Flanigans Enterprises Inc 10-K for FY2022
Flanigans Enterprises Inc (BDL)
About this 10-K
Flanigans Enterprises Inc filed this 10-K on January 18, 2023, covering the fiscal year ended October 1, 2022 (FY2022).
Headline figures
Fiscal year ended October 1, 2022, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $158.13M
- up 15.2% from $137.31M a year earlier
- Net income
- $6.31M
- down 46.4% from net income of $11.78M a year earlier
- Diluted EPS
- $3.40
- down 46.4% from $6.34 a year earlier
FORM
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| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
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| 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
(Exact name of registrant as specified in its charter)
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Securities registered pursuant to Section 12(b) of the Act:
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Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
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 ☐
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.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer ☐ | Accelerated filer ☐ | | |
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| Smaller reporting company | Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its annual report.
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes ☐ No
As of April 1, 2022, the last business day of the registrant’s most recently completed second fiscal quarter, the aggregate market value of the voting stock held by non-affiliates of the registrant was $
There were
DOCUMENTS INCORPORATED BY REFERENCE
Information required by Part III (Items 10, 11, 12, 13 and 14) hereof is incorporated by reference to portions of the Registrant’s Proxy Statement for the 2023 Annual Meeting of Shareholders which will be filed with the Securities and Exchange Commission no later than 120 days after the end of the registrant’s fiscal year covered by this report.
FLANIGAN'S ENTERPRISES, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
As used in this Annual Report on Form 10-K, the terms “we,” “us,” “our,” the “Company” and “Flanigan’s” mean Flanigan's Enterprises, Inc. and its subsidiaries (unless the context indicates a different meaning).
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This annual report, including, without limitation, statements under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (“Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (“Exchange Act”). These forward-looking statements can be identified by the use of forward-looking terminology, including the words “believes,” “estimates,” “anticipates,” “expects,” “intends,” “plans,” “may,” “will,” “potential,” “projects,” “predicts,” “continue,” or “should,” “could”, “may”, “might”, “will” and “would” or, in each case, their negative or other variations or comparable terminology. There can be no assurance that actual results will not materially differ from expectations. Such statements include, but are not limited to, any statements relating to the future effects of the COVID 19 pandemic, the general expansion of our business and other statements which are not statements of current or historical facts.
The forward-looking statements contained in this annual report are based on our current expectations and beliefs concerning future developments and their potential effects on us. Future developments affecting us may not be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) and other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described under the heading “Risk Factors.” Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We caution readers not to place undue reliance on any forward-looking statements, which speak only as of the dates on which they are made. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws. These risks and others described under “Risk Factors” may not be exhaustive.
By their nature, forward-looking statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. We caution you that forward-looking statements are not guarantees of future performance and that our actual results of operations, financial condition and liquidity, and developments in the industry in which we operate may differ materially from those made in or suggested by the forward-looking statements contained in this annual report. In addition, even if our results of operations, financial condition and liquidity, and developments in the industry in which we operate are consistent with the forward-looking statements contained in this annual report, those results or developments may not be indicative of results or developments in subsequent periods.
PART I
ITEM 1. BUSINESS
General
As of October 1, 2022, Flanigan’s Enterprises, Inc., a Florida corporation, together with its subsidiaries (“we”, “our”, “ours” and “us” as the context requires), (i) operates 30 units, consisting of restaurants, package liquor stores, combination restaurant/package liquor stores and a sports bar that we either own or have operational control over and partial ownership in; and franchises an additional five units, consisting of two restaurants (one of which we operate) and three combination restaurant/package liquor stores. The table below provides information concerning the type (i.e. restaurant, sports bar, package liquor store or combination restaurant/package liquor store) and ownership of the units (i.e. whether (i) we own 100% of the unit; (ii) the unit is owned by a limited partnership of which we are the sole general partner and/or have invested in; or (iii) the unit is franchised by us), as of October 1, 2022 and as compared to October 2, 2021. With the exception of “The Whale’s Rib”, a restaurant we operate but do not own, and “Brendan’s Sports Pub” a restaurant/bar we own, all of the restaurants operate under our service marks “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” and all of the package liquor stores operate under our service marks “Big Daddy’s Liquors” or “Big Daddy’s Wine & Liquors”.
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TYPES OF UNITS |
FISCAL YEAR 2022 |
FISCAL YEAR 2021 |
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| Company Owned: | |||
| Combination package liquor store and restaurant | 3 | 3 | (1) |
| Restaurant only, including sports bar | 8 | 7 | (2) |
| Package liquor store only | 7 | 7 | |
| Company Managed Restaurants Only: | |||
| Limited partnerships | 10 | 8 | (3) |
| Franchise | 1 | 1 | |
| Unrelated Third Party | 1 | 1 | |
| Total Company Owned/Operated Units | 30 | 27 | |
| Franchised Units | 5 | 5 | (4) |
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Notes:
(1) During the first quarter of our fiscal year 2019, our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19), was damaged by a fire which has caused it to be closed since the first quarter of our fiscal year 2019. Subsequent to our fiscal year ended October 1, 2022, we opened our newly built stand-alone package liquor store on this site replacing our package liquor store destroyed by fire and previously operating here, We are constructing a stand-alone restaurant building on this site (adjacent to the package liquor store), replacing our restaurant destroyed by fire and previously operating here. We do not believe this restaurant will be operational during our fiscal year 2023.
(2) During the third quarter of our fiscal year 2022, we entered into a new lease for the business premises and purchased the assets of a restaurant/bar known as “Brendan’s Sports Pub” located at 868 S. Federal Highway, Pompano Beach, Florida and began operating the location under its current trade name.
(3) During the second quarter of our fiscal year 2022, our limited partnership owned restaurant located at 14301 West Sunrise Boulevard, Sunrise, Florida (Store #85) opened for business in March, 2022 (the “2022 Sunrise Restaurant”). Our limited partnership owned restaurant located at 11225 Miramar Parkway #250, Miramar, Florida (Store #25) is expected to open for business in February, 2023 (the “2023 Miramar Restaurant”).
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(4) We operate a restaurant for one (1) franchisee. This unit is included in the table both as a franchised restaurant, as well as a restaurant operated by us.
History and Development of Our Business
We were incorporated in Florida in 1959 and commenced operating as a chain of small cocktail lounges and package liquor stores throughout South Florida. By 1970, we had established a chain of "Big Daddy's" lounges and package liquor stores between Vero Beach and Homestead, Florida. From 1970 to 1979, we expanded our package liquor store and lounge operations throughout Florida and opened clubs in five other "Sun Belt" states. In 1975, we discontinued most of our package store operations in Florida except in the South Florida areas of Miami-Dade, Broward, Palm Beach and Monroe Counties. In 1982, we expanded our club operations into the Philadelphia, Pennsylvania area as general partner of several limited partnerships we organized. In March 1985, we began franchising package liquor stores and lounges in the South Florida area. (See Note 14 to the consolidated financial statements and the discussion of franchised units on pages 3 and 4).
During our fiscal year 1987, we began renovating our lounges to provide full restaurant food service, and subsequently renovated and added food service to most of our lounges. Food sales currently represent approximately 78.8% and bar sales approximately 21.2% of our total restaurant sales.
Our package liquor stores emphasize high volume business by providing customers with a wide variety of brand name and private label merchandise at discount prices. Our restaurants and our new sports bar establishment offer alcoholic beverages and food service with abundant portions and reasonable prices, served in a relaxed, friendly and casual atmosphere.
