased or retired.

 

F-18


Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

The remaining value of shares that may be repurchased under the program was $51.4 million. Pursuant to the terms of the Company’s 2010 Credit Facility, the Company may repurchase its common stock when the Total Leverage Ratio is less than 2.00 to 1.0 The Total Leverage Ratio at December 30, 2012 is 1.20 to 1.0.

Dividends. During 2012 and 2011, the Company paid no dividends.

Note 13 — Stock Option Plans

The 2002 Incentive Stock Plan. In February 2002, the Company created the 2002 Incentive Stock Plan. This plan authorized the issuance of 4.5 million shares of the Company’s common stock. All grants have been at prices which approximate the fair market value of the Company’s common stock at the date of grant. The options currently granted and outstanding as of December 30, 2012 allow certain employees and directors of the Company to purchase approximately 6,000 shares of common stock. If not exercised, the options expire seven years from the date of issuance. As of May 25, 2006, the Company no longer grants options under this plan.

The 2006 Incentive Stock Plan. In May 2006, the Company created the 2006 Incentive Stock Plan. The plan authorizes the issuance of approximately 3.3 million shares of the Company’s common stock. The plan replaced the existing 2002 Incentive Stock Plan and no further grants will be made under the 2002 Incentive Stock Plan. The 2006 Incentive Stock Plan did not increase the number of shares of stock available for grant under the 2002 Incentive Stock Plan. Options and other awards such as restricted stock, stock appreciation rights, stock grants, and stock unit grants under the plan generally may be granted to any of the Company’s employees and non-employee directors. The options currently granted and outstanding as of December 30, 2012 allow certain employees and directors of the Company to purchase approximately 802,000 shares of common stock.

A Summary of Stock Option Plan Activity. The table below summarizes the activity within the Company’s stock option plans for the 53 week period ended December 30, 2012.

 

(shares in thousands)    Shares    

Weighted

Average

Exercise Price

    

Weighted

Average

Remaining

Contractual

Term

(years)

    

Aggregate

Intrinsic

Value

(millions)

 

Stock options:

          

Outstanding at beginning of year

     889      $   11.64         

Granted options

     115        16.56         

Exercised options

     (109     12.23         

Cancelled and expired options

     (87     12.82                     

Outstanding at end of year

     808      $   12.16         3.5       $ 10.9   

Exercisable at end of year

     595      $   11.10         2.7       $ 8.7   

Shares available for future grants under the plans at end of year

     1,592                             

The aggregate intrinsic value in the above table represents the total pre-tax intrinsic value (the difference between the Company’s closing stock price on the last trading date of 2012 and the exercise price, multiplied by the number of options). The amount of aggregate intrinsic value will change based on the fair market value of the Company’s common stock.

The Company recognized approximately $0.9 million, $0.9 million, and $1.1 million, in stock-based compensation expense associated with its stock option grants during 2012, 2011, and 2010, respectively. As of December 30, 2012 there was approximately $0.7 million of total unrecognized compensation costs related to

 

F-19


Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

unvested stock options which are expected to be recognized over a weighted average period of approximately 1.4 years. The total fair value at grant date of awards which vested during 2012, 2011, and 2010 was $1.4 million, $0.9 million, and $0.7 million, respectively.

The weighted average grant date fair value of awards granted during 2012, 2011, and 2010 was $7.74, $8.51, and $5.41, respectively. The total intrinsic value of stock options exercised during 2012, 2011 and 2010 was $1.1 million, $0.3 million and $0.3 million, respectively

During 2012, 2011, and 2010, the fair value of option awards were estimated on the date of grant using a Black-Scholes option-pricing model. The fair value of stock-based compensation is amortized on the graded vesting attribution method. The following weighted average assumptions were used for the grants:

 

      2012    2011    2010

  Risk-free interest rate

   1.0%    2.9%    2.8%

  Expected dividend yield

   0%    0%    0%

  Expected term (in years)

   4.5    6.0    4.5

  Expected volatility

   55.3%    56.8%    58.0%

The risk-free interest rate is based on the United States treasury yields in effect at the time of grant. The expected term of options represents the period of time that options granted are expected to be outstanding based on the vesting period, the term of the option agreement and historical exercise patterns. The estimated volatility is based on the historical volatility of the Company’s stock price and other factors.

The following table summarizes the non-vested stock option activity for the 53 week period ended December 30, 2012:

 

(shares in thousands)    Shares     

Weighted

Average

Grant Date

Value

 

Unvested stock options outstanding at beginning of period

     452        $   5.76   

Granted

     115          7.74   

Vested

     (264)         5.49   

Cancelled

     (67)         5.31   

Unvested stock options outstanding at end of period

     236        $   7.15   

Restricted Share Awards

The Company grants restricted share awards pursuant to the 2006 Incentive Stock Plan. These awards are amortized as expense on a graded vesting basis. The Company recognized approximately $3.4 million, $1.6 million, and $1.3 million, in stock-based compensation expense associated with these awards during 2012, 2011, and 2010, respectively. During the vesting period, recipients of the shares are entitled to dividends on such shares, provided that such shares are not forfeited. Dividends are accumulated and paid out at the end of the vesting period.

 

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Table of Contents

AFC ENTERPRISES, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

For Fiscal Years 2012, 2011, and 2010 — (Continued)

 

The following table summarizes the restricted share awards activity for the 53 week period ended December 30, 2012:

 

(share awards in thousands)    Shares    

Weighted

Average

Grant

Date Fair

Value

 

Unvested restricted share awards:

    

Outstanding beginning of year

     298      $ 11.91   

Granted

     259        16.28   

Vested

     (217     11.32   

Cancelled

     (20     13.13   

Outstanding end of year

     320      $   15.77   

The weighted average grant date fair value of restricted share awards granted during 2011 was $15.32.

As of December 30, 2012, there was approximately $2.5 million of total unrecognized compensation cost related to unvested restricted stock awards which are expected to be recognized over a weighted average period of approximately 1.8 years. The total fair value at grant date of awards which vested during 2012, 2011, and 2010, was $2.5 million, $0.4 million, and $0.5 million, respectively.

Restricted Share Units

The Company grants restricted stock units (RSUs) to members of its board of directors pursuant to the 2006 Incentive Stock Plan. Vested RSUs are convertible into shares of the Company’s common stock on a 1:1 basis at such time the director no longer serves on the board of the Company. The Company recognized $0.6 million, $0.4 million, and $0.3 million in stock-based compensation expense associated with these awards during the 2012, 2011, and 2010, respectively. As of December 30, 2012, there was approximately $0.3 million of total unrecognized compensation cost related to unvested RSUs, which is expected to be recognized over a weighted average period of approximately 0.4 years. No awards vested during 2012, 2011, and 2010.

The following table summarizes the restricted share unit activity for the 53 week period ended December 30, 2012.

 

(share awards in thousands)    Units     

Weighted

Average

Grant

Date Fair

Value

 

Unvested restricted stock units:

     

Outstanding beginning of year

     177       $ 10.82   

Granted