10-K 1 form10k.htm OVERHILL FARMS, INC. 10-K 9-30-2012 form10k.htm


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-K
(Mark One)
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended September 30, 2012

OR

o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________
 
Commission file number 1-16699
 
OVERHILL FARMS, INC.
(Exact name of registrant as specified in its charter)
 
Nevada
 
75-2590292
(State or other jurisdiction of incorporation or organization)
 
(IRS Employer Identification Number)
     
2727 East Vernon Avenue
   
Vernon, California
 
90058
(Address of principal executive offices)
 
(Zip code)
 
(323) 582-9977
(Registrant’s telephone number, including area code)
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class   Name of each exchange on which registered
     
Common Stock, par value $0.01   NYSE MKT
 
Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o    No x
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x



 
 

 
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
 
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x Noo
 
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. x
 
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 definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

        Large Accelerated Filer o
Accelerated Filer o
        Non-Accelerated Filer o(Do not check if smaller reporting company)
Smaller Reporting Company x
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes [  ] No [X]

The aggregate market value of voting common equity held by non-affiliates of the registrant, on March 30, 2012, which was the last trading day of the registrant’s second fiscal quarter ended April 1, 2012, was approximately $42.9 million based on a closing price of $4.50 per share on such date on the NYSE MKT (formerly NYSE AMEX). For purposes of this computation, all executive officers, directors and 10% beneficial owners of the registrant are deemed to be affiliates.  Such determination should not be deemed an admission that such executive officers, directors and 10% beneficial owners are affiliates.  The registrant has no non-voting common equity.

There were 16,046,544 shares of the registrant’s common stock, $.01 par value, outstanding as of December 12, 2012.

Documents Incorporated By Reference: None
 
 
 

 
 

PART I
   
     
Item 1
1
Item 1A
3
Item 1B
6
Item 2
6
Item 3
6
Item 4
7
     
PART II
   
     
Item 5
8
Item 6
9
Item 7
9
Item 7A
17
Item 8
17
Item 9
17
Item 9A
17
Item 9B
18
     
PART III
   
     
Item 10
19
Item 11
21
Item 12
26
Item 13
28
Item 14
29
     
PART IV
   
     
Item 15
30
     
 
33

 
CAUTIONARY STATEMENT
 
All statements included or incorporated by reference in this Annual Report on Form 10-K, other than statements or characterizations of historical fact, are forward-looking statements.  Examples of forward-looking statements include, but are not limited to, statements concerning projected net revenues, costs and expenses and gross margins; our accounting estimates, assumptions and judgments; our success in pending litigation; the demand for our products; the availability and pricing of commodities; the competitive nature of and anticipated growth in our industry; manufacturing capacity and goals; our ability to consummate acquisitions and integrate their operations successfully; and our prospective needs for additional capital.

These forward-looking statements are based on our current expectations, estimates, approximations and/or projections about our industry and business, management’s beliefs, and certain assumptions made by us, all of which are subject to change. Forward-looking statements can often be identified by words such as “anticipates,” “expects,” “intends,” “plans,” “predicts,” “believes,” “seeks,” “estimates,” “may,” “will,” “should,” “would,” “could,” “potential,” “continue,” “on-going,” similar expressions, and variations or negatives of these words. These statements are not guarantees of future performance and are subject to risks, uncertainties and assumptions that are difficult to predict. Therefore, our actual results could differ materially from those expressed in any forward-looking statements as a result of various factors, some of which are listed under “Risk Factors” in Item 1A of this report. These forward-looking statements speak only as of the date of this report. We undertake no obligation to revise or update publicly any forward-looking statement for any reason, except as otherwise required by law.
 
 
PART I

ITEM 1.

History

Overhill Farms, Inc. was formed in 1995 as a Nevada corporation, with the acquisition of substantially all of the assets of IBM Foods, Inc., founded in 1968.  Our headquarters and manufacturing facilities are located in Vernon, California. Our products are sold nationwide.

Products and Services

We are a value-added manufacturer of high quality, prepared frozen food products for branded retail, private label and foodservice customers.  Our product line includes entrées, plated meals, bulk-packed meal components, pastas, soups, sauces, poultry, meat and fish specialties, and organic and vegetarian offerings.  Our extensive research and development efforts, combined with our extensive catalogue of recipes and flexible manufacturing capabilities, provide customers with a one-stop solution for new product ideas, formulations and product manufacturing, as well as precise replication of existing recipes.  Our capabilities allow customers to outsource product development, product manufacturing and packaging, thereby avoiding significant fixed-cost and variable investments in resources and equipment.  Our customers include prominent nationally recognized names such as Panda Restaurant Group, Inc., Jenny Craig, Inc., Safeway Inc., Target Corporation, Pinnacle Foods Group LLC, and American Airlines, Inc. We also sell frozen foods under the Boston Market brand, under exclusive license with Boston Market Corporation (“BMC”).

Sales and Marketing

We operate as a single business segment – the development and production of frozen food products. We market our products through an internal sales force, outside food brokers and other business affiliations.  Our customers are foodservice and retail accounts.

A significant portion of our total net revenues during the last two fiscal years was derived from three customers as described below:

Net Revenues
 
 
 
 
   
 
 
 
 
September 30,
   
October 2,
 
Customer
 
2012
   
2011
 
Panda Restaurant Group, Inc.
  30%     26%  
Jenny Craig, Inc.
  20%     29%  
Safeway Inc.
  14%     16%  

Manufacturing and Sourcing

Our headquarters, entrée manufacturing and warehousing, product development, sales and quality control facilities are located in Vernon, California.  We also maintain a separate protein cooking facility in Vernon, California.

Our ability to cost-effectively produce large quantities of our products, while maintaining a high degree of quality, is partially dependent on our ability to procure raw materials on an economical and competitive cost basis.  We rely on numerous suppliers, large and small, for our products, with multiple suppliers for most items.  While commodity prices are rising we do not anticipate any particular difficulty in acquiring these materials in the future.  We store raw materials, packaging and finished goods on-site and in public frozen and dry food storage facilities until shipment.  When possible and practical, we negotiate supply contracts against committed customer volume at fixed prices to protect against the risk of market fluctuations.

Backlog

We typically deliver products directly from finished goods inventory.  As a result, we do not maintain a large backlog of unfilled purchase orders.  While at any given time there may be a small backlog of orders, our backlog is not material in relation to our total revenues, nor is it necessarily indicative of trends in our business.
 

Competition

Our products compete with those produced by numerous regional and national firms.  Many of our competitors, including diversified food companies, are large and have greater financial resources than we do.  Competition is strong, with many firms producing alternative products for the foodservice and retail industries.  Competitive factors include price, reliability, food safety standards, product quality, flexibility, product development, competitors’ promotional activity, customer service and, on a retail basis, name recognition.  We compete in this market based on our ability to produce mid-sized to large custom product runs within a short time frame on a cost-effective basis and our ability to provide ancillary support services such as research and development, assistance with regulatory matters, production planning and logistics.

Product Development and Marketing

We maintain a comprehensive, fully staffed research and development department (including senior chefs and supporting staff) that formulates recipes and upgrades specific products and product lines for current and prospective customers and establishes production and quality standards.  We develop products based upon customer specifications, conventional recipes, new product trends or our own product initiatives.  We are continuously developing recipes as customers’ tastes and client requirements change.  We also maintain a quality control department for inspection, testing, monitoring and compliance to ensure that our products are produced consistently in accordance with our standards.  In May 2010, our food safety systems were certified as meeting standards of the global Food Safety Management System standard FSSC 22000, which is the latest and most complete safety certification standard for food manufacturers.

Intellectual Property

We have registered the “Overhill Farms” and “Chicago Brothers” trademarks with the United States Patent and Trademark Office.

On November 4, 2010, we entered into a five-year licensing agreement with BMC for the exclusive right to use BMC’s trademarks, trade dress and copyrights in connection with the manufacturing, advertising, promotion, sales and distribution of frozen food and certain shelf-stable licensed products.  The agreement commenced on July 1, 2011.  The agreement also contains options for two sixty-month renewal terms.

Employees

Our total hourly and salaried workforce consisted of 707 employees at September 30, 2012.  Most of our operations are labor intensive, generally requiring unskilled and semi-skilled employees.  Approximately 78% of our employees are unionized with the United Food & Commercial Workers Union, Local 770 and are covered by a two-year collective bargaining agreement that was ratified by the union on August 7, 2011. We believe our relations with our employees and the union are good.

Regulation

Food manufacturers are subject to strict government regulation, particularly in the health and environmental areas, by the United States Department of Agriculture (“USDA”) and the Food and Drug Administration (“FDA”), as well as the Occupational Safety and Health Administration (“OSHA”), the Environmental Protection Agency (“EPA”) and the Federal Food, Drug and Cosmetic Act.  Our food processing facilities are subject to continuous on-site examination, inspection and regulation by the USDA.  Compliance with the current applicable federal, state and local environmental regulations has not adversely affected our financial position, results of operations or competitive position.  However, we cannot predict whether regulation by various federal, state or local governmental entities and agencies may adversely affect our future business and financial results.  If a product recall were to occur, we have processes and procedures in place to assist in the recall of products.  Since 1997, we have used a Hazard Analysis Critical Point Plan to ensure proper handling of all food items.  In May 2010, our food safety systems were certified as meeting the standards of FSSC 22000, which is the latest and most complete safety certification standard for food manufacturers.

Additional Information

Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), are available free of charge on our website at www.overhillfarms.com as soon as reasonably practicable after being filed or furnished to the Securities and Exchange Commission (“Commission”). Our reports filed with the Commission are also made available to read and copy at the Commission’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information about the Public Reference Room by contacting the Commission at 1-800-SEC-0330. Reports filed with the Commission are also made available on its website at www.sec.gov.
 

ITEM 1A.

Our ability to compete effectively in the highly competitive food industry may affect our operational performance and financial results.

Our continued success depends in part on our ability to be an efficient producer in the highly competitive food industry.  We face competition in all of our markets from large, national companies and smaller, regional operators.  Many of our competitors, including diversified food companies, are larger and have greater financial resources than we do.  From time to time, we and our customers experience price pressure in some of our markets as a result of competitors’ promotional pricing practices as well as general market conditions.  Our failure to match or exceed our competitors’ cost reductions through productivity gains and other improvements could weaken our competitive position.  Competition is based on product quality, reliability, food safety, distribution effectiveness, brand loyalty, price, effective promotional activities, the ability to identify and satisfy emerging consumer preferences and the ability to provide ancillary support services.  We may not be able to compete effectively with these larger, more diversified companies.  Also, a disruption of our supply chain could impair our ability to manufacture or supply goods.

The loss or consolidation of any of our key customers could adversely affect our financial results by decreasing our existing sales opportunities and prices and increasing our marketing and promotional expenses.

The largest purchasers of our products, Panda Restaurant Group, Inc., Jenny Craig, Inc. and Safeway Inc., accounted for approximately 30%, 20% and 14%, respectively, of our total net revenues during fiscal year 2012.  We expect that our sales to these customers will continue to constitute a significant percentage of our net revenues in fiscal year 2013 and beyond.  The loss of any of these customers could adversely affect our competitive position and operating results if we do not continue to obtain additional customers to offset any change in these accounts.  In addition, products have life cycles, and as the lives of our products diminish, we may not be able to replace our existing customers.

Some of our significant customer and supplier contracts are short-term and may not be renewable on terms favorable to us or at all.

Some of our customers and suppliers operate through purchase orders or short-term contracts.  Though we have long-term business relationships and agreements with many of our customers and suppliers and alternative sources of supply for key items, we cannot be sure that any of these customers or suppliers will continue to do business with us on the same basis in the future.  Additionally, although we try to renew these contracts as they expire, there can be no assurance that these customers or suppliers will renew these contracts on terms that are favorable to us, if at all.  The termination of, or modification to, any number of these contracts and our ability to replace them may adversely affect our business and prospects, including our financial performance and results of operations.
 
Financial difficulties of foodservice and retail customers due to the economic downturn may adversely affect our revenues, costs and collections.

While we have not historically experienced material write-offs, as the domestic economy slowly recovers, collectability of receivables from our customers may be adversely affected, causing an increase in aged receivables and/or a reduced collection rate.  Our margins could be adversely affected if we are forced to write off uncollectible accounts.  In addition, the slow economic recovery could and may continue to adversely affect the fiscal health of key customers or impair their ability to continue to operate during a recessionary period, which would decrease our revenues unless we are able to replace any lost business.

We are a major purchaser of many commodities that we use as raw materials and for packaging, and price changes for the commodities we depend on may adversely affect our profitability.

When possible, we enter into contracts for the purchase of raw materials at fixed prices, which are designed to protect us against raw material price increases during the terms of the contracts.  Where appropriate, we attempt to recover our commodity cost increases by increasing prices, promoting a higher-margin product mix and creating additional operating efficiencies.

We also use materials, such as corrugated cardboard, aluminum products, films and plastics to package our products.  Substantial increases in prices of packaging materials or higher prices of our raw materials could adversely affect our operating performance and financial results, if we cannot recover cost from our customers.  In addition, transportation costs have been unpredictable.  If such costs rise to the levels seen in past years, our operating margins could be eroded.

Commodity price changes may result in unexpected increases in raw materials and packaging costs, and we may be unable to immediately increase our prices to offset these increased costs without suffering reduced volume, revenue and income which could adversely affect our profitability.
 

If our food products become adulterated or misbranded, we would need to recall those items and may experience product liability claims if consumers are injured as a result.

Food products occasionally contain contaminants due to inherent defects or improper storage or handling.  Under adverse circumstances, food manufacturers such as us may be required to recall some of their products if they become adulterated or misbranded or as a result of a government-mandated recall.