We conduct our operations directly and through a number of limited partnerships and wholly owned subsidiaries, all of which are listed below. Our subsidiaries and the limited partnerships, (except for the limited partnership, where we are not the general partner, which owns and operates our franchised restaurant in Fort Lauderdale, Florida) are reported on a consolidated basis.
| Entity |
State Of Organization |
Percentage Owned |
| Flanigan’s Management Services, Inc. | Florida | 100 |
| Flanigan’s Enterprises, Inc. of Georgia | Georgia | 100 |
| Flanigan’s Enterprises of N. Miami, Inc. | Florida | 100 |
| CIC Investors #13, Limited Partnership | Florida | 45 |
| CIC Investors #25, Limited Partnership | Florida | -- |
| CIC Investors #50, Limited Partnership | Florida | 24 |
| CIC Investors #55, Limited Partnership | Florida | 49 |
| CIC Investors #60, Limited Partnership | Florida | 46 |
| CIC Investors #65, Limited Partnership | Florida | 28 |
| CIC Investors #70, Limited Partnership | Florida | 41 |
| CIC Investors #80, Limited Partnership | Florida | 27 |
| CIC Investors #85, Limited Partnership | Florida | 7 |
| CIC Investors #90, Limited Partnership | Florida | 5 |
| Josar Investments, LLC | Florida | 100 |
| Flanigan’s Calusa Center, LLC | Florida | 100 |
| Flanigan’s Fish Company, LLC | Florida | 51 |
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Package Liquor Store Operations
Our package liquor stores emphasize high volume business by providing customers with a wide selection of brand name and private label liquors, beers and wines while offering competitive pricing by meeting the published sales prices of our competitors. We provide sales training to our package liquor store personnel. The stores are open for business seven days a week from 9:00-10:00 a.m. to 9:00-10:00 p.m., depending upon demand and local law. Most of our units have "night windows" with extended evening hours.
Company-Owned Package Liquor Stores. As of our fiscal year ended October 1, 2022, we own and operate nine package liquor stores in the South Florida area under the name “Big Daddy’s Liquors” or “Big Daddy’s Wine & Liquors”, two of which are jointly operated with restaurants we own. Subsequent to our fiscal year ended October 1, 2022, we opened our stand-alone package liquor store replacing our package liquor store destroyed by fire and previously operating in Hollywood, Florida.
Franchised Package Liquor Stores. We currently franchise three package liquor stores, all in the South Florida area, all of which are operated under the name “Big Daddy’s Liquors”. Of the three franchised package liquor stores, two are jointly operated with our franchisee’s restaurant operations and one is operated in a freestanding building adjacent to the franchisee’s restaurant operation. Two of the three franchised package liquor stores are franchised to members of the family of our Chairman of the Board, officers and/or directors. We have not entered into a franchise arrangement for either a package liquor store, restaurant or combination package liquor store/restaurant since 1986 and do not anticipate that we will do so in the foreseeable future.
Generally, a franchise agreement with our franchisees for the operation of a package liquor store runs for the balance of the term of the franchisee’s lease for the business premises, extended by the franchisee’s continued occupancy of the business premises thereafter, whether by lease or ownership. In exchange for our providing management and related services to the franchisee and our granting the right to the franchisee to use our service mark, “Big Daddy’s Liquors”, franchisees of package liquor stores pay us weekly in arrears, (i) a royalty equal to approximately 1% of gross sales; plus (ii) an amount for advertising equal to between 1-1/2% to 3% of gross sales generated at the stores depending upon our actual advertising costs.
For accounting purposes, we do not consolidate the revenue and expenses of our franchisees’ operations with our revenue and expenses. Franchise royalties we receive are recognized as revenue when sales are made by franchisees.
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Restaurant Operations
Our restaurants provide a neighborhood casual, standardized dining experience, typical of casual restaurant chains. The interior decor of the restaurants is nautical with numerous fishing and boating pictures and decorations. The restaurants are designed to permit minor modifications without significant capital expenditures. However, from time to time we are required to redesign and refurbish the restaurants at significant cost. Drink prices may vary between locations to meet local conditions. Food prices are substantially standardized for all restaurants. The restaurants' hours of operation are from 11:00 a.m. to 1:00-5:00 a.m. depending upon demand and local law.
Company-Owned Restaurants. We own and operate nine restaurants all under our service mark “Flanigan’s Seafood Bar and Grill” two of which are jointly operated with package liquor stores we own. We are constructing a stand-alone restaurant to be located in Hollywood, Florida to replace our restaurant destroyed by fire. We do not believe this restaurant will be operational during our fiscal year 2023.
Franchised Restaurants. We franchise five restaurants, all of which operate under our service mark “Flanigan’s Seafood Bar and Grill”, two of which operate as a restaurant only, two of which operate jointly with a franchisee operated “Big Daddy’s Liquors” package liquor store and one of which operates adjacent to a “Big Daddy’s Liquors” package liquor store. Four of the five franchised restaurants are franchised to members of the family of or our Chairman of the Board, officers and/or directors. We have not entered into a franchise arrangement for either a package liquor store, restaurant or combination package liquor store/restaurant since 1986 and do not anticipate that we will do so in the foreseeable future.
Generally, a franchise agreement with our franchisees for the operation of a restaurant runs for the balance of the term of the franchisee’s lease for the business premises, extended by the franchisee’s continued occupancy of the business premises thereafter, whether by lease or ownership. In exchange for our providing management and related services to the franchisee and our granting the right to the franchisee to use our service mark, “Flanigan’s Seafood Bar and Grill”, our franchisees pay us weekly in arrears, (i) a royalty equal to approximately 3% of gross sales; plus (ii) an amount for advertising equal to between 1-1/2% to 3% of gross sales from the restaurants depending upon our actual advertising costs.
For accounting purposes, we do not consolidate the revenue and expenses of our franchisees’ operations with our revenue and expenses. Franchise royalties we receive are recognized as revenue when sales are made by franchisees.
Restaurants Owned by Affiliated Limited Partnerships
We have invested along with others, (some of whom are or are affiliated with our officers and directors), in ten limited partnerships which currently own and operate nine South Florida based restaurants under our service mark “Flanigan’s Seafood Bar and Grill”. An additional limited partnership owned restaurant located at 11225 Miramar Parkway #250, Miramar, Florida (Store #25) is expected to open for business in February, 2023 (the “2023 Miramar Restaurant”). In addition to being a limited partner in these limited partnerships, we are the sole general partner of nine of these limited partnerships and manage and control the operations of these restaurants. We are only a limited partner in the limited partnership which owns and operates the restaurant located in Fort Lauderdale, Florida.
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Generally, the terms of the limited partnership agreements provide that until the investors’ cash investment in a limited partnership (including any cash invested by us) is returned in full, (available cash is distributed to the investors pro-rata based on ownership interest), the limited partnership distributes to the investors annually out of available cash from the operation of the restaurant, as a return of capital, up to 25% of the cash invested in the limited partnership, with no management fee paid to us. Any available cash in excess of the 25% of the cash invested in the limited partnership distributed to the investors annually, is paid one-half (½) to us as a management fee and one-half (½) to the investors, (including us), pro-rata based on the investors’ investment, as a return of capital. Once all of the investors, (including us), have received, in full, amounts equal to their cash invested, an annual management fee becomes payable to us equal to one-half (½) of cash available to be distributed, with the other one-half (½) of available cash distributed to the investors (including us), as a profit distribution, pro-rata based on the investors’ investment. As of October 1, 2022, all limited partnerships, with the exception of the 2022 Sunrise Restaurant, which opened for business in March, 2022 and the 2023 Miramar Restaurant, which we anticipate will open for business in February, 2023, have returned all cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by the limited partnership. In addition to receipt of distributable amounts from the limited partnerships, we receive a fee equal to 3% of gross sales for use of the service mark “Flanigan’s Seafood Bar and Grill” or “Flanigan’s”. In addition to our receipt of distributable amounts from the limited partnerships, we receive a fee equal to 3% of gross sales for use of our “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” service marks, which use is authorized while we act as general partner only. This 3% fee is “earned” when sales are made by the limited partnerships and is paid weekly, in arrears. Whether we will have any additional restaurants under development in the future will be dependent, among other things, on market conditions and our ability to raise capital. We anticipate that we will continue to form limited partnerships to raise funds to own and operate restaurants under our service marks “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” using the same or substantially similar financial arrangements.
