10-K 1 form10-kfy12.htm FORM 10-K form10-kfy12.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
———————————
FORM 10-K
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the Fiscal Year Ended: June 5, 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 1-12454
 
RUBY TUESDAY, INC.
(Exact name of registrant as specified in charter)
GEORGIA
  
63-0475239
(State or other jurisdiction of
incorporation or organization)
  
(I.R.S. Employer Identification No.)

150 West Church Avenue, Maryville, Tennessee 37801
(Address of principal executive offices and zip code)
(865) 379-5700
(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 per share
New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act:
Title of class
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 Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o
 
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of 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 the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
 
Large accelerated filer o                                                                                        Accelerated filer x
 
Non-accelerated filer o (Do not check if a smaller reporting company)         Smaller reporting company o
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o  No  x
 
The aggregate market value of the voting stock (which consists solely of shares of common stock) held by non-affiliates of the registrant as of the last day of the second fiscal quarter ended November 29, 2011 was $433,693,351 based on the closing stock price of $6.80 on November 29, 2011.
 
The number of shares of common stock outstanding as of July 31, 2012, was 64,345,652.

DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s definitive Proxy Statement for the Registrant’s 2012 Annual Meeting of Shareholders, to be filed pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, are incorporated by reference into Part III hereof.
 
 
 
 

PART II
    
     
 
     
PART III
    
     
     
PART IV
    
     
 
 
 
 
2
 
 
Special Note Regarding Forward-Looking Information
This Annual Report on Form 10-K contains various forward-looking statements, which represent our expectations or beliefs concerning future events, including one or more of the following:  future financial performance and restaurant growth (both Company-owned and franchised), future capital expenditures, future borrowings and repayments of debt, availability of financing on terms attractive to the Company, payment of dividends, stock repurchases, restaurant acquisitions, conversions of Company-owned restaurants to other dining concepts, and changes in senior management and in the Board of Directors.  We caution the reader that a number of important factors and uncertainties could, individually or in the aggregate, cause our actual results to differ materially from those included in the forward-looking statements (such statements include, but are not limited to, statements relating to cost savings that we estimate may result from any programs we implement, our estimates of future capital spending and free cash flow, and our targets for annual growth in same-restaurant sales and average annual sales per restaurant), including, without limitation, the following:

·  
general economic conditions;

·  
changes in promotional, couponing and advertising strategies;

·  
changes in our guests’ disposable income;

·  
consumer spending trends and habits;

·  
increased competition in the restaurant market;

·  
laws and regulations affecting labor and employee benefit costs, including further potential increases in state and federally mandated minimum wages, and healthcare reform;

·  
guests’ acceptance of changes in menu items;

·  
guests’ acceptance of our development prototypes, remodeled restaurants, and conversion strategy;

·  
mall-traffic trends;

·  
changes in the availability and cost of capital;

·  
weather conditions in the regions in which Company-owned and franchised restaurants are operated;

·  
costs and availability of food and beverage inventory;

·  
our ability to attract and retain qualified managers, franchisees and team members;

·  
impact of adoption of new accounting standards;

·  
impact of food-borne illnesses resulting from an outbreak at either Ruby Tuesday or other restaurant concepts;

·  
our ability to successfully integrate acquired companies;

·  
our ability to complete our planned sale-leaseback transactions;

·  
effects of actual or threatened future terrorist attacks in the United States; and

·  
significant fluctuations in energy prices.
 

 
3
 
 
Item 1. Business

Background
The first Ruby Tuesday® restaurant was opened in 1972 in Knoxville, Tennessee near the campus of the University of Tennessee. The Ruby Tuesday concept, which at the time consisted of 16 restaurants, was acquired by Morrison Restaurants Inc. (“Morrison”) in 1982. During the following years, Morrison grew the concept to over 300 restaurants  with concentrations in the Northeast, Southeast, Mid-Atlantic and Midwest regions of the United States.  In a spin-off transaction that occurred on March 9, 1996, shareholders of Morrison approved the distribution of two separate businesses of Morrison to its shareholders, Morrison Fresh Cooking, Inc. (“MFC”) and Morrison Health Care, Inc. (“MHC”). In conjunction with the spin-off, Morrison was reincorporated in the State of Georgia and changed its name to Ruby Tuesday, Inc.  Ruby Tuesday, Inc. and its wholly-owned subsidiaries are sometimes referred to herein as “RTI,” the “Company,” “we” and/or “our.”

We began our traditional franchise program in 1997 with the opening of one domestically and two internationally franchised Ruby Tuesday restaurants. The following year, we introduced a program called our “franchise partnership program,” under which we owned 1% or 50% of the equity of each of the entities that owned and operated Ruby Tuesday franchised restaurants.  During fiscal 2011, we acquired 11 of our 13 franchise partnerships, representing 106 restaurants.  The remaining two franchise partnerships closed or sold their restaurants.

We do not own any of the equity of entities that hold franchises under our traditional franchise programs. As of June 5, 2012, we had 29 Ruby Tuesday concept franchisees, comprised of 11 traditional domestic and 18 traditional international franchisees. Of these franchisees, we have signed agreements for the development of new franchised Ruby Tuesday restaurants with three traditional domestic and seven traditional international franchisees.  The seven international franchisees hold rights as of June 5, 2012 to develop Ruby Tuesday restaurants in 27 countries.

During fiscal 2011, we began converting certain underperforming Ruby Tuesday restaurants to other concepts.  To that end, we entered into a licensing agreement which allows us to operate multiple Truffles® restaurants, an upscale café concept offering a diverse menu.  Another conversion concept available to us is Marlin & Ray’s™, an internally-developed seafood concept.

Also in fiscal 2011, we entered into a licensing agreement which allows us to operate multiple Lime Fresh Mexican Grill® (“Lime Fresh”) restaurants, a fast casual Mexican concept.  We opened four Lime Fresh restaurants during fiscal 2012 under the terms of the licensing agreement.  On April 11, 2012, we completed the acquisition of Lime Fresh, including the assets of seven additional Lime Fresh concept restaurants, the royalty stream from five Lime Fresh concept franchised restaurants, and the Lime Fresh brand’s intellectual property.

Operations
We own, operate and franchise the Ruby Tuesday casual dining restaurant chain.  Our mission is to be the best in the bar and grill segment of casual dining by delivering to our guests a high-quality casual dining experience with compelling value.  While we are in the bar and grill sector because of our varied menu, we operate at the higher-end of casual dining in terms of the quality of our food and service.  As of June 5, 2012, we owned and operated 714, and franchised 79, Ruby Tuesday restaurants.  Also, as of June 5, 2012, our traditional franchisees operated 36 domestic and 43 international Ruby Tuesday restaurants.  Ruby Tuesday restaurants can now be found in 45 states, the District of Columbia, 12 foreign countries and Guam. Our Company-owned and operated restaurants are concentrated primarily in the Southeast, Northeast, Mid-Atlantic and Midwest of the United States, which we consider to be our core markets.  A listing of the states and countries in which our franchisees operate is set forth below in Item 2 entitled “Properties.”
 
We also own, operate, and in some cases, franchise the Lime Fresh fast casual restaurant chain and Marlin & Ray’s and Wok-Hay casual dining restaurant concepts.  We also operate Truffles restaurants pursuant to a license agreement.  As of June 5, 2012, there were 13 Company-owned and operated Lime Fresh restaurants, 11 Company-owned and operated Marlin & Ray’s restaurants, two Company-owned and operated Truffles restaurants, and one Company-owned and operated Wok-Hay restaurant.  In addition, there were four Lime Fresh restaurants operated by domestic
 
 
4
 
 
franchisees as of June 5, 2012.

Our Core Ruby Tuesday Concept
Ruby Tuesday restaurants serve simple, fresh, American food with a wide variety of steaks, fresh chicken, crab cakes, lobster, salmon, tilapia, fork-tender ribs, appetizers, handcrafted burgers, and more, in addition to a garden bar which offers up to 35 items and is an important point of differentiation for our brand compared to our peers.  Burger choices include such items as beef, turkey, and chicken.  Entree selections typically range in price from $6.99 to $18.99.  Where appropriate, we also offer our RubyTueGo® curbside service and a delivered-meals catering program for businesses, organizations, and group events at both Company-owned and franchised restaurants.

Over the past five years, we have made significant brand improvements in food and service quality, which we believe have elevated and differentiated the Ruby Tuesday brand from our bar and grill competitors.  Our goal is to be the best in the bar and grill segment of casual dining by delivering the ultimate “$25 dining experience for $15.”  In order to achieve this goal, our operating strategies focus on consistently executing the following:

·  
Uncompromising Freshness and Quality. Virtually every item on our menu is made with the freshest of ingredients, in line with our high-quality casual dining positioning.  Our chicken breasts are fresh, not frozen, all natural, and contain no growth hormones.  Our burgers are made from 100% choice beef and served with crisp leaf lettuce, and fresh, cold-pack pickles on an artisan bun. Our differentiated high-quality seafood menu items include lobster and crab cakes made from jumbo lump crab meat.  Our menu items include approximately 30 entrees; Fit & Trim offerings, which consist of menu items that are 700 calories or less; fresh side items, which now include fresh grilled green beans, fresh grilled zucchini, and sugar snap peas; and a Sunday brunch menu with 15 total items including French toast and omelets.  We have recently enhanced our garden bar with more variety and freshness and also recently launched our new “Chef Inspired Specials” featuring high-flavor profile entrees like Jamaican jerk shrimp, Asiago peppercorn sirloin, and Cajun jambalaya pasta.  Our freshness also applies to our appetizers, which include fresh, made-to-order guacamole.  Our beverage offerings include non-alcoholic drinks made to order from fresh berries and fresh lemon, mango, and pomegranate juices.  Our cocktails are made with premium call-brand spirits and we also offer an extensive handcrafted beer and wine selection.
 
·  
Gracious Hospitality.  We focus on our restaurant-level team through implementation of high performance standards, advanced training, and a rigorous selection process.  Our assistant managers are designated as either a guest service specialist or a culinary specialist depending upon their individual passions and skill sets, and such designation enables us to more consistently execute at high-quality casual dining levels in both food and service quality.  We have implemented smaller station sizes, increased bartender staffing levels, and added food runners to improve the dining experience.  Our service system enables our servers to focus more attention on the guests so we can provide them with hotter, fresher food at service levels comparable to those at polished casual dining service levels.
 
·  
Compelling Value.  We believe our guests perceive “value” as a combination of food quality, service, restaurant atmosphere, menu variety, and price.  However, as the economy continues to experience volatility, we believe that price has remained important to our guests.  With an average net check of approximately $12.50 to $13.00 for fiscal 2012, we believe our menu pricing provides a compelling value proposition.  In fiscal 2011, we began offering fresh-baked garlic cheese biscuits complimentary with our entrees and believe this offering further increases the overall value perception of our brand, in line with other high-quality casual dining restaurants.  Additionally, in fiscal 2012 we increased our value position by offering our fresh, endless garden bar complimentary with over 20 entrees and a starting price of $9.99, which provides compelling value to guests and is a point of differentiation for Ruby Tuesday because our competitors typically do not offer a free garden bar with the purchase of their entrees.
 
Our Other Concepts
We have begun to leverage our expertise in operating Ruby Tuesday to develop and operate other casual dining and fast-casual restaurant concepts, including:
 
Lime Fresh Mexican Grill
Lime Fresh is a fast-casual fresh Mexican concept with restaurant operations in the Eastern United States, many in the vicinity of Miami, Florida.  The Lime Fresh concept menu features organic food and diverse menu offerings such as
 
 
5
 
 
homemade tortilla chips, customizable nachos, flautas, salads, soups, fajitas, quesadillas, tacos, burritos, and salsa and guacamole.  This concept offers a unique experience by providing the speed of a fast-casual restaurant, with the service and food quality of casual dining, in a fun and energetic atmosphere for guests.
 
On September 13, 2010, we entered into a licensing agreement with LFMG International, LLC, which allowed us to operate multiple restaurants under the Lime Fresh name.  As of April 10, 2012 we had opened four Lime Fresh restaurants under the terms of our licensing agreement.  Given the knowledge gained about the Lime Fresh brand from the licensing agreement, in addition to the growth potential we believe the Lime Fresh concept affords, on April 11, 2012, we completed the acquisition of Lime Fresh, including the assets of seven additional Lime Fresh concept restaurants, the royalty stream from five Lime Fresh concept franchised restaurants (one of which opened in July 2012), and the Lime Fresh brand’s intellectual property for $24.1 million.  We believe this brand has significant growth potential given its low capital requirements and strong EBITDA margin returns.  As of June 5, 2012, we owned and operated 13 Lime Fresh restaurants, and our domestic franchisees operated four Lime Fresh restaurants.  We tentatively have plans to add 12 to 16 Lime Fresh locations in fiscal 2013, subject to our ability to locate suitable inline sites for development.
 
Marlin & Ray’s
Marlin & Ray’s is our internally developed seafood concept that leverages our knowledge of seafood given our guests’ preference for seafood at our Ruby Tuesday restaurant concepts.  We developed Marlin & Ray’s to fill a void for seafood that we perceived in the polished-casual sector.  The concept offers a diverse menu featuring lobster, crab, tilapia, salmon, mahi-mahi, shrimp, scallops, trout, and other fish and seafood choices.  As of June 5, 2012, our 11 Marlin & Ray’s restaurants have been conversions of certain underperforming Ruby Tuesday concept restaurants where we believe the respective markets could support a seafood concept.  We view this concept as a strong complement to the Ruby Tuesday brand as it is a natural fit given our execution experience and existing supply chain. We are currently evaluating opportunities to open Marlin & Ray’s concept restaurants in new locations that were not previously Ruby Tuesday concept restaurants.
 
Truffles and Wok-Hay
We also operate Truffles restaurants pursuant to a license agreement and own, operate and franchise the Wok-Hay casual dining concept.  Truffles is an upscale full-service grill that offers a diverse menu featuring soups, salads, and sandwiches, a signature chicken pot pie, house-breaded fried shrimp, pasta, ribs, steaks, and a variety of desserts.  As of June 5, 2012, we owned and operated two Truffles restaurants.   Additionally, as of June 5, 2012, we owned and operated one Wok-Hay restaurant, which is a full service Asian concept.  While these brands will continue to remain part of our overall portfolio, we currently have no plans for any material growth of either brand, with the exception of potential international franchise opportunities, given our focus over the next several years on stabilizing and growing Ruby Tuesday’s same-restaurant sales, growing the Lime Fresh brand in the Eastern United States, and converting underperforming Ruby Tuesday restaurants to the Marlin & Ray’s concept.
 
Franchising
As previously noted, as of June 5, 2012, we had franchise arrangements with 29 franchise groups which operate Ruby Tuesday restaurants in 14 states, Guam, and in 12 foreign countries.

As of June 5, 2012, there were 79 Ruby Tuesday franchise restaurants which were all operated by our traditional and international franchisees.  As further discussed in Note 3 to the Consolidated Financial Statements, we acquired 106 restaurants from franchise partnerships during fiscal 2011 and three restaurants from a traditional domestic franchisee.  As of May 31, 2011, all of our franchise partnerships had been acquired by the Company or had ceased operations.  Franchisees opened six Ruby Tuesday restaurants in fiscal 2012, seven Ruby Tuesday restaurants in fiscal 2011, and six Ruby Tuesday restaurants in fiscal 2010.  We anticipate that our remaining franchisees will open approximately 11 to 13 Ruby Tuesday restaurants in fiscal 2013.
 
Generally, Ruby Tuesday concept franchise arrangements consist of a development agreement and a separate franchise agreement for each restaurant.  Under a development agreement, a franchisee is granted the exclusive right, and undertakes the obligation, to develop multiple restaurants within a specifically-described geographic territory.  The term of a domestic franchise agreement is generally 15 years, with two five-year renewal options.

For each restaurant developed under a domestic development agreement, a franchisee is currently obligated to pay a development fee of $10,000 per restaurant (at the time of signing a development agreement), an initial franchise fee
 
 

 
6
 
 
(which typically is $35,000 for domestic franchisees), and a royalty fee equal to 4.0% of the restaurant’s monthly gross sales, as defined in the franchise agreement.  Development and operating fees for international franchise restaurants vary.

Additionally, we offer support service agreements for domestic franchisees.  Under the support services agreements, we have one level of support in which we provide specified services to assist the franchisees with various aspects of the business including, but not limited to, processing of payroll, basic bookkeeping and cash management.  Fees for these services are typically contracted to be about 1.5% of revenues, as defined in the franchise agreement.  There is also a required level of support services in which we charge a fee to cover certain information technology related support that we provide.  All domestic franchisees also are required to pay a marketing and purchasing fee of 1.5% of monthly gross sales.  At times of economic downturn, we have occasionally chosen to temporarily lower these fees.  Under the terms of the franchise agreements, we also require all domestic franchisees to contribute a percentage of monthly gross sales, currently 2.25%, to a national advertising fund formed to cover their pro rata portion of the costs associated with our national advertising campaign.  Under these terms, we can charge up to 3.0% of monthly gross sales for this national advertising fund.

We provide ongoing training and assistance to our franchisees in connection with the operation and management of each restaurant through our training facility, meetings, on-premises visits, computer-based training (“CBT”), and by written or other material.

As of June 5, 2012, we also had franchise arrangements with three franchise groups which operate four Lime Fresh restaurants in Florida.  In general, Lime Fresh franchisees are currently obligated to pay an initial franchise fee of $30,000, an initial marketing fee of $10,000, and a royalty fee equal to 5.25% of the restaurant’s monthly gross sales, as defined in the franchise agreement.  There is also a required level of support services in which we charge a fee to cover certain information technology related support that we provide.  Under the terms of the franchise agreements, we also require domestic franchisees to contribute a percentage of monthly gross sales, currently 1.5%, to a national advertising fund formed to cover their pro rata portion of the costs associated with our national advertising campaign.  Under these terms, we can charge up to 3.0% of monthly gross sales for this national advertising fund.