The scope of such a recall could result in significant costs incurred as a result of the recall, potential destruction of inventory, and lost sales. Should consumption of any product cause injury, we may be liable for monetary damages as a result of a settlement or judgment against us.  A widespread product recall could result in changes to one or more of our business processes, product shortages, a loss of customer confidence in our food or other adverse effects on our business.

If we are required to defend against a product liability claim, whether or not we are found liable under the claim, we could incur substantial costs, our reputation could suffer and our customers might substantially reduce their existing or future orders from us.

Concerns with the safety and quality of food products could cause customers to avoid our products.

We could be adversely affected if our customers and the ultimate consumers of our products lose confidence in the safety and quality of various food products.  Adverse publicity about these types of concerns, such as the publicity about genetically modified organisms and avian influenza, whether or not valid, may discourage our customers from buying our products or cause production and delivery disruptions.  Negative changes in customer perceptions about the safety and quality of products we produce could adversely affect our business and financial condition.

Our business is subject to federal, state and local government regulations that could adversely affect our business and financial position.

Virtually all food manufacturing operations are subject to regulation by various federal, state and local government entities and agencies.  As a producer of food products for human consumption, our operations are subject to stringent production, packaging, quality, labeling and distribution standards, including regulations mandated by the Federal Food, Drug and Cosmetic Act, the FDA, OSHA, the EPA and the USDA. In particular, there appears to be growing public support in certain sectors to impose labeling requirements for genetically modified food products (such as California’s Proposition 37 that was rejected by California voters in November 2012 by approximately 53% to 47%), which if adopted could result in significant compliance costs for us, and which could put us at a competitive disadvantage if competitors, due to their geographic location or markets, are not subject to the same or similar requirements.  Future regulation by various federal, state or local governmental entities or agencies could, among other things, increase our cost of production, cause us to incur unexpected expenditures or encumber productivity, any of which may adversely affect our business and financial results.
 
In addition, our business operations are subject to federal, state and local environmental laws and regulations, which may change from time to time, pertaining to the discharge of materials into the environment, the handling and disposition of wastes (including solid and hazardous wastes) or otherwise relating to protection of the environment.  We cannot predict whether environmental issues relating to presently known matters or identified sites or to other matters or sites will require currently unanticipated investigation, assessment or expenditures.

Future instability or tightening in the credit markets could impair our ability to obtain financing if and when needed.

Future instability or tightening in the credit markets could impair our ability to obtain additional credit if and when needed to finance our operations and fund future plant or business expansions.  In addition, tight credit markets or inflation could eventually result in an increase in interest rates, which would adversely affect us, as we have $6.7 million in debt outstanding as of December 12, 2012 under our senior secured credit facility with Bank of America, with interest rates that adjust quarterly.

If we violate our financial and other covenants under our secured credit facility, our financial condition, results of operations or cash flows may be adversely affected if secured parties foreclose on our assets or impose default rates of interest.

Our senior secured credit facility with Bank of America, under which $6.7 million was outstanding as of December 12, 2012, is secured by a first-priority lien on substantially all of our assets. The facility contains covenants whereby, among other things, we are required to maintain compliance with agreed levels of fixed charge coverage, total leverage and incremental indebtedness limits. While we are currently in compliance and expect to remain in compliance with all covenants, if we violate these covenants and are unable to obtain waivers or renegotiate the terms of the covenants, we could become subject to, among other things, interest rate increases and acceleration of maturity of the facility, which could adversely affect our financial condition, results of operations or cash flows.
 

A change in control could result in an event of default under our secured credit facility, which could adversely affect our financial condition, results of operations or cash flows.

Our secured credit facility with Bank of America provides that a change in control would occur if, among other occurrences, any person or group becomes the beneficial owner of 35% or more of our voting stock, or certain changes in the composition of our board of directors occur during any period of twelve consecutive months.  The occurrence of a change in control could permit Bank of America to terminate the credit facility, declare all or a portion of loans then outstanding to be due and payable, and/or exercise other available rights and remedies.  Depending on our financial condition at the time, we may not be able to raise sufficient funds to repay this indebtedness upon an event of default.  Accordingly, the occurrence of a change in control could adversely affect our financial condition, results of operations or cash flows.

A small number of stockholders beneficially own a significant percentage of our outstanding common stock and therefore could significantly influence or control matters requiring stockholder approval.

Assuming the exercise of the aggregate options issued to our executive officers and directors to purchase shares of our common stock, our executive officers, directors and stockholders who beneficially own greater than 5% of our common stock would collectively beneficially own, in the aggregate, 49.5% of our outstanding common stock as of December 12, 2012.  These stockholders, if acting together, could be able to significantly influence or control matters requiring approval by our stockholders, including the election of directors and the approval of mergers or other business combination transactions.

Our failure to attract and retain key management personnel could adversely affect our business.

Our business requires managerial, financial and operational expertise, and our future success depends upon the continued service of key personnel.  As a value-added manufacturer of quality frozen food products and custom prepared foods, we operate in a specialized industry.  Our key personnel have experience and skills specific to this industry, and there are a limited number of individuals with the relevant experience and skills.  Though we have an employment agreement with James Rudis, our CEO and President, the agreement permits the voluntary resignation on the part of Mr. Rudis prior to the end of the term of the agreement.  If we lose any of our key personnel, our business operations could be adversely affected.

We may not be able to protect our intellectual property and proprietary rights or may become subject to claims relating to our use of our customers’ trademarks, which could harm our competitive position, resulting in decreased revenue.

We believe that our trademarks and other proprietary rights, though few in number, are important to our success and competitive position.  Accordingly, we devote what we believe are adequate resources to the establishment and protection of our trademarks and proprietary rights.  However, these actions may be inadequate to prevent imitation of our products by others or to prevent others from claiming violations of their trademarks and proprietary rights by us.

We manufacture products under our customers’ trademarks.  While we generally require them to agree to indemnify us in connection with our use of their trademarks, it is possible that we could face infringement actions based upon the content provided by our customers.  If any of these claims are proved valid, through litigation or otherwise, we may be required to cease using the trademarks and/or pay financial damages and/or expenses for which we are not indemnified.

Our common stock price is subject to significant volatility, which could result in substantial losses for investors.

During the fiscal year ended September 30, 2012, the high and low sales prices of our common stock on the NYSE MKT (formerly NYSE AMEX) were $4.76 per share and $3.15 per share, respectively.  On December 12, 2012, the closing price of our common stock was $4.47.  Prices for our shares are determined in the marketplace and may accordingly be influenced by many factors, including, but not limited to:

 
·
the depth and liquidity of the market for the shares;

 
·
quarter-to-quarter variations in our operating results;

 
·
announcements about our performance as well as the announcements of our competitors about the performance of their businesses;

 
·
investors’ evaluations of our future prospects and the food industry generally;

 
·
changes in earnings estimates by, or failure to meet the expectations of, securities analysts; and

 
·
general economic and market conditions.

 
In addition, the stock market has been experiencing significant volatility that may be unrelated to the operating performance of the specific companies whose stock is traded.  This volatility could adversely affect the trading price of our shares.

The price at which investors purchase shares of our common stock may not be indicative of the price that will prevail in the trading market.  Investors may be unable to sell their shares of common stock at or above their purchase price, which may result in substantial losses.

Future sales of shares of our common stock by our stockholders could cause our stock price to decline

We cannot predict the effect, if any, that sales of shares of our common stock or the availability of shares of common stock for sale will have on the market price prevailing from time to time.  As of December 12, 2012, we had outstanding 16,046,544 shares of common stock, most or all of which were eligible for resale without registration.  Also, as of December 12, 2012, there were outstanding options to purchase up to 192,000 shares of common stock.  All of the shares of common stock underlying these options are covered by an existing effective registration statement.  Sales of shares of our common stock in the public market, or perceptions that those sales may occur, could cause the trading price of our common stock to decrease or to be lower than it might be in the absence of those sales or perceptions.

Certain provisions of our articles of incorporation, bylaws and Nevada law could make it more difficult for a third party to acquire us, even if doing so could be in our stockholders’ best interest.

Provisions of our articles of incorporation and bylaws require that certain procedures be followed, including advance notice, before matters can be proposed for consideration at meetings of our stockholders. This may make it difficult for a potential acquirer to bring an acquisition proposal to a vote of our stockholders.  In addition, our board of directors has the right to fix the rights and preferences of an issue of shares of preferred stock without stockholder action.  Our board could establish and issue a series of preferred stock with rights that make an acquisition less desirable by certain potential acquirers.

Provisions of Nevada’s business combinations statute also restrict certain business combinations with interested stockholders.  We have elected not to be governed by these provisions in our amended and restated articles of incorporation.  However, this election may not be effective unless we meet certain conditions under the Nevada statute.


Not applicable.

ITEM 2.

We lease two manufacturing facilities in Vernon, California.  In January 2002, we entered into a ten-year lease, with an option for a five-year renewal, for a facility, Plant No. 1, that has been expanded to 170,000 square feet. On May 16, 2011, we finalized a second amendment to the lease, which was entered into as of May 6, 2011.  The lease expires on September 30, 2016.  On April 1, 2014, the monthly base rent payable under the lease will be adjusted by the Consumer Price Index of the Bureau of labor Statistics of the Department of Labor for All Urban Consumers.   Most of our principal executive office, manufacturing and warehousing, product development and sales and quality control facilities have been consolidated into this single location.  In December 2008, we entered into a 60-month lease, with an option for a 60-month renewal, for a facility, Plant No. 2, that has been expanded to 123,000 square feet.  Plant No. 2 is used primarily for cooking protein as well as dry and cold storage.  In addition, we lease a 25,000 square foot dry goods storage facility in Vernon, California.

We believe that Plant No. 1, currently operating at approximately 50% capacity, is adequate to meet our requirements for the near future.  In fiscal year 2012, items that were processed at Plant No. 1 (some of which included components that were processed at Plant No. 2) accounted for sales of approximately $129.9 million.  Items that were processed in Plant No. 2 that did not require further processing in Plant No. 1 accounted for the balance of sales in fiscal year 2012 of approximately $64.5 million.  As our need for cooked protein grows, it may become necessary to augment the cooking capacity that we now have at Plant No. 2.  We continue to monitor our cooking capacity.  If we deem additional cooking capacity to be necessary, we expect capital expenditures for that capacity could range from $5 million to $10 million during fiscal years 2013 and 2014, depending on the amount of additional cooking capacity added.


We are involved in certain legal actions and claims arising in the ordinary course of business.  Management believes (based, in part, on advice of legal counsel) that such contingencies, including the matters described below, will be resolved without materially and adversely affecting our financial position, results of operations or cash flows.  We intend to vigorously contest all claims and grievances described below.

 
Agustiana, et al. v. Overhill Farms.

On July 1, 2009, Bohemia Agustiana, Isela Hernandez, and Ana Munoz filed a purported “class action” against us in which they asserted claims for failure to pay minimum wage, failure to furnish wage and hour statements, waiting time penalties, conversion and unfair business practices.  The plaintiffs are former employees who had been terminated one month earlier because they had used invalid social security numbers in connection with their employment with us.  They filed the case in Los Angeles County on behalf of themselves and a class which they say includes all non-exempt production and quality control workers who were employed in California during the four-year period prior to filing their complaint.  The plaintiffs seek unspecified damages, restitution, injunctive relief, attorneys’ fees and costs.

We filed a motion to dismiss the conversion claim, and the motion was granted by the court on February 2, 2010.

On May 12, 2010, Alma Salinas filed a separate purported “class action” in Los Angeles County Superior Court against us in which she asserted claims on behalf of herself and all other similarly situated current and former production workers for failure to provide meal periods, failure to provide rest periods, failure to pay minimum wage, failure to make payments within the required time, unfair business practice in violation of Section 17200 of the California Business and Professions Code and Labor Code Section 2698 (known as the Private Attorney General Act (“PAGA”)).  Salinas is a former employee who had been terminated because she had used an invalid social security number in connection with her employment with us.  Salinas sought allegedly unpaid wages, waiting time penalties, PAGA penalties, interest and attorneys’ fees, the amounts of which are unspecified.  The Salinas action has been consolidated with the Agustiana action.  The plaintiffs thereafter dropped their rest break and PAGA claims when they filed a consolidated amended complaint.

In about September 2011, plaintiffs Agustiana and Salinas agreed to voluntarily dismiss and waive all of their claims against us.  They also agreed to abandon their allegations that they could represent any other employees in the alleged class.  We did not pay them any additional wages or money.

The remaining plaintiff added four former employees as additional plaintiffs.   Three of the four new plaintiffs are former employees that we terminated one month before this case was filed because they had used invalid social security numbers in connection with their employment with us.  The fourth new plaintiff has not worked for us since February 2007.

On June 26, 2012, the court denied the plaintiffs’ motion to certify the case as a class action.  The five remaining plaintiffs can pursue their individual wage claims against us, but the court has ruled that they cannot assert those claims on behalf of the class of current and former production employees they sought to represent.  We believe we have valid defenses to the plaintiffs’ remaining claims, and that we paid all wages due to these employees.

On September 7, 2012, the plaintiffs filed a notice to appeal the denial of class certification.  The case is stayed while their appeal is pending.
 
 

Not applicable.
 