Below is information on the eleven limited partnerships which own and operate “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” restaurants:
Surfside, Florida
We are the sole general partner and a 46% limited partner in this limited partnership which has owned and operated a restaurant in Surfside, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since March 6, 1998. 33.3% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by this limited partnership.
Kendall, Florida
We are the sole general partner and a 41% limited partner in this limited partnership which has owned and operated a restaurant in Kendall, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since April 4, 2000. 28.3% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by this limited partnership.
West Miami, Florida
We are the sole general partner and a 27% limited partner in this limited partnership which has owned and operated a restaurant in West Miami, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since October 11, 2001. 32.7% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by this limited partnership.
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Wellington, Florida
We are the sole general partner and a 28% limited partner in this limited partnership which has owned and operated a restaurant in Wellington, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since May 27, 2005. 22.4% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (1/2) of the cash available for distribution by this limited partnership.
Pinecrest, Florida
We are the sole general partner and 45% limited partner in this limited partnership which has owned and operated a restaurant in Pinecrest, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since August 14, 2006. 20.2% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by this limited partnership.
Pembroke Pines, Florida
We are the sole general partner and a 24% limited partner in this limited partnership which has owned and operated a restaurant in Pembroke Pines, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since October 29, 2007. 23.8% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by this limited partnership.
Davie, Florida
We are the sole general partner and a 49% limited partner in this limited partnership which has owned and operated a restaurant in Davie, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since July 28, 2008. 12.3% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by this limited partnership.
Miami, Florida
We are the sole general partner and a 5% limited partner in this limited partnership which has owned and operated a restaurant in Miami, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since December 27, 2012. 26.8% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by this limited partnership.
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Sunrise, Florida
We are the sole general partner and a 7% limited partner in this limited partnership which has owned and operated a restaurant in Sunrise, Florida under our “Flanigan’s” service mark since March 20, 2022. 31.3% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. As of the end of our fiscal year 2022, this limited partnership has returned to its investors approximately 2.0% of their initial cash invested.
Miramar, Florida
We are the sole general partner in this limited partnership which is developing a restaurant in Miramar, Florida under our “Flanigan’s” service mark. No units of limited partnership interest were purchased by the Company. 24.0% of the limited partnership interest is owned by persons who are either our officers, directors or their family members. We anticipate that this new restaurant will commence operations in February, 2023.
Fort Lauderdale, Florida
A corporation owned by one of our board members acts as sole general partner of a limited partnership which has owned and operated a restaurant in Fort Lauderdale, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since April 1, 1997. We have a 25% limited partnership interest in this limited partnership. 31.9% of the remaining limited partnership interest is owned by persons who are either our officers, directors or their family members. This limited partnership has returned to its investors all cash invested, but since we are not the general partner of this limited partnership, we do not receive an annual management fee. We have a franchise arrangement with this limited partnership and for accounting purposes, we do not consolidate the operations of this limited partnership into our operations.
Management Agreement for “The Whale’s Rib” Restaurant
Since January 2006, we have managed “The Whale’s Rib”, a casual dining restaurant located in Deerfield Beach, Florida, pursuant to a management agreement. We paid $500,000 in exchange for our rights to manage this restaurant. The restaurant is owned by a third party unaffiliated with us. In exchange for providing management, bookkeeping and related services, we receive one-half (½) of the net profit, if any, from the operation of the restaurant. For our fiscal years ended October 1, 2022 and October 2, 2021, we generated $400,000 of revenue each fiscal year from providing these management services.
Operations and Management
We emphasize systematic operations and control of all package liquor stores and restaurants regardless of whether we own, franchise or manage the unit. Each unit has its own manager who is responsible for monitoring inventory levels, supervising sales personnel, food preparation and service in restaurants and generally assuring that the unit is managed in accordance with our guidelines and procedures. We have in effect an incentive cash bonus program for our managers and salespersons based upon various performance criteria. Our operations are supervised by supervisors, who visit all Company, limited partnership and franchise owned units and the managed unit to provide on-site management and support. There are three supervisors responsible for package liquor store operations and six supervisors responsible for restaurant operations.
All of our managers and salespersons receive extensive training in sales techniques. We arrange for independent third parties, or "shoppers", to inspect each unit in order to evaluate the unit's operations, including the handling of cash transactions.
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Purchasing and Inventory
The package liquor business requires a constant substantial capital investment in inventory at the stores. Our inventory consists primarily of liquor and wine products and as such, does not become excessive or obsolete that would require identifying and recording of the same. Liquor inventory purchased can normally be returned only if defective or broken.
All of our purchases of liquor inventory are made through our purchasing department from our corporate headquarters. The major portion of inventory is purchased under individual purchase orders with licensed wholesalers and distributors who deliver the merchandise within one or two days of the placing of an order. Frequently there is only one wholesaler in the immediate marketing area with an exclusive distributorship of certain liquor product lines. Substantially all of our liquor inventory is shipped by the wholesalers or distributors directly to our stores. We significantly increase our inventory prior to Christmas, New Year's Eve and other holidays. Under Florida law, we are required to pay for our liquor purchases within ten days of delivery.
Negotiations with food suppliers are conducted by our purchasing department at our corporate headquarters. We believe this ensures that the best quality and prices will be available to each restaurant. Orders for food products are prepared by each restaurant's kitchen manager and reviewed by the restaurant's general manager before orders are placed. Food is delivered by the supplier directly to each restaurant. Orders are placed several times a week to ensure product freshness. Food inventory is primarily paid for monthly. We purchase food and other commodities for use in our operations based on market prices established with our suppliers. Many of the food products purchased by us can be subject to price volatility due to market supply and demand factors outside of our control. We mitigate the risk of supply shortages and obtain competitive prices by utilizing multiple qualified suppliers for substantially all our food products.
We negotiate short and long term agreements for certain of our principal food product requirements, depending on market conditions and expected demand. We evaluate the possibility of entering into arrangements to assist us in managing risk and variability associated with the supply and demand of food products.
In order to fix the cost and ensure adequate supply of baby back ribs for our restaurants for calendar years 2022 and 2023, we entered into purchase agreements with our current rib supplier, whereby we agreed to purchase approximately $10.4 million and $ 6.8 million of “2.25 & Down Baby Back Ribs” (industry jargon for the weight range in which slabs of baby back ribs are sold) from this vendor during calendar years 2022 and 2023, at prescribed costs, which we believe are competitive. The decrease in our cost of baby back ribs for calendar year 2023 compared to calendar year 2022 is due to a decrease in market price.
While we anticipate purchasing all of our rib supply from this vendor, we believe there are several other alternative vendors available, if needed.
Information Technology
Our restaurant and package liquor store point of sale and back-office systems provide information regarding daily sales, cash receipts, inventory, food and beverage costs, labor costs and other controllable operating expenses. Our restaurants and package liquor stores offer online ordering for to-go sales and our package liquor stores also offer delivery services by third-party vendors.