Training
The Ruby Tuesday Center for Leadership Excellence, located in our Maryville, Tennessee Restaurant Support Services Center, serves as the centralized training center for all of our managers, multi-restaurant operators and other team members.  Facilities include classrooms, a test kitchen, and the Ruby Tuesday Culinary Arts Center.  The Ruby Tuesday Center for Leadership Excellence provides managers with the opportunity to assemble for intensive, ongoing instruction and hands-on interaction through our training sessions.  Programs include classroom instruction and various team building activities and competitions, which are designed to contribute to the skill and enhance the dedication of the Company and franchise teams in addition to strengthening our corporate culture.  In addition to the centralized training at the Ruby Tuesday Center for Leadership Excellence, we periodically conduct field training classes.  These field training classes have been held for bartenders, managers, and general managers.  The field classes partnered the training team along with operational leadership to provide direct training and development in order to reach a large audience faster, and make an immediate impact on our team.

We offer team member training materials for all concepts in several formats to promote better learning.  Our materials are produced in a CBT format as well as in written, video and verbal formats.  CBT enables us to leverage technology to provide an even higher quality interactive training experience and allows for testing at every level to calibrate our team members’ skill levels and promotes self-paced, ongoing development.  All results are captured in a personal transcript for all team members so that we can accurately track their training and development throughout their careers. 
 
Further contributing to the training experience is the Ruby Tuesday LodgeSM, which is located on a wooded campus just minutes from the Restaurant Support Services Center.  The Ruby Tuesday Lodge serves as the lodging quarters and dining facility for those attending the Ruby Tuesday Center for Leadership Excellence.  After a day of instruction, trainees have the opportunity to dine and socialize with fellow team members in a relaxed and tranquil atmosphere where they are fully immersed in our culture.  The Ruby Tuesday Lodge serves as a model of Uncompromising Freshness and Quality and Gracious Hospitality for our managers while they are guests of the Ruby Tuesday Lodge so that they can take that same standard back to their restaurants.  We believe our emphasis on training and retaining high
 
 
 
7
 
 
quality restaurant managers is critical to our long-term success and we are committed to the ongoing development of our team members.
 
Research and Development
We do not engage in any material research and development activities. However, we do engage in ongoing studies to assist with food and menu development. Additionally, we conduct extensive consumer research to determine our guests’ preferences, trends, and opinions, as well as to better understand other competitive brands.

Raw Materials
We negotiate directly with our suppliers for the purchase of raw and processed materials and maintain contracts with select suppliers for both our Company-owned and franchised restaurants.  These contracts may include negotiations for distribution of raw materials under a cost plus delivery fee basis and/or specifications that maintain a term-based contract with a renewal option. If any major supplier or distributor is unable to meet our supply needs, we would negotiate and enter into agreements with alternative providers to supply or distribute products to our restaurants.

We use purchase commitment contracts to stabilize the potentially volatile prices of certain commodities. Because of the relatively short storage life of inventories, limited storage facilities at the restaurants, our requirement for fresh products and the numerous sources of goods, a minimum amount of inventory is maintained at our restaurants. In the event of a disruption of supply, all essential food, beverage and operational products can be obtained from secondary vendors and alternative suppliers.   We believe these alternative suppliers can provide, upon short notice, items of comparable quality.

Beginning in fiscal 2010, we have purchased lobster in advance of our needs and stored it in third-party facilities prior to our distributor taking possession of the inventory.  Once the lobster is moved to our distributor’s facilities, we transfer ownership to the distributor.  We later reacquire the inventory from our distributor upon its subsequent delivery to our restaurants.

Trade and Service Marks of the Company
We and our affiliates have registered certain trade and service marks with the United States Patent and Trademark Office, including the name “Ruby Tuesday.”  RTI holds a license to use all such trade and service marks from our affiliates, including the right to sub-license the related trade and service marks.  We believe that these and other related marks are of material importance to our business.  Registration of the Ruby Tuesday trademark expires in our 2015 fiscal year, unless renewed.  We expect to renew this registration at the appropriate time.

Seasonality
Our business is moderately seasonal.  Average restaurant sales of our mall-based restaurants, which represent approximately 18% of our total restaurants as of June 5, 2012, are slightly higher during the winter holiday season.  Freestanding restaurant sales are generally higher in the spring and summer months.

Competition
Our business is subject to intense competition with respect to prices, services, locations, employees, and the types and quality of food. We are in competition with other food service operations, with locally-owned restaurants, and other national and regional restaurant chains that offer the same or similar types of services and products as we do.  In times of economic uncertainty, restaurants also compete with grocery retailers as guests may choose to limit spending and eat at home.  Some of our competitors may be more established in the markets where our restaurants are or may be located. Changes in consumer tastes, national, regional or local economic conditions, demographic trends, traffic patterns, and the types, numbers and locations of competing restaurants often affect the restaurant business. There is active competition for personnel and for attractive commercial real estate sites suitable for restaurants.
 
Government Regulation
We and our franchisees are subject to various licensing requirements and regulations at both the state and local levels, related to zoning, land use, sanitation, alcoholic beverage control, and health and fire safety. We have not encountered significant difficulties or failures in obtaining the required licenses or approvals that could delay the opening of a new restaurant or the operation of an existing restaurant nor do we presently anticipate the occurrence of any such difficulties in the future. Our business is subject to various other regulations by federal, state and local governments,
 
8
 
 
such as compliance with various health care, minimum wage, immigration, and fair labor standards. Compliance with these regulations has not had, and is not expected to have, a material adverse effect on our operations.
 
We are subject to a variety of federal, state, and international laws governing franchise sales and the franchise relationship.  In general, these laws and regulations impose certain disclosure and registration requirements prior to the offer and sale of franchises.  Rulings of several state and federal courts and existing or proposed federal and state laws demonstrate a trend toward increased protection of the rights and interests of franchisees against franchisors.  Such decisions and laws may limit the ability of franchisors to enforce certain provisions of franchise agreements or to alter or terminate franchise agreements.  Due to the scope of our business and the complexity of franchise regulations, we may encounter minor compliance issues from time to time.  We do not believe, however, that any of these issues will have a material adverse effect on our business.

Environmental Compliance
Compliance with federal, state and local laws and regulations that have been enacted or adopted regulating the discharge of materials into the environment, or otherwise relating to the protection of the environment, has not had, and is not expected to have a material effect on our capital expenditures, earnings or competitive position.

Personnel
As of June 5, 2012, we employed approximately 16,800 full-time and 19,500 part-time employees, including 381 support center management and staff personnel.  We believe that our employee relations are good and that working conditions and employee compensation are comparable with our major competitors. Our employees are not covered by a collective bargaining agreement.

Available Information
We maintain a web site at www.rubytuesday.com.  Through the “Investors” section of our web site, we make available free of charge, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports, as soon as it is reasonably practicable after such material is electronically filed with or furnished to the Securities and Exchange Commission.  We are not including the information contained on or available through our web site as a part of, or incorporating such information into, this Annual Report on Form 10-K.  In addition, copies of our corporate governance materials, including Corporate Governance Guidelines, Nominating and Governance Committee Charter, Audit Committee Charter, Executive Compensation and Human Resources Committee Charter, Code of Business Conduct and Ethics, Code of Ethical Conduct for Financial Professionals, Categorical Standards for Director Independence, and Whistleblower Policy, are available on the web site, free of charge.  We will make available on our web site any waiver of or substantive amendment to our Code of Business Conduct and Ethics or our Code of Ethical Conduct for Financial Professionals within four business days following the date of such waiver or amendment.

A copy of the aforementioned documents will be made available without charge to all shareholders upon written request to the Company. Shareholders are encouraged to direct such requests to our Investor Relations department at the Restaurant Support Services Center, 150 West Church Avenue, Maryville, Tennessee 37801.  As an alternative, our Form 10-K can also be printed from the “Investors” section of our web site at www.rubytuesday.com.

 
9
 
 
Executive Officers
Our executive officers are appointed by and serve at the discretion of our Board of Directors. Information regarding our executive officers as of August 1, 2012, is provided below.  On June 6, 2012, the Company announced that Samuel E. Beall, III will be stepping down from management and the Board of Directors once the Company names a successor.  The Board of Directors has formed a committee to find his successor.

Name
Age
Position
     
Samuel E. Beall, III
62
Chairman of the Board, Chief Executive Officer and President
Kimberly M. Grant
41
Executive Vice President, Chief Operations Officer
Michael O. Moore
62
Executive Vice President - Chief Financial Officer, Treasurer and Assistant Secretary
Daniel P. Dillon, Jr.
47
Executive Vice President, Chief Branding Officer
Robert F. LeBoeuf
50
Senior Vice President, Chief People Officer
Scarlett May
46
Senior Vice President, Chief Legal Officer and Secretary
Mark D. Young
45
Senior Vice President, Chief Marketing Officer

Mr. Beall has served as Chairman of the Board and Chief Executive Officer of the Company since May 1995 and also as President of the Company since July 2004.  Mr. Beall served as President and Chief Executive Officer of the Company from June 1992 to May 1995 and President and Chief Operating Officer of the Company from September 1986 to June 1992.  Mr. Beall founded Ruby Tuesday in 1972.  On June 6, 2012, the Company announced that Samuel E. Beall, III will be stepping down from management and the Board of Directors once the Company names a successor.

Ms. Grant joined the Company in June 1992 and was named Executive Vice President in April 2007.  From January 2005 to April 2007, Ms. Grant served as Senior Vice President, Operations, from September 2003 to January 2005, as Vice President, Operations, from June 2002 to September 2003, as Regional Partner, Operations, and served in various other positions from June 1992 until June 2002.

Mr. Moore joined the Company in April 2012 as Executive Vice President and Chief Financial Officer.  Prior to joining the Company, Mr. Moore was employed with Sun Capital Partners as Executive Vice President and Chief Financial Officer of Pamida Stores from February 2009 to March 2012 and as Interim Chief Financial Officer of Kellwood, Inc. from November 2008 to February 2009.  Prior to his tenure with Sun Capital Partners, Mr. Moore served as Executive Vice President and Chief Financial Officer of Advanced Auto Parts from December 2005 to February 2008.  Additionally, prior to December 2005, among other positions, Mr. Moore served as Executive Vice President and Chief Financial Officer of The Cato Corporation and as Senior Vice President and Chief Financial Officer of Bloomingdales.
 
Mr. Dillon joined the Company in July 2010 as Senior Vice President, Brand Development.  Prior to joining the Company, Mr. Dillon was Chief Marketing Officer of the Outback Steakhouse chain of restaurants at OSI Restaurant Partners from January 2008 to July 2010 and Senior Vice President of Portfolio Strategy for the Coca-Cola Company from February 2004 to December 2007.

Mr. LeBoeuf joined the Company in July 1986 and was named Senior Vice President, Chief People Officer in June 2003. From August 2001 to June 2003, Mr. LeBoeuf served as Vice President, Human Resources and from July 1986 until August 2001, he held various other positions within the Company.

Ms. May joined the Company in July 2000 and was named Senior Vice President, Chief Legal Officer in June 2012.  From August 2004 to June 2012, Ms. May served as Vice President, General Counsel and Secretary and from February 2004 to August 2004 as Vice President and Assistant General Counsel – Relations and Response.

Mr. Young joined the Company in January 1995 and was named Senior Vice President, Chief Marketing Officer in June 2007.  From October 2003 to June 2007, Mr. Young served as Vice President, Advertising, from August 1998 to September 2003 as Vice President, Marketing and Culinary, and from January 1995 to August 1998, in various other positions within the Company.  

 
10
 
 

Our business and operations are subject to a number of risks and uncertainties.  Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business operations.  If any of those risks actually occurs, our business, financial condition and results of operations would suffer.  The risks discussed below also include forward-looking statements and our actual results may differ substantially from those discussed in these forward-looking statements.  See “Special Note Regarding Forward-Looking Statements” in this Annual Report on Form 10-K.

We may be unsuccessful in our television marketing efforts, which may negatively impact our continued financial and operational success.

Our marketing strategy for the last several fiscal years has focused mainly on print promotions, digital media, and local marketing programs, with minimal spend on television.  In fiscal 2012 we began testing television marketing in our markets with anywhere from 20% to 100% of our restaurants covered by television advertising leveraging a mixture of network and national cable at varying media weights.  Based on favorable trends exhibited by our test markets in fiscal 2012, at the start of fiscal 2013 we deployed a television marketing program which will cover the entire system of restaurants for a portion of each quarter, with the remaining portion of the quarter to be supplemented by higher-end direct mail and other promotions.  We believe that having television advertising expense levels more in line with our peers in tandem with a more balanced approach on our promotional strategies will position us for improvements in same-restaurant sales in the future through driving repeat and new trial of our brand, in addition to enhancing our brand visibility.  Additionally, in order to fund the incremental television advertising efforts at no dilution to the overall profitability or cash flow of the company, we engaged a leading enterprise improvement consulting firm in fiscal 2012 to assist us in identifying savings opportunities in a number of key areas including procurement, occupancy, and maintenance costs.  These savings have been identified and implemented, and plans are for the majority of them to be reinvested into our television marketing programs.

While we believe that we have a good comprehensive marketing program in place to grow our same-restaurant sales in addition to a way to pay for this increased television spending through our cost savings initiatives, we can make no assurances regarding whether or not we will be successful in these efforts.  Although we believe a long-term strategy focused on a more balanced approach to television spending and promotional spending is the right approach, we are entering the television marketing space and competing against industry peers who have a longer and more established track record of promoting their brands on television, in addition to larger overall marketing budgets, thus potentially putting us at a competitive disadvantage.  If our competitors should increase their spending levels of advertising or promotions in reaction to our increased television marketing efforts or due to their increased need to drive trial of their brands in this continued slow economic environment, our advertising and promotional activities could potentially become less effective than those of our competitors and we could experience significant declines in sales, profitability, and overall brand relevance.

We may be unsuccessful in our strategies to grow revenue through new unit openings of our Lime Fresh fast casual brand or through converting existing Ruby Tuesday restaurants to our Marlin & Ray’s value-oriented seafood concept, since neither concept has proven its long-term viability or growth potential.
 
Although we did not open any Company-owned Ruby Tuesday concept restaurants during the past three fiscal years, we do have a strategic plan to grow revenue through new concept unit growth in the future.  As part of our strategy to reach our growth goals, in fiscal 2012 we acquired Lime Fresh which represented seven company-owned restaurants and four franchised restaurants.  Our growth plans include the opening of new Lime Fresh restaurants, and we tentatively plan to add 12 to 16 Lime Fresh locations in fiscal 2013.  Additionally, as part of our strategy to get more sales and cash flow out of our existing assets, in particular in our hypercompetitive markets, our plans for fiscal 2013 include continuing to test whether we can successfully grow sales and cash flows by converting certain existing Ruby Tuesday restaurants into our internally-developed seafood concept, Marlin & Ray’s.  Our growth plans include converting five to seven Company-owned Ruby Tuesday restaurants to Marlin & Ray’s in fiscal 2013, in addition to opening one newly-constructed Marlin & Ray’s restaurant.

While we believe the Lime Fresh fast casual brand and Marlin & Ray’s value-oriented seafood conversion brand both have significant potential given their low capital requirements and strong EBITDA margin potential, there are no
 
 
11
 
 
assurances that we will be able to successfully and profitably grow either of these concepts.  There is an enhanced level of risk and uncertainty related to the operation and expansion of both of these newer brands as they are less-established than our anchor Ruby Tuesday brand.  Though believed to be a smaller risk than not achieving growth through increased same-restaurant sales, there are risks associated with restaurant openings and conversions, including but not limited to the following:  the identification and availability of suitable and econonomically-viable locations, the negotiation of acceptable lease or purchase terms for new locations, the selection of sites that will support a profitable level of sales and generate returns on investment that exceed our cost of capital, the acceptance of our concepts in new markets, the ability to obtain all required governmental permits in a timely manner, and our ability to recruit, train, and retain qualified management and operating personnel.  If we are unable to successfully manage these risks, we could face increased costs and lower-than-anticipated sales, earnings, and returns on investment in future periods.

We made substantial investments in the development and expansion of both of these brands, including the acquisition of Lime Fresh in fiscal 2012, and additional investments may be required in order for us to refine and expand the concepts in fiscal 2013 and beyond.  We can provide no assurance that these investments will be successful or that additional new restaurant growth or restaurant conversions will be accepted in the markets targeted for either concept.  Once opened, we anticipate new restaurants will take four to six months to reach planned operational profitability due to the associated start-up costs.  Both of these concepts are in the early stages of lifecycle development and both brands will continue to be subject to the risks and uncertainties that accompany any emerging restaurant brand or format, in particular ones being developed and deployed in this current difficult economic environment.

We may not be successful at operating profitable restaurants.

The success of our Ruby Tuesday brand and, to a lesser extent, the success of our conversion and growth brands, is dependent upon operating profitable restaurants.  The profitability of our restaurants is dependent on several factors, including the following:

·  
the ability to timely and effectively meet customer demands and maintain our strong customer base;
·  
the hiring, training, and retention of excellent restaurant managers and staff;
·  
the ability to manage costs and prudently allocate capital resources;
·  
the ability to achieve projected cost savings in a number of key areas, including procurement, occupancy, and maintenance costs;
·  
the ability to create and implement an effective marketing/advertising strategy;
·  
the ability to leverage sales following the completion of our conversions or the opening of new restaurants; and
·  
the ability to provide menu items with strong customer preference at attractive prices.
 
As previously mentioned, during fiscal 2011, we acquired 109 restaurants from certain of our franchisees.  In addition, on April 11, 2012, we closed on our acquisition of Lime Fresh.  Assumptions were made at the times of acquisition as to how we might best increase the revenues generated by these restaurants and, as a result of a realization of operational and financial synergies, our own cash flow.