PART II



Market Information and Record Holders

Our common stock has traded on NYSE MKT (formerly NYSE AMEX) under the symbol “OFI” since November 1, 2002.  At December 12, 2012, we had approximately 113 stockholders of record.  These holders of record include depositories that hold shares of stock for brokerage firms which, in turn, hold shares of stock for numerous beneficial owners.  On December 12, 2012, the closing sale price of our common stock on NYSE MKT was $4.47.  The following table sets forth the range of high and low sales prices for our common stock on NYSE MKT for the periods indicated:
 
 

Fiscal 2011
 
High
   
Low
 
First Quarter from September 27, 2010 to January 2, 2011
  $ 5.90     $ 4.47  
Second Quarter from January 3, 2011 to April 3, 2011
    6.30       5.55  
Third Quarter from April 4, 2011 to July 3, 2011
    6.30       5.38  
Fourth Quarter from July 4, 2011 to October 2, 2011
    5.65       3.60  
 
Fiscal 2012
 
High
   
Low
 
First Quarter from October 3, 2011 to January 1, 2012
  $ 4.20     $ 3.15  
Second Quarter from January 2, 2012 to April 1, 2012
    4.70       3.61  
Third Quarter from April 2, 2012 to July 1, 2012
    4.69       3.74  
Fourth Quarter from July 2, 2012 to September 30, 2012
    4.76       3.75  

Performance Graph

The following is a line graph comparing the yearly percentage change in the cumulative total return of our common stock to the cumulative total return of the Standard & Poor’s 500 Index and a peer group for the period commencing September 30, 2007 and ending September 30, 2012.  The peer group is comprised of Tyson Foods, Inc.; Cuisine Solutions, Inc.; ConAgra Foods, Inc.; Armanino Foods of Distinction, Inc.; Smithfield Foods, Inc.; and Bridgford Foods Corporation.

The graph assumes that $100 was invested in our common stock, the Standard & Poor’s 500 Index and the peer group on September 30, 2007 and that all the dividends were reinvested on a quarterly basis.  Returns for the companies included in the peer group have been weighted on the basis of the market capitalization for each company.

 
 
   
Fiscal Year-Ended
 
   
9/30/07
   
9/28/08
   
9/27/09
   
9/26/10
   
10/2/11
   
9/30/12
 
                                     
Overhill Farms Inc
    100.00       170.52       174.28       136.99       106.94       132.37  
S&P 500
    100.00       78.02       72.63       80.01       80.93       105.37  
Peer Group
    100.00       72.38       76.36       85.67       98.17       105.11  

Dividends

We have never paid cash dividends on our common stock.  Our senior secured credit facility with Bank of America imposes certain financial conditions and restrictions on our ability to pay dividends.  Any future payment of dividends on our common stock will be determined by our board of directors and will depend on our financial condition, results of operations, contractual obligations (including credit facility restrictions) and other factors deemed relevant by our board of directors.

Recent Sales of Unregistered Securities

None.


Not applicable.
 
The following discussion and analysis should be read in conjunction with our consolidated financial statements and notes to consolidated financial statements included elsewhere in this report. This report and our consolidated financial statements and notes to consolidated financial statements contain forward-looking statements, which generally include the plans and objectives of management for future operations, including plans and objectives relating to our future economic performance and our current beliefs regarding revenues we might generate and profits we might earn if we are successful in implementing our business and growth strategies. The forward-looking statements and associated risks may include, relate to or be qualified by other important factors, including, without limitation:

 
   uncertainty of the domestic economic outlook;

 
the impact of competitive products and pricing;
 
 
market conditions that may affect the costs and/or availability of raw materials, fuels, energy, logistics and labor as well as the market for our products, including our customers’ ability to pay and consumer demand;

 
impact of rising fuel prices and surcharges;

 
commodity prices and fulfillment by suppliers of existing raw material contracts;

 
natural disasters that can impact, among other things, costs of fuel and raw materials;

 
changes in our business environment, including actions of competitors and changes in customer preferences,as well as disruptions to our customers’ businesses;
 
 
seasonality in the retail category;
 
 
loss of key customers due to competitive environment or production being self-manufactured by customers with such capabilities;
 
 
the occurrence of acts of terrorism or acts of war;
 
 
changes in governmental laws and regulations, including those concerning the food industry, healthcare and income taxes;
 
 
change in control or other significant changes in ownership;
 
 
 
financial viability and resulting effect on revenues and collectability of accounts receivable of our customers during the on-going economic recovery and any future deep recessionary periods;

 
ability to obtain additional financing, if and when needed, and rising costs of credit that may be associated with new borrowings;

 
ability to remain in compliance with the amended requirements of the Bank of America facility;

 
voluntary or government-mandated food recalls;

 
effects of legal proceedings or labor disputes in which we are or may become involved from time to time; and

 
other factors discussed in this report.
 
We do not undertake to update, revise or correct any forward-looking statements, except as otherwise required by law.
 
Any of the factors described above or in the “Risk Factors” contained in Item 1A of this report could cause our financial results, including our net income or loss or growth in net income or loss to differ materially from prior results, which in turn could, among other things, cause the price of our common stock to fluctuate substantially.
 
Overview
 
We are a value-added manufacturer of high quality, prepared frozen food products for branded retail, private label and foodservice customers.  Our product line includes entrées, plated meals, bulk-packed meal components, pastas, soups, sauces, poultry, meat and fish specialties, and organic and vegetarian offerings.  Our extensive research and development efforts, combined with our extensive catalogue of recipes and flexible manufacturing capabilities, provide customers with a one-stop solution for new product ideas, formulations and product manufacturing, as well as precise replication of existing recipes.  Our capabilities allow customers to outsource product development, product manufacturing and packaging, thereby avoiding significant fixed-cost and variable investments in resources and equipment.  Our customers include prominent nationally recognized names such as Panda Restaurant Group, Inc. (“Panda Restaurant Group”), Jenny Craig, Inc., Safeway Inc., Target Corporation, Pinnacle Foods Group LLC, and American Airlines, Inc. We also sell frozen foods under the Boston Market brand, under exclusive license with BMC.

Our goal is to continue as a leading developer and manufacturer of value-added food products and provider of custom prepared frozen foods.  We intend to continue to execute our growth and operating strategies, including:
 
 
diversifying and expanding our customer base by focusing on sectors we believe have attractive growth characteristics, such as foodservice and retail;
 
 
investing in and operating efficient production facilities;
 
 
providing value-added ancillary support services to customers;
 
 
offering a broad range of products to customers in multiple channels of distribution; and
 
 
exploring strategic acquisitions and investments.
 
During fiscal year 2012, which ended September 30, 2012, we were profitable with significant year over year improvements in net revenues and net income. The improved financial results for our fiscal year 2012 were largely due to a full year of activity of the Boston Market frozen food line (which commenced in July 2011) and increased foodservice net revenues.
 
While we are pleased with the progress of the Boston Market brand and foodservice accounts, we anticipate increased commodity prices and fuel costs for fiscal year 2013. To offset these increases, we have taken a number of actions to improve profitability and are working to implement additional cost saving initiatives, which we anticipate will have a positive impact in the near term. For the longer term, we are reviewing several distribution model alternatives to mitigate the significant cost of moving the products we produce to retailers who sell the Boston Market frozen food line.
 
 
 Also, we have been working with our major existing retail accounts to refresh product lines and to introduce additional lines of products. With these new products and lines for our existing customers we are optimistic about future retail sales.
 
Fiscal year 2012 was a 52-week period while 2011 was a 53-week period.  For fiscal year 2012, net revenues of $194.4 million reflected a 14.9% increase as compared to fiscal year 2011.  During fiscal year 2012, the retail and foodservice categories each increased $12.5 million. The increase in the retail category was due primarily to sales of our portion of the Boston Market products (sold to numerous retail accounts, including some major national chains) of $25.7 million partially offset by a decrease to Jenny Craig Inc. and other retail customers of $11.0 million and $2.2 million, respectively. The foodservice increase was due primarily to increased sales volume to Panda Restaurant Group of $14.2 million, partially offset by a decrease of $2.0 million in airline net revenues.
 
Gross profit was $17.0 million in fiscal year 2012, compared to $13.0 million in fiscal year 2011. Gross profit as a percentage of net revenues, or gross margin, during fiscal years 2012 and 2011 was 8.8% and 7.7%, respectively.  The gross margin increase was driven largely by more favorable commodity prices along with more favorable overhead cost absorption as a result of higher production runs to fulfill increased sales volume of Boston Market brand products and other major accounts under the foodservice category.  These were partially offset by higher freight and storage expenses of $3.8 million for fiscal year 2012 compared to fiscal year 2011, due predominantly to increased shipments for Boston Market products and higher fuel surcharges.
 
Operating income as a percentage of net revenues for fiscal year 2012 was 2.7% compared to 1.5% in fiscal year 2011, due primarily to higher gross margins (as noted above) partially offset by increased selling, general and administrative (“SG&A”) expenses. SG&A expenses increased $1.5 million in fiscal year 2012 due primarily to higher brokerage and royalty expense related to the Boston Market brand of $1.3 million and $1.0 million, respectively. These increases were partially offset by a decrease in license fee amortization of $679,000 due to the write-off in the fourth quarter of fiscal year 2011 of the BLB Alliance (“Alliance”) license fee intangible asset. SG&A expenses as a percentage of net revenues was 6.1% in both fiscal years 2012 and 2011.  Net income increased as a percentage of net revenues to 1.6% in fiscal year 2012 versus 0.9% in fiscal year 2011.
 
Results of Operations

The tables presented below, which compare our results of operations from one period to another, present the results for each period, the change in those results from one period to another in both dollars and percentage change, and the results for each period as a percentage of net revenues.  The columns present the following:

 
·
First four data columns in each table show the absolute results for each period presented and results for each period as a percentage of net revenues.

 
·
Last two columns entitled “Dollar Variance” and “% Variance” show the change in results, both in dollars and percentages for the fiscal years presented. These two columns show favorable changes as positives and unfavorable changes as negatives. For example, when our net revenues increase from one period to the next, that change is shown as a positive number in both columns. Conversely, when expenses increase from one period to the next, that change is shown as a negative in both columns.
 

Fiscal Year Ended September 30, 2012 Compared to Fiscal Year Ended October 2, 2011

   
Fiscal Year Ended
   
Change 2012 vs. 2011
 
   
September 30, 2012
   
October 2, 2011
   
Dollar
Variance
   
% Variance
 
   
 
   
% of Net
   
 
   
% of Net
   
Favorable
   
Favorable
 
   
Dollars
   
Revenues
   
Dollars
   
Revenues
   
(Unfavorable)
   
(Unfavorable)
 
(Dollars in thousands)
 
 
   
 
   
 
   
 
   
 
   
 
 
   
 
   
 
   
 
   
 
   
 
   
 
 
Net revenues
  $ 194,389       100.0 %   $ 169,218       100.0 %   $ 25,171       14.9 %
                                                 
Cost of sales
    177,342       91.2       156,265       92.4       (21,077 )     (13.5 )
                                                 
Gross profit
    17,047       8.8       12,954       7.7       4,093       31.6  
                                                 
Selling, general and administrative expenses
    11,894       6.1       10,353       6.1       (1,541 )     (14.9 )
                                                 
Operating income
    5,153       2.7       2,601       1.5       2,552       98.1  
                                                 
Total interest expense
    312       0.2       335       0.2       23       6.9  
                                                 
Income before income taxes
    4,841       2.5       2,267       1.3       2,574       113.5  
                                                 
Income tax provision
    1,726       0.9       825       0.5       (901 )     (109.2 )
                                                 
Net income
  $ 3,115       1.6 %   $ 1,442       0.9 %   $ 1,673       116.0 %

Net Revenues.  Net revenues for fiscal year 2012 increased $25.2 million (14.9%) to $194.4 million from $169.2 million for fiscal year 2011, due to higher sales volumes from our portion of Boston Market brand products and a major account under the foodservice category.

Retail net revenues increased $12.5 million (11.1%) to $125.4 million for fiscal year 2012 from $112.9 million for fiscal year 2011.  The increase in retail net revenues was largely due to an increase in net revenues related to the sale of Boston Market products (sold to various third party customers) of $25.7 million. This increase was partially offset by decreases in net revenues to Jenny Craig Inc. of $11.0 million and other retail accounts of $2.2 million.

Foodservice net revenues increased $12.5 million (22.2%) to $68.9 million for fiscal year 2012 from $56.4 million for fiscal year 2011 due primarily to a $14.2 million increase in sales to Panda Restaurant Group. This increase was partially offset by a decrease of $1.5 million to airline net revenues.  For fiscal year 2012, the foodservice category as a percentage of net revenues increased to 35.4% from 33.3% for fiscal year 2011.  We continue to increase our sales efforts in this category and believe that foodservice represents a significant opportunity for us in 2013 and beyond.

Gross Profit.  Gross profit for fiscal year 2012 increased $4.0 million (30.8%) to $17.0 million from $13.0 million for fiscal year 2011. Gross margin increased to 8.8% for fiscal years 2012 from 7.7% for fiscal year 2011. The increase in gross profit dollars and margin was driven largely by more favorable commodity prices along with more favorable overhead absorption as a result of higher volume production runs to fulfill increased sales volume of Boston Market brand products and a major account under the foodservice category.  These were partially offset by higher freight and storage expenses of $3.8 million due predominantly to increased shipments for Boston Market products and higher fuel surcharges. We anticipate increased freight and storage expenses as sales volumes for Boston Market increase and if fuel prices remain at their current levels or increase.

Selling, General and Administrative Expenses.  SG&A expenses increased $1.5 million (14.4%) to $11.9 million for fiscal year 2012 from $10.4 million for fiscal year 2011, but held steady as a percentage of net revenues at 6.1%. The increase in SG&A expenses was due to higher brokerage and royalty expenses for the Boston Market brand of $1.3 million and $1.0 million, respectively. These increases were partially offset by decreased license fee amortization of $679,000 due to the write-off in the fourth quarter of fiscal year 2011 of the Alliance license fee intangible asset. We expect SG&A expense to remain at or near the current level as we incur continued brokerage and selling expenses, including royalty expenses, related to Boston Market products.

 
Operating Income.  Operating income increased $2.6 million (100.0%) to $5.2 million for fiscal year 2012 from $2.6 million for fiscal year 2011.  The increase in operating income was the result of the increase in gross profit partially offset by increased SG&A expenses as noted above.