Restaurant and package liquor store hardware and software support is provided by both our internal support services team as well as third-party vendors. Each restaurant and package liquor store has a private high-speed wide area connection to send and receive critical business data as well as to access web-based applications securely as well as a failover capability. All of our core and critical applications are backed up to external data centers. To mitigate business interruptions, we utilize a data backup and replication infrastructure between our onsite and external data centers, so all data is replicated nightly between the sites.
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We require cybersecurity awareness training for all staff members with access to our cyber systems. We also maintain cyber risk insurance coverage to further reduce our risk profile. Security of our financial data and other sensitive information remains a high priority for us, led by our information technology department. In an effort to further secure our customers’ credit card information, we employ an encryption and tokenization platform for all credit card transactions in our restaurants, ensuring no credit card data is stored in our internal systems. We also transact business through online ordering for both our restaurants and package liquor stores through third party vendors. (See Item 1A. Risk Factors and the discussion of cybersecurity risks on page 28.)
Government Regulation
Our operations are subject to various federal, state and local laws affecting our business. In particular, our operations are subject to regulation by federal agencies and to licensing and regulation by state and local health, food preparation and safety, sanitation, alcoholic beverage control, safety and fire department agencies in the state or municipality where our units are located.
Alcoholic beverage control regulations require each of our restaurants and package liquor stores to obtain a license to sell alcoholic beverages from a state authority and in certain locations, county and municipal authorities.
In Florida, where all of our restaurants and package liquor stores are located, most of our liquor licenses are issued on a "quota license" basis. Quota licenses are issued on the basis of a population count established from time to time under the latest applicable census. Because the total number of liquor licenses available under a quota license system is limited and restrictions are placed upon their transfer, the licenses have purchase and resale value based upon supply and demand in the particular areas in which they are issued. The quota licenses held by us allow the sale of liquor for on and off premises consumption (the “4 COP Quota Liquor License”). The other liquor licenses held by us or limited partnerships of which we are the general partner, are restaurant liquor licenses, which do not have quota restrictions or purchase or resale value. A restaurant liquor license is issued to every applicant who meets all of the state and local licensing requirements, including, but not limited to zoning and minimum restaurant size, seating and menu. The restaurant liquor licenses held by us allow the sale of liquor for on premises consumption only, (the “4 COP SFS Liquor License”).
All licenses must be renewed annually and may be revoked or suspended for cause at any time. Suspension or revocation may result from violation by the licensee or its employees of any federal, state or local law regulation pertaining to alcoholic beverage control. Alcoholic beverage control regulations relate to numerous aspects of the daily operations of our units, including, minimum age of patrons and employees, hours of operations, advertising, wholesale purchasing, inventory control, handling, storage and dispensing of alcoholic beverages, internal control and accounting.
As the sale of alcoholic beverages constitutes a large share of our revenue, the failure to receive or retain, or a delay in obtaining a liquor license in a particular location could adversely affect our operations in that location and could impair our ability to obtain licenses elsewhere.
During our fiscal years 2022 and 2021, no significant pending matters have been initiated concerning any of our licenses which might be expected to result in a revocation of a liquor license or other significant actions against us.
We are subject to “dram-shop” statutes due to our restaurant operations. These statutes generally provide a person injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages to the intoxicated individual. We carry liquor liability coverage as part of our existing comprehensive general liability insurance, which we believe is consistent with coverage carried by other entities in the restaurant industry. Although we are covered by insurance, a judgment against us under a dram-shop statute in excess of our liability coverage could have a material adverse effect on us. We currently have no “dram shop” claims.
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Our operations are also subject to federal and state laws governing such matters as wages, working conditions, citizenship requirements and overtime. Significant numbers of hourly personnel at our restaurants are paid at rates related to the federal or Florida minimum wage, whichever is higher, and accordingly, increases in the minimum wage will increase labor costs. We are also subject to the Americans with Disability Act of 1990 (ADA), which, among other things, may require certain renovations to our restaurants to meet federally mandated requirements. The cost of any such renovations is not expected to materially affect us.
A significant number of our hourly restaurant staff members receive income from gratuities. Many of our locations participate voluntarily in a Tip Reporting Alternative Commitment (“TRAC”) agreement with the Internal Revenue Service (“IRS”). By complying with the educational and other requirements of the TRAC agreement, we reduce the likelihood of potential employer-only FICA tax assessments for unreported or underreported tips. We are not under investigation or audit, nor have we been assessed for potential employer-only FICA tax assessments for unreported or underreported tips.
We are also subject to laws relating to information security, privacy, cashless payments and consumer credit protection and fraud.
We are not aware of any statute, ordinance, rule or regulation under present consideration which would significantly limit or restrict our business as now conducted. However, in view of the number of local jurisdictions within the State of Florida in which we conduct business, and the highly regulated nature of the liquor business, there can be no assurance that additional limitations may not be imposed in the future, even though none are presently anticipated.
Human Capital
We depend on our staff members to successfully execute all aspects of our day-to-day operations. Our ability to attract highly motivated staff members and retain an engaged, experienced team is key to successful execution of our strategy. We are currently operating in a competitive labor environment. If we are unable to hire or retain qualified restaurant management and operating personnel in an increasingly competitive market, we may be unable to effectively operate and grow our business and revenues, which could materially adversely affect our financial performance.
Development and Training
We invest resources to ensure our staff receive training in order to maximize their potential. In addition, we strive to provide our staff with career advancement opportunities. Our training programs allow us to fill certain of our management positions with internal candidates.
Benefits and Wellness
We believe access to healthcare is a compelling benefit for many staff members and we offer healthcare benefits to our hourly staff members who work a minimum of 30 hours per week, on average. We attempt to provide a robust suite of benefits and wellness offerings.
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Employee Engagement
Listening to our staff members is an essential part of building an engaged workforce, and we provide avenues for staff to share their ideas and concerns.
As of our fiscal year end 2022, we employed 1,766 persons, of which 469 were full-time and 1,297 were part-time. Of these, 58 were employed at our corporate offices in administrative capacities and 14 were employed in maintenance. Of the remaining employees, 67 were employed in our package liquor stores and 1,627 in our restaurants. None of our employees are represented by collective bargaining organizations. We consider our labor relations to be favorable.
Giving Back
Another key aspect of our culture is giving back to the communities where our staff live and work, and uniting our staff members around charitable causes personal to them. We periodically donate philanthropic organizations through campaigns designed to engage our staff company-wide service programs, as follows:
| · | Breast Cancer Awareness – We donate $10,000 to local Breast Cancer Support organizations. |
| · | Donated over $100,000 to HOPE mission. Money is used for disaster and hunger relief all over the world, youth outreach, and community building. |
| · | Achievement Awards – We provide schools in Miami-Dade, Broward, and Palm Beach County with free meal coins and achievement awards throughout the year. We give out approximately 50,000 awards every year. |
| · | Fishing Tournaments/Marine Conservation – We donate to fishing tournaments and beach cleanup projects. |
| · | Supporting the local community – We donate funds to boy scouts, baseball teams, schools, etc. |
| · | Habitat for Humanity – We have sponsored multiple home building projects through Habitat for Humanity. |
| · | Sheridan House – We donated 500 backpacks to underprivileged children. We also collect and donate school supplies annually. |
| · | Reclaimed Wood – All of our locations use reclaimed wood on interior walls. |
We also believe our sustainability programs and initiatives like restaurant-based composting and recycling and replacing our off-premise packaging with materials that reduce the use of plastics and improve recyclability serve to foster pride in our staff.
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Executive Officers
|
Name
|
Positions and Offices Currently Held
|
Age
|
Office or Position Held Since
|
| James G. Flanigan |
Chairman of the Board of Directors, Chief Executive Officer and President
|
58 | (1) |
| August Bucci |
Chief Operating Officer and Executive Vice President
|
78 | 2002 |
| Jeffrey D. Kastner |
Chief Financial Officer, General Counsel and Secretary
|
69 | (2) |
| Christopher O’Neil |
Vice President of Package Operations
|
57 |
2016
|
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(1) Chairman of the Board of Directors, Chief Executive Officer since 2005; President since 2002.