Unfortunately, there can be no assurance that the franchise restaurant or Lime Fresh acquisitions will result in the realization of the full anticipated benefits.   For example, we may experience increased competition that limits our ability to expand these businesses and may not be able to capitalize on expected business opportunities if general industry and business conditions deteriorate.  Because much of our acquired franchise debt contains significant prepayment penalties, we may further find it difficult to replace the acquired franchise debt with similar loans with more favorable terms.  Achieving the anticipated benefits of the acquisitions is subject to a number of uncertainties and other factors.  If these factors limit our ability to achieve the full anticipated benefits of the acquisitions, our expectations of future results of operations, including the synergies expected to result from the acquisitions, may not be met. If such difficulties are encountered or if such synergies, business opportunities and growth prospects are not realized, our business, financial condition and results of operations could be adversely affected.

 
12
 
 
The profitability of our restaurants also depends on our ability to adapt our brand in such a way that consumers see us as fresh and relevant.  In addition, the current performance of our restaurants may not be indicative of their long-term performance, as factors affecting their success may change.   We can provide no assurance that any restaurant we open will be profitable or obtain operating results similar to those of our existing restaurants nor can we provide assurance that our conversion efforts will produce incremental sales sufficient to offset the costs of the conversions.

General economic conditions could adversely affect our business, results of operations, liquidity and capital resources.

Our business is dependent to a significant extent on national, regional and local economic conditions, particularly those that affect our guests that frequently patronize our restaurants.  In particular, where our customers’ disposable income available for discretionary spending is reduced (such as by job losses, credit constraints and higher housing, taxes, energy, interest or other costs) or where the perceived wealth of customers has decreased (because of circumstances such as lower residential real estate values, increased foreclosure rates, increased tax rates or other economic disruptions), our business could experience lower sales and customer traffic as potential customers choose lower-cost alternatives or choose alternatives to dining out.  Any resulting decreases in customer traffic or average value per transaction could negatively impact our financial performance, as reduced revenues may result in downward pressure on margins.  These factors could reduce our Company-owned restaurants’ gross sales and profitability.  These factors could also reduce gross sales of franchised restaurants, resulting in lower royalty payments from franchisees, and reduce profitability of franchise restaurants, potentially impacting the ability of franchisees to make royalty payments as they become due.  Reduction in cash flows from either Company-owned or franchised restaurants could have a material adverse effect on our liquidity and capital resources.

The potential for increases in key food products, energy, and other costs may adversely affect our results of operations.

We continually purchase food products such as beef, chicken, seafood, cheese and other items for use in many of the products we sell.  Although we attempt to maintain control of food costs by engaging in volume commitments with third parties for many of our food-related supplies, we cannot assure that the costs of these products will not fluctuate, as we often have no control over such items.  In addition, we rely on third-party distribution companies to frequently deliver perishable food and supplies to our restaurants.  We cannot make assurances regarding the continued supply of our inventory since we do not have control over the businesses of our suppliers.  Should our inventories lack in supply, our business could suffer, as we may be unable to meet customer demands.  These disruptions may also force us to purchase food supplies from suppliers at higher costs.  The result of this is that our operating costs may increase without the desire and/or ability to pass the price increases to our customers.

We must purchase energy-related products such as electricity, oil and natural gas for use in each of our restaurants.  Our suppliers must purchase gasoline in order to transport food and supplies to us.  Our guests purchase energy to heat and cool their homes and fuel their automobiles.  When energy prices, such as those for gasoline, heating and cooling increase, we incur greater costs to operate our restaurants.  Likewise our guests have lower disposable income and thus may reduce the frequency in which they dine out and/or feel compelled to choose more inexpensive restaurants when eating outside the home.

The costs of these energy-related items will fluctuate due to factors that may not be predictable, such as the economy, current political/international relations and weather conditions.  Because we cannot control these types of factors, there is a risk that prices of energy items will increase beyond our current projections and adversely affect our operations.

We may be required to recognize additional impairment charges.

We assess our goodwill, trademarks and other long-lived assets as and when required by generally accepted accounting principles in the United States to determine whether they are impaired.  An impairment charge is required when the carrying value of the asset exceeds the estimated fair value or undiscounted future cash flows of the asset.  Certain of our long-lived assets, including amounts included within the Property and equipment, net, Goodwill, and Other assets, net captions of our Consolidated Balance Sheets, were recorded at estimated fair value on the dates of acquisition.  Should future cash flows not support those estimated values, impairment charges will occur.

 
13
 
 
As discussed further in Note 8 to our Consolidated Financial Statements, during the third quarter of fiscal 2012 we decided to close 25 to 27 underperforming Company-owned Ruby Tuesday restaurants, 23 of which were closed in our fourth quarter and one since.  Accordingly, during fiscal 2012 we recorded property impairment charges of $13.6 million, which included $9.7 million related to impairments associated with the decision to close the 25 to 27 restaurants.

In early August 2011, the closing price of our common stock fell below our net book value per share and, with few exceptions, has remained there since.  As discussed further in Note 8 to our Consolidated Financial Statements, given our lowered stock price, declines in same-restaurant sales, and the overall economic conditions and challenging environment for the restaurant industry, we concluded during the fourth quarter of fiscal 2012 that our goodwill associated with the Ruby Tuesday concept was impaired and recorded a non-cash charge of $16.9 million ($12.0 million, net of tax).

If market conditions deteriorate at either the restaurant store level or system-wide, or if operating results decline further, we may be required to record impairment charges.

Our substantial indebtedness could adversely affect our financial condition.

The amount of debt we carry, while believed by us to be prudent based upon our financial strategy, is significant.  As of June 5, 2012, we owed $326.7 million of outstanding indebtedness, including $80.1 million of mortgage indebtedness.  Our substantial indebtedness could have any or all of the following consequences:
 
·  
it may limit our ability to borrow money or sell stock to fund our working capital, capital expenditures and debt service requirements;
·  
it may limit our flexibility in planning for, or reacting to, changes in our business;
·  
we may be more highly leveraged than some of our competitors, which may place us at a competitive disadvantage;
·  
it may make us more vulnerable to a downturn in our business or the economy;
·  
a substantial portion of our cash flow from operations could be dedicated to the repayment of our indebtedness and would
not be available for other purposes; and
·  
there would be a material adverse effect on our business and financial condition if we were unable to service our indebtedness or obtain additional financing, as needed.
 
In addition, the indenture governing our notes and our revolving credit facility contain financial and restrictive covenants that will limit our ability to engage in activities that may be in our long-term best interests.  If we were to violate any of our financial or other covenants in the future and either agreements cannot be reached with our creditors or agreements are reached but we do not comply with the revised covenants, our creditors could exercise their rights under the indebtedness, including requiring immediate repayment of all borrowings, which could have a material adverse effect on us.  Moreover, if any agreements were reached with our creditors, they might require us to pay incremental fees and/or higher interest rates.

Our debt agreements contain restrictions that limit our flexibility in operating our business.

The indenture governing our notes and the agreement governing our revolving credit facility contain various covenants that limit our ability to engage in specified types of transactions. These covenants limit our ability to, among other things:

·  
incur or guarantee additional indebtedness;
·  
declare or pay dividends, redeem stock or make other distributions to stockholders;
·  
make certain investments;
·  
create liens or use assets as security in other transactions;
·  
merge or consolidate, or sell, transfer, lease or dispose of substantially all of our assets;
·  
enter into transactions with affiliates; and
 
 
14
 
 
· 
sell or transfer certain assets.

Additionally, the agreement governing our revolving credit facility requires us to maintain certain financial ratios. A breach of any of these covenants could result in a default under the indenture and the revolving credit facility. We may also be unable to take advantage of business opportunities that arise because of the limitations imposed on us by the restrictive covenants under our indebtedness.

Food safety and food-borne and pandemic illness concerns could adversely affect consumer confidence in our restaurants.

We face food safety issues that are common to the food industry.  We work to provide a clean, safe environment for both our guests and employees.  Otherwise, we risk endangering the health and safety of our guests and employees or losing guests and/or employees due to unfavorable publicity and/or a lack of confidence in our ability to provide a safe dining and/or work experience.

Food-borne illnesses, such as E. coli, hepatitis A, trichinosis, or salmonella, are also a concern for our industry.  We attempt to purchase food from reputable suppliers/distributors and have certain procedures in place to ensure safety and quality standards, but we can make no assurances regarding whether these supplies may contain contaminated goods.

In addition, we cannot ensure the continued health of each of our employees.  We provide health-related training for each of our staff and strive to keep ill employees away from other employees, guests, and food items.  However, we may not be able to detect when our employees are sick until the time that their symptoms occur, which may be too late if they have prepared/served food for our guests.  The occurrence of an outbreak of a food-borne illness, whether at one of our restaurants or one of our competitors, could result in temporary store closings or other negative publicity that could adversely affect our sales and profitability. 

We could be adversely impacted if our information technology and computer systems do not perform properly or if we fail to protect the integrity of confidential data.

We rely heavily on information technology to conduct our business, and any material failure, interruption of service, or compromised data security could adversely affect our operations.  While we expend significant resources to ensure that our information technology operates securely and effectively, any security breaches could result in disruptions to operations or unauthorized disclosure of confidential information.  Additionally, if our customers’ credit card or other personal information or our employees’ personal data are compromised our operations could be adversely affected, our reputation could be harmed, and we could be subjected to litigation or the imposition of penalties.

Our inability or failure to execute on a comprehensive business continuity plan following a major natural or manmade disaster, including terrorism, at our corporate facility could materially adversely impact our business and our financial performance.

Our corporate systems and processes and corporate support for our restaurant operations are centralized at our data center located at our Restaurant Support Services Center and two other buildings in Maryville, Tennessee.  In addition, our data center’s systems are replicated daily at a disaster recovery site located in another state.  We have procedures in place for business continuity to address most critical events, including back up and off-site locations for storage and recovery of electronic and other forms of data and information.  However, if we are unable to fully execute our disaster recovery procedures, we may experience delays in recovery and losses of data, inability to perform vital corporate functions, tardiness in required reporting and compliance, failures to adequately support field operations and other breakdowns in normal operating procedures that could have a material adverse effect on our financial performance and exposure to administrative and other legal claims.

The cost of compliance with various government regulations may negatively affect our business.

We are subject to various forms of governmental regulations.  We are required to follow various international, federal, state, and local laws common to the food industry, including regulations relating to food and workplace safety, sanitation, the sale of alcoholic beverages, environmental issues, minimum wage, overtime, health care, increasing

 
15
 

complexity in immigration laws and regulations, and other labor issues.  Further changes in these types of laws, including additional state or federal government-imposed increases in minimum wages, overtime pay, paid leaves of absence and mandated health benefits, or a reduction in the number of states that allow tips to be credited toward minimum wage requirements, could harm our operating results.  Also, failure to obtain or maintain the necessary licenses and permits needed to operate our restaurants could result in an inability to open new restaurants or force us to close existing restaurants.

The federal healthcare reform legislation that became law in March 2010 (known as the Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010 (“PPACA”)) mandates menu labeling of certain nutritional aspects of restaurant menu items such as caloric, sugar, sodium, and fat content.  Altering our recipes in response to such legislation could increase our costs and/or change the flavor profile of our menu offerings which could have an adverse impact on our results of operations.  Additionally, if our customers perceive our menu items to contain unhealthy caloric, sugar, sodium, or fat content, our results of operations could be further adversely affected.

Additionally, minimum employee health care coverage mandated by state or federal legislation, such as the PPACA, could significantly increase our employee health benefit costs or result in us altering the benefits we provide to our employees.  While we are assessing the potential impact the PPACA will have on our business, certain of the mandates in the legislation are not yet effective.  If our employee health benefit costs increase, we cannot provide assurance that we will be able to offset these costs through an increase in our menu prices, which could have an adverse effect on our results of operations and financial condition.

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

Approximately 11% of our revenue for fiscal 2012 is attributable to the sale of alcoholic beverages.  We are required to comply with the alcohol-licensing requirements of the federal government, states and municipalities where our restaurants are located.  Alcoholic beverage control regulations require applications to state authorities and, in certain locations, county and municipal authorities for a license and permit to sell alcoholic beverages on the premises and to provide service for extended hours and on Sundays.  Typically, the licenses are renewed annually and may be revoked or suspended for cause at any time.  Alcoholic beverage control regulations relate to numerous aspects of the daily operations of the restaurants, including minimum age of guests and employees, hours of operation, advertising, wholesale purchasing, inventory control and handling, storage and dispensing of alcoholic beverages.  If we fail to comply with federal, state or local regulations, our licenses may be revoked and we may be forced to terminate the sale of alcoholic beverages at one or more of our restaurants.

As a publicly traded corporation, we are subject to various rules and regulations as mandated by the Securities and Exchange Commission and the New York Stock Exchange.  Failure to timely comply with these guidelines could result in penalties and/or adverse reactions by our shareholders.

Economic, demographic and other changes, seasonal fluctuations, natural disasters, and terrorism could adversely impact guest traffic and profitability in our restaurants.

Our business can be negatively impacted by many factors, including those which affect the restaurant only at the local level as well as others which attract national or international attention.   Risks that could cause us to suffer losses include, but are not necessarily limited to, the following:

·  
economic factors (including economic slowdowns or other inflation-related issues);
·  
demographic changes, particularly with regard to dining and discretionary spending habits, in the areas in which our restaurants are located;
·  
changes in consumer preferences;
·  
changes in federal or state income tax laws;
 
 
 
16
 
 
·  
seasonal fluctuations due to the days of the week on which holidays occur, which may impact spending patterns;
·  
natural disasters such as hurricanes, tornados, blizzards, floods, or other severe weather;
·  
effects of war or terrorist activities and any governmental responses thereto; and
·  
increased insurance and/or self-insurance costs.

Each of the above items could potentially negatively impact our guest traffic and/or our profitability.

We face continually increasing competition in the restaurant industry for guests, staff, locations, supplies, and new products.

Our business is subject to intense competition with respect to prices, services, locations, qualified management personnel and quality of food.  We compete with other food service operations, with locally-owned restaurants, and with other national and regional restaurant chains that offer the same or similar types of services and products.  Some of our competitors may be better established in the markets where our restaurants are or may be located.  Changes in consumer tastes; national, regional, or local economic conditions; demographic trends; traffic patterns and the types, numbers and locations of competing restaurants often affect the restaurant business.  There is active competition for management personnel and for attractive commercial real estate sites suitable for restaurants.  In addition, factors such as inflation, increased food, labor, equipment, fixture and benefit costs, and difficulty in attracting qualified management and hourly employees may adversely affect the restaurant industry in general and our restaurants in particular.

Litigation could negatively impact our results of operations as well as our future business.

We are subject to litigation and other customer complaints concerning our food safety, service, and/or other operational factors.  Guests may file formal litigation complaints that we are required to defend, whether or not we believe them to be true.  Substantial, complex or extended litigation could have an adverse effect on our results of operations if it develops into a costly situation and distracts our management.  Employees may also, from time to time, subject us to litigation regarding injury, discrimination, wage and hour, and other employment issues.  Suppliers, landlords and distributors, particularly those with which we currently maintain purchase commitments/contracts, could also potentially allege non-compliance with their contracts should they consider our actions to be contrary to our commitments.  Additionally, we are subject to the risk of litigation by our shareholders as a result of factors including, but not limited to, matters of executive compensation or performance of our stock price.

In certain states we are subject to “dram shop” statutes, which generally allow a person injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages to the intoxicated person.  Some dram shop litigation against restaurant companies has resulted in significant judgments, including punitive damages.  We carry liquor liability coverage as part of our existing comprehensive general liability insurance, but we cannot guarantee that this insurance will be adequate in the event we are found liable in a dram shop case.

We are dependent on key personnel.

Our future success is highly dependent upon our ability to attract and retain certain key executive and other employees.  These personnel serve to maintain a corporate vision for our Company, execute our business strategy, and maintain consistency in the operating standards of our restaurants.  The loss of our key personnel or a significant shortage of high quality restaurant team members could potentially impact our future growth decisions and our future profitability.

Samuel E. Beall, III, our chief executive officer and founder, has announced that he will be stepping down from management and the Board of Directors once the Company names a successor.  While we are in the process of finding his successor, we can make no assurance regarding the impact his loss could have on our business and financial results.
 
 
17
 
 
Changes in financial accounting standards and subjective assumptions, estimates and judgments by management related to complex accounting matters could significantly affect our financial results.

Changes in financial accounting standards can have a significant effect on our reported results and may affect our reporting of transactions completed before the new rules are required to be implemented.  Many existing accounting standards require management to make subjective assumptions, such as those required for stock compensation, tax matters, franchise acquisitions, litigation, and asset impairment calculations.  Changes in accounting standards or changes in underlying assumptions, estimates and judgments by our management could significantly change our reported or expected financial performance.

Identification of a material weakness in our internal controls over financial reporting could significantly affect our financial results.

We are subject to the internal control provisions of Section 404 of the Sarbanes-Oxley Act of 2002.  These provisions provide for the identification of material weaknesses in internal control over financial reporting.  While we routinely assess and test our internal controls over financial reporting, we cannot provide assurance that our internal controls will prevent or detect instances of financial misstatement or fraud, or that we will be able to timely remediate any material weaknesses that may be identified in future periods.  Any failure to maintain an effective system of internal control over financial reporting could impact our ability to report accurate and timely financial results which could adversely affect our financial results.

None.


Information regarding the locations of our restaurants is shown in the list below. Of the 741 Company-owned and operated restaurants as of June 5, 2012, we owned the land and buildings for 352 restaurants, owned the buildings and held non-cancelable long-term land leases for 253 restaurants, and held non-cancelable leases covering land and buildings for 136 restaurants.  Our Restaurant Support Services Center in Maryville, Tennessee, which was opened in fiscal 1998, is owned by the Company. Our executives and certain other administrative personnel are located in the Restaurant Support Services Center. Since fiscal 2001, we have expanded the Restaurant Support Services Center by opening second and third locations also in Maryville.

Additional information concerning our properties and leasing arrangements is included in Note 6 to the Consolidated Financial Statements appearing in Part II, Item 8 of this Annual Report on Form 10-K.

Under our franchise agreements, we have certain rights to gain control of a restaurant site in the event of default under the franchise agreements.