Total Interest Expense. Interest expense decreased $23,000 (6.9%) to $312,000 for fiscal year 2012 from $335,000 for fiscal year 2011 due to lower amortization of deferred financing cost offset by increased interest expense resulting from higher debt balances through out the year.
 
Income Tax Provision.  Income tax expense was $1.7 million for fiscal year 2012 compared to $825,000 for fiscal year 2011.  The difference was a result of income before taxes increasing $2.5 million from $2.3 million for fiscal year 2011 to $4.8 million during fiscal year 2012.  The effective tax rates were 35.7% and 36.4% for fiscal years 2012 and 2011, respectively.

Net Income. Net income for fiscal year 2012 was $3.1 million, or $0.20 per basic and $0.19 per diluted shares, compared to net income of $1.4 million, or $0.09 per basic and diluted share for fiscal year 2011.

We currently expect to continue profitable operations primarily through (a) growing revenues from profitable product lines, increasing our customer base and replacing lower margin accounts; (b) improving gross margins by increasing prices to customers where appropriate, streamlining additional costs and continuing to leverage our manufacturing and storage facilities to improve manufacturing efficiency; and (c) reducing future interest costs on outstanding debt through pre-payments on our debt.  However, no assurance can be given that we will be successful in any of these initiatives.  As discussed in “Risk Factors” contained in Item 1A of this report, we may be unable to improve our operating results, and could perhaps even operate at a loss, if we suffer a decline in our manufacturing efficiency, the loss of major customers, continued cost-cutting measures in the airline industry, adverse changes in our operating costs or raw materials costs or other adverse changes to our business.

Liquidity and Capital Resources

For fiscal years ended 2012 and 2011, our operating activities provided cash of $1.1 million and $3.2 million, respectively.  Cash generated from operations before working capital changes for fiscal year 2012 was $6.2 million.  Cash used by changes in working capital was $5.1 million for fiscal year 2012 and resulted from an increase in inventory of $3.2 million due to a build up of inventory for Boston Market and a $2.1 million increase in accounts receivable, along with cash used to decrease accounts payable by $382,000. These were partially offset by increased accrued liabilities of $227,000 and a decrease in prepaid and other expenses of $231,000.  At September 30, 2012, we had working capital of $20.9 million compared to working capital of $25.9 million at October 2, 2011. The decrease in working capital is due to long term debt of $6.7 million being current at September 30, 2012 as it is due within twelve months.
 
 
During fiscal year 2012, our investing activities, consisting of capital expenditures resulted in a net use of cash of approximately $948,000, compared to a net use of cash of approximately $1.3 million during fiscal year 2011.  The property and equipment additions were made to accommodate additional business opportunities, meet anticipated growth and improve operating efficiency.  We anticipate that cash generated from operating activities and borrowing availability under our existing credit facility will fund revenue growth and working capital needs in the near term.

During fiscal year 2012, our financing activities used cash of $3.6 million, compared to cash used by financing activities of $2.4 million during fiscal year 2011.  Our net use of cash in fiscal year 2012 consisted primarily of $4.0 million of principal payments that reduced our outstanding debt partially offset by $424,000 provided by the exercise of stock options, including the related tax benefit, in the fourth quarter of fiscal year 2012.

We executed a senior secured credit agreement with Bank of America on September 24, 2010.  The facility is structured as a $30 million three-year senior secured revolving credit facility, secured by a first priority lien on substantially all of our assets.  We made an initial loan drawdown of $13.2 million, which was used to pay off our prior credit facility.  Under the Bank of America facility we have the ability to increase the aggregate amount of the financing by $20 million under certain conditions.

The Bank of America facility bears annual interest at the British Bankers Association LIBOR Rate, or LIBOR, plus an applicable margin (listed below). The Margin was initially 1.75% and beginning no later than January 1, 2011, and adjusted quarterly thereafter, shall be calculated as follows:


 
 
 
 
Ratio of aggregate outstanding funded
commitments under the facility (including letter
of credit obligations) to EBITDA for the
preceding four quarters
 
Applicable Margin
 
Greater than or equal to 1.50:1
    2.00%  
 
       
Greater than or equal to 0.50:1
but less than 1.50:1
    1.75%  
 
       
Less than 0.50:1
    1.50%  

At September 30, 2012, there was $6.7 million outstanding under the Bank of America facility with an applicable interest rate of approximately 2.0%.  In addition, we pay an unused fee equal to 0.25% per annum.  For fiscal years 2012 and 2011, we incurred $244,000 and $225,000, respectively, in interest expense, excluding amortization of deferred financing costs.  During fiscal year 2012, we reduced the outstanding balance of the facility by $4.0 million in voluntary payments.  As of September 30, 2012, we had $23.3 million available to borrow under the facility, subject to certain covenant requirements.  At September 30, 2012, we were in compliance with all covenants.

The Bank of America facility contains covenants whereby, among other things, we are required to maintain compliance with agreed levels of fixed charge coverage and total leverage.  The facility also contains customary restrictions on incurring indebtedness and liens, making investments and paying dividends.

We believe that funds available to us from operations and existing capital resources will be adequate for our capital requirements for at least the next twelve months.  If necessary, we believe we can secure additional financing with Bank of America or other lenders to supplement our capital needs.

Contractual Obligations and Other Commitments

We are obligated to make future payments under various contracts such as debt agreements, lease obligations and other purchase obligations.

Following is a summary of our contractual obligations at September 30, 2012:

   
Payments Due By Period
 
CONTRACTUAL OBLIGATIONS
 
Total
   
Within
1 year
   
2-3 Years
   
4-5 Years
   
More than 5 Years
 
   
 
   
 
   
 
   
 
   
 
 
Debt maturities
  $ 6,742,647     $ 6,742,647     $ -     $ -     $ -  
Interest Expense(1)
    190,441       190,441       -       -       -  
Operating lease obligations(2)
    6,277,688       2,522,158       2,612,596       1,142,934       -  
Other Contractual obligations
    1,192,986       530,216       662,770       -       -  
Open purchase orders
    11,377,869       11,377,869       -       -       -  
Total contractual obligations
  $ 25,781,631     $ 21,363,331     $ 3,275,366     $ 1,142,934     $ -  


(1)  Assumes only mandatory principal pay-down and the use of LIBOR as of September 30, 2012 on the Bank of America debt.
(2)  Includes real estate leases.

The above table outlines our obligations as of September 30, 2012 and does not reflect the changes in our obligations that occurred after that date. There have been no other material changes to our obligations as of the report date herein.

 
Recent Accounting Pronouncements

In September 2011, the Financial Accounting Standard Board (“FASB”) issued an update to its authoritative guidance regarding the methods used to test goodwill for impairment. The amendment allows the option to first assess qualitative factors to determine whether it is necessary to perform the two-step quantitative goodwill impairment test currently required. Under that option, an entity would no longer be required to calculate the fair value of a reporting unit unless the entity determines, based on that qualitative assessment, that it is more likely than not that its fair value is less than its carrying amount. If an entity concludes otherwise, then it must perform the two-step impairment test currently required. We will adopt this guidance commencing in fiscal year 2013, effective October 1, 2012, and apply it prospectively. The adoption of the standard is not expected to have a material impact on our financial position or results of operations.

In June 2011, the FASB issued authoritative guidance that revised its requirements related to the presentation of comprehensive income. This guidance eliminates the option to present components of other comprehensive income as part of the consolidated statement of equity. It requires presentation of comprehensive income, net income and the components of other comprehensive income, either in a single continuous statement of comprehensive income or in two separate but consecutive statements. We will adopt this guidance commencing in fiscal year 2013, effective October 1, 2012, and apply it retrospectively. The adoption of the standard is not expected to have a material impact on our financial position or results of operations.

In May 2011, the FASB issued an update to its authoritative guidance regarding fair value measurements to clarify disclosure requirements and improve comparability. Additional disclosure requirements include: (a) for level 3 fair value measurements, quantitative information about significant unobservable inputs used, qualitative information about the sensitivity of the measurements to change in the unobservable inputs disclosed including the interrelationship between inputs, and a description of the Company’s valuation processes; (b) all, not just significant, transfers between level 1 and 2 of the fair value hierarchy; (c) the reason why, if applicable, the current use of a nonfinancial asset measured at fair value differs from its highest and best use; (d) the categorization in the fair value hierarchy for financial instruments not measured at fair value but for which disclosure of fair value is required. We adopted this guidance in the second quarter of fiscal 2012, effective January 2, 2012, and have applied it retrospectively. The adoption of the standard did not and is not expected to have in the future a material impact on our financial position or results of operations.

Critical Accounting Policies

Management’s discussion and analysis of our financial condition and results of operations is based upon our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States.  The preparation of these financial statements requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes.  Actual results could differ from those estimates.  See Note 2 to the financial statements contained elsewhere in this report for a summary of our significant accounting policies.  Management believes the following critical accounting policies are related to our more significant estimates and assumptions used in the preparation of our financial statements.

Concentrations of Credit Risk.  Our financial instruments that are exposed to concentrations of credit risk consist primarily of trade receivables.  We perform on-going credit evaluations of each customer’s financial condition and generally require no collateral from our customers.  A bankruptcy or other significant financial deterioration of any customer could impact its future ability to satisfy its receivables with us.  Our allowance for doubtful accounts is calculated based primarily upon historical bad debt experience and current market conditions.  Bad debt expense and accounts receivable write-offs, net of recoveries, historically have been relatively small, as we generally transact the substantial portion of our business with large, established food or service related businesses.  For fiscal years 2012 and 2011, our write-offs, net of recoveries, to the allowance for doubtful accounts were approximately $166,000 and $1,000, respectively.

A significant portion of our total net revenues and receivables during the last two fiscal years were derived from three and four customers, respectively, as described below:

Net Revenues
 
 
 
 
   
 
 
 
 
September 30,
   
October 2,
 
Customer
 
2012
   
2011
 
Panda Restaurant Group, Inc.
  30%     26%  
Jenny Craig, Inc.
  20%     29%  
Safeway Inc.
  14%     16%  
 
 
Receivables
 
 
 
 
   
 
 
 
 
September 30,
   
October 2,
 
Customer
 
2012
   
2011
 
Panda Restaurant Group, Inc. (through its distributors)
  36%     28%  
Bellisio Foods, Inc. (for various third party customers)
  21%     17%  
Jenny Craig, Inc.
  14%     22%  
Safeway Inc.
  10%     17%  

Inventories.  Inventories, which include material, labor and manufacturing overhead, are stated at the lower of cost, which approximates the first-in, first-out (“FIFO”) method, or market.  We use a standard costing system to estimate our FIFO cost of inventory at the end of each reporting period.  Historically, standard costs have been materially consistent with actual costs.  We periodically review our inventory for excess items, and write it down based upon the age of specific items in inventory and the expected recovery from the disposition of the items.

We write-down our inventory for the estimated aged surplus, spoiled or damaged products and discontinued items and components.  We determine the amount of the write-down by analyzing inventory composition, expected usage, historical and projected sales information and other factors.  Changes in sales volume due to unexpected economic or competitive conditions are among the factors that could result in material increases in the write-down of our inventory.

Property and Equipment. The cost of property and equipment is depreciated over the estimated useful lives of the related assets, which range from three to ten years.  Leasehold improvements to our Plant No. 1 in Vernon, California are amortized over the lesser of the initial lease term plus one lease extension period, initially totaling 15 years, or the estimated useful lives of the assets.  Other leasehold improvements are amortized over the lesser of the term of the related lease or the estimated useful lives of the assets.  Depreciation is generally computed using the straight-line method.

We assess property and equipment for impairment whenever events or changes in circumstances indicate that an asset’s carrying amount may not be recoverable.

Expenditures for maintenance and repairs are charged to expense as incurred.  The cost of materials purchased and labor expended in betterments and major renewals are capitalized.  Costs and related accumulated depreciation of properties sold or otherwise retired are eliminated from the accounts, and gains or losses on disposals are included in operating income.

Goodwill.  We evaluate goodwill at least annually for impairment.  We have one reporting unit and estimate fair value based on a variety of market factors, including discounted cash flow analysis, market capitalization, and other market-based data.  At September 30, 2012, we had goodwill of $12.2 million.  A deterioration of our operating results and the related cash flow effect could decrease the estimated fair value of our business and, thus, cause our goodwill to become impaired and cause us to record a charge against operations in an amount representing the impairment.

Income Taxes.  We evaluate the need for a valuation allowance on our deferred tax assets based on whether we believe that it is more likely than not that all deferred tax assets will be realized.  We consider future taxable income and on-going prudent and feasible tax planning strategies in assessing the need for valuation allowances.  In the event we were to determine that we would not be able to realize all or part of our deferred tax assets, we would record an adjustment to the deferred tax asset and a charge to income at that time.

We account for uncertainty of income taxes in accordance with current accounting literature.  This guidance prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return.  It also provides guidance on derecognition of tax benefits, classification on the balance sheet, interest and penalties, accounting in interim periods, disclosure and transition.  As a result of the implementation of the guidance, we recorded no increase in the liability for unrecognized tax benefits, and the balance of unrecognized tax benefits was zero at September 30, 2012.

We have also adopted the accounting policy that interest and penalties recognized are classified as part of income taxes.  No interest and penalties were recognized in the statement of income for fiscal year 2012.

Collaborative Arrangement.  We recognize revenue and expenses related to our collaborative arrangement in accordance with authoritative guidance, which directs participants in collaborative arrangements to report costs incurred and revenue generated from transactions with third parties (that is, parties that do not participate in the arrangement) in each entity’s respective income statement line items for revenues and expenses.  Revenues from the collaborative arrangement consist of sales to third party supermarkets.
 