(2) Chief Financial Officer since 2004; Secretary since 1995; and General Counsel since 1982.
Flanigan’s 401(k) Plan
Effective July 1, 2004, we began sponsoring a 401(k) retirement plan covering substantially all employees who meet certain eligibility requirements. Employees may contribute elective deferrals to the plan up to amounts allowed under the Internal Revenue Code. We are not required to contribute to the plan but may make discretionary profit sharing and/or matching contributions. During our fiscal years ended October 1, 2022 and October 2, 2021, the Board of Directors approved discretionary matching contributions totaling $50,000 and $59,000, respectively.
Coronavirus Pandemic
In March 2020, a novel strain of coronavirus was declared a global pandemic and a National Public Health Emergency. The novel coronavirus pandemic and related “shelter-in- place” orders and other governmental mandates relating thereto (collectively, “COVID-19”) adversely affected and will, in all likelihood continue to adversely affect, our restaurant operations and financial results for the foreseeable future.
During the second quarter of our fiscal year 2021, certain of the entities owning the limited partnership stores (the “LP’s”), as well as the store we manage but do not own (the “Managed Store”), applied for and received loans from an unrelated third party lender pursuant to the Paycheck Protection Program (the “PPP”) under the United States Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) enacted March 27, 2020, in the aggregate principal amount of approximately $3.98 million, (the “2nd PPP Loans”), of which approximately: (i) $3.35 million was loaned to six of the LP’s; and (ii) $0.63 million was loaned to the Managed Store. The 2nd PPP Loan to the Managed Store is not included in our consolidated financial statements. During the first quarter of our fiscal year 2022, we applied for and received forgiveness of the entire amount of principal and accrued interest for all 2nd PPP Loans, including the Managed Store.
COVID-19 has had a material adverse effect on our access to supplies or labor and there can be no assurance that there will not be a significant adverse impact on our supply chain or access to labor in the future. We are actively monitoring our food suppliers to assess how they are managing their operations to mitigate supply flow and food safety risks. To ensure we mitigate potential supply availability risk, we are building additional inventory back stock levels when appropriate and we have also identified alternative supply sources in key product categories including but not limited to food, sanitation and safety supplies.
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As of October 1, 2022, we are in compliance with the financial covenants contained in our loans with our unrelated third-party institutional lender (the “Institutional Lender”) under which we owe in the aggregate, approximately $23,272,000 (the “Institutional Loans”) of our total loans of approximately $25,389,000.
There can be no assurances that we will be in compliance with our financial covenants thereafter due to, among other things, that our results of operations will likely continue to be materially impacted by the COVID-19 pandemic. Absent a waiver, failure to be in compliance with our financial covenants would constitute a default under the Institutional Loans with our Institutional Lender when reported. Such a default, if not cured or waived, would allow the Institutional Lender to accelerate the maturity of the indebtedness we owe under the Institutional Loans, making it due and payable at the time. If maturity of the Institutional Loans were accelerated, it would have a material adverse impact on our consolidated financial statements and results of operations.
General Liability Insurance
For the policy year beginning December 30, 2021, we have general liability insurance which incorporates a deductible of $10,000 per occurrence for both us and the limited partnerships. Our insurance carrier is responsible for $1,000,000 coverage per occurrence above our deductible, up to a maximum aggregate of $2,000,000 per year. We were also able to purchase excess liability insurance at a reasonable premium, whereby our excess insurance carrier is responsible for $10,000,000 coverage above our primary general liability insurance coverage. We are uninsured against liability claims in excess of $11,000,000 per occurrence and in the aggregate. We secured general liability and excess liability insurance for the period commencing after the expiration of the current policies on December 30, 2022. (See Item 2. Subsequent Events for a discussion of general liability and excess liability insurance for the period commencing December 30, 2022 on page 38.)
Our general policy is to settle only those legitimate and reasonable claims asserted and to aggressively defend and go to trial, if necessary, on frivolous and unreasonable claims. Under our current liability insurance policy, certain expenses incurred in defending a claim, including attorney's fees, are a part of our $10,000 deductible.
In accordance with accounting guidance, we accrue for any liability by recognizing costs when it is probable that a covered liability has been incurred and the cost can be reasonably estimated. Accordingly, our annual insurance costs may be subject to adjustment from previous estimates as facts and circumstances change. Our accruals are included in the accompanying consolidated balance sheets in the caption "Accounts payable and accrued expenses". A significant unfavorable judgment or settlement against us in excess of our liability insurance coverage could have a materially adverse effect on the Company.
Property Insurance; Windstorm Insurance; Deductibles
For the policy year beginning December 30, 2021, our property insurance is a one (1) year policy with an unaffiliated third party insurance carrier, including coverage for properties leased by us and our consolidated limited partnerships, and provides for full insurance coverage for property losses, including those caused by windstorm, such as a hurricane. For property losses caused by windstorm, the property insurance has a fixed deductible of $100,000, plus 5% of all insured losses, per occurrence. For all other property losses, the property insurance has deductibles of $10,000 per location, per occurrence. We secured property insurance for the period commencing after the expiration of the current policy on December 30, 2022. (See Item 2. Subsequent Events for a discussion of property insurance for the period commencing December 30, 2022 on page 38.)
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Competition and the Company's Market
The liquor and hospitality industries are highly competitive and are often affected by changes in taste and entertainment trends among the public, by local, national and economic conditions affecting spending habits, and by population and traffic patterns. We believe that the principal means of competition among package liquor stores is price and that, in general, the principal means of competition among restaurants include the location, type and quality of facilities and the type, quality and price of beverage and food served.
Our package liquor stores compete directly or indirectly with local retailers and discount “superstores”. Due to the competitive nature of the liquor industry in South Florida, we have had to adjust our pricing to stay competitive, including meeting all competitors’ advertisements subject to certain limitations. Such practices will continue in the package liquor business. We believe that we have a competitive position in our market because of widespread consumer recognition of the "Big Daddy's Liquors" and “Big Daddy’s Wine & Liquors” names.
Our restaurants compete directly or indirectly with many well-established competitors, both nationally and locally owned. Effective October 3, 2021 and then effective December 19, 2021 we increased menu prices for our food offerings to target an increase to our food revenues of approximately 2.38% and 3.34% annually, respectively, to offset higher food costs and higher overall expenses and effective December 12, 2021 we increased menu prices for our bar offerings to target an increase to our bar revenues of approximately 7.80% annually. Prior to these increases, we previously raised menu prices in the third quarter of our fiscal year 2021. We believe that we have a competitive position in our market because of widespread consumer recognition of the “Flanigan’s Seafood Bar and Grill" and “Flanigan’s” names.
We have many well-established competitors, both nationally and locally owned, with substantially greater financial resources than we do. Their resources and market presence may provide advantages in marketing, purchasing and negotiating leases. We compete with other restaurant and retail establishments for sites and finding management personnel.
Our business is subject to seasonal effects, including that liquor purchases tend to increase during the holiday seasons.