Ruby Tuesday Concept
The following table lists the locations of the Company-owned and franchised Ruby Tuesday restaurants as of June 5, 2012.
 
 
Number of Ruby Tuesday Restaurants
State
Company
  
Franchise
  
Total
           
Domestic:
          
Alabama
39
  
–
  
39
Arizona
6
  
–
  
6
Arkansas
7
  
–
  
7
California
–
  
1
  
1
Colorado
10
  
–
  
10
Connecticut
17
  
–
  
17
Delaware
7
  
–
  
7
 
18
 
 
Florida
73
  
1
  
74
Georgia
49
  
–
  
49
Idaho
–
  
1
  
1
Illinois
3
  
13
  
16
Indiana
12
  
–
  
12
Iowa
1
  
2
  
3
Kansas
2
  
–
  
2
Kentucky
8
  
–
  
8
Louisiana
5
  
–
  
5
Maine
10
  
–
  
10
Maryland
30
  
–
  
30
Massachusetts
10
  
–
  
10
Michigan
24
  
1
  
25
Minnesota
12
  
–
  
12
Mississippi
8
  
–
  
8
Missouri
26
  
–
  
26
Nebraska
8
  
–
  
8
Nevada
1
  
–
  
1
New Hampshire
5
  
–
  
5
New Jersey
26
  
1
  
27
New Mexico
–
  
1
  
1
New York
33
  
–
  
33
North Carolina
55
  
–
  
55
North Dakota
–
  
5
  
5
Ohio
33
  
–
  
33
Oklahoma
–
  
2
  
2
Oregon
3
  
–
  
3
Pennsylvania
42
  
–
  
42
Rhode Island
3
  
–
  
3
South Carolina
32
  
–
  
32
South Dakota
–
  
3
  
3
Tennessee
38
  
–
  
38
Texas
2
  
4
  
6
Utah
1
  
–
  
1
Virginia
62
  
–
  
62
Washington, DC
2
  
–
  
2
West Virginia
8
  
–
  
8
Wisconsin
1
  
1
  
2
Total Domestic
714
  
36
  
750

 
Number of Ruby Tuesday Restaurants
Country
Company
  
Franchise
  
Total
           
International:
          
Canada
–
  
1
  
1
Chile
–
  
9
  
9
Egypt
–
  
3
  
3
Greece
–
  
1
  
1
Guam*
–
  
1
  
1
Hawaii*
–
  
5
  
5
Honduras
–
  
1
  
1
 
 
 
19
 
 
 
Hong Kong
–
  
5
  
5
Iceland
–
  
2
  
2
Kuwait
–
  
6
  
6
Romania
–
  
2
  
2
Saudi Arabia
–
  
3
  
3
Trinidad
–
  
3
  
3
United Kingdom
–
  
1
  
1
Total International
–
  
43
  
43
 
714
  
79
  
793
     
* Guam and Hawaii are treated as international locations for internal purposes.
  

Other Concepts
The following table lists the locations of the Company-owned and franchised other concept restaurants as of June 5, 2012.

   
Number of Other Concept Restaurants
   
Lime Fresh
  
Company
State
  
Company
  
Franchise
  
Total
  
Marlin & Ray’s
  
Other Concepts*
                     
Alabama
  
2
  
–
  
2
  
–
  
–
Florida
  
7
  
4
  
11
  
–
  
1
Georgia
  
3
  
–
  
3
  
2
  
1
North Carolina
  
–
  
–
  
–
  
1
  
–
Ohio
  
–
  
–
  
–
  
2
  
–
Pennsylvania
  
–
  
–
  
–
  
1
  
–
Tennessee
  
–
  
–
  
–
  
2
  
1
Virginia
  
1
  
–
  
1
  
3
  
–
Total
  
13
  
4
  
17
  
11
  
3

*Other concepts include Truffles and Wok Hay.


We are presently, and from time to time, subject to pending claims and lawsuits arising in the ordinary course of business, including claims relating to injury or wrongful death under “dram shop” laws, workers’ compensation and employment matters, claims relating to lease and contractual obligations, and claims from guests alleging illness or injury.  We provide reserves for such claims when payment is probable and estimable in accordance with U.S. generally accepted accounting principles.  At this time, in the opinion of management, the ultimate resolution of pending legal proceedings will not have a material adverse effect on our consolidated operations, financial position or cash flows.  See Note 12 to the Consolidated Financial Statements appearing in Part II, Item 8 of this Annual Report on Form 10-K, for more information about our legal proceedings as of June 5, 2012.

 
 
Not applicable.


 
20
 
 
Item 5. Market for Registrant's Common Equity,
Related Stockholder Matters and Issuer Purchases of Equity Securities

Market for Registrant’s Common Equity and Related Stockholder Matters
Ruby Tuesday, Inc. common stock is publicly traded on the New York Stock Exchange under the ticker symbol RT.
The following table sets forth the reported high and low intraday prices of our common stock and cash dividends paid thereon for each quarter during fiscal 2012 and 2011.

Fiscal Year Ended June 5, 2012
  
Fiscal Year Ended May 31, 2011
     
Per Share
        
Per Share
     
Cash
        
Cash
Quarter
High
Low
Dividends
  
Quarter
High
Low
Dividends
 First
$11.33
$7.20
         --
  
 First
$10.83
$7.63
       --
 Second
  $8.57
$6.35
         --
  
 Second
$13.30
$9.24
       --
 Third
  $8.22
$6.42
         --
  
 Third
$15.57
 $12.65  
       --
 Fourth
  $9.39
$6.56
         --
  
 Fourth
 $13.65
   $10.00    
       --
As of July 31, 2012, there were approximately 3,190 holders of record of the Company’s common stock.

Our Board of Directors has approved a dividend policy as an additional means of returning capital to our shareholders.  The payment of a dividend in any particular future period and the actual amount thereof remain at the discretion of the Board of Directors.  Our last dividend was paid on August 7, 2007 and no assurance can be given that dividends will be paid in the future.

Issuer Purchases of Equity Securities
During the fourth quarter of the year ended June 5, 2012, there were no repurchases made by us or on our behalf, or by any “affiliated purchaser,” of shares of our common stock.

Our Board of Directors has authorized the repurchase of shares of common stock as a means to return excess capital to our shareholders.  As of June 5, 2012, 5.9 million shares remained available for purchase under existing programs.  The repurchase of shares in any particular future period and the actual amount thereof remain at the discretion of the Board of Directors, and no assurance can be given that shares will be repurchased in the future.



 
21
 


Summary of Operations
(In thousands except per-share data)

   
Fiscal Year
  
   
2012
    
2011
    
2010
    
2009
    
2008
  
Revenues:
                              
Restaurant sales and operating revenue
   $ 1,320,098     $ 1,258,015     $ 1,188,043     $ 1,239,104     $ 1,346,721  
Franchise revenue
     5,738       7,147       6,753       9,452       13,583  
  Total revenue
   $ 1,325,836     $ 1,265,162     $ 1,194,796     $ 1,248,556     $ 1,360,304  
                                         
(Loss)/income before income taxes (a)
   $ (14,938 )   $ 52,622     $ 57,758     $ (42,866 )   $ 23,699  
(Benefit)/provision for income taxes
     (14,750 )     5,744       12,414       (24,948 )     (2,678 )
                                         
Net (loss)/income
   $ (188 )   $ 46,878     $ 45,344     $ (17,918 )   $ 26,377  
                                         
(Loss)/earnings per share:
                                        
    Basic
   $ (0.00 )   $ 0.73     $ 0.74     $ (0.35 )   $ 0.51  
    Diluted
   $ (0.00 )   $ 0.72     $ 0.73     $ (0.35 )   $ 0.51  
                                         
Weighted average common and
                                        
    common equivalent shares:
                                        
    Basic
     62,916       64,029       61,533       51,395       51,572  
    Diluted
     62,916       64,948       61,870       51,395       51,688  
                     
Fiscal years 2008 through 2011 each include 52 weeks.  Fiscal 2012 includes 53 weeks.  The extra week in fiscal 2012 added
23.4 million to revenue and $0.03 to diluted earnings per share.           
                               
Other Data
                              
    Cash dividends per share of common stock
     --       --       --       --     $ 0.25  
    Company same-restaurant sales change
     (4.5)%       0.9%       (1.3)%       (7.9)%       (9.8)%  
                                         
Balance Sheet Data (at year end):
                                        
    Total assets
   $ 1,173,537     $ 1,187,026     $ 1,064,029     $ 1,124,196     $ 1,271,937  
   Long-term debt and capital leases, less current
                                        
      maturities
   $ 314,209     $ 329,184     $ 276,490     $ 476,566     $ 588,142  
   Shareholders’ equity
   $ 576,224     $ 591,713     $ 538,100     $ 416,366     $ 431,518  
                                         
Statement of Operations Data:
                                        
   Closures and impairments (a)
   $ 18,665     $ 6,249     $ 3,776     $ 54,951     $ 6,453  
   Goodwill impairment (a)
   $ 16,919     $ –     $ –     $ 18,957     $ –  
   Interest expense, net
   $ 19,620     $ 12,353     $ 16,355     $ 33,940     $ 31,352  
                                         
Cash Flow Data:
                                        
Net cash provided/(used) by:
                                        
     Operating activities
   $ 112,251     $ 116,292     $ 140,264     $ 102,569     $ 101,889  
     Investing activities
   $ (33,755 )   $ (24,492 )   $ (9,439 )   $ 3,195     $ (104,219 )
     Financing activities
   $ (40,034 )   $ (91,647 )   $ (131,016 )   $ (112,036 )   $ (7,530 )
Purchases of property and equipment
   $ 37,966     $ 26,684     $ 17,672     $ 17,186     $ 116,918  
 
(a) See Note 8 to the Consolidated Financial Statements for a description of closures and impairments expenses in fiscal 2012, 2011, and 2010 and discussion of the goodwill impairment in fiscal 2012.
 
 
22
 
 

Introduction

Ruby Tuesday, Inc., including its wholly-owned subsidiaries (“RTI,” the “Company,” “we” and/or “our”), owns and operates Ruby Tuesday®, Lime Fresh Mexican Grill® (“Lime Fresh”), Marlin & Ray’s™, and Wok Hay® casual dining restaurants.  We also operate Truffles® restaurants pursuant to a license agreement and franchise the Ruby Tuesday, Lime Fresh, and Wok Hay concepts in selected domestic and international markets.  Our mission is to be the best in the bar-grill segment of casual dining by delivering to our guests a high-quality casual dining experience with compelling value.  While we are in the bar-grill sector because of our varied menu, it is our goal to operate at the higher-end of casual dining in terms of the quality of our food and service.  As of June 5, 2012, we owned and operated 714 Ruby Tuesday restaurants located in 38 states and the District of Columbia.  Our traditional franchisees operated 36 domestic and 43 international Ruby Tuesday restaurants in 14 states, Guam, and 12 foreign countries.  The Company-owned and operated restaurants are concentrated primarily in the Southeast, Northeast, Mid-Atlantic, and Midwest regions of the United States.  We consider these regions to be our core markets.

As of June 5, 2012, there were 13 Company-owned and operated Lime Fresh restaurants, 11 Marlin & Ray’s restaurants, two Truffles restaurants, and one Wok-Hay restaurant.  In addition, there were four Lime Fresh restaurants operated by domestic franchisees as of June 5, 2012.

References to franchise system revenue contained in this section are presented solely for the purposes of enhancing the investor's understanding of the franchise system, which includes our traditional domestic and international franchisees.  Franchise system revenue is not included in, and is not, revenue of Ruby Tuesday, Inc.  However, we believe that such information does provide the investor with a basis for a better understanding of our revenue from franchising activities, which includes royalties, and, in certain cases, support service income.  Franchise system revenue contained in this section is based upon or derived from information that we obtain from our franchisees in our capacity as franchisor.

Overview and Strategies

Casual dining, the segment of the industry in which we operate, is intensely competitive with respect to prices, services, convenience, locations, employees, advertising and promotion, and the types and quality of food.  We compete with other food service operations, including locally-owned restaurants, and other national and regional restaurant chains that offer similar types of services and products as we do.  While we are in the bar and grill sector because of our varied menu, we operate at the higher-end of casual dining in terms of the quality of our food and service.  Our mission, since we repositioned our brand in 2007, is to be the best in the bar and grill segment of casual dining by delivering to our guests a high-quality casual dining experience with compelling value.  

We believe there are significant opportunities to grow our business, strengthen our competitive position, enhance our profitability, and create value through the execution of the following strategies:
 
Enhance Sales and Margins of Our Core Brand
 
In order to entice guests to see the new Ruby Tuesday, increase frequency of visits, drive same-restaurant sales growth and enhance brand visibility, we are increasing our television marketing spend. Our marketing strategy for the last several fiscal years has focused mainly on print promotions, digital media and local marketing programs, with minimal spend on television.  In fiscal 2012 we began testing television marketing in certain markets with approximately 20% of our restaurants covered by television advertising in the third quarter and approximately 50% to 100% of our restaurants covered in our fourth quarter through leveraging a mixture of network and national cable at varying media weights.  Based on favorable trends exhibited by our test markets in fiscal 2012, at the start of fiscal 2013 we deployed a television marketing program which will cover the entire system of restaurants for a portion of each quarter with the remaining portion of the quarter to be supplemented by high-end direct mail and other promotions.  Our creative messaging will support a “pure value and quality” advertisement, in addition to potential limited time offers throughout the year.  We believe that having television advertising expense levels more in line with our peers in
 
 
 
23
 
 
tandem with a more balanced approach on our promotional strategies will position us for improvements in same-restaurant sales in the future through driving repeat and new trial of our brand.
 
In order to fund the incremental television advertising efforts at no dilution to the overall profitability or cash flow of the Company, we have engaged a leading enterprise improvement consulting firm to assist us in identifying potential savings opportunities in a number of key areas including procurement, occupancy, and maintenance costs.  The majority of these cost savings will be reinvested into our television marketing programs.
 
Focus on Low-Risk, Low-Capital Intensive, High-Return Growth
 
In an effort to be prudent with our capital, we have a strategy to grow our Company in a low-risk, low capital-intensive and high-return manner, with a focus on the fast casual segment.  During the fourth quarter of fiscal 2012, we acquired the Lime Fresh concept for $24.1 million.  We had previously opened Lime Fresh restaurants under a licensing agreement.  However, after over a year of experience with the brand and better understanding its positioning in the high-quality fast casual segment, we decided that we could more quickly grow the concept if we owned it.  The fast casual segment of our industry is a proven and growing segment where demand exceeds supply, and we believe opening smaller, inline locations under the Lime Fresh brand is a good potential growth option for us.  We also believe Lime Fresh can create good long-term value and strong cash flow with relatively low risk.  We opened six Company-owned Lime Fresh restaurants during fiscal 2012 and plan to open 12 to 16 Company-owned Lime Fresh restaurants during fiscal 2013.  Over time, we also plan on opening Company-owned, smaller inline-type Ruby Tuesday restaurants as well.
 
Increase Returns Through New Concept Conversions
 
Another part of our long-term plan is to get more out of existing restaurants by generating higher average restaurant volumes and thus more profit and cash flow with minimal capital investment.  Therefore, we have been converting certain underperforming Ruby Tuesday concept restaurants into our internally-developed seafood concept, Marlin & Ray’s, which is a uniquely-differentiated, high-value casual dining brand.  We converted ten Company-owned Ruby Tuesday restaurants to the Marlin & Ray’s concept during fiscal 2012 and expect to convert five to seven during fiscal 2013.  We believe the low capital requirement and potential increased revenue and EBITDA from these conversions, in addition to the revenue increases we are seeing at neighboring Ruby Tuesday locations, can potentially provide attractive cash-on-cash returns and strong cash flow.
 
Strengthen our Balance Sheet to Facilitate Growth and Value Creation
 
During the fourth quarter of fiscal 2012, we further strengthened our balance sheet and created additional financial flexibility by issuing $250.0 million in a senior unsecured notes offering with an eight year maturity.  As a result of the transaction, we were able to pay off all of our outstanding debt with the exception of some of our mortgage debt from the franchise partnership acquisitions, reduce our revolver commitment size from $380.0 million to $200.0 million, obtain attractive interest rates, extend the maturity date of the majority of our debt for up to eight years, and build excess cash which we will reinvest in the future.  We continue to maintain a strong balance sheet and have a sufficient amount of liquidity.  Our near-term capital expenditure requirements will consist of converting approximately five to seven Ruby Tuesday concept restaurants to the Marlin & Ray’s concept, opening one newly-constructed Marlin & Ray’s restaurant, and opening approximately 12 to 16 smaller, inline Lime Fresh restaurants during fiscal 2013.
 
Our strong balance sheet is supported by a high-quality portfolio of owned real estate, and during fiscal 2012 we commenced on a sale-leaseback program on a portion of our properties in order to create greater financial flexibility and generate additional liquidity for debt reduction or reinvestment.  We are targeting to raise approximately $50.0 million of gross proceeds from sale-leaseback transactions, of which $22.2 million was raised during fiscal 2012 and utilized for debt reduction.  We anticipate the remaining sale-leaseback transactions to be completed over the next one to two quarters and plan to utilize the proceeds for further debt reduction or other corporate purposes.  See further discussion in the Investing Activities section of this Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”).
 
We generated $74.3 million of free cash flow during fiscal 2012, which was used to pay down debt and repurchase stock.  We estimate we will generate approximately $20.0 to $30.0 million of free cash flow during fiscal 2013.  Included in these estimates is anticipated capital spending of approximately $44.0 to $48.0 million.  Our objective over the next several years is to continue to reduce outstanding debt levels in order to reduce our leverage, focus on new
 
 
24
 
 
Lime Fresh restaurant development and Marlin & Ray’s conversions, and potentially repurchase outstanding shares under our share repurchase program.
 
Our success in the four key long range plan initiatives outlined above should enable us to improve both our return on assets and return on equity, and to create additional shareholder value.