Not applicable.


See the index to financial statements included in Part IV, Item 15(a).  The supplementary financial information required by Item 302 of Regulation S-K is contained in “Schedule II – Valuation and Qualifying Accounts and Reserves” as listed in Part IV, Item 15(c).


None.


Evaluation of Disclosure Controls and Procedures

Our Chief Executive Officer and Chief Financial Officer (our principal executive officer and principal financial officer, respectively) have concluded, based on their evaluation as of September 30, 2012, that the design and operation of our “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) are effective at a reasonable assurance level to ensure that information required to be disclosed by us in the reports filed or submitted by us under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, including to ensure that information required to be disclosed by us in the reports we file or submit under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

Management’s Report on Internal Control Over Financial Reporting

Management is responsible for establishing and maintaining adequate “internal control over financial reporting” as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. Internal control over financial reporting refers to the process designed by, or under the supervision of, our Chief Executive Officer and Chief Financial Officer, and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, and includes those policies and procedures that:

(i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets;

(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 are being made only in accordance with authorizations of our management and directors; and

(iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our 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.
 
Management has used the framework set forth in the report entitled “Internal Control—Integrated Framework” published by the Committee of Sponsoring Organizations of the Treadway Commission to evaluate the effectiveness of our internal control over financial reporting. Management has concluded that our internal control over financial reporting was effective at a reasonable assurance level as of the end of the most recent fiscal year.

This report does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting.  Management’s report was not subject to attestation by our independent registered public accounting firm pursuant to rules of the Commission that permit us to provide only management’s report in this report.

 
Inherent Limitations on the Effectiveness of Controls

Management does not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent or detect all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control systems are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in a cost-effective control system, no evaluation of internal control over financial reporting can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, have been or will be detected.

These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of a simple error or mistake. Controls can also be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. The design of any system of controls is based in part on certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Projections of any evaluation of controls’ effectiveness to future periods are subject to risks. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures.

Changes in Internal Control Over Financial Reporting

During the quarter ended September 30, 2012, there were no changes in our “internal control over financial reporting” (as defined in Rule 13a-15(f) under the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.


Not applicable.
 
18

 
PART III

 

The following table sets forth certain information regarding our directors and executive officers as of December 12, 2012.

   
 
     
 
 
Director
 
Name
 
Age
     
Positions Held
 
Since
 
   
 
     
 
 
 
 
James Rudis
    63      
Chairman of the Board, President, Chief Executive Officer and Director
    1995  
Robert C. Bruning
    69      
Chief Financial Officer
    -  
Robert A. Olivarez
    34      
Vice President-Finance and Secretary
    -  
Harold Estes(1)
    72      
Director
    2002  
Geoffrey A. Gerard(1)(2)(3)
    67      
Director
    2002  
Alexander Auerbach(2)(3)
    68      
Director
    2004  
Alexander Rodetis, Jr.(1)
    70      
Director
    2004  


(1) Member of audit committee.
(2) Member of compensation committee.
(3) Member of nominating and governance committee.
 
The following information regarding the principal occupations and other employment of our directors and executive officers during the past five years and their directorships in certain companies is as reported to us by each of them.

James Rudis was elected to our board of directors in April 1995 and has served as our President and Chief Executive Officer since June 1997. He also served as a director of TreeCon Resources, Inc. (our former parent company) from December 1992 to December 2003, and until December 2003 served as president of TreeCon Resources since July 1997 and chairman and chief executive officer of TreeCon Resources since February 1998.  He served as executive vice president of TreeCon Resources from March 1994 until July 1997.  Prior to his employment with us and with TreeCon Resources, Mr. Rudis was president of Quorum Corporation, a private consulting firm involved in acquisitions and market development.  From 1970 until 1984, he held various executive positions in CIT Financial Corporation, including vice president and regional manager of that company’s commercial finance division.
 
Mr. Rudis’ experience as our President and Chief Executive Officer gives him unique insights into our challenges, opportunities and operations.  He contributes to our board his strategic vision for growth, business strategy and strategic planning skills and marketing acumen.  In addition, Mr. Rudis’ prior experience sitting on the boards of other publicly-traded companies and exposure to different industries provide our board with insights regarding governance, finance, compensation, and other key matters.

Robert Bruning has served as our Chief Financial Officer since January 20, 2012. Mr. Bruning previously served as Chief Financial Officer of Okami, Inc., a food processing and distribution company, from 2006 until its acquisition in 2011. He has also served as Chief Financial Officer of Zacky Farms, Inc. and of Coastcast Corporation, a precision manufacturing company, as well as a financial consultant to Kaiser Aluminum. Earlier in his career, Mr. Bruning was a partner at Andersen Consulting and at Coopers & Lybrand (now PriceWaterhouseCoopers). Mr. Bruning received his bachelors degree in economics from Claremont McKenna College as well as a bachelor’s and master’s degree in industrial engineering from Stanford University.

Robert A. Olivarez has served as our Secretary since May 2010 and has also served as our Vice President-Finance since February 2010.  Prior to becoming Vice President-Finance, Mr. Olivarez was our Manager-Finance from June 2007.  Prior to his employment with us, Mr. Olivarez was in the assurance practice of PricewaterhouseCoopers, LLP in the Los Angeles, California office since 2001.

Harold Estes was appointed to our board of directors in October 2002.  Mr. Estes is the president of Texas Timberjack, Inc. (“TTI”), a wholly-owned subsidiary of TreeCon Resources.  Mr. Estes was appointed to the board of directors of TreeCon Resources in March 2004.  He was previously elected as a director of TreeCon Resources in February 1996 and resigned in April 1997.  TTI is a distributor of industrial and commercial timber and logging equipment and is also engaged in certain related timber and sawmill operations.  Mr. Estes has been president of TTI since 1984, when he acquired TTI from Eaton Corporation.  Mr. Estes previously served as a director of Newton Bancshares, Inc., the parent of First National Bank of Newton (Texas), for approximately ten years until the sale of the bank in October 2001.

Mr. Estes management, operations and leadership experience as president of TTI as well as his experience on the boards of TreeCon Resources and Newton Bancshares, Inc., provides him with broad experience on manufacturing and business issues facing public companies.

Geoffrey A. Gerard was elected to our board of directors in February 2002. Mr. Gerard served as secretary and general counsel of Equivest, Inc., from 1975 to 1977.  Mr. Gerard then served as secretary and General Counsel for two privately held oil and gas exploration companies until 1978. Mr. Gerard has been in the private practice of law in Dallas County, Texas since 1978, specializing in business organization and transactions.  Mr. Gerard received a B.S. in Business-Finance and Economics (1971) and a J.D. degree (1974) from Indiana University.

Mr. Gerard’s legal and business experience provides a unique prospective to our board.  Mr. Gerard has been a registered principal through the Financial Industry Regulatory Authority for several years and has over 30 years experience as an attorney practicing in Dallas, TX, emphasizing on business organizations and investments.  Mr. Gerard has provided counsel to other companies for many private and public securities offerings, including preparing private-placement memorandums and registration statements for public offerings, and has reviewed and analyzed numerous public and private offerings for potential investors.

Alexander Auerbach was appointed to our board of directors in September 2004.  Mr. Auerbach is president of Alexander Auerbach & Co., Inc., a public relations and marketing services firm that he founded in 1986.  Prior to establishing Alexander Auerbach & Co., Inc., Mr. Auerbach served as chief operating officer of two magazine publishing companies.  Earlier in his career, Mr. Auerbach was a senior member of the business and financial news staff of The Los Angeles Times and a financial writer for The Boston Globe.  Mr. Auerbach holds a B.A. from Columbia University and an M.B.A. from the University of California at Los Angeles.

As president of his own public relations and marketing services firm, Mr. Auerbach advises many national, regional and early-stage companies in a wide range of industries on strategic issues and dealing with institutional and individual investors.  Mr. Auerbach provides our board with broad marketing, account management and customer service experience.

 
Alexander Rodetis, Jr. was appointed to our board of directors in September 2004. Mr. Rodetis is President and co-founder of Fairway Financial Services LLC, organized in October 2005 to provide financial and due diligence guidance to bank and non-bank lending institutions on existing and new business loans as well as to companies seeking solutions to its corporate finance requirements.  In addition, Mr. Rodetis is President of Pegasus Financial Services, L.L.C. formed in September 1996 and is engaged, on an engagement/project basis, to perform credit and collateral assessments for bank and non-bank borrowers.  Mr. Rodetis has been in the financial services community for over forty-one years. Mr. Rodetis was the Marketing and Strategic Planning Coordinator of the Daley-Hodkin Group from March 2004 to September 2007, a business valuation, asset disposition and consulting organization, and previously held the position of Inventory Appraisal Business Head for the Group.  He served as Senior Vice President of General Motors Acceptance Corporation’s Commercial Finance Division from 2002 to 2003, where he co-founded the Special Assets Group.  From 1998 to 2002, Mr. Rodetis served as Executive Vice President of the Merchants Bank of New York, where he co-founded the asset-based lending corporation for the bank.  Prior to that, he served as Vice President of Fremont Financial Corp. and of National Westminster Bancorp and held various credit and marketing positions at other banking institutions, including The Chase Manhattan Bank and Citibank North America, Inc.  Mr. Rodetis earned a B.S. in Accounting, a B.A. in Business Administration and an M.B.A. in finance from Fairleigh Dickinson University.  He has also completed financial analysis and corporate finance courses at The Harvard School of Business.

Mr. Rodetis has numerous years experience in investments and management as the president and senior lending officer of various financial services companies and provides our board with strong financial and accounting skills.

Term of Office and Family Relationships

Our directors are elected at each annual stockholders’ meeting or at such other times as reasonably determined by our board of directors.  Each of our directors is to hold office until his successor is elected and qualified or until his earlier death, resignation or removal.  Each of our executive officers serves at the discretion of our board of directors.  There are no family relationships among our executive officers or directors.

Code of Ethics

Our board of directors has adopted a code of ethics that applies to all of our directors, officers and employees.  The code of ethics constitutes our “code of ethics” within the meaning of Section 406 of the Sarbanes-Oxley Act of 2002 and is our “code of conduct” within the meaning of the listing standards of NYSE MKT.  We will provide a copy of our code of ethics to any person without charge, upon written request to Overhill Farms, Inc., Attention:  Investor Relations, 2727 East Vernon Avenue, Vernon, California 90058.

Audit Committee Composition

During fiscal year 2012, our audit committee was composed of Messrs. Rodetis, Gerard and Estes, with Mr. Rodetis serving as the committee chairman.  Our board of directors has determined that Mr. Rodetis is an “audit committee financial expert” and that each of Messrs. Rodetis, Gerard and Estes are “independent” as defined in Sections 803A and 803B of the NYSE MKT listing standards.

Section 16(a) Beneficial Ownership Reporting Compliance

Section 16(a) of the Exchange Act, requires our executive officers and directors, and persons who beneficially own more than 10% of a registered class of our common stock, to file initial reports of ownership and reports of changes in ownership with the Commission.  These officers, directors and stockholders are required by Commission regulations to furnish us with copies of all reports that they file.

Based solely upon a review of copies of the reports furnished to us during the fiscal year ended September 30, 2012 and thereafter, or any written representations received by us from directors, officers and beneficial owners of more than 10% of our common stock (“reporting persons”) that no other reports were required, we believe that all Section 16(a) filing requirements applicable to our reporting persons were met during fiscal year 2012.
 
 
 
 
Compensation Governance

Our compensation committee is responsible for reviewing and making recommendations to our board of directors regarding compensation policy for our executive officers and also has the authority to approve grants under our option and stock plans.

Compensation Philosophy and Objectives

Our compensation programs for our executive officers are intended to reflect our performance and the value created for our stockholders.  We are engaged in a very competitive industry, and our success depends upon our ability to attract and retain qualified executives through the competitive compensation packages we offer to these individuals.  Our current compensation philosophy is based on three central objectives:
 
 
To provide an executive compensation structure and system that is both competitive in the marketplace and also internally equitable based upon the weight and level of responsibilities of each executive;

 
To attract, retain and motivate qualified executives within this structure, and reward them for outstanding performance-to-objectives and business results; and

 
To structure our compensation policy so that the compensation of executive officers is dependent in part on the achievement of our current year business plan objectives and dependent in part on the long-term increase in our net worth and the resultant improvement in stockholder value, and to maintain an appropriate balance between short and long-term performance objectives.

The compensation committee evaluates both performance and compensation to ensure that the total compensation paid to our executive officers is fair, reasonable and competitive.  The principal components of compensation for our executives consist of base salary, discretionary bonuses and perquisites and other personal benefits.

From time to time we also offer alternative sources of compensation, such as stock options, to our executive officers. Options provide executive officers with the opportunity to buy and maintain an equity interest in our company and to share in the appreciation of the value of our common stock. In addition, if a participant were to leave prior to the exercise of the participant’s options, the unexercised options would be forfeited after the expiration of the period specified in the options. This makes it more difficult for competitors to recruit key employees away from us. We believe that option grants afford a desirable long-term compensation method because they closely align the interests of our management and other employees with stockholder value and motivate officers to improve our long-term stock performance.  No stock options were granted in fiscal year 2012.

Section 162(m) of the Internal Revenue Code places a limit on the amount of compensation that may be deducted in any year with respect to each of our named executive officers.  It is our policy that, to the extent possible, compensation will be structured so that the federal income tax deduction limitations will not be exceeded.

Executive Compensation for Fiscal Year 2012

Our compensation policy is designed to reward performance.  In measuring our executive officers’ contributions to our company, our compensation committee considers numerous factors, including our growth and financial performance as measured by revenue, gross margin improvement, earnings per share, as well as cashflow targets, among other key performance indicators.  We consider individual experience, responsibilities and tenure when determining base salaries, as well as industry averages for similar positions.  In addition, we analyze qualitative and quantitative factors when awarding incentive compensation, such as the overall performance of our company and the relative contribution of each individual compared to pre-established performance goals.