Trade Names
We operate our package liquor stores and restaurants under the service marks; "Big Daddy's Liquors", “Big Daddy’s Wine & Liquors”, “Flanigan’s Seafood Bar and Grill", and “Flanigan’s”. We operate our sports bar under the service mark; “Brendan’s Sports Pub”. Our right to the use of the "Big Daddy's" service mark is set forth under a consent decree of a federal court entered into by us in settlement of federal trademark litigation. The consent decree and the settlement agreement allow us to continue to use and to expand our use of the "Big Daddy's” service mark in connection with our package liquor sales in Florida, while restricting future liquor sales in Florida under the "Big Daddy's" name by the other party who has a federally registered service mark for "Big Daddy's" use in the restaurant business. The federal court retained jurisdiction to enforce the consent decree. We have acquired registered Federal trademarks on the principal register for our “Big Daddy’s Liquors”, "Flanigan's" and “Flanigan’s Seafood Bar and Grill” service marks.
The standard symbolic trademark associated with our facilities and operations is the bearded face and head of "Big Daddy" which is predominantly displayed at all "Flanigan's" facilities and all "Big Daddy's" facilities throughout the country. The face comprising this trademark is that of the Company’s founder, Joseph "Big Daddy" Flanigan, and is a federally registered trademark owned by us.
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| ITEM 1A. | RISK FACTORS |
An investment in our common stock involves a high degree of risk. These risks should be considered carefully with the uncertainties described below, and all other information included in this Annual Report on Form 10-K, before deciding whether to purchase our common stock. Additional risks and uncertainties not currently known to management or that management currently deems immaterial and therefore not referenced herein, may also become material and may harm our business, financial condition or results of operations. The occurrence of any of the following risks could harm our business, financial condition and results of operations. The trading price of our common stock could decline due to any of these risks and uncertainties and you may lose part or all of your investment.
Certain statements in this report contain forward-looking information. In general, forward-looking statements include estimates of future revenues, cash flow, capital expenditures, or other financial items and assumptions underlying any of the foregoing. Forward-looking statements reflect management’s current expectations regarding future events and use words such as “anticipate”, “believe”, “expect”, “may”, “will” and other similar terminology. These statements speak only as of the date they were made and involve a number of risks and uncertainties that could cause actual results to differ materially from those expressed in the forward-looking statements. Several factors, many beyond our control, could cause actual results to differ materially from management’s expectations. New risks and uncertainties arise from time to time, and we cannot predict when they may arise or how they may affect us. We assume no obligation to update any forward-looking statements after the date of this report as a result of new information, future events or other developments, except as required by applicable laws and regulations.
Risks Related to COVID-19 Pandemic
The COVID-19 Pandemic Has Had A Significant Impact On Our Operations Since March 2020 And Could Materially And Adversely Affect Our Future Business And Financial Results.
In March 2020, a novel strain of coronavirus was declared a global pandemic and a National Public Health Emergency. The novel coronavirus pandemic and related suggested and mandated social distancing and “shelter-in-place” orders and other governmental mandates relating thereto (collectively, “COVID-19”) caused significant disruptions to our business, adversely affected and will, in all likelihood continue to adversely affect, our restaurant operations and financial results for the foreseeable future, particularly if further government directives are put in place for a significant amount of time. Throughout our fiscal year 2022, in accordance with guidance from health officials, we offered both indoor and outdoor food and bar options at all of our restaurants.
The COVID-19 pandemic’s impact on the economy in general, globally, nationally and locally, could also adversely affect our guests’ financial condition, resulting in reduced spending at our restaurants and package liquor stores. The COVID-19 pandemic and these responses have affected and will continue to adversely affect our guest traffic, sales and operating costs and we cannot predict how long the pandemic will last or what other government responses may occur.
During our fiscal year 2022, our Board of Directors declared a cash dividend of $1.00 per share to shareholders of record on March 31, 2022, payable on April 19, 2022. During our fiscal year 2021, our Board of Directors did not declare a cash dividend due to uncertainty surrounding the duration of restrictions mandated by state and local governments in response to COVID-19.
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We have experienced significant issues relating to suppliers and labor impacted by the COVID-19 pandemic. If our suppliers’ employees are unable to work, whether because of illness, quarantine, limitations on travel or other government restrictions in connection with COVID-19, or if the supply chain is disrupted for any other reason such as travel limitations and other restrictions on commerce, we could face shortages of food items or other supplies at our restaurants and our operations and sales could be adversely impacted by such supply interruptions.
The impact of COVID-19, and the volatile regional and global economic conditions stemming from the pandemic, may also precipitate or exacerbate other risks discussed in this Item 1A - Risk Factors and elsewhere in this report, any of which could have a material effect on us. This situation is changing rapidly and additional effects may arise that we are not presently aware of or that we currently do not consider to present significant risks to our operations. If we are not able to respond to and manage the impact of such events effectively, our business and financial condition will be negatively impacted.
Risks Related to Our Business
If we are unable to staff and retain qualified restaurant and package liquor store management and operating personnel in an increasingly competitive market, we may be unable to effectively operate and grow our business and revenues, which could materially adversely affect our financial performance.
Similar to the broader economy, we are experiencing labor shortfalls relative to our sales levels in certain parts of our workforce. If we are unable to attract and retain qualified people, our restaurants could be short staffed, we may be forced to incur overtime expenses, and our ability to operate and expand our concepts effectively and to meet our customers’ demand could be limited, any of which could materially adversely affect our financial performance.
We have experienced and continue to experience significant labor cost inflation. If we are unable to offset higher labor costs, our cost of doing business will significantly increase, which could materially adversely impact our financial performance.
Increases in minimum wages and minimum tip credit wages, extensions of personal and other leave policies, other governmental regulations affecting labor costs and a diminishing pool of potential staff members when the unemployment rate falls and legal immigration is restricted, especially in certain localities, could significantly increase our labor costs and make it more difficult to fully staff our restaurants, any of which could materially adversely affect our financial performance.
We believe the United States federal government may significantly increase the federal minimum wage and tip credit wage (or eliminate the tip credit wage) and require significantly more mandated benefits than what is currently required under federal law. The State of Florida has already enacted a minimum wage and tip credit, with the minimum wage currently at $11.00 per hour and a tip credit of $3.02 per hour. The minimum wage increases $1.00 per hour annually until it reaches $15.00 per hour in 2027. The tip credit does not increase. In addition to increasing the overall wages paid to our minimum wage and tip credit wage earners, these increases create pressure to increase wages and other benefits paid to other staff members who, in recognition of their tenure, performance, job responsibilities and other similar considerations, historically received a rate of pay exceeding the applicable minimum wage or minimum tip credit wage. Because we employ a large workforce, any wage increase and/or expansion of benefits mandates will have a particularly significant impact on our labor costs. Our vendors, contractors and business partners are similarly impacted by wage and benefit cost inflation, and many have or will increase their price for goods, construction and services in order to offset their increasing labor costs. Additionally, while our employees are not currently covered by any collective bargaining agreements, union organizers may engage in efforts to organize our employees and those of other restaurant companies. If a significant portion of our employees were to unionize, our labor costs could increase and it could negatively impact our culture, reduce our flexibility and disrupt our business. In addition, our responses to any union organizing efforts could negatively impact our reputation and dissuade guests from patronizing our restaurants.
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Our labor expenses include significant costs related to our health benefit plans. Health care costs continue to rise and are especially difficult to project. Material increases in costs associated with medical claims, or an increase in the severity or frequency of such claims, may cause health care costs to vary substantially from year-over-year. Given the unpredictable nature of actual health care claims trends, including the severity or frequency of claims, in any given year our health care costs could significantly exceed our estimates, which could materially adversely affect our financial performance.
Any significant changes to the healthcare insurance system could impact our healthcare costs. Material increases in healthcare costs could materially adversely affect our financial performance.
While we try to offset labor cost increases through price increases, more efficient purchasing practices, productivity improvements and greater economies of scale, there can be no assurance that these efforts will be successful. If we are unable to effectively anticipate and respond to increased labor costs, our financial performance could be materially adversely affected.