Our fiscal year ends on the first Tuesday following May 30 and, as is the case once every five or six years, we have a 53 week year.  Fiscal 2012 was a 53 week year.  All other years discussed throughout this MD&A section contained 52 weeks.  In fiscal 2012, the 53rd week added $23.4 million to restaurant sales and operating revenue and $0.03 to diluted earnings per share in our Consolidated Statement of Operations.  We remind you that, in order to best obtain an understanding of the significant factors that influenced our performance during the last three fiscal years, this MD&A section should be read in conjunction with the Consolidated Financial Statements and related Notes.

Our same-restaurant sales for Company-owned restaurants decreased 4.5% in fiscal 2012 and our diluted loss per share was $0.00 in fiscal 2012 compared to diluted earnings per share of $0.72 in fiscal 2011.  Throughout this MD&A, we discuss our fiscal 2012 financial results in detail, provide insight for fiscal years 2011 and 2010, as well as discuss known events, uncertainties, and trends.  We hope our commentary provides insight as to the factors which impacted our performance.  We remind you, that, in order to best obtain an understanding of our financial performance during the last three fiscal years, this MD&A section should be read in conjunction with the Consolidated Financial Statements and related Notes appearing in Part II, Item 8 of this Annual Report on Form 10-K.

Results of Operations

Ruby Tuesday Restaurants
The table below presents the number of Ruby Tuesday concept restaurants at each fiscal year end from fiscal 2008 through fiscal 2012:
 
 
Fiscal Year
 
Company-Owned
 
Domestic Franchise
International
Franchise
 
Total
2012
714
36
43
793
2011
750
43
53
846
2010
656
165
58
879
2009
672
173
56
901
2008
721
170
54
945

Other Concept Restaurants
The table below presents the number of other concept restaurants at each fiscal year end from fiscal 2008 through fiscal 2012:

 
Lime Fresh
  
Company-Owned
Fiscal Year
Company-Owned
Franchise
Total Lime Fresh
  
Marlin & Ray’s
Other Concepts*
2012
13
4
17
  
11
3
2011
–
–
–
  
1
3
2010
–
–
–
  
–
2
2009
–
–
–
  
–
2
2008
–
–
–
  
–
1
*Other concepts include Truffles and Wok Hay.

During fiscal 2012:

·  
10 Company-owned Ruby Tuesday restaurants, two of which closed in a prior year, were converted to Marlin & Ray’s concept restaurants;
·  
One Company-owned Truffles restaurant was opened;
·  
Six Company-owned Lime Fresh restaurants were opened.  Seven were acquired, along with the royalty stream from five Lime Fresh concept franchised restaurants (one of which was not yet open), and the Lime Fresh brand’s intellectual property for $24.1 million;
 
 
 
25
 
·  
One Company-owned Wok Hay restaurant was opened and two were closed.  In addition, one franchised Wok Hay restaurant was closed;
·  
36 Company-owned Ruby Tuesday restaurants were closed, eight of which were converted into Marlin & Ray’s concept restaurants later in the year;
·  
Six franchised Ruby Tuesday restaurants were opened and 23 were closed;
·  
We recorded impairment charges of $13.6 million, which included $9.7 million resulting from management’s decision in the third quarter to close 25 to 27 restaurants, 23 of which were closed in our fourth quarter and one since;
·  
We closed on an eight-year, $250.0 million unsecured high yield bond offering and an amendment to our revolving credit facility;
·  
We recorded a goodwill impairment charge of $16.9 million; and
·  
We repurchased two million shares of common stock at an aggregate cost of $18.4 million.

During fiscal 2011:

·  
109 Company-owned Ruby Tuesday restaurants were acquired, including 106 purchased from certain of our franchise partnerships and three purchased from a traditional domestic franchisee;
·  
We opened our first Truffles and Marlin & Ray’s concept restaurants, each of which was converted from an existing Ruby Tuesday concept restaurant;
·  
15 Company-owned Ruby Tuesday restaurants were closed, three of which have been converted to then-existing concepts, one in anticipation of conversion to another high-quality casual dining concept, and two as the result of tornadic activity in April 2011; and
·  
Aside from the restaurants sold to the Company, seven franchise restaurants were opened and 25 were closed.  Additionally, a traditional international franchisee opened one Wok Hay restaurant.

Restaurant Sales
Restaurant sales in fiscal 2012 increased 4.9% from fiscal 2011 for Company-owned restaurants and decreased 39.8% for domestic and international franchised restaurants as explained below.  The tables presented below reflect restaurant sales for the last five years, and other revenue information for the last three years.

Restaurant Sales (in millions):
 
Fiscal Year
Company-Owned
Franchise (a)
2012
              $ 1,320.1
$ 174.2
2011
                 1,258.0
  289.4
2010
                 1,188.0
  368.9
2009
                 1,239.1
 383.7
2008
                 1,346.7
 412.0
 
(a)  
Includes sales of all domestic and international franchised Ruby Tuesday restaurants.
 
Other Revenue Information:
 
2012
  
2011
2010
  
Company restaurant sales (in thousands)
$1,320,098
  
$1,258,015
$1,188,043
  
Company restaurant sales growth-percentage
  4.9%
  
  5.9%
  (4.1)%
  
           
Franchise revenue (in thousands) (a)
$5,738
  
$7,147
$6,753
  
Franchise revenue growth-percentage
   (19.7)%
  
   5.8%
   (28.6)%
  
           
Total revenue (in thousands)
$1,325,836
  
$1,265,162
$1,194,796
  
Total revenue growth-percentage
  4.8%
  
  5.9%
  (4.3)%
  
           
Company same-restaurant sales growth percentage
(4.5)%
  
0.9%
  (1.3)%
  
           
Company average restaurant volumes
$1.75 million
  
$1.81 million
$1.79 million
  
Company average restaurant volumes growth
percentage
 
(3.8)%
  
 
1.5%
 
(0.9)%
  
 
26
 
 
(a)  
Franchise revenue includes royalty, license, and development fees paid to us by our franchisees, exclusive of support service fees of $1.1 million, $3.1 million, and $4.6 million, in fiscal years 2012, 2011, and 2010, respectively, which are recorded as an offset to selling, general, and administrative expenses.
 
Our Company restaurant sales and operating revenue for the year ended June 5, 2012 increased 4.9% to $1,320.1 million compared to the prior year.  The increase primarily resulted from the acquisition of 109 restaurants from franchisees in fiscal 2011 coupled with the revenue associated with the 53rd week in fiscal 2012, partially offset by a 4.5% decrease in Ruby Tuesday concept same-restaurant sales.  Included in our Restaurant sales and operating revenue for fiscal 2012 is $173.9 million of restaurant sales for 109 restaurants acquired from our franchisees during fiscal 2011.  These same restaurants generated sales of $76.1 million in fiscal 2011 from the various dates of acquisition through May 31, 2011.

The decrease in same-restaurant sales is attributable to lower guest counts, which was partially offset by an increase in average net check compared with the prior year.  The increase in average net check was a result of menu price increases and a shift in menu mix.

Our Company restaurant sales and operating revenue for the year ended May 31, 2011 increased 5.9% to $1,258.0 million compared to fiscal 2010.  The increase primarily resulted from the acquisition of 109 restaurants from franchisees in fiscal 2011 and a 0.9% increase in same-restaurant sales.  Included in our Restaurant sales and operating revenue for fiscal 2011 is $76.1 million of restaurant sales for 109 restaurants we acquired from our franchisees during fiscal 2011.

The increase in same-restaurant sales for fiscal 2011 is attributable to higher average net check in fiscal 2011 due to a shift in our value positioning and print incentive strategy since fiscal 2010 and a change in menu mix from the rollout of our menu in August of fiscal 2011, offset by an overall decrease in guest traffic compared to fiscal 2010.

Franchise development and license fees received are recognized when we have substantially performed all material services and the restaurant has opened for business.  Franchise royalties (up to 4% of monthly sales) are recognized as franchise revenue on the accrual basis.  Franchise revenue decreased 19.7% to $5.7 million in fiscal 2012 and increased 5.8% to $7.1 million in fiscal 2011.  Franchise revenue is predominantly comprised of domestic and international royalties, which totaled $5.5 million and $6.7 million in 2012 and 2011, respectively.  The decrease is due to a $0.7 million decline in royalties from our traditional domestic franchisees due in part to a 5.7% decline in same-restaurant sales for domestic franchise Ruby Tuesday restaurants during fiscal 2012 and a $0.5 million reduction in royalties from our franchise partnerships due to the acquisition of 109 restaurants from our franchise partnerships during fiscal 2011.  The increase in fiscal 2011 is due to an increase in royalties from our traditional domestic franchisees as we recognized royalty fees due from a traditional domestic franchisee who previously had been deferring payment in fiscal 2011, coupled with an increase in same-restaurant sales for domestic franchise Ruby Tuesday restaurants of 0.9% for the year ended May 31, 2011.

Under our accounting policy, we do not recognize franchise fee revenue for any franchise with negative cash flows at times when the negative cash flows are deemed to be anything other than temporary and the franchise has borrowed directly from us.  We also do not recognize additional franchise fee revenue from franchisees with fees in excess of 60 days past due.  Accordingly, we have deferred recognition of a portion of franchise revenue from certain franchises.  Unearned income for franchise fees was insignificant and $1.2 million as of June 5, 2012 and May 31, 2011, respectively, which are included in Other deferred liabilities and/or Accrued liabilities – Rent and other in the Consolidated Balance Sheets.  The decrease in unearned income is primarily attributable to the write-off of unearned fees associated with a traditional domestic franchisee that filed bankruptcy in June 2012.

Total franchise restaurant sales are shown in the table below.
 
2012
  
2011
2010
  
Franchise restaurant sales (in thousands) (a)
$174,190
  
$289,446
$368,937
  
Franchise restaurant sales growth-percentage
 (39.8)%
  
 (21.5)%
 (3.9)%
  
 
(a)  
 Includes sales of all domestic and international franchised Ruby Tuesday restaurants.
 
The 39.8% and 21.5% decreases in franchise restaurant sales for fiscal 2012 and 2011, respectively, are primarily due to the acquisition of 109 restaurants from franchisees during fiscal 2011.
 
 
27
 
 
Operating Profits
The following table sets forth selected restaurant operating data as a percentage of restaurant sales and operating revenue or total revenue, as appropriate, for the periods indicated.  All information is derived from our Consolidated Financial Statements located in Part II, Item 8 of this Annual Report on Form 10-K.

 
2012
  
2011
  
2010
  
Restaurant sales and operating revenue
99.6
%
99.4
%
99.4
%
Franchise revenue
0.4
  
0.6
  
0.6
  
   Total revenue
100.0
  
100.0
  
100.0
  
Operating costs and expenses:
            
   (As a percentage of restaurant sales and operating
            
     revenue):
            
     Cost of merchandise
28.8
  
29.1
  
29.0
  
     Payroll and related costs
34.5
  
33.6
  
33.4
  
     Other restaurant operating costs
20.5
  
20.4
  
20.3
  
     Depreciation
4.9
  
5.0
  
5.4
  
   (As a percentage of total revenue):
            
     Selling, general, and administrative, net of support
            
       service fees
8.6
  
6.8
  
5.9
  
     Closures and impairments
1.4
  
0.5
  
0.3
  
     Goodwill impairment
1.3
          
     Interest expense, net
1.5
  
1.0
  
1.4
  
Total operating costs and expenses
101.1
  
95.8
  
95.2
  
(Loss)/income before income taxes
(1.1
)
4.2
  
4.8
  
(Benefit)/provision for income taxes
(1.1
)
0.5
  
1.0
  
Net (loss)/income
(0.0
)%
3.7
%
3.8
%

Pre-tax (Loss)/Income
For fiscal 2012, pre-tax loss was $14.9 million or (1.1)% of total revenue, as compared to pre-tax profit of $52.6 million or 4.2% of total revenue for fiscal 2011.  The decrease is primarily due to a decrease in same-restaurant sales of 4.5% at Company-owned Ruby Tuesday restaurants, a goodwill impairment charge of $16.9 million, higher closures and impairments ($12.4 million) and interest expense ($7.3 million), and increases, as a percentage of restaurant sales and operating revenue or total revenue, as appropriate, of payroll and related costs, other restaurant operating costs, and selling, general, and administrative, net.  These higher costs were partially offset by decreases, as a percentage of restaurant sales and operating revenue, of cost of merchandise and depreciation.

Pre-tax income decreased $5.1 million (8.9%) from fiscal 2010 to $52.6 million for the year ended May 31, 2011.  The lower pre-tax income was due to increases, as a percentage of restaurant sales and operating revenue or total revenue, as appropriate, of cost of merchandise, payroll and related costs, other restaurant operating costs, selling, general, and administrative, net, and closures and impairments, and higher equity in losses from unconsolidated equity-method franchises.  These higher costs were partially offset by $3.8 million in pre-tax income on the 109 restaurants acquired from franchisees during fiscal 2011, an increase in same-restaurant sales of 0.9% at Company-owned restaurants, and decreases, as a percentage of restaurant sales and operating revenue or total revenue, as appropriate, of depreciation, and interest expense, net.

In the paragraphs that follow, we discuss in more detail the components of the changes in pre-tax (loss)/income for years ended June 5, 2012 and May 31, 2011 as compared to the comparable prior year.  Because a significant portion of the costs recorded in the cost of merchandise, payroll and related costs, other restaurant operating costs, and depreciation categories are either variable or highly correlate with the number of restaurants we operate, we evaluate our trends by comparing the costs as a percentage of restaurant sales and operating revenue, as well as the absolute dollar change, to the comparable prior year.

 
28
 
 
Fiscal Year 2011 Franchise Restaurant Acquisitions
The table below shows operating results from the dates of acquisition (which occurred between August 4, 2010 and May 4, 2011) for the years ended June 5, 2012 and May 31, 2011 for the 109 restaurants that were acquired from franchisees in fiscal 2011 (in thousands):
 
   
(Unaudited)
  
   
June 5, 2012
    
May 31, 2011
  
             
Total revenue
   $ 173,949     $ 76,068  
                 
Cost of merchandise
     49,913       22,349  
Payroll and related costs
     61,807       25,535  
Other restaurant operating costs
     36,941       16,499  
Depreciation
     8,409       3,432  
Selling, general, and administrative, net
     12,557       4,431  
      169,627       72,246  
Income before income taxes
   $ 4,322     $ 3,822  

Cost of Merchandise
Cost of merchandise increased $14.9 million (4.1%) from the prior year to $380.5 million for the year ended June 5, 2012.  As a percentage of restaurant sales and operating revenue, cost of merchandise decreased from 29.1% to 28.8%.  Excluding the $27.6 million increase from the 109 restaurants acquired in fiscal 2011, cost of merchandise decreased $12.7 million.

The absolute dollar decrease in cost of merchandise not attributable to the restaurant acquisitions is primarily a result of a decrease in same-restaurant sales during fiscal 2012 of 4.5% coupled with cost savings negotiated with our primary food distributor during the year.  Additionally, during the second half of fiscal 2012 we renegotiated contracts and changed the product specifications on several items with certain vendors which resulted in cost savings on many products.

As a percentage of restaurant sales and operating revenue, the decrease in cost of merchandise for the year ended June 5, 2012 is due primarily to cost savings negotiated with our primary food distributor and various other vendors since the prior year as discussed above.

Cost of merchandise increased $21.2 million (6.2%) from fiscal 2010 to $365.7 million for the year ended May 31, 2011.  As a percentage of restaurant sales and operating revenue, cost of merchandise increased from 29.0% to 29.1%.  Excluding the $22.3 million increase from the 109 restaurants acquired in fiscal 2011, cost of merchandise decreased $1.2 million.

For the year ended May 31, 2011, the absolute dollar change not attributable to the restaurant acquisitions was due to lower food costs at our other restaurants as a result of a decrease in guest counts during fiscal 2011.  Contributing to the lower guest counts during fiscal 2011 was inclement winter weather in many of our core markets during the third quarter and lower guest counts in our first and fourth quarters as a result of a shift in our value promotion strategy by changing the “Buy One Get One Free” promotion offered during the first quarter of the prior year to a “Buy One Get One Free Up to $10” or a “25% Off” on our Specialties, Fork-Tender Ribs, and Handcrafted Steaks and reducing the number of system-wide freestanding insert coupons offered during the current versus the prior year.  Partially offsetting the decrease in cost of sales due to guest counts were the addition of garlic cheese biscuits, produce price increases, and wine costs as discussed below.

As a percentage of restaurant sales and operating revenue, the increase in cost of merchandise for the year ended May 31, 2011 was due to primarily to the rollout of garlic cheese biscuits at all of our restaurants, price increases during the second half of fiscal 2011 on several produce items due to the winter freeze that impacted crops in Mexico, and increased wine cost due in part to higher sales of our premium wines during fiscal 2011.
 
Payroll and Related Costs
Payroll and related costs increased $32.9 million (7.8%) from the prior year to $455.1 million for the year ended June 5, 2012.  As a percentage of restaurant sales and operating revenue, payroll and related costs increased from 33.6% to
 
 
29
 
 
34.5%.  Excluding the $36.3 million increase from the 109 restaurants acquired in fiscal 2011, payroll and related costs decreased $3.4 million.

For the year ended June 5, 2012, the decrease in absolute dollars not attributable to the restaurant acquisitions is primarily a result of new staffing guidelines for certain positions in our restaurants and lowered staffing levels attributable to reduced guest traffic from the same periods of the prior year.

As a percentage of restaurant sales and operating revenue, the increase in payroll and related costs for the year ended June 5, 2012 is due to higher management labor as a result of merit increases during the current year, minimum wage increases in several states since the prior year, and higher FUTA tax owed following the failure of several states to repay the federal government for unemployment insurance loans, coupled with the impact on net sales of increased value-focused promotional activity and loss of leveraging with lower sales volumes.

Payroll and related costs increased $25.4 million (6.4%) from fiscal 2010 to $422.2 million for the year ended May 31, 2011.  As a percentage of restaurant sales and operating revenue, payroll and related costs increased from 33.4% to 33.6%.  Excluding the $25.5 million increase from the 109 restaurants acquired in fiscal 2011, payroll and related costs decreased $0.2 million.