Our chief executive officer makes recommendations to our compensation committee regarding the salaries, bonus arrangements and option grants, if any, for key employees, including all executive officers.  For executive officers whose bonus awards are based partly on individual performance, our chief executive officer’s evaluation of such performance is provided to and reviewed by our compensation committee.  Our compensation committee does not currently engage any consultant related to executive and/or director compensation matters.

Stock price performance has not been a factor in determining annual compensation because the price of our common stock is subject to a variety of factors outside of management’s control.  We do not subscribe to an exact formula for allocating cash and non-cash compensation. However, a significant percentage of total executive compensation is performance-based.  Historically, the majority of the incentives to our executives have been in the form of cash incentives, as we previously had debt restrictions that restricted the number of stock options granted.

For fiscal year 2012, our compensation for named executives consisted of base salary, discretionary bonuses and perquisites.  No stock options or other equity incentives were granted.

Our board of directors, upon recommendation of our compensation committee, has approved bonuses for each executive officer for fiscal year 2012.  The primary criteria used in determining bonuses related to our overall performance, progress on strategic objectives and each individual’s contribution to that performance.

During fiscal year 2012, our net revenues increased by $25.2 million and our net income more than doubled to $3.1 million.  We also strengthened our balance sheet by decreasing our long term debt by $4.0 million.  As a result, Mr. Rudis received a total bonus of $237,500, Mr. Bruning received a total bonus of $32,166 and Mr. Olivarez received a total bonus of $27,075.  Further information regarding executive bonuses is contained below under the heading “Executive Bonuses.”

 
Executive Bonuses

Upon recommendation of the compensation committee, our board of directors approved bonuses for fiscal year 2012 for our named executive officers, based upon their contributions to our success during fiscal year 2012.  The bonuses will be paid in fiscal year 2013.

For fiscal year 2012, Mr. Rudis served as our Chairman of the board of directors, Chief Executive Officer and President.  As part of the function of all three roles, Mr. Rudis served as the relationship manager to stockholders, lenders and all three of our previously disclosed significant customers. Mr. Rudis also established and negotiated the Boston Market license opportunity, which is an important part of our future growth.  In addition to setting the long-term strategy for us, Mr. Rudis was responsible for our overall profitability and maintained a close working relationship with all significant parties to help ensure positive results were achieved.

For fiscal year 2012, Mr. Bruning served as our Chief Financial Officer and was responsible for overseeing: all of our accounting practices and policies; Commission and other regulatory interaction and correspondence; the establishment and maintenance of adequate control over financial reporting; and the implementation of new rules and regulations resulting from recently enacted legislation relating to proxy statements, healthcare and financial regulatory reform.  Mr. Bruning is also responsible for directing our financial strategy and forecasts and also overseeing our risk management process.
 
 
For fiscal year 2012, Mr. Olivarez served as our Vice President-Finance and Secretary and was responsible for ensuring that our board of directors and Audit Committee met regularly in accordance with NYSE MKT standards and also for creating and gathering materials needed for the meetings as well as preparing the minutes for each meeting.  Mr. Olivarez was also responsible for: implementing accounting practices and policies; interaction and correspondence with the Commission and other regulatory agencies; creating and submitting publicly filed documents; establishing and maintaining adequate internal control over financial reporting; implementing new rules and regulations resulting from recently enacted legislation relating to proxy statements, healthcare and financial regulatory reform; production of periodic financial reports; maintenance of company accounting records and safeguarding of company assets.  Mr. Olivarez was also responsible for shareholder interaction and correspondence.

To determine the amounts of the executive bonuses for fiscal year 2012, the compensation committee considered these individual accomplishments and also reviewed some of the Company’s more significant financial benchmarks, including but not limited to net revenue growth, gross margin improvement, earnings per share, cash flow and earnings before interest, taxes, depreciation and amortization (“EBITDA”).

For the fiscal year 2012, our net revenues and gross profit increased $25.2 million and $4.0 million, respectively, in fiscal year 2012 compared to fiscal year 2011, we had net income of $3.1 million and reduced our debt by $4.0 million.  For fiscal year 2012, we had earnings per share of $0.20 per basic and $0.19 diluted shares.  Lastly, our EBITDA for fiscal year 2012 was $8.5 million.  EBITDA for fiscal year 2012, was calculated using the following measurements: net income of $3.1 million; interest expense of $244,000; tax expense of $1.7 million; depreciation and amortization expense of $3.5 million.

The $237,500 bonus approved for James Rudis consisted of $230,000 in cash (approximately 48% of his base salary) and a $7,500 401(k) contribution.  The bonus approved for Robert C. Bruning consisted of $25,000 in cash (approximately 11% of his base salary) and $7,166 401(k) contribution.  The bonus approved for Robert A. Olivarez consisted of 22,500 in cash (approximately 16% of his base salary) and $4,575 401(k) contribution.

Conclusion

Although we have adopted from time to time in the past, and may again in the future adopt, a formal bonus plan involving certain pre-established goals, we did not adopt such a plan for our executives in fiscal years 2012 and 2011.  Our policy is not to disclose target levels with respect to specific quantitative or qualitative performance-related factors or factors considered to involve confidential business information, because their disclosure would have an adverse effect on us.  The adverse effect would stem from competitive harm that would occur if we were to disclose confidential trade secrets or confidential commercial or financial information or specific customer-related targets and objectives.

Attracting and retaining talented and motivated management and employees is essential in creating long-term stockholder value. Offering a competitive, performance-based compensation program helps to achieve this objective by aligning the interests of executive officers and other key employees with those of stockholders.  We believe that our fiscal year 2012 compensation program met this objective.

Summary Compensation Table

The following table sets forth for fiscal years 2012 and 2011 compensation awarded or paid to Mr. James Rudis, our Chairman, Chief Executive Officer and President, Mr. Robert C. Bruning, our Chief Financial Officer, Tracy E. Quinn, our former Chief Financial Officer and Mr. Robert A. Olivarez, our Vice President-Finance and Secretary for services rendered to us.  Messrs. Rudis,  Bruning, Olivarez and Ms. Quinn are also referred to as “named executive officers.”
 
 
Name and
 
Fiscal
 
 
   
 
   
All Other
   
 
 
Principal Positions
 
Year
 
Salary ($)
   
Bonus ($)
   
Compensation ($)
   
Total ($)
 
 
 
 
 
 
   
 
         
 
 
James Rudis,
 
2012
  $ 481,821     $ 237,500     $ 278,505 (1)   $ 997,826  
Chairman, President and Chief Executive Officer
 
2011
    475,645       38,500       276,277       790,422  
   
 
                               
Robert C. Bruning,
 
2012
    154,039       32,166       -       186,205  
Chief Financial Officer (2)
 
2011
    -       -       -       -  
                                     
Tracy E. Quinn,
 
2012
    174,917       -       37,057 (3)     211,974  
Former Chief Financial Officer
 
2011
    361,385       7,500       92,760       461,645  
   
 
                               
Robert A. Olivarez,
 
2012
    140,000       27,075       -       167,075  
Vice President-Finance and Secretary
 
2011
    142,692       4,200       -       146,892  
 
(1)
Mr. Rudis received certain perquisites and other personal benefits in fiscal year 2012, which consist of the following:
 
a.
Premium paid of $17,966 for term life insurance for the benefit of Mr. Rudis’ spouse; and
 
b.
Mr. Rudis maintains offices in both Vernon, California and New York. $260,539 represents perquisites or other benefits relating to payment of or reimbursement for commuting expenses between New York and California, including $210,706 for airfare, $37,653 for lodging and $12,180 for transportation, meals and other miscellaneous expenses.
(2)
Mr. Bruning’s employment as our Chief Financial Officer began on January 20, 2012.
(3)
Ms. Quinn’s employment ended on February 24, 2012. She received certain perquisites and other personal benefits in fiscal year 2012, which consist of the following:
 
Mr. Quinn maintains her principal residence in Pennsylvania. $37,057 represents perquisites or other benefits relating to payment of or reimbursement for commuting expenses between Pennsylvania and California, including $26,726 for airfare, $10,032 for lodging and $299 for transportation, meals and other miscellaneous expenses.

Executive Employment Agreements and Arrangements

James Rudis

Mr. Rudis’ previous employment agreement expired on December 31, 2011. On February 6, 2012, we entered into an employment agreement with James Rudis, our Chairman, President and Chief Executive Officer.  The term of the employment agreement runs from January 1, 2012 to December 31, 2014.  Mr. Rudis’ base salary is $475,000 per year and will be reviewed annually and increased in a percentage no less than that of the annual increase in the cost of living.

The employment agreement contains a covenant that Mr. Rudis will not compete with us during the term of his employment and for a period of one year thereafter.  We have agreed to provide, at our expense, a $1.0 million life insurance policy on Mr. Rudis’ life, payable to a beneficiary of his choice, and to pay to him up to $800 per month for an automobile lease and to reimburse him for all operating expenses relating to the leased automobile.  In addition, if Mr. Rudis chooses not to participate in our existing group medical insurance plan, we have agreed to reimburse him for health insurance premiums he pays through the term of the employment agreement for him and his immediate family, up to the amounts he paid for such coverage immediately prior to the effective date of the employment agreement.  Mr. Rudis is entitled to four weeks vacation time annually and we have agreed to cash out and pay Mr. Rudis for the portion of any vacation time not used by the end of the calendar year in which it was earned or at such a later date as may be specified by Mr. Rudis.

Mr. Rudis is also entitled to receive a minimum payment of $300,000 (in addition to any other payments our compensation committee may award in its sole discretion) upon:

 
an individual, entity or group becoming the beneficial owner of more than 50% of the total voting power of our total outstanding voting securities on a fully-diluted basis;
 
 
 
an individual or entity acquiring substantially all of our assets and business; or

 
a merger, consolidation, reorganization, business combination or acquisition of assets or stock of another entity, other than in a transaction that results in our voting securities outstanding immediately before the transaction continuing to represent at least 50% of the combined voting power of the successor entity’s outstanding voting securities immediately after the transaction.

However, a change in control does not include a financing transaction approved by our board of directors and involving the offering and sale of shares of our capital stock.

The employment agreement also provides that if Mr. Rudis is terminated by reason of his death or disability, he or his estate is entitled to receive:

 
any accrued, unpaid base salary payable in effect on the date of termination

 
any unreimbursed business expenses outstanding as of the date of termination; and

 
any accrued but unused vacation pay as of the date of termination.

If Mr. Rudis voluntarily resigns prior to the end of the term, he will not be entitled to receive any bonus payments.  If we terminate Mr. Rudis without cause, then subject to certain requirements, Mr. Rudis will be entitled to:

 
a severance benefit in the form of continuation of his base salary in effect at the date of termination and payment of COBRA health insurance premiums for the longer of twelve months or the remaining unexpired portion of the initial term of the agreement; and

 
a pro rated bonus payment under the terms of a bonus plan, if any, pursuant to which a bonus has been earned, payable at the time provided in the bonus plan.

In addition, Mr. Rudis maintains offices in both Vernon, California and New York.  As of September 30, 2012 we paid $260,539 in perquisites or other benefits relating to payment of or reimbursement for commuting expenses between New York and California.  This includes $210,706 for airfare, $37,653 for lodging and $12,180 for transportation, meals and other miscellaneous expenses.

Robert C. Bruning

Mr. Bruning’s employment arrangement commenced on January 20, 2012.  Mr. Bruning receives an annual base salary of $225,000 per year, with a guaranteed minimum bonus of $25,000 because he remained in the employment of the Company through the end of fiscal year 2012. His employment is “at will.” He will also be eligible for health and other insurance programs, and 401(k) participation, on the same basis as other employees of the Company.
 
Tracy E. Quinn

Ms. Quinn’s employment arrangement commenced on September 10, 2007 and ended on February 24, 2012.  The initial term of Ms. Quinn’s employment was for 90 days, but was reviewable by us every 30 days, and terminable at-will by either party.   Ms. Quinn received a monthly base salary of $30,000.  In addition, we agreed to pay or reimburse Ms. Quinn for all reasonable travel expenses from the Pittsburgh, Pennsylvania area to southern California and all reasonable living expenses while she conducted business on our behalf in southern California.  As of September 30, 2012, we paid $92,760 in perquisites or other benefits relating to payment of or reimbursement for commuting expenses between Pennsylvania and California, including $57,138 for airfare, $33,810 for lodging and $1,812 for transportation, meals and other miscellaneous expenses.

Robert A. Olivarez

Mr. Olivarez receives an annual base salary of $140,000.  Our board of directors determines Mr. Olivarez’ discretionary bonus based on performance and his contributions to our success.

Outstanding Equity Awards at Fiscal Year-End

The following table provides information regarding the number of shares of common stock underlying options held by the named executive officers at September 30, 2012.

 
 
 
Option Awards
 
Name
 
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
   
Number of 
Securities
Underlying
Unexercised
Options (#)
Unexercisable
   
Option
Exercise Price
($)
   
Option
Expiration
Date
 
 
 
 
   
 
   
 
   
 
 
James Rudis
    69,136       -       1.47    
2/1/15
 
 
    10,288       -       1.50    
2/1/15
 
 
    10,288       -       2.00    
2/1/15
 
 
    10,288       -       2.50    
2/1/15
 
 
                         
 
 
Robert C. Bruning
    -       -       -       -  
                                 
Tracy E. Quinn
    -       -       -       -  
 
                               
Robert A. Olivarez
    -       -       -       -  

Director Compensation

Non-employee directors are entitled to cash payments of $3,000 per month in consideration for their service on our board of directors.  In addition, each non-employee director receives a $1,000 bonus for every board and committee meeting that they attend in which they are a member. We may also periodically award options to our directors under our existing option and stock plans or otherwise.