Our Sales and Profit Growth Could Be Adversely Affected If Comparable Restaurant Sales Increases Are Less Than We Expect, and We May Not Successfully Increase Comparable Restaurant Sales or They May Decrease.
While future sales growth will depend substantially on our opening new restaurants, changes in comparable restaurant sales (which represent the change in period-over-period sales for restaurants) will also affect our sales growth and will continue to be a critical factor affecting profit growth. This is because the profit margin on comparable restaurant sales is generally higher, as comparable restaurant sales increases enable fixed costs to be spread over a higher sales base. Conversely, declines in comparable restaurant sales can have a significant adverse effect on profitability due to the loss of the positive impact on profit margins associated with comparable restaurant sales increases. There is no assurance that comparable restaurant sales will increase in fiscal year 2023 due to, among other things, ongoing consumer and economic uncertainty.
Our ability to increase comparable restaurant sales depends on many factors, including:
| · | perceptions of the Flanigan’s brand; |
| · | competition, especially from an increasing number of competitors in the fast casual segment of the restaurant industry and from other restaurants whose strategies overlap ours, as well as from grocery stores, meal kit delivery services and other dining options; |
| · | executing our strategies effectively, including our marketing and branding strategies; |
| · | changes in consumer preferences and discretionary spending; |
| · | our ability to increase menu prices without adversely affecting our existing business; |
| · | weather, natural disasters and other factors limiting access to our restaurants; and |
| · | changes in government regulation that may impact customer perceptions of our food. |
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As a result it is possible that we will not achieve our targeted comparable restaurant sales or that the change in comparable restaurant sales could be negative. A number of these factors are beyond our control and therefore we cannot assure that we will be able to sustain comparable restaurant sales increases.
High Unemployment, Instability in the Housing Market, High Energy and Food Costs and General Economic Uncertainty Could Result in a Decline in Consumer Discretionary Spending That Would Materially Affect our Financial Performance.
COVID-19 has had a significant impact on domestic economies and will likely continue to negatively impact these economies for some time. Dining out is a discretionary expense. In addition to COVID-19, factors that affect consumer behavior and spending for restaurant dining, such as changes in general economic conditions (including national, regional and local economic conditions), discretionary spending patterns, employment levels, instability in the housing market, and high energy and food costs may have a material adverse effect on us. If economic conditions worsen, our financial performance could be adversely affected.
Intense Competition In The Restaurant And Package Liquor Store Industry Could Prevent Us From Increasing Or Sustaining Our Revenues And Profitability.
The restaurant and package liquor store industry is intensely competitive with respect to food quality, price-value relationships, ambiance, service and location and many restaurants and package liquor stores compete with us at each of our locations. There are a number of well-established competitors with substantially greater financial, marketing, personnel and other resources than ours, and many of our competitors are well established in the markets where we have restaurants and/or stores or where we intend to locate restaurants. Additionally, other companies may develop restaurants and/or stores that operate with similar concepts.
Any inability to compete successfully with the other restaurants and/or stores in our markets will prevent us from increasing or sustaining our revenues and profitability and will result in a material adverse effect on our business, financial condition, results of operations or cash flows. We may also need to modify or refine elements of our business to evolve our concepts in order to compete with popular new restaurant formats or store concepts that may develop in the future. There can be no assurance that we will be successful in implementing these modifications or that these modifications will not reduce our profitability.
New Information Or Attitudes Regarding Diet And Health Could Result In Changes In Regulations And Consumer Eating Habits That Could Adversely Affect Our Revenues.
Regulations and consumer eating habits may change because of new information or attitudes regarding diet and health. These changes may include regulations that impact the ingredients and nutritional content of our menu items at our restaurants. For example, a number of states, counties and cities are enacting menu-labeling laws requiring multi-unit restaurant operators to make certain nutritional information available to guests or restrict the sales of certain types of ingredients in restaurants. The success of our restaurant operations is dependent, in part, upon our ability to respond effectively to changes in consumer health and disclosure regulations and to adapt our menu offerings to trends in eating habits. If consumer health regulations or consumer eating habits change significantly, we may be required to modify or delete certain menu items. To the extent we are unable to respond with appropriate changes to our menu offerings, it could materially affect customer demand and have an adverse impact on our revenues.
Adverse Public Or Medical Opinions About Health Effects Of Consuming Our Products As Well As Negative Publicity About Us, Our Restaurants And/or Package Liquor Stores And About Others Across The Food And Liquor Industry Supply Chain, Whether Or Not Accurate, Could Negatively Affect Us.
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Restaurant operators have received more scrutiny from regulators and health organizations in recent years relating to the health effects of consuming certain products. An unfavorable report on the products we use in our menu, the size of our portions or the consumption of those items could influence the demand for our offerings. In addition, adverse publicity or news reports, whether or not accurate, of food quality issues, illness, injury, health concerns, or operating issues stemming from a single restaurant, a limited number of restaurants, restaurants operated by others or generally in the food supply chain could be damaging to the restaurant industry overall and specifically harm our reputation. A decrease in guest traffic because of these types of health concerns or negative publicity could materially harm our results of operations.
Our Inability To Successfully And Sufficiently Raise Menu Prices Could Result In A Decline In Profitability.
We utilize menu price increases to help offset cost increases, including increased cost for commodities, minimum wages, employee benefits, insurance arrangements, construction, utilities and other key operating costs. If our selection and amount of menu price increases are not accepted by consumers and reduce guest traffic, or are insufficient to counter increased costs, our financial results could be negatively affected. However, we have not experienced any adverse effects from past menu price increases.
Increases in Food Costs, Raw Materials and Other Supplies and Services Due to Inflation May Have a Material Adverse Impact on our Financial Performance.
Our operating margins depend on, among other things, our ability to anticipate and react to changes in the costs of key operating resources, including food and beverage costs, utilities and other supplies and services due to inflation. We attempt to negotiate short-term and long-term agreements for our principal commodity, supply and equipment requirements, depending on market conditions and expected demand. However, we are currently unable to contract for extended periods of time for certain of our commodities. Consequently, these commodities can be subject to unforeseen supply and cost fluctuations due to factors such as changes in demand patterns, increases in the cost of key inputs, fuel costs, weather and other market conditions outside of our control caused by inflation. Dairy costs can also fluctuate due to government regulation. Our suppliers also may be affected by higher costs to produce and transport commodities used in our restaurants, higher minimum wage and benefit costs, and other expenses that they pass through to their customers, which could result in higher costs for goods and services supplied to us.
Shortages or Interruptions in the Supply of Food Offering Ingredients and/or Liquor Inventory Could Adversely Affect our Operating Results.
Our business is dependent on frequent and consistent deliveries of food offering ingredients and liquor inventory. We may experience shortages, delays or interruptions in the supply of ingredients and other supplies to our restaurants due to inclement weather, natural disasters, labor issues or other operational disruptions at our suppliers, distributors or transportation providers or other conditions beyond our control. In addition, we have a single or a limited number of suppliers for some of our ingredients, including baby back ribs. Although we believe we have potential alternative suppliers and sufficient reserves of food offering ingredients and liquor inventory, shortages or interruptions in our supply of food offering ingredients and liquor inventory could adversely affect our financial results.
Our Business Could Be Materially Adversely Affected If We Are Unable To Expand In A Timely And Profitable Manner.
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To grow successfully, we must open new restaurants and/or package liquor stores on a timely and profitable basis. We have experienced delays in restaurant and/or package liquor store openings from time to time and may experience delays in the future. During our fiscal year 2022, we opened our new limited partnership owned restaurant in Sunrise, Florida (Store #85) for business and continued developing our new limited partnership owned restaurant in Miramar, Florida (Store #25), which we anticipate opening for business in February 2023. During our fiscal year 2022, we also continued developing our new package liquor store in Miramar, Florida (Store #24).