For the year ended May 31, 2011, the decrease in absolute dollars not attributable to the restaurant acquisitions was insignificant.

As a percentage of restaurants sales and operating revenue, the increase in payroll and related costs was due to higher hourly labor which resulted from additional hours scheduled for Saturday nights, additional bartender labor on Monday nights during football season, increased labor associated with the rollout of our bread program, and unfavorable state unemployment costs due to rate increases in 20 states.

Other Restaurant Operating Costs

Other restaurant operating costs increased $13.5 million (5.3%) from the prior year to $270.1 million for the year ended June 5, 2012.  As a percentage of restaurant sales and operating revenue, other restaurant operating costs increased from 20.4% to 20.5%.  Excluding the $20.4 million increase from the 109 restaurants acquired in fiscal 2011, other restaurant operating costs decreased $6.9 million.

For the year ended June 5, 2012, the change in other restaurant operating costs not attributable to the restaurant operations of the acquired franchise partnership restaurants related to the following (in thousands):

Franchise partnership debt guarantees
   $ (6,705 )
Utilities
     (2,320 )
Supplies
     (2,018 )
Insurance
     (1,844 )
Other taxes
     (1,495 )
Other decreases
     (1,192 )
Net gain on acquisitions
     7,290  
Rent and leasing
     1,342  
Net reductions
   $ (6,942 )

For the year ended June 5, 2012, the absolute dollar change not directly attributable to the operations of 109 restaurants acquired from franchisees was a result of prior year guaranty expense relating to debt defaults by certain franchisees we chose not to acquire and which now have ceased operations, coupled with reductions in utilities based on more favorable rates, supplies expense in part because of negotiated savings from vendors since the prior year, insurance expense due to property insurance proceeds received during the first quarter of the current year relating to storm damage at two of our restaurants, and other taxes as a result of a reduction in the franchise tax base.  Partially offsetting these decreases are net gains on restaurant acquisitions as further discussed in Note 3 to the Consolidated Financial Statements and increases in rent and leasing expense due to the sale-leaseback of ten restaurants during the current year.
 

 
30
 

Other restaurant operating costs increased $15.7 million (6.5%) from fiscal 2010 to $256.6 million for the year ended May 31, 2011.  As a percentage of restaurant sales and operating revenue, these costs increased from 20.3% to 20.4%.  Excluding the $16.5 million increase from the 109 restaurants acquired in fiscal 2011, other restaurant operating costs decreased $0.8 million.

For the year ended May 31, 2011, the change in other restaurant operating costs not attributable to the restaurant operations of the acquired franchise partnership restaurants related to the following (in thousands):

Net gain on franchise acquisitions
   $ (6,676 )
Rent and leasing
     (2,427 )
Supplies
     (2,231 )
Bad debt expense
     (1,159 )
Insurance
     (915 )
Franchise partnership debt guarantees
     6,705  
Repairs
     1,831  
Cable package upgrades
     1,065  
Credit card fees
     900  
Reduced Visa/Mastercard antitrust settlement income
     838  
Other increases
     1,254  
Net reductions
   $ (815 )

In both absolute dollars and as a percentage of restaurant sales and operating revenue, the decrease not directly attributable to the operations of 109 restaurants acquired from franchisees was a result of a net gain on the restaurant acquisitions during fiscal 2011 as further discussed in Note 3 to the Consolidated Financial Statements, lower bad debt expense due to larger fiscal 2010 adjustments for notes due from certain franchisees, lower rent and leasing due to restaurants that have closed since fiscal 2010, lower supplies as a result of a reduction in linen and packaging supplies due in part to price reductions with the change to a new linen vendor, and lower general liability insurance expense due to favorable claims experience.  These were partially offset by increased guaranty expense relating primarily to debt defaults by certain franchisees we chose not to acquire and which now have ceased operations, higher repairs expense due to impinger oven maintenance, increased costs associated with the inclement winter weather during fiscal 2011, and an overall increase in building repairs as we incurred costs to maintain the look of our restaurants from the reimaging completed in fiscal 2008.  Other offsets include upgrading our cable packages during fiscal 2011 to offer a greater variety of sports programming in our bar area of certain restaurants, higher credit card expense due in part to increases in processing fees charged by our credit card vendors coupled with accrued income in fiscal 2010 relating to the net proceeds from the Visa/MasterCard antitrust class action litigation of which we were a class member.

Depreciation
Depreciation expense increased $2.4 million (3.8%) to $65.3 million for the year ended June 5, 2012, compared to the prior year.  As a percentage of restaurant sales and operating revenue, depreciation expense decreased from 5.0% to 4.9%.  Excluding the $5.0 million increase from the 109 restaurants acquired in fiscal 2011, depreciation expense decreased $2.6 million.

Depreciation expense decreased $0.9 million (1.4%) to $62.9 million for the year ended May 31, 2011, compared to fiscal 2010.  As a percentage of restaurant sales and operating revenue, this expense decreased from 5.4% to 5.0%.  Excluding the $3.4 million increase from the 109 restaurants acquired in fiscal 2011, depreciation expense decreased $4.3 million.

For both fiscal 2012 and 2011, the increase in depreciation expense is due to depreciation on the restaurants acquired from franchisees in fiscal 2011, which was partially offset by reduced depreciation on assets that became fully depreciated or were retired from service since fiscal 2011 or 2010, respectively.

Selling, General, and Administrative Expenses
Selling, general, and administrative expenses, net increased $28.6 million (33.2%) from the prior year to $114.5 million for the year ended June 5, 2012.  Excluding the $8.1 million increase from the 109 restaurants acquired in fiscal 2011, selling, general and administrative, net increased $20.4 million.
 
 
31
 
 
The increase for the year ended June 5, 2012 is due to higher advertising costs ($20.1 million), primarily as a result of increased television advertising, coupled with higher general and administrative expense ($8.4 million).  The increase in general and administrative expense for fiscal 2012 was due to higher management labor ($4.9 million) as a result of executive severance payments and accruals, consulting fees ($3.1 million), primarily relating to cost control projects, lower franchise support service fee income ($1.4 million) as a result of franchise partnership acquisitions during fiscal 2011, and higher support center bonus expense ($1.1 million).  These were partially offset by lower share-based compensation expense ($1.9 million) as a result of the inclusion within a portion of the fiscal 2012 share-based compensation award of performance conditions for which we expect less than full achievement, compared to the prior year share-based compensation award which contained only service conditions.

Selling, general, and administrative expenses, net of support service fee income, increased $15.4 million (21.9%) from fiscal 2010 to $86.0 million for the year ended May 31, 2011.  Excluding the $4.4 million increase from the 109 restaurants acquired in fiscal 2011, selling, general and administrative, net of support service fee income increased $11.0 million.

The increase for fiscal 2011 was primarily due to higher advertising costs ($12.4 million) as a result of testing a marketing initiative by inserting coupons in certain national magazines, an increase in internet advertising due to the implementation of digital media since fiscal 2010, and higher advertising agency fees and television advertising during fiscal 2011.  Also contributing to the increase were higher management labor and training payroll ($3.7 million) due to an increase, since fiscal 2010, in team members, travel and related costs ($1.6 million) as a result of an increase in training sessions during fiscal 2011, share-based compensation expense ($0.6 million), and higher consulting fees ($0.9 million), primarily relating to cost savings initiatives.  These were partially offset by a reduction in bonus expense ($5.9 million) based on fiscal 2011 results and higher capitalized development expense during fiscal 2011 as a result of restaurant conversions ($0.6 million).

Closures and Impairments
Closures and impairments increased $12.4 million to $18.7 million for the year ended June 5, 2012, as compared to the prior year.  The increase was due primarily to higher restaurant impairment charges ($7.5 million) due to management’s decision in the third quarter of fiscal 2012 to close 25 to 27 restaurants, 23 of which were closed in our fourth quarter.  Of the $13.6 million in restaurant impairment charges recorded during fiscal 2012, $9.7 million is a result of impairments related to the restaurant closures.  The remaining increase is due to higher closed restaurant lease reserve expense ($4.2 million) and other closing expense ($1.4 million), which were partially offset by an increase in gains during the current year on the sale of surplus properties ($0.7 million).

Closures and impairments increased $2.5 million to $6.2 million for the year ended May 31, 2011, as compared to fiscal 2010.  The increase was due primarily to higher restaurant impairment charges ($2.9 million) and losses on the sale of surplus properties during fiscal 2011 compared to gains on the sale of surplus properties in fiscal 2010 ($1.1 million), which were partially offset by reductions in closed restaurant lease reserve expense ($1.1 million), other closing costs ($0.3 million), and dead site costs ($0.1 million).

See Note 8 to our Consolidated Financial Statements for further information on our closures and impairment charges recorded during fiscal 2012, 2011, and 2010.

Goodwill Impairment
We concluded during the fourth quarter of fiscal 2012 that it was likely our goodwill, other than that recently added with the Lime Fresh acquisition, was fully impaired.  As a result, we recorded an impairment charge during fiscal 2012 of $16.9 million.  See Notes 1 and 8 to our Consolidated Financial Statements for further information on our fiscal 2012 goodwill impairment charge and our current goodwill.

Equity in Losses of Unconsolidated Franchises
Our equity in the losses of unconsolidated franchises was $0.6 million for fiscal 2011 compared with $0.3 million for fiscal 2010.  The change is attributable to increased losses from investments in two of our 50%-owned franchise partnerships, both of which were acquired during fiscal 2011.  Included in these increased losses was $0.7 million, which represents our share of an impairment loss recorded on a closed franchise restaurant.  Offsetting this were decreased losses or increased earnings from investments in four of our 50%-owned franchise partnerships, all of which were acquired during fiscal 2011.  As of May 31, 2011, we had acquired all of our 50%-owned franchise partnerships.
 
 
32
 
 
Net Interest Expense
Net interest expense increased $7.3 million to $19.6 million for the year ended June 5, 2012, primarily due to higher interest expense on our mortgage obligations outstanding due to the acquisition of 109 restaurants from the franchise partnerships in fiscal 2011 and prepayment premiums on the payoff during fiscal 2012 of the Series B Senior Notes and certain mortgage obligations.

Net interest expense decreased $4.0 million to $12.4 million for the year ended May 31, 2011, primarily due to lower average debt outstanding on our revolving credit agreement and the payoff of the Private Placement Series A senior notes in fiscal 2010.

(Benefit)/Provision for Income Taxes
The effective tax rate for fiscal 2012 was 98.7% compared to 10.9% for the prior year.  The change in the effective tax rate was primarily attributable to the fact that the Company reported an operating loss in fiscal 2012 and income in fiscal 2011.  FICA Tip Credits and Work Opportunity Tax Credits generated in fiscal 2012 increased the effective tax rate above the statutory rate.  Offsetting this was the write-off of goodwill, $4.4 million of which we estimated will be nondeductible for tax purposes.

The effective tax rate for fiscal 2011 was 10.9% compared to 21.5% for fiscal 2010.  The decrease in the effective tax rate was attributable to an increase in the benefit of FICA Tip and Work Opportunity Tax Credits during fiscal 2011 as compared to fiscal 2010, coupled with the exclusion for tax purposes of net gains from franchise acquisitions in fiscal 2011.  These benefits were partially offset by the recognition of a deferred tax valuation allowance for certain state net operating losses.

Liquidity and Capital Resources

Sources and Uses of Cash
Our primary source of liquidity is cash provided by operations.  The following table presents a summary of our cash flows from operating, investing, and financing activities for the last three fiscal years (in thousands).

 
2012
2011
2010
Net cash provided by operating activities
 $ 112,251     $ 116,292     $ 140,264  
Net cash used by investing activities
   (33,755 )     (24,492 )     (9,439 )
Net cash used by financing activities
   (40,034 )     (91,647 )     (131,016 )
Net increase/(decrease) in cash and short-term investments
 $ 38,462     $ 153     $ (191 )

Operating Activities
Our cash provided by operations is generally derived from cash receipts generated by our restaurant customers and franchisees.  Substantially all of the $1,320.1 million, $1,258.0 million, and $1,188.0 million of restaurant sales and operating revenue disclosed in our Consolidated Statements of Operations for fiscal 2012, 2011, and 2010, respectively, was received in cash either at the point of sale or within two to four days (when our guests paid with debit or credit cards).  Our primary uses of cash for operating activities are food and beverage purchases, payroll and benefit costs, restaurant operating costs, general and administrative expenses, and marketing, a significant portion of which are incurred and paid in the same period.

Cash provided by operating activities for fiscal 2012 decreased $4.0 million (3.5%) from the prior year to $112.3 million.  The decrease is due to lower EBITDA as a result of a 4.5% decrease in same-restaurant sales at Company-owned Ruby Tuesday restaurants and higher cash paid for interest ($9.1 million) as a result of increased interest on our mortgage obligations outstanding due to the acquisition of 109 restaurants from the franchise partnerships in fiscal 2011 and prepayment premiums on the payoff during the current year of the Series B Senior Notes and certain mortgage obligations.  These were partially offset by a reduction in cash paid for income taxes ($5.9 million) and reduced amounts spent to acquire inventory.

Cash provided by operating activities for fiscal 2011 decreased $24.0 million (17.1%) from fiscal 2010 to $116.3 million.  The decrease was due primarily to an increase in cash paid for income taxes of $23.0 million, a substantial
 
 
33
 
 
portion of which is due to a fiscal 2010 federal refund related to a tax accounting method change as permitted by the Internal Revenue Service relating to the expensing of certain repairs.

Our working capital deficiency and current ratio as of June 5, 2012 were $4.0 million and 1.0:1, respectively.  As is common in the restaurant industry, we typically carry current liabilities in excess of current assets because cash (a current asset) generated from operating activities is reinvested in capital expenditures (a long-term asset), stock repurchases (thereby reducing equity) or debt reduction (a long-term liability) and receivable and inventory levels are generally not significant.  Included within the current assets section of our Consolidated Balance Sheet at June 5, 2012 is Cash and short-term investments of $48.2 million, which primarily consists of excess cash raised in connection with our high yield bond offering during the fourth quarter of fiscal 2012.

Investing Activities
We require capital principally for the maintenance and upkeep of our existing restaurants, limited new or converted restaurant construction, investments in technology, equipment, remodeling of existing restaurants, and on occasion for the acquisition of franchisees or other restaurant concepts.  Property and equipment expenditures purchased primarily with internally-generated cash flows for fiscal 2012, 2011, and 2010 were $38.0 million, $26.7 million, and $17.7 million, respectively.  In addition, proceeds from the disposal of assets produced $6.0 million, $6.7 million, and $5.5 million of cash in fiscal 2012, 2011, and 2010, respectively, following an action taken to aggressively market surplus properties in order to pay down debt.

As discussed further in Note 3 to the Consolidated Financial Statements, during the fourth quarter of fiscal 2012, we completed the acquisition of Lime Fresh, including the assets of seven Lime Fresh concept restaurants, the royalty stream from five Lime Fresh concept franchised restaurants (one of which was not yet open), and the Lime Fresh brand’s intellectual property for $24.1 million.  As also discussed in Note 3 to the Consolidated Financial Statements, during fiscal 2011, we spent $4.3 million, plus assumed debt, to acquire the remaining member or limited partnership interests of 11 franchise partnerships which collectively operated 105 restaurants, one additional restaurant from a twelfth franchise partnership, and three restaurants from a traditional domestic franchisee.

During the year ended June 5, 2012, we completed sale-leaseback transactions of the land and building for ten Company-owned Ruby Tuesday concept restaurants for gross cash proceeds of $22.2 million, exclusive of transaction costs of approximately $1.1 million.  Equipment was not included.  The net proceeds from the sale-leaseback transactions were used to pay down certain of our mortgage loan obligations.  See Notes 6 and 15 to the Consolidated Financial Statements for further discussion of these transactions and similar transactions which have closed subsequent to June 5, 2012.

Capital expenditures for fiscal 2013 are budgeted to be $44.0 to $48.0 million based on our planned improvements for existing restaurants and our expectation that we will open approximately 12 to 16 Lime Fresh restaurants, convert approximately five to seven Ruby Tuesday concept restaurants to the Marlin & Ray’s concept, and open one newly-constructed Marlin & Ray’s restaurant in fiscal 2013.  We intend to fund our investing activities with cash currently on hand, cash provided by operations, or borrowings on our revolving credit facility.

Financing Activities
Historically our primary sources of cash have been operating activities and proceeds from stock option exercises and refranchising transactions.  When these alone have not provided sufficient funds for both our capital and other needs, we have obtained funds through the issuance of indebtedness or through the issuance of additional shares of common stock.  Our current borrowings and credit facilities are described below.

On May 14, 2012, we entered into an indenture (the “Indenture”) among the Company, certain subsidiaries of the Company as guarantors and Wells Fargo Bank, National Association as trustee, governing the Company’s $250.0 million aggregate principal amount of 7.625% senior notes due 2020 (the “Senior Notes”).  The Senior Notes were issued at a discount of $3.7 million, which is being amortized using the effective interest method over the eight year term of the notes.

The Senior Notes are guaranteed on a senior unsecured basis by our existing and future domestic restricted subsidiaries, subject to certain exceptions.  They rank equal in right of payment with our existing and future senior indebtedness and senior in right of payment to any of our future subordinated indebtedness.  The Senior Notes are
 
 
34
 
 
effectively subordinated to all of our secured debt, including borrowings outstanding under our revolving credit facility, to the extent of the value of the assets securing such debt and structurally subordinated to all of the liabilities of our existing and future subsidiaries that do not guarantee the Senior Notes.

Interest on the Senior Notes is calculated at 7.625% per annum, payable semiannually on each May 15 and November 15, commencing November 15, 2012, to holders of record on the May 1 or November 1 immediately preceding the interest payment date.  The Senior Notes mature on May 15, 2020.