Mr. Rudis was compensated as a full-time employee and officer and received no additional compensation for service as a board member during fiscal year 2012.  Information regarding the compensation awarded to Mr. Rudis is included in the “Summary Compensation Table” above.

Director Compensation Table

The following table summarizes the compensation of our directors for the fiscal year ended September 30, 2012:

   
Fees Earned
         
 
 
   
or Paid
   
Option
   
 
 
   
in Cash
   
Awards
   
Total
 
Name
 
($)(1)
   
($)(2)
   
($)
 
Geoffrey A. Gerard
  $ 50,000     $ -     $ 50,000  
Alexander Auerbach(3)
    48,000       -       48,000  
Alexander Rodetis, Jr.
    48,000       -       48,000  
Harold Estes
    46,000       -       46,000  
 

 
(1)
For a description of annual director fees, see the disclosure above under “Director Compensation.” The value of perquisites and other personal benefits was less than $10,000 in aggregate for each director.
 
(2)
There were no stock options awarded during fiscal 2012.  Outstanding options held by each director as of September 30, 2012 are as follows:
 
Geoffrey A. Gerard – 25,000 options, which are fully vested.
 
Alexander Auerbach – 25,000 options, which are fully vested.
 
Alexander Rodetis, Jr. – 25,000 options, which are fully vested.
                                                                                                      
 
(3)
Mr. Auerbach’s firm, Alexander Auerbach & Co. Inc., also provides us with public relations and marketing services, for which we paid $57,000 with respect to fiscal year 2012.  See “Certain  Relationships and Related Transactions, and Director Independence” in Item 13 of this report.
 

 

As of December 12, 2012, a total of 16,046,544 shares of our common stock were outstanding.  The following table sets forth certain information as of that date regarding the beneficial ownership of our common stock by:

 
each of our directors;

 
each of the named executive officers included in the Summary Compensation Table contained in Item 11 of this report;

 
all of our directors and executive officers as a group; and

 
each person known by us to beneficially own more than 5% of the outstanding shares of our common stock.

Beneficial ownership is determined in accordance with Rule 13d-3 promulgated by the Commission and generally includes voting or investment power with respect to securities.  Except as indicated below, we believe each holder possesses sole voting and investment power with respect to all of the shares of common stock owned by that holder, subject to community property laws where applicable.  In computing the number of shares beneficially owned by a holder and the percentage ownership of that holder, shares of common stock subject to options held by that holder that are currently exercisable or are exercisable within 60 days after the date of the table are deemed outstanding.  Those shares, however, are not deemed outstanding for the purpose of computing the percentage ownership of any other person or group.

The inclusion of shares in this table as beneficially owned is not an admission of beneficial ownership.  Except as indicated below, the address for each named beneficial owner is the same as ours.

 
 
Amount and Nature of
   
Percent
 
Name and Address of Beneficial Owner
 
Beneficial Ownership
   
of Class
 
 
       
 
 
Hotchkis and Wiley Capital Management, LLC
    2,606,752 (1)     16.2 %
Lord Abbett & Co. LLC
    1,984,775 (2)     12.4 %
Greenwood Investment, Inc.
    878,041 (3)     5.5 %
Huber Capital Management, LLC
    858,318 (4)     5.3 %
Harold Estes
    1,111,565 (5)     6.9 %
James Rudis
    499,823 (6)     3.1 %
Geoffrey A. Gerard
    36,500 (7)     *  
Alexander Auerbach
    35,000 (8)     *  
Alexander Rodetis, Jr.
    26,700 (9)     *  
Robert C. Bruning
    -       -  
Tracy E. Quinn
    -       -  
Robert A. Olivarez
    -       -  
All directors and executive officers as a group
    1,709,588 (10)     10.5 %
     (7 persons)
               


*   Less than 1.0%.
                                                                                                                                                
(1)
Based upon Schedule 13F-HR filed with the Commission for September 30, 2012. On behalf of its investment advisory clients, the holder has sole voting power over 1,548,800 shares and sole dispositive power over 2,606,752 shares. The address for the holder is 725 S. Figueroa Street, 39th Floor, Los Angeles, California 90017.
 
(2)
Based upon Schedule 13F-HR filed with the Commission for September 30, 2012.  On behalf of its investment advisory clients, the holder has sole voting power over 1,680,161 shares and sole dispositive power over 1,984,775 shares. The address for the holder is 90 Hudson Street, Jersey City, New Jersey 07302.

(3)
Based upon Schedule 13G filed with the Commission on December 21, 2011.  On behalf of its investment advisory clients, the holder has sole voting power over 878,041 shares and sole dispositive power over 878,041 shares. The address for the holder is 222 Berkeley Street, 17th Floor, Boston, Massachusetts 02116.
 
 
(4)
Based upon Schedule 13F-HR filed with the Commission for September 30, 2012.  On behalf of its investment advisory clients, the holder has sole voting power over 451,675 shares and sole dispositive power over 858,318 shares. The address for the holder is 10940 Wilshire Blvd., Suite 925, Los Angeles, California 90024.
 
(5)
Mr. Estes’ address is 6004 South US Highway 59, Lufkin, Texas 75901.
 
(6)
Includes 100,000 shares of common stock underlying options.
 
(7)
Includes 25,000 shares of common stock underlying options.
 
(8)
Includes 25,000 shares of common stock underlying options.
 
(9)
Includes 25,000 shares of common stock underlying options.
 
(10)
Includes 175,000 shares of common stock underlying options.

Equity Compensation Plan Information

The following table gives information about our common stock that may be issued upon the exercise of options, warrants and rights under all of our existing equity compensation plans as of September 30, 2012.

 
         
 
   
Number of
 
 
         
 
   
securities remaining
 
 
         
 
   
available for future
 
 
   
Number of
   
 
   
issuance under
 
 
   
securities to be
   
 
   
equity
 
 
   
issued upon
   
Weighted-average
   
compensation plans
 
 
   
exercise of outstanding
   
exercise price
   
(excluding
 
 
   
options, warrants
   
of outstanding options,
   
securities reflected
 
Plan category
   
and rights
   
warrants and rights
   
in column (a))
 
 
   
(a)
   
(b)
   
(c)
 
Equity compensation plans approved by security holders
      192,000 (1)   $ 1.62       11,000 (2)
Equity compensation plans not approved by security holders
      -     $ -       -  
Total
      192,000     $ 1.62       11,000  
 

(1)
Represents shares of common stock underlying options granted under our Amended and Restated 2002 Employee Stock Option Plan and Amended and Restated 2005 Stock Plan.
 
(2)
Represents shares of common stock authorized for issuance under our Amended and Restated 2005 Stock Plan, which was adopted by our board of directors on February 1, 2005, approved by then majority stockholder on February 24, 2005 and approved by our stockholders at our 2005 annual meeting and was amended and restated by our compensation committee (further stockholder approval was not required) on December 3, 2008.  Our Amended and Restated 2005 Stock Plan provides that if, at any time while that plan is in effect or unexercised options granted under that plan are outstanding, there is an increase or decrease in the number of issued and outstanding shares of common stock of Overhill Farms, Inc. through the declaration of a stock dividend or through a recapitalization that results in a stock split, combination or exchange of shares, then appropriate adjustment shall be made in the maximum number of shares authorized for issuance under that plan so that the same proportion of our issued and outstanding shares of common stock will continue to be subject to being optioned under the plan and appropriate adjustment will be made in the number of shares and the exercise price per share then subject to outstanding options so that the same proportion of our issued and outstanding shares will remain subject to purchase at the same aggregate exercise price.


 
Review, Approval or Ratification of Transactions with Related Persons

Our board of directors has the responsibility to review and discuss with management and approve material transactions with related parties.  These transactions are governed by our Policies and Procedures for the Approval of Related Party Transactions.  During the review process, the material facts as to the related party’s interest in a transaction are disclosed to all board members.  Under the policies and procedures, the board is to review each interested transaction with a related party that requires approval and either approve or disapprove of the entry into the related party transaction.  A related party transaction is any transaction in which we are a participant and any related party has or will have a direct or indirect interest.  Transactions that are in the ordinary course of business and would not require either disclosure pursuant to Item 404(a) of Regulation S-K or approval of the board would not be deemed a related party transaction.  No director may participate in any discussion or approval of a related party transaction with respect to which he or she is a related party.  Our board intends to approve only those related party transactions that are in our best interests.

Transactions with Related Persons

Other than as described below, there were no transactions or series of transactions to which we were or are a party involving an amount in excess of $120,000 and in which any director, executive officer, holder of more than 5% of our voting stock, or members of the immediate family of any foregoing persons, had or will have a direct or indirect material interest.  The transaction listed below was approved by our board of directors, and the interest of Mr. Auerbach in this matter described below was disclosed to our board of directors before our board of directors approved the matter.

In February 2004, we engaged Alexander Auerbach & Co., Inc. (“AAPR”) to provide us with public relations and marketing services.  AAPR provides public relations, media relations and communications marketing services to support our sales activities.  Alexander Auerbach, who is one of our directors, is a stockholder, director and officer of AAPR.  We paid to AAPR $57,000 for services rendered under this engagement during fiscal year 2012.  These fees totaled more than 5% of AAPR’s gross revenues for its fiscal year ended January 31, 2012.

Director Independence

NYSE MKT rules and the charters of our board committees provide that a majority of our board of directors and all members of our audit, compensation and nominating and governance committees of our board of directors will be independent.  On an annual basis, each director and executive officer is obligated to complete a Director and Officer Questionnaire that requires disclosure of any transactions with us in which a director or executive officer, or any member of his or her immediate family, have a direct or indirect material interest.  Following completion of these questionnaires, the board of directors, with the assistance of the nominating and governance committee, makes an annual determination as to the independence of each director using the current standards for “independence” established by the Commission and NYSE MKT and consideration of any other material relationship a director may have with us.

Our board of directors has determined that each of our non-employee directors is “independent” as defined in the general board independence standard contained in Section 803A of the NYSE MKT listing standards.  Our board of directors also has determined that each of Messrs. Rodetis, Gerard and Estes are “independent” as defined in Sections 803A and 803B of the NYSE MKT listing standards applicable to audit committee members. In addition, our board of directors has determined that Mr. Auerbach is “independent” under Section 803A of the NYSE MKT listing standards applicable to compensation committee members. Also, our board of directors has determined that Messrs. Gerard and Auerbach are “independent” under Section 803A of the NYSE MKT listing standards applicable to nominating and governance committee members.


 
Audit and Non-Audit Fees

The following table presents fees for professional audit services rendered by Ernst & Young LLP for the audit of our annual financial statements for fiscal years 2012 and 2011.

 
 
2012
   
2011
 
 
 
 
   
 
 
Audit Fees
  $ 459,000     $ 444,000  
Audit-Related Fees
    5,000       --  
Tax Fees
    --       --  
All Other Fees
    --       --  
Total
  $ 464,000     $ 444,000  

Audit Fees Audit fees consist of amounts billed for professional services rendered for the audit of our annual financial statements included in our Annual Reports on Form 10-K, and reviews of our interim financial statements included in our Quarterly Reports on Form 10-Q and our Registration Statement on Form S-3, including amendments thereto.

Audit-Related Fees.  Audit-Related Fees consist of fees billed for professional services that are reasonably related to the performance of the audit or review of our consolidated financial statements but are not reported under “Audit Fees.”

Tax Fees.  Tax Fees consist of fees for professional services for tax compliance activities, including the preparation of federal and state tax returns and related compliance matters.

All Other Fees.  Consists of amounts billed for services other than those noted above.

Pre-Approval Policy
 
Our audit committee’s policy is to pre-approve all auditing services and permitted non-audit services to be performed for us by our independent auditors, subject to the de minimis exceptions for non-audit services described in Section 10A(i)(1)(B) of the Exchange Act that are approved by the audit committee prior to the completion of the audit.  During fiscal year 2012, all services performed by Ernst & Young LLP were pre-approved by our audit committee in accordance with these policies and applicable Commission regulations.
 