Our ability to open and profitably operate restaurants and/or package liquor stores is subject to various risks such as identification and availability of suitable and economically viable locations, the negotiation of acceptable leases or the purchase terms of existing locations, the availability of limited partner investors or other means to raise capital, the need to obtain all required governmental permits (including zoning approvals) on a timely basis, the need to comply with other regulatory requirements, the availability of necessary contractors and subcontractors, the availability of construction materials and labor, the ability to meet construction schedules and budgets, variations in labor and building material costs, changes in weather or other acts of God that could result in construction delays and adversely affect the results of one or more restaurants and/or package liquor stores for an indeterminate amount of time. If we are unable to manage these risks successfully, we will face increased costs and lower than anticipated revenues which will materially adversely affect our business, financial condition, operating results and cash flow.
Changes In Customer Preferences For Casual Dining Styles Could Adversely Affect Financial Performance.
Changing customer preferences, tastes and dietary habits can adversely impact our business and financial performance. We offer a large variety of entrees, side dishes and desserts and our continued success depends, in part, on the popularity of our cuisine and casual style of dining. A change from this dining style may have an adverse effect on our business.
Our Success Depends Substantially on the Value of our Brands and our Reputation for Offering Guests a Satisfactory Experience.
We believe we have built a reasonably strong reputation for the predictability of our menu items, as part of the experience that guests enjoy in our restaurants. We believe we must protect and grow the value of our brands to continue to be successful in the future. Any incident that erodes consumer trust in or affinity for our brands could be harmful to us. If consumers perceive or experience a reduction in food quality, service or ambiance, or in any way believe we failed to deliver a consistently positive experience, our brand value could suffer.
Our Marketing And Advertising Strategies May Not Be Successful, Which Could Adversely Impact Our Business.
From time to time, we introduce new advertising campaigns and media strategies. If our advertising campaign and new media strategies do not resonate with customers in the manner we hope, they may not result in increased sales, but would still increase our expenses. We will continue to invest in marketing and advertising strategies that we believe will attract customers or increase their connection with our brand. If these marketing and advertising investments do not drive increased restaurant and/or package store sales, the expense associated with these programs will adversely impact our financial results, and we may not generate the levels of comparable sales we expect.
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Labor Shortages, An Increase In Labor Costs, Or Inability To Attract Employees Could Harm Our Business.
Our employees are essential to our operations and our ability to deliver an enjoyable dining experience to our customers. If we are unable to attract and retain enough qualified restaurant and/or package liquor store personnel at a reasonable cost, and if they do not deliver an enjoyable dining experience, our results may be negatively affected. Additionally, competition for qualified employees could require us to pay higher wages, which could result in higher labor costs.
Due To Our Geographic Locations, Restaurants Are Subject To Climate Conditions That Could Affect Operations.
All but one (1) of our restaurants and package liquor stores are located in South Florida, with the remaining restaurant located in Central Florida. During hurricane season, (June 1 through November 30 each year), our restaurants and/or package liquor stores may face harsh weather associated with hurricanes and tropical storms. These harsh weather conditions may make it more difficult for customers to visit our restaurants and package liquor stores or may necessitate the closure of the stores and restaurants for a period of time. If customers are unable to visit our restaurants and/or package liquor stores, our sales and operating results may be negatively affected. Hurricane Ian, which struck the Southwest Coast of Florida on September 28, 2022 did not impact any of the Company’s locations.
If We Were to Experience Widespread Difficulty Renewing Existing Leases on Favorable Terms, Our Revenue or Occupancy Costs Could be Adversely Affected.
Most of the properties on which we operate restaurants are leased from third parties, and some of our leases are due for renewal or extension options in the next several years. Some leases expire without any renewal options. While we currently expect to pursue the renewal of substantially all of our expiring restaurant leases, any difficulty renewing a significant number of such leases, or any substantial increase in rents associated with lease renewals, could adversely impact us. If we have to close any restaurants due to difficulties in renewing leases, we would lose revenue from the affected restaurants and may not be able to open suitable replacement restaurants. Substantial increases in rents associated with lease renewals would increase our occupancy costs, reducing our restaurant margins.
Due To Our Geographic Locations, We May Not Be Able To Acquire Windstorm Insurance Coverage Or Adequate Windstorm Insurance Coverage At A Reasonable Rate.
Due to the anticipated active hurricane seasons in South Florida in the future, we may not be able to acquire windstorm insurance coverage for our restaurant and package liquor store locations on a year-to-year basis or may not be able to get adequate windstorm insurance coverage at reasonable rates. If we are unable to obtain windstorm insurance coverage or adequate windstorm insurance coverage at reasonable rates, then we will be self-insured for all or a part of the exposure for damages caused by a hurricane impacting South Florida, which may have a material adverse effect upon our financial condition and/or results of operations. We secured windstorm insurance coverage for the period commencing December 30, 2022 at a higher premium. (See Item 2. Subsequent Events for a discussion of windstorm insurance for the period commencing December 30, 2022 on page 38.)
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Our Inability or Failure to Execute a Comprehensive Business Continuity Plan at our Restaurant Support Centers Following a Disaster or Force Majeure Event could have a Material Adverse Impact on our Business.
Many of our corporate systems and processes and corporate support for our restaurant and package liquor store operations are centralized at one location. We have disaster recovery procedures and business continuity plans in place to address crisis-level events, including hurricanes and other natural disasters and back up and off-site locations for recovery of electronic and other forms of data and information and the COVID-19 pandemic has provided a limited test of our ability to manage our business remotely. However, if we are unable to fully implement our disaster recovery plans, we may experience delays in recovery 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 communication and operating procedures that could have a material adverse effect on our financial condition, results of operation and exposure to administrative and other legal claims. In addition, these threats are constantly evolving, which increases the difficulty of accurately and timely predicting, planning for and protecting against the threat. As a result, our disaster recovery procedures and business continuity plans security may not adequately address all threats we face or protect us from loss.
Inability To Attract And Retain Customers Could Affect Results Of Operations.
We take pride in our ability to attract and retain customers, however, if we do not deliver an enjoyable dining experience for our customers, they may not return and results may be negatively affected.
A Failure To Comply With Governmental Regulations Could Harm Our Business And Our Reputation.
We are subject to regulation by federal agencies and regulation by state and local health, sanitation, building, zoning, safety, fire and other departments relating to the development and operation of restaurants. These regulations include matters relating to the following:
| · | the preparation and sale of food and alcoholic beverages; |
| · | employment; |
| · | building construction and access; |
| · | zoning requirements; and |
| · | the environment. |
Our facilities are licensed and subject to regulation under state and local fire, health and safety codes. The construction and remodeling of restaurants will be subject to compliance with applicable zoning, land use and environmental regulations. We may not be able to obtain necessary licenses or other approvals on a cost-effective and timely basis in order to construct and develop restaurants in the future.
Various federal and state labor laws govern our operations and our relationship with our employees, minimum wage, overtime, working conditions, fringe benefit and work authorization requirements. In particular, we are subject to federal immigration regulations. Given the location of many of our restaurants, even if we operate those restaurants in strict compliance with federal immigration requirements, our employees may not all meet federal work authorization or residency requirements, which could lead to disruptions in our work force.
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Our business can be adversely affected by negative publicity resulting from, among other things, complaints or litigation alleging poor food quality, food-borne illness or other health concerns or operating issues stemming from one or a limited number of restaurants. Unfavorable publicity could negatively impact public perception of our brands.
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. Typically, licenses must be 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 and 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.
The Federal