At any time prior to May 15, 2016, we may redeem the Senior Notes, in whole or in part, at a redemption price equal to 100% of the principal amount, plus an applicable “make-whole” premium and accrued and unpaid interest.  At any time and from time to time on or after May 15, 2016, we may redeem the Senior Notes, in whole or in part, at the redemption prices specified in the Indenture.  At any time prior to May 15, 2015, we may redeem up to 35% of the Senior Notes from the proceeds of certain equity offerings.  There is no sinking fund for the Senior Notes.

The Indenture contains covenants that limit, among other things, our ability and the ability of certain of our subsidiaries to (i) incur or guarantee additional indebtedness; (ii) declare or pay dividends, redeem stock or make other distributions to stockholders; (iii) make certain investments; (iv) create liens or use assets as security in other transactions; (v) merge or consolidate, or sell, transfer, lease or dispose of substantially all of their assets; (vi) enter into transactions with affiliates; and (vii) sell or transfer certain assets.  These covenants are subject to a number of important exceptions and qualifications, as described in the Indenture, and certain covenants will not apply at any time when the Senior Notes are rated investment grade by the Rating Agencies, as defined in the Indenture.  The Indenture also provides for events of default, which, if any of them occurs, would permit or require the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Senior Notes to be due and payable immediately.

In connection with the issuance of the Senior Notes, we have agreed to register with the SEC notes having substantially identical terms as the Senior Notes, as part of an offer to exchange freely tradable exchange notes for the Senior Notes.  We have agreed: (i) within 270 days after the issue date of the Senior Notes, to file a registration statement enabling holders of the Senior Notes to exchange the privately placed notes for publicly registered notes with substantially identical terms; (ii) to use commercially reasonable efforts to cause the registration statement to become effective within 365 days after the issue date of the Senior Notes; (iii) to consummate the exchange offer within 405 days after the issue date of the Senior Notes; and (iv) to file a shelf registration statement for resale of the notes if we cannot consummate the exchange offer within the time period listed above.

If we fail to meet these targets (each, a “registration default”), the annual interest rate on the Senior Notes will increase by 0.25%.  The annual interest rate on the Senior Notes will increase by an additional 0.25% for each subsequent 90-day period during which the registration default continues, up to a maximum additional interest rate of 1.0% per year over the otherwise applicable annual interest rate of 7.625%.  If we cure the registration default, the interest rate on the Senior Notes will revert to the original level.

On December 1, 2010, we entered into a five-year revolving credit agreement (the “Credit Facility”), under which we could borrow up to $320.0 million with the option to increase our capacity by $50.0 million to $370.0 million.  The Credit Facility replaced our then outstanding five-year revolving credit agreement (the “Prior Credit Facility”) that was entered into on February 28, 2007.  Bank of America, N.A., serves as Administrative Agent, Issuing Bank, Servicer and Swingline Lender under the Credit Facility.

On May 14, 2012, we entered into the Second Amendment to our revolving credit facility (the “Second Amendment”) to, among other things, reduce the maximum aggregate revolving commitment to $200.0 million, secure the revolving credit facility with a lien over the equity interests of certain subsidiaries, modify certain financial covenants and ratios and permit the issuance of the Senior Notes.

The terms of the Credit Facility provide for a $40.0 million letter of credit subcommitment.  The Credit Facility also includes a $50.0 million franchise facility subcommitment (the “Franchise Facility Subcommitment”), which covers our guarantees of debt of our franchise partners in reliance upon the franchise facility guaranty agreement entered into by us and the subsidiary guaranty agreement entered into by our material domestic subsidiaries.  The Franchise
 
 
 
35
 
 
Facility Subcommitment matures not later than December 1, 2015.  As of June 5, 2012, all amounts guaranteed under the Franchise Facility Subcommitment were settled.

The interest rate charged on borrowings pursuant to the Credit Facility can vary depending on the interest rate option we choose to utilize.  Our Base Rate for borrowings is defined to be the higher of Bank of America’s prime rate, the Federal Funds Rate plus 0.5%, or an adjusted LIBO Rate plus 1.00%, plus an applicable margin ranging from 0.25% to 1.50%.  The applicable margin for our Eurodollar Borrowings ranges from 1.25% to 2.50% depending on our Total Debt to EBITDAR ratio.

A commitment fee for the account of each lender at a rate ranging from 0.300% to 0.450% (depending on our Total Debt to EBITDAR ratio) on the daily amount of the unused revolving commitment of such lender is payable on the last day of each calendar quarter and on the termination date of the Credit Facility.  On the first day after the end of each calendar quarter until the termination date of the Credit Facility, we are required to pay a letter of credit fee for the account of each lender with respect to such lender’s participation in each letter of credit.  The letter of credit fee accrues at the applicable margin for Eurodollar Loans then in effect on the average daily amount of such lender’s letter of credit exposure (excluding any portion attributable to unreimbursed letter of credit disbursements) attributable to such letter of credit during the period from and including the date of issuance of such letter of credit to but excluding the date on which such letter of credit expires or is drawn in full.  Besides the commitment fee and the letter of credit fee, we are also required to pay a fronting fee on the daily amount of the letter of credit exposure (excluding any portion attributable to unreimbursed letter of credit disbursements) on the tenth day after the end of each calendar quarter until the termination date of the Credit Facility.  We must also pay standard fees with respect to issuance, amendment, renewal or extension of any letter of credit or processing of drawings thereunder.

We are entitled to make voluntary prepayments of our borrowings under the Credit Facility at any time and from time to time, in whole or in part, without premium or penalty.  Subject to certain exceptions, mandatory prepayments will be required upon occurrence of certain events, including the revolving credit exposure of all lenders exceeding the aggregate revolving commitment then in effect, sales of certain assets and any additional debt issuances.

Under the terms of the Credit Facility, we had no borrowings outstanding at June 5, 2012.  As of May 31, 2011, we had $177.0 million outstanding with an associated floating rate of interest of 2.27%.  After consideration of letters of credit outstanding, we had $190.7 million available under the Credit Facility as of June 5, 2012.

The Credit Facility contains a number of customary affirmative and negative covenants that, among others, limit or restrict our ability to incur liens, engage in mergers or other fundamental changes, make acquisitions, investments, loans and advances, pay dividends or other distributions, sell or otherwise dispose of certain assets, engage in certain transactions with affiliates, enter into burdensome agreements or certain hedging agreements, amend organizational documents, change accounting practices, incur additional indebtedness and prepay other indebtedness.  In addition, under the Credit Facility, we are required to comply with financial covenants relating to the maintenance of a maximum leverage ratio and a minimum fixed charge coverage ratio and we were in compliance with these financial covenants as of June 5, 2012.  The terms of the Credit Facility require us to maintain a maximum leverage ratio of no more than 4.5 to 1.0 through the fiscal quarter ending on or about June 4, 2013 and 4.25 to 1.0 thereafter and a minimum fixed charge coverage ratio of 1.75 to 1.0 through and including the fiscal quarter ending on or about June 3, 2014 and 1.85 to 1.0 thereafter.

The Credit Facility terminates on December 1, 2015.  Upon the occurrence of an event of default, the lenders may terminate the loan commitments, accelerate all loans and exercise any of their rights under the Credit Facility and any ancillary loan documents.

On December 1, 2010, we drew down approximately $203.2 million under the Credit Facility to repay borrowings outstanding under the Prior Credit Facility.  Fees and expenses incurred in connection with the refinancing were paid from cash on hand.  Additionally, new letters of credit totaling $20.0 million were obtained to replace those outstanding under the Prior Credit Facility.

During fiscal 2010, we closed an underwritten public offering of 11.5 million shares of Ruby Tuesday, Inc. common stock at $6.75 per share, less underwriting discounts.  We received approximately $73.1 million in net proceeds from
 
 
36
 
 
the sale of the shares, after deducting underwriting discounts and offering expenses.  The net proceeds were used to repay indebtedness under the Prior Credit Facility.

On April 3, 2003, we issued notes totaling $150.0 million through a private placement of debt (the “Private Placement”).  At May 31, 2011, the Private Placement consisted of $44.4 million in notes with an interest rate of 7.17% (the “Series B Notes”).  We repaid the Series B Notes on May 14, 2012 using proceeds from the issuance of the Senior Notes.

In connection with the Credit Facility, on December 1, 2010, Bank of America, N.A., as Collateral Agent, along with the lenders and institutional investors pursuant to the Credit Facility, issued a Notice of Direction and Termination effectively terminating the Intercreditor and Collateral Agency Agreement by and between such parties dated May 21, 2008, and also terminating the Pledge Agreement dated May 21, 2008 by and among Ruby Tuesday, Inc. and certain subsidiaries of Ruby Tuesday, Inc. (together the “Pledgors”) and the creditors pursuant to the Credit Facility, by which the Pledgors had pledged certain subsidiary equity interests as security for the repayment of our obligations under the Credit Facility.

Our $80.1 million in mortgage loan obligations as of June 5, 2012 consists of various loans acquired upon franchise acquisitions.  These loans, which mature between July 2012 and November 2022, have balances which range from negligible to $8.3 million and interest rates of 3.93% to 11.28%.  Many of the properties acquired from franchisees  collateralize the loans outstanding.

During fiscal 2012, we repurchased 2.0 million shares of RTI common stock at an aggregate cost of $18.4 million.  As of June 5, 2012, the total number of shares authorized to be repurchased was 5.9 million.  We did not repurchase any shares of RTI common stock during fiscal 2011 and 2010.  Additionally, there were no dividends paid during fiscal 2012, 2011, or 2010.

Significant Contractual Obligations and Commercial Commitments
Long-term financial obligations were as follows as of June 5, 2012 (in thousands):

 
Payments Due By Period
   
Less than
1-3
3-5
More than 5
 
Total
1 year
years
years
years
Notes payable and other
                    
   long-term debt, including
                    
   current maturities (a) 
$       78,325
  
$       12,254
  
$        16,743
  
$      27,108
  
$      22,220
  
Senior unsecured notes (a)
250,000
              
250,000
  
Interest (b)
178,697
  
24,886
  
47,467
  
44,073
  
62,271
  
Operating leases (c)
360,613
  
45,873
  
80,494
  
64,150
  
170,096
  
Purchase obligations (d)
85,669
  
39,502
  
27,059
  
19,057
  
51
  
Pension obligations (e)
40,317
  
11,333
  
5,465
  
8,807
  
14,712
  
   Total (f)
$    993,621
  
$    133,848
  
$     177,228
  
$   163,195
  
$   519,350
  

(a)  
See Note 7 to the Consolidated Financial Statements for more information on our debt.
(b)  
Amounts represent contractual interest payments on our fixed-rate debt instruments.  Interest payments on our variable-rate notes payable with balances of $4.5 million, as of June 5, 2012 have been excluded from the amounts shown above, primarily because the balances outstanding can fluctuate monthly.  Additionally, the amounts shown above include interest payments on the Senior Notes at the current interest rate of 7.625%.
(c)  
This amount includes operating leases totaling $1.5 million for which sublease income from franchisees or others is expected.  Certain of these leases obligate us to pay maintenance costs, utilities, real estate taxes, and insurance, which are excluded from the amounts shown above.  See Note 6 to the Consolidated Financial Statements for more information.
(d)  
The amounts for purchase obligations include cash commitments under contract for food items and supplies, utility contracts, and other miscellaneous commitments.
(e)  
See Note 9 to the Consolidated Financial Statements for more information.
(f)  
This amount excludes $6.4 million of unrecognized tax benefits due to the uncertainty regarding the timing of future cash outflows associated with such obligations.
 
 
37
 
 
Commercial commitments were as follows as of June 5, 2012 (in thousands):

 
Payments Due By Period
   
Less than
1-3
3-5
More than 5
 
Total
1 year
years
years
years
Letters of credit
$    9,284
  
$    9,284
  
$             
  
$             
  
$            
  
Divestiture guarantees
7,958
  
891
  
1,655
  
2,001
  
3,411
  
   Total
$  17,242
  
$  10,175
  
$   1,655
  
$   2,001
  
$   3,411
  

At June 5, 2012, we had divestiture guarantees, which arose in fiscal 1996, when our shareholders approved the distribution of our family dining restaurant business (Morrison Fresh Cooking, Inc., “MFC”) and our health care food and nutrition services business (Morrison Health Care, Inc., “MHC”). Subsequent to that date Piccadilly Cafeterias, Inc. (“Piccadilly”) acquired MFC and Compass Group (“Compass”) acquired MHC. As agreed upon at the time of the distribution, we have been contingently liable for payments to MFC and MHC employees retiring under MFC’s and MHC’s versions of the Management Retirement Plan and the Executive Supplemental Pension Plan (the two non-qualified defined benefit plans) for the accrued benefits earned by those participants as of March 1996.

We estimated our divestiture guarantees at June 5, 2012 to be $7.1 million for employee benefit plans (all of which resides with MHC following Piccadilly’s bankruptcy in fiscal 2004).  We believe the likelihood of being required to make payments for MHC’s portion to be remote due to the size and financial strength of MHC and Compass.

Off-Balance Sheet Arrangements
See Notes 6 and 12 to the Consolidated Financial Statements for information regarding our operating leases and prior year franchise partnership guarantees.

Critical Accounting Policies
Our MD&A is based upon our Consolidated Financial Statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires us to make subjective or complex judgments that may affect the reported financial condition and results of operations. We base our estimates on historical experience and other assumptions that we believe to be reasonable in the circumstances, the results of which form the basis for making judgments about carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.  We continually evaluate the information used to make these estimates as our business and the economic environment changes.

We believe that of our significant accounting policies, the following may involve a higher degree of judgment and complexity. Our significant accounting policies are more fully described in Note 1 to the Consolidated Financial Statements.

Impairment of Long-Lived Assets
We evaluate the carrying value of any individual restaurant when the cash flows of such restaurant have deteriorated and we believe the probability of continued operating and cash flow losses indicate that the net book value of the restaurant may not be recoverable. In performing the review for recoverability, we consider the future cash flows expected to result from the use of the restaurant and its eventual disposition. If the sum of the expected future cash flows (undiscounted and without interest charges) is less than the carrying value of the restaurant, an impairment loss is recognized for the amount by which the net book value of the asset exceeds its fair value. Otherwise, an impairment loss is not recognized. Fair value is market participant-based upon estimated discounted future cash flows expected to be generated from continuing use through the expected disposal date and the expected salvage value.  In the instance of a potential sale of a restaurant in a refranchising transaction, the expected purchase price is used as the estimate of fair value.

If a restaurant that has been open for at least one full year shows negative cash flow results, we prepare a plan to reverse the negative performance. Under our policies, recurring or projected annual negative cash flow signals a potential impairment. Both qualitative and quantitative information are considered when evaluating for potential impairments.
 
 
38
 
 
At June 5, 2012, we had 27 restaurants that had been open more than one year with rolling 12 month negative cash flows, of which 16 have been impaired to salvage value.  Of the 11 which remained, we reviewed the plans to improve cash flows at each of the restaurants and determined no impairment was necessary.  The remaining net book value of these 11 restaurants was $10.1 million at June 5, 2012.

Should sales at these restaurants not improve within a reasonable period of time, further impairment charges are possible.  Considerable management judgment is necessary to estimate future cash flows, including cash flows from continuing use, terminal value, closure costs, salvage value, and sublease income.  Accordingly, actual results could vary significantly from our estimates.

Our goodwill totaled $8.0 million at June 5, 2012.  We perform tests for impairment annually, or more frequently if events or circumstances indicate it might be impaired.  Impairment tests for goodwill include comparing the fair value of the respective reporting unit with its carrying value, including goodwill.  We use a variety of methodologies in conducting these impairment assessments, including cash flow analyses that are consistent with the assumptions we believe hypothetical marketplace participants would use, estimates of sales proceeds and other measures, such as fair market price of our common stock, as evidenced by closing trading price.  Where applicable, we use an appropriate discount rate that is commensurate with the risk inherent in the projected cash flows.  If market conditions deteriorate, or if operating results decline unexpectedly, we may be required to record impairment charges.

Our normal timing for the annual testing of goodwill is as of the end of our third fiscal quarter.  As further discussed in Note 8 to the Consolidated Financial Statements, given our lowered stock price and the continuation of negative same-restaurant sales in the fourth quarter of fiscal 2012, we tested our goodwill again during the fourth quarter and determined that certain of our goodwill was impaired.  As a result, we recorded a charge of $16.9 million ($12.0 million, net of tax) during the fourth quarter of fiscal 2012, representing the full value of our Ruby Tuesday concept goodwill.

Business Combinations
We account for business combinations using the acquisition method, which requires, among other things, that most assets and liabilities assumed be recognized at their acquisition date fair values.  We record goodwill when the purchase price exceeds the estimated fair value of the net assets acquired.  The determination of estimated fair values of assets and liabilities requires significant estimates and assumptions, including but not limited to, determining the estimated future cash flows, estimated useful lives of assets, and appropriate discount rates.  We believe that the estimated fair values assigned to the assets and liabilities assumed from our Lime Fresh and franchisee acquisitions are based on reasonable assumptions.  However, the fair value estimates for the purchase price allocations may change during the allowable allocation period under Accounting Standards Codification Topic 805, Business Combinations, which is up to one year from the acquisition date, if additional information becomes available that would require a change to our estimates.

Share-Based Employee Compensation
Share-based compensation expense is estimated for equity awards at fair value at the grant date.  We determine the fair value of restricted stock awards based on the closing price of our common stock on the date prior to approval of the award by our Board of Directors.  We determine the fair value of stock option awards using the Black-Scholes option pricing model.  The Black-Scholes option pricing model requires various highly judgmental assumptions including the expected dividend yield, stock price volatility and life of the award.  If any of the assumptions used in the model change significantly, share-based compensation expense may differ materially in the future from that recorded in the current period.  See Note 11 to the Consolidated Financial Statements for further discussion of share-based employee compensation.

Income Tax Valuation Allowances and Tax Accruals
We record deferred tax assets for various items.  We record a valuation allowance for deferred tax assets when certain state net operating losses that, in the judgment of management, are not more likely than not to be realized.  This determination factors in the scheduled reversal of deferred tax liabilities (including the impact of available carryback and carryforward periods), projected taxable income, and tax-planning strategies.  As a result of state tax planning, the Company has a three-year cumulative pre-tax loss in certain states which is to be given significant weight in our assessments.  We recorded a valuation allowance for deferred tax assets of $2.4 million as of June 5, 2012.

 
39
 
 
As a matter of course, we are regularly audited by federal and state tax authorities.  We record appropriate accruals for potential exposures should a taxing authority take a position on a matter contrary to our position.  We evaluate these accruals, including interest thereon, on a quarterly basis to ensure that they have been appropriately adjusted for events that may impact our ultimate tax liability.

Lease Obligations
We lease a significant number of our restaurant properties. At the inception of the lease, each property is evaluated to determine whether the lease will be accounted for as an operating or capital lease. The term used for this evaluation includes renewal option periods only in instances in which the exercise of the renewal option can be reasonably assured and failure to exercise such option would result in an economic penalty.

Our lease term used for straight-line rent expense is calculated from the date we take possession of the leased premises through the lease termination date. There is potential for variability in our “rent holiday” period which begins on the possession date and ends on the earlier of the restaurant open date or the commencement of rent payments. Factors that may affect the length of the rent holiday period generally relate to construction-related delays. Extension of the rent holiday period due to delays in restaurant opening will result in greater preopening rent expense recognized during the rent holiday period.

For leases that contain rent escalations, we record the total rent payable during the lease term, as determined above, on the straight-line basis over the term of the lease (including the “rent holiday” period beginning upon possession of the premises), and we record the difference between the minimum rents paid and the straight-line rent as deferred escalating minimum rent.

Certain leases contain provisions that require additional rental payments, called "contingent rents," when the associated restaurants' sales volumes exceed agreed-upon levels. We recognize contingent rental expense (in annual as well as interim periods) prior to the achievement of the specified target that triggers the contingent rental expense, provided that achievement of that target is considered probable.

We record the estimated future lease obligations on closed leased restaurants for which we have not sublet or settled the lease with the respective landlord as of a quarter end date.  Inherent in these estimates is an assumption on the time period we anticipate it will take to reach a settlement with our landlord or to execute on a sublease agreement.  We calculate the lease obligation as the present value of future minimum net lease or settlement payments using a discount rate that takes into account the remaining time period prior to the estimated date of resolution.  As further discussed in Note 8 to the Consolidated Financial Statements, our estimated lease obligations as of June 5, 2012 and May 31, 2011 were $6.8 million and $2.7 million, respectively.

Revenue Recognition for Franchisees
We charge our franchisees various monthly fees that are calculated as a percentage of the respective franchise’s monthly sales.  Our franchise agreements allow us to charge up to a 4.0% royalty fee, a 1.5% support service fee, a 1.5% marketing and purchasing fee, and an advertising fee of up to 3.0%.  We defer recognition of franchise fee revenue for any franchise with negative cash flows at times when the negative cash flows are deemed to be anything other than temporary.

We also do not recognize franchise fee revenue from franchises with fees in excess of 60 days past due.  Unearned income for franchise fees was negligible and $1.2 million as of June 5, 2012 and May 31, 2011, respectively, which is included in Other deferred liabilities and/or Accrued liabilities – Rent and other in the Consolidated Balance Sheets.  See Note 4 to the Consolidated Financial Statements for information relating to the write-off of certain unearned income for franchise fees in fiscal 2012.

Estimated Liability for Self-Insurance
We self-insure a portion of our current and past losses from workers’ compensation and general liability claims. We have stop loss insurance for individual claims for workers’ compensation and general liability in excess of stated loss amounts. Insurance liabilities are recorded based on third-party actuarial estimates of the ultimate incurred losses, net of payments made. The estimates themselves are based on standard actuarial techniques that incorporate both the historical loss experience of the Company and supplemental information as appropriate.
 
 
40
 
 
The analysis performed in calculating the estimated liability is subject to various assumptions including, but not limited to, (a) the quality of historical loss and exposure information, (b) the reliability of historical loss experience to serve as a predictor of future experience, (c) the reasonableness of insurance trend factors and governmental indices as applied to the Company, and (d) projected payrolls and revenue.  As claims develop, the actual ultimate losses may differ from actuarial estimates.  Therefore, an analysis is performed quarterly to determine if modifications to the accrual are required.

Recently Issued Accounting Standards Not Yet Adopted

In June 2011, the Financial Accounting Standards Board (“FASB”) issued guidance on the presentation of total comprehensive income, the components of net income, and the components of other comprehensive income.  This guidance is intended to improve the comparability, consistency, and transparency of financial reporting and to increase the prominence of items reported in other comprehensive income.  The guidance is effective for fiscal years, and interim periods within those years, beginning after December 15, 2011 (our fiscal 2013 first quarter).  We do not expect the adoption of this guidance to have a material impact on our Consolidated Financial Statements.

In September 2011, the FASB issued guidance modifying the impairment test for goodwill by allowing businesses to first decide whether they need to do the two-step impairment test.  Under the guidance, a business no longer has to calculate the fair value of a reporting unit unless it believes it is very likely that the reporting unit’s fair value is less than the carrying value.  The guidance is effective for impairment tests for fiscal years beginning after December 15, 2011 (our fiscal 2013).  We do not expect the adoption of this guidance to have a material impact on our Consolidated Financial Statements.

In July 2012, the FASB issued guidance on testing indefinite-lived intangible assets for impairment.  Under the guidance, testing the decline in the realizable value (impairment) of indefinite-lived intangible assets other than goodwill has been simplified.  The guidance allows an organization the option to first assess qualitative factors to determine whether it is necessary to perform the quantitative impairment test.  An organization electing to perform a qualitative assessment is no longer required to calculate the fair value of an indefinite-lived intangible asset unless the organization determines, based on a qualitative assessment, that it is “more likely than not” that the asset is impaired.  The guidance is effective for impairment tests for fiscal years beginning after September 15, 2012 (our fiscal 2014).  We do not expect the adoption of this guidance to have a material impact on our Consolidated Financial Statements.

Known Events, Uncertainties, and Trends

Financial Strategy and Stock Repurchase Plan
Our financial strategy is to utilize a prudent amount of debt, including operating leases, letters of credit, and any guarantees, to minimize the weighted average cost of capital while allowing financial flexibility. This strategy has periodically allowed us to repurchase RTI common stock.  During the year ended June 5, 2012, we repurchased 2.0 million shares of RTI common stock at an aggregate cost of $18.4 million.  As of June 5, 2012, the total number of remaining shares authorized to be repurchased was 5.9 million.  To the extent not funded with cash on hand, cash from operating activities, or proceeds from stock option exercises, future repurchases, if any, may be funded by sale-leaseback transactions and borrowings on the Credit Facility.  The repurchase of shares in any particular future period and the actual amount thereof remain at the discretion of the Board of Directors, and no assurance can be given that shares will be repurchased in the future.

Step Down of Chief Executive Officer
On June 6, 2012, we announced that Samuel E. Beall, III, our founder, President, Chief Executive Officer, and Chairman of the Board of Directors, has decided to step down from management and the Board of Directors.  Mr. Beall intends to step down once the Company names his successor.

We anticipate that Mr. Beall will step down from management and the Board of Directors prior to or on November 30, 2012.  Mr. Beall is entitled to receive his entire $8.1 million pension payment in a lump-sum six months following his retirement and we therefore expect that this payment will be made in fiscal 2013.  Due to the significance of Mr. Beall’s lump-sum payment to the Executive Supplemental Pension Plan liability as a whole, the payment will constitute a partial plan settlement which will require a special valuation.  In addition to the expense we routinely record for the Executive Supplemental Pension Plan, a charge estimated to approximate $2.8 million will then be


 
41
 
 
recorded, representing the recognition of a pro rata portion (calculated as the percentage reduction in the projected benefit obligation due to the lump-sum payment) of the then unrecognized loss recorded within accumulated other comprehensive loss.

Sale-Leaseback Transactions
Over the last three fiscal quarters, we have been pursuing sale-leaseback transactions on a portion of our real estate in order to create greater financial flexibility.  We are targeting to raise approximately $50.0 million of gross proceeds from these transactions to be utilized for debt reduction and opportunistic share repurchases, and will give consideration to potential additional sale-leaseback transactions should market demand and deal economics remain attractive.

During the year ended June 5, 2012, we completed the sale-leaseback of the land and building for ten Company-owned Ruby Tuesday concept restaurants for gross cash proceeds of $22.2 million, exclusive of transaction costs of approximately $1.1 million.  Equipment was not included.  The carrying value of the property sold was $16.5 million.  The leases have been classified as operating leases and have initial terms of 15 years, with renewal options of up to 20 years.  Net proceeds from the sale-leaseback transactions were used to pay down certain of our mortgage loan obligations.

We realized gains on these transactions of $4.6 million, which have been deferred and are being recognized on a straight-line basis over the initial terms of the leases.  The current and long-term portions of the deferred gains are included in Accrued liabilities- Rent and other and Other deferred liabilities, respectively, in our June 5, 2012 Consolidated Balance Sheet.  Amortization of the deferred gains is included as a reduction to rent expense and is included within Other restaurant operating costs in our Consolidated Statement of Operations for the year ended June 5, 2012.

See Note 15 to the Consolidated Financial Statements for a discussion of sale-leaseback transactions which occurred subsequent to June 5, 2012 but prior to the date of the filing of this Annual Report on Form 10-K.

Required Registration of Senior Notes
As further discussed in Note 7 to the Consolidated Financial Statements, on May 14, 2012, we entered into an indenture among the Company, certain subsidiaries of the Company as guarantors  and Wells Fargo Bank, National Association as trustee, governing the Company’s $250.0 million aggregate principal amount of 7.625% Senior Notes due 2020.

In connection with the issuance of the Senior Notes, we have agreed to register with the SEC notes having substantially identical terms as the Senior Notes, as part of an offer to exchange freely tradable exchange notes for the Senior Notes.  We have agreed: (i) within 270 days after the issue date of the Senior Notes, to file a registration statement enabling holders of the Senior Notes to exchange the privately placed notes for publicly registered notes with substantially identical terms; (ii) to use commercially reasonable efforts to cause the registration statement to become effective within 365 days after the issue date of the Senior Notes; (iii) to consummate the exchange offer within 405 days after the issue date of the Senior Notes; and (iv) to file a shelf registration statement for resale of the notes if we cannot consummate the exchange offer within the time period listed above.

If we fail to meet these targets (each, a “registration default”), the annual interest rate on the Senior Notes will increase by 0.25%.  The annual interest rate on the Senior Notes will increase by an additional 0.25% for each subsequent 90-day period during which the registration default continues, up to a maximum additional interest rate of 1.0% per year over the otherwise applicable annual interest rate of 7.625%.  If we cure the registration default, the interest rate on the Senior Notes will revert to the original level.

Dividends
During fiscal 1997, our Board of Directors approved a dividend policy as an additional means of returning capital to our shareholders.  The payment of a dividend in any particular future period and the actual amount thereof remain at the discretion of the Board of Directors, and no assurance can be given that dividends will be paid in the future.

Fiscal Year
Fiscal year 2012 contained 53 weeks.  RTI’s fiscal year 2013 will contain 52 weeks and end on June 4, 2013.
 
 
42
 
 
Impact of Inflation
The impact of inflation on the cost of food, labor, supplies, utilities, real estate, and construction costs could adversely impact our operating results.  Historically, we have been able to recover certain inflationary cost increases through increased menu prices coupled with more efficient purchasing practices and productivity improvements. Competitive pressures may limit our ability to completely recover such cost increases. Historically, the effect of inflation has not significantly impacted our net income.


We are exposed to market risk from fluctuations in interest rates and changes in commodity prices.  The interest rate charged on our Credit Facility can vary based on the interest rate option we choose to utilize.  Our Base Rate for borrowings is defined to be the higher of Bank of America’s prime lending rate, the Federal Funds Rate plus 0.5%, or an adjusted LIBO Rate plus 1.00%, plus an applicable margin ranging from 0.25% to 1.50%.  The applicable margin for our Eurodollar Borrowings ranges from 1.25% to 2.50%.

As of June 5, 2012, the total amount of outstanding debt subject to interest rate fluctuations was $4.5 million.  A hypothetical 100 basis point change in short-term interest rates would result in an increase or decrease in interest expense of an insignificant amount per year, assuming a consistent capital structure.

Many of the ingredients used in the products we sell in our restaurants are commodities that are subject to unpredictable price volatility.  This volatility may be due to factors outside our control such as weather and seasonality.  We attempt to minimize the effect of price volatility by negotiating fixed price contracts for the supply of key ingredients.  Historically, and subject to competitive market conditions, we have been able to mitigate the negative impact of price volatility through adjustments to average check or menu mix.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
43
 

 
 
Ruby Tuesday, Inc. and Subsidiaries
Index to Consolidated Financial Statements
 


 
44
 

 
      
Consolidated Financial Statements
      
Consolidated Statements of Operations
      
(In thousands, except per-share data)
      
       
   
For the Fiscal Year Ended
  
   
June 5,
    
May 31,
    
June 1,
  
   
2012
    
2011
    
2010
  
                   
Revenue:
                  
 Restaurant sales and operating revenue
   $ 1,320,098     $ 1,258,015     $ 1,188,043  
 Franchise revenue
     5,738       7,147       6,753  
      1,325,836       1,265,162       1,194,796  
                         
Operating costs and expenses:
                        
 Cost of merchandise
     380,520       365,653       344,462  
 Payroll and related costs
     455,087       422,230       396,877  
 Other restaurant operating costs
     270,132       256,632       240,947  
 Depreciation
     65,297       62,878       63,767  
 Selling, general, and administrative, net
     114,534       85,971       70,526  
 Closures and impairments
     18,665       6,249       3,776  
 Goodwill impairment
     16,919                  
 Equity in losses of unconsolidated franchises
             574       328  
 Interest expense, net
     19,620       12,353       16,355  
      1,340,774       1,212,540       1,137,038  
                         
(Loss)/income before income taxes
     (14,938 )     52,622       57,758  
(Benefit)/provision for income taxes
     (14,750 )     5,744       12,414  
                         
Net (loss)/income
   $ (188 )   $ 46,878     $ 45,344  
                         
(Loss)/earnings per share:
                        
    Basic
   $ (0.00 )   $   0.73     $   0.74  
    Diluted
   $ (0.00 )   $   0.72     $   0.73  
                         
Weighted average shares:
                        
    Basic
     62,916       64,029       61,533  
    Diluted
     62,916       64,948       61,870  
The accompanying notes are an integral part of the consolidated financial statements.
  
 
 
45
 
 
Consolidated Balance Sheets
(In thousands, except per-share data)
   
June 5,
2012
    
May 31,
2011
  
Assets:
            
Current assets:
            
    Cash and short-term investments
   $ 48,184     $ 9,722  
    Accounts and notes receivable
     4,700       7,531  
    Inventories:
                
         Merchandise
     19,918       25,627  
         China, silver and supplies
     9,112       8,843  
    Income tax receivable
     837       3,077  
    Deferred income taxes
     27,134       14,429  
    Prepaid rent and other expenses
     13,670       12,797  
    Assets held for sale
     4,713       1,340  
         Total current assets
     128,268       83,366  
                 
Property and equipment, net
     966,605       1,031,151  
Goodwill
     7,989       15,571  
Other assets, net
     70,675       56,938  
Total assets
   $ 1,173,537     $ 1,187,026  
                 
Liabilities and Shareholders' Equity:
                
Current liabilities:
                
    Accounts payable
   $ 34,948     $ 29,807  
    Accrued liabilities:
                
         Taxes, other than income and payroll
     14,475       13,695  
         Payroll and related costs
     32,546       27,559  
         Insurance
     7,433       6,581  
         Deferred revenue – gift cards
     8,758       8,731  
         Rent and other
     21,610       17,861  
     Current maturities of long-term debt, including capital leases
     12,454       15,090  
         Total current liabilities
     132,224       119,324  
                 
Long-term debt and capital leases, less current maturities
     314,209       329,184  
Deferred income taxes
     37,567       42,923  
Deferred escalating minimum rent
     45,259       44,291  
Other deferred liabilities
     68,054       59,591  
Total liabilities
     597,313       595,313  
                 
Commitments and contingencies (Note 12)
                
                 
Shareholders’ equity:
                
     Common stock, $0.01 par value; (authorized:  100,000  shares;
                
          issued:  2012 – 64,038 shares, 2011 – 65,098 shares)
     640       651  
     Capital in excess of par value
     90,856       104,941  
     Retained earnings
     498,985       499,173  
     Deferred compensation liability payable in Company stock
     1,008       1,556  
     Company stock held by Deferred Compensation Plan
     (1,008 )     (1,556 )
     Accumulated other comprehensive loss
     (14,257 )     (13,052 )
      576,224       591,713  
Total liabilities and shareholders' equity
   $ 1,173,537     $ 1,187,026  
 
The accompanying notes are an integral part of the consolidated financial statements.
 
 
 
46
 
 
Ruby Tuesday, Inc. and Subsidiaries
Consolidated Statements of Shareholders’ Equity
and Comprehensive (Loss)/Income
(In thousands, except per-share data)
                     
Company Stock
            
                 
Held by the
  
Accumulated
        
 
Common Stock
  
Capital In
      
Deferred
  
Deferred
  
Other
  
Total
    
 
Issued
  
Excess of
  
Retained
  
Compensation
  
Compensation
  
Comprehensive
  
Shareholders’
    
Shares
  
Amount
Par Value
Earnings
Liability
Plan
Loss
Equity
  
                                   
Balance, June 2, 2009
52,806
  
$528
  
$20,804
  
$406,951
  
$2,200
  
$(2,200
)
$(11,917
)
$416,366
    
   Net income
            
45,344
              
45,344
    
   Pension and post-retirement
                                  
       benefit plans, net of taxes
                                  
       of $829
                        
(1,260
)
(1,260
)
  
   Comprehensive income
                            
44,084
    
   Common stock offering
11,500
  
115
  
73,010
                  
73,125
    
   Sh