PART IV


(a)       The following  financial statements are filed as part of this report:
 
Report of Independent Registered Public Accounting Firm

Balance Sheets — September 30, 2012 and October 2, 2011

Statements of Income — Years Ended September 30, 2012 and October 2, 2011

Statements of Stockholders’ Equity — Years Ended September 30, 2012 and October 2, 2011

Statements of Cash Flows — Years Ended September 30, 2012 and October 2, 2011

Notes to Financial Statements
 
(b)      The following exhibits are attached to or incorporated by reference herein:

Exhibit
Number
Exhibit Title
   
3.1(2)
Second Amended and Restated Articles of Incorporation of Overhill Farms, Inc. filed on June 1, 2009 with the Nevada Secretary of State (Exhibit 3.1)
   
3.2(12)
Second Amended and Restated Bylaws of Overhill Farms, Inc., adopted effective as of April 2, 2009 (Exhibit 3.1)
   
4.1 (1)
Form of the specimen common stock certificate of Overhill Farms, Inc. (Exhibit 4.1)
   
10.1 (11)
Lease dated November 15, 2008 between U.S. Growers Cold Storage, Inc. and Overhill Farms, Inc. regarding premises located at 3055 E. 44th Street, 3021 E. 44th Street, 3009 E. 44th Street and 3001 E. 44th Street Vernon, California (Exhibit 10.1)
   
10.2 (3)
Master Lease Agreement dated as of August 1, 2002 between General Electric Capital Corporation and Overhill Farms, Inc. and related documentation regarding freezers and various other equipment (Exhibit 10.35)
   
10.3 (3)
Industrial Real Estate Lease (Single-Tenant Facility) dated April 22, 1994 between Vernon Associates and Ernest Paper Products, Inc. and related addendum regarding premises located at 2727 E. Vernon Avenue, Vernon, California (Exhibit 10.86)

10.4 (3)
Standard Industrial/Commercial Single-Tenant Lease – Net dated January 1, 2002 by and between Vernon Associates, LLC and Overhill Farms, Inc. regarding premises located at 2727 E. Vernon Avenue, Vernon, California (Exhibit 10.88)
   
10.5 (3)
Addendum to Standard Industrial/Commercial Single-Tenant Lease – Net regarding premises located at
2727 E. Vernon Avenue, Vernon, California (Exhibit 10.89)
   
10.6 (4)
Consulting Agreement dated February 18, 2004 between Overhill Farms, Inc. and Alexander Auerbach & Co., Inc. (Exhibit 10.1)
   
10.7 # (11)
Amended and Restated 2002 Employee Stock Option Plan of Overhill Farms, Inc. (Exhibit 10.8)
   
10.8 # (11)
Amended and Restated 2005 Stock Plan of Overhill Farms, Inc. (Exhibit 10.9)
   
10.9 # (5)
Form of Restricted Stock Purchase Agreement Under 2005 Stock Plan (Exhibit 10.3)
   
10.10 # (6)
Form of Stock Option Agreement Under 2005 Stock Plan (Exhibit 10.2)
 
 
10.11 # (10)
Form of Stock Option Agreement Under 2002 Employee Stock Option Plan (Exhibit 4.7)
   
10.12 (7)
Credit Agreement, dated September 24, 2010, between Overhill Farms, Inc. and Bank of America, N.A. (Exhibit 10.1)
   
10.13 (8)
Summary of Director Compensation (Exhibit 10.22)
   
10.14 # (9)
Description of Employment Arrangement between Overhill Farms, Inc. and Tracy E. Quinn
   
10.15 # (13)
Employment Agreement, entered into as of February 18, 2010 between Overhill Farms, Inc., and James Rudis (Exhibit 10.1)
   
10.16 # (18)
Description of Employment Arrangement between Overhill Farms, Inc. and Robert A. Olivarez (Exhibit 10.16)
   
10.17 (14)
License Agreement, dated November 4, 2010, between Boston Market Corporation and Overhill Farms, Inc. (Exhibit 10.1)
   
10.18 # (15)
Form of Indemnification Agreement entered into between Overhill Farms, Inc. and each of its directors and officers (Exhibit 10.1)
   
10.19 (16)
Notice of Exercising Option to Renew - Standard Industrial/Commercial Singe Tenant Lease, dated January 13, 2011, executed by Overhill Farms, Inc. (Exhibit 10.1)
   
10.20 (18)
First Amendment to Lease, dated June 12, 2006, between Vernon Associates, LLC and Overhill Farms, Inc. (Exhibit 10.20)
   
10.21 (17)
Second Amendment to Lease, dated May 6, 2011, between Vernon Associates, LLC and Overhill Farms, Inc. (10.1)
   
10.22 (18)(19)
Co-Manufacturing, Sales and Distribution Agreement, dated August 4, 2011, between Bellisio Foods, Inc. and Overhill Farms, Inc. (Exhibit10.20)
   
10.23 # **
Description of Employment Arrangement between Overhill Farms, Inc. and Robert C. Bruning
   
10.24 (20)
Waiver and Amendment No 1 to Credit Agreement, dated March 8, 2012, between Overhill Farms, Inc. and Bank of America, N.A. (Exhibit 10)
   
23**
Consent of Independent Registered Public Accounting Firm
   
31.1**
Certification of Principal Executive Officer Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (2)
   
31.2**
Certification of Principal Financial Officer Required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (2)
   
32**
Certification of Chief Executive Officer and 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.INSw
XBRL Instance Document
101.SCHw
XBRL Taxonomy Extension Schema Document
101.CALw
XBRL Taxonomy Extension Calculation Linkbase Document
101.DEFw
XBRL Taxonomy Extension Definition Linkbase Document
101.LABw
XBRL Taxonomy Extension Label Linkbase Document
101.PREw
XBRL Taxonomy Extension Presentation Linkbase Document
 

**      Filed herewith
#      Management contract or compensatory plan or arrangement
 

w      Furnished herewith. In accordance with Rule 406T of Regulation S-T, the information in these exhibits shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to liability under that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such filing.

 
(1)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Registration Statement on Form 10 (File No. 1-16699).
 
(2)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended June 28, 2009.
 
(3)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 28, 2003.
 
(4)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for September 17, 2004.
 
(5)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for February 1, 2005.
 
(6)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for February 24, 2005.
 
(7)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for September 30, 2010.
 
(8)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Annual Report on Form 10-K for the fiscal year ended October 1, 2006.
 
(9)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2007.
 
(10)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Registration Statement on Form S-8 (Registration No. 333-127022).
 
(11)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 28, 2008.
 
(12)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for April 9, 2009.
 
(13)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended January 1, 2012.
 
(14)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for November 4, 2010 filed on November 9, 2010.
 
(15)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for November 11, 2010 filed on November 24, 2010.
 
(16)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for January 13, 2011 filed on January 20, 2011.
 
(17)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Current Report on Form 8-K for May 16, 2011 filed on May 20, 2011.
 
(18)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Annual Report on Form 10-K for the fiscal year ended October 2, 2011.
 
(19)
Portions of this exhibit indicated by “***” have been omitted pursuant to the Company’s request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and the omitted material has been separately filed with the Securities and Exchange Commission.
 
(20)
Incorporated by reference to the exhibit shown in parentheses included in the Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended April 1, 2012.

(c)    The following schedule is included herein:

Schedule II – Valuation and Qualifying Accounts and Reserves

Schedules for which provision is made in the applicable rules and regulations of the Commission and are not required under the related instructions or are inapplicable have been omitted.

 
 
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
By:
/s/ James Rudis
   
Name: James Rudis
   
Title: Chairman, President and Chief Executive Officer
   
Date: December 18, 2012
 
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

Signature
 
Title
Date
       
/s/ James Rudis
 
Chairman of the Board of Directors, President and Chief
December 18, 2012
James Rudis
 
Executive Officer (principal executive officer)
 
       
/s/ Robert C. Bruning
 
Chief Financial Officer (principal financial and
December 18, 2012
Robert Bruning
 
accounting officer)
 
       
/s/ Alexander Auerbach
 
Director
December 18, 2012
Alexander Auerbach
     
       
/s/ Harold Estes
 
Director
December 18, 2012
Harold Estes
     
       
/s/ Geoffrey A. Gerard
 
Director
December 18, 2012
Geoffrey A. Gerard
     
       
/s/ Alexander Rodetis, Jr.
 
Director
December 18, 2012
Alexander Rodetis, Jr.
     

 
OVERHILL FARMS, INC.

INDEX TO FINANCIAL STATEMENTS AND
SUPPLEMENTARY SCHEDULE
 
Audited Financial Statements:
Page No.
   
Report of Independent Registered Public Accounting Firm
F-2
   
Balance Sheets as of September 30, 2012 and October 2, 2011
F-3
   
Statements of Income for the Years Ended September 30, 2012 and October 2, 2011
F-5
   
Statements of Stockholders’ Equity for the Years Ended September 30, 2012 and October 2, 2011
F-6
   
Statements of Cash Flows for the Years Ended September 30, 2012 and October 2, 2011
F-7
   
Notes to Financial Statements
F-8
   
Supplementary Schedule:
 
   
Schedule II – Valuation and Qualifying Accounts and Reserves
F-21

 
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
The Board of Directors and Stockholders of Overhill Farms, Inc.
 
We have audited the accompanying balance sheets of Overhill Farms, Inc. as of September 30, 2012 and October 2, 2011, and the related statements of income, stockholders’ equity, and cash flows for each of the two years in the period ended September 30, 2012. Our audits also included the financial statement schedule listed in the Index at Item 15(c). These financial statements and schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits.
 
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company's internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
 
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Overhill Farms, Inc. at September 30, 2012 and October 2, 2011, and the results of its operations and its cash flows for each of the two years in the period ended September 30, 2012, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.
 
   
/s/ ERNST & YOUNG LLP
 
Los Angeles, California
December 18, 2012

 
OVERHILL FARMS, INC.
BALANCE SHEETS

Assets

   
September 30,
   
October 2,
 
   
2012
   
2011
 
   
 
   
 
 
Current assets:
 
 
   
 
 
Cash
  $ 1,983,715     $ 5,470,362  
Accounts receivable, net of allowance for doubtful accounts of $2,000 and $43,000 in 2012 and 2011, respectively
    15,792,557       13,700,034  
Inventories
    21,319,408       18,152,200  
Prepaid expenses and other
    1,976,025       2,013,222  
Deferred tax assets
    867,384       956,346  
Total current assets
    41,939,089       40,292,164  
                 
Property and equipment, at cost:
               
Fixtures and equipment
    26,436,536       25,981,572  
Leasehold improvements
    13,210,424       12,757,679  
Automotive equipment
    90,461       92,886  
Property and equipment
    39,737,421       38,832,137  
Less accumulated depreciation and amortization
    (28,822,369 )     (25,686,444 )
Property and equipment, net
    10,915,052       13,145,693  
                 
Other non-current assets:
               
Goodwill
    12,188,435       12,188,435  
Deferred financing costs, net of accumulated amortization of $560,000 and $489,000 at September 30, 2012 and October 2, 2011, respectively
    55,734       126,897  
Other
    1,216,912       1,556,656  
Total other non-current assets
    13,461,081       13,871,988  
                 
Total assets
  $ 66,315,222     $ 67,309,845  

The accompanying notes are an integral part
of these financial statements
 

OVERHILL FARMS, INC.
BALANCE SHEETS (continued)

Liabilities and Stockholders’ Equity
 
 
 
 
   
 
 
 
 
 
   
 
 
 
 
September 30,
   
October 2,
 
 
 
2012
   
2011
 
   
 
   
 
 
Current liabilities:
 
 
   
 
 
Accounts payable
  $ 10,204,507     $ 10,586,162  
Accrued liabilities
    4,046,715       3,820,199  
Current maturities of long-term debt
    6,742,647       -  
Total current liabilities
    20,993,869       14,406,361  
                 
Long-term accrued liabilities
    709,018       616,890  
Deferred tax liabilities
    560,576       1,001,199  
Long-term debt
    -       10,772,647  
Total liabilities
    22,263,463       26,797,097  
                 
                 
Stockholders’ equity:
               
Preferred stock, $0.01 par value, authorized 50,000,000 shares, 4.43 designated as Series A Convertible Preferred Stock, 0 shares issued and outstanding
    -       -  
Common stock, $0.01 par value, authorized 100,000,000 shares, 16,046,544 and 15,823,271 shares issued and outstanding at September 30, 2012 and October 2, 2011, respectively
    160,465       158,233  
Additional paid-in capital
    11,980,293       11,558,479  
Retained earnings
    31,911,001       28,796,036  
Total stockholders’ equity
    44,051,759       40,512,748  
                 
Total liabilities and stockholders’ equity
  $ 66,315,222     $ 67,309,845  
 
The accompanying notes are an integral part
of these financial statements
 
 
OVERHILL FARMS, INC.
STATEMENTS OF INCOME

   
For the Years Ended
 
   
September 30,
   
October 2,
 
   
2012
   
2011
 
   
( 52 weeks)
   
( 53 weeks)
 
   
 
   
 
 
Net revenues
  $ 194,389,370     $ 169,218,474  
Cost of sales
    177,342,289       156,264,764  
Gross profit
    17,047,081       12,953,710  
                 
Selling, general and administrative expenses
    11,894,203       10,352,586  
                 
Operating income
    5,152,878       2,601,124  
                 
Interest expense:
               
Interest expense
    (243,597 )     (224,866 )
Amortization of deferred financing costs
    (68,579 )     (109,704 )
Total interest expense
    (312,176 )     (334,570 )
                 
Income before income taxes
    4,840,702       2,266,554  
                 
Income taxes
    1,725,737       825,046  
                 
Net income
  $ 3,114,965     $ 1,441,508  
                 
Net income per share - basic
  $ 0.20     $ 0.09  
                 
Weighted-average shares outstanding - basic
    15,831,596       15,823,271  
                 
Net income per share - diluted
  $ 0.19     $ 0.09  
                 
Weighted-average shares outstanding - diluted
    15,994,853       16,051,058  

The accompanying notes are an integral part
of these financial statements
 
 
OVERHILL FARMS, INC.
STATEMENTS OF STOCKHOLDERS’ EQUITY
 
   
 
   
 
   
 
   
 
   
Additional
   
 
   
 
 
 
 
Preferred Stock
   
Common Stock
   
Paid-In
   
Retained
   
 
 
 
 
Shares
   
Amount
   
Shares
   
Amount
   
Capital
   
Earnings
   
Total
 
 
 
 
   
 
   
 
   
 
   
 
   
 
   
 
 
Balance, September 26, 2010
    -       -       15,823,271       158,233       11,558,479       27,354,528       39,071,240  
                                                         
Comprehensive income:
                                                       
                                                         
Net income
    -       -       -       -       -       1,441,508       1,441,508  
                                                         
Total comprehensive income
                                                    1,441,508  
                                                         
Balance, October 2, 2011
    -       -       15,823,271       158,233       11,558,479       28,796,036       40,512,748  
                                                         
Net issuance of common stock under stock compensation plans
    -       -       223,273       2,232       45,054        -       47,286  
                                                         
Tax benefit on stock option exercises      -        -       -        -       376,760        -       376,760  
                                                         
Comprehensive income:
                                                       
                                                         
Net income
    -       -       -       -       -       3,114,965       3,114,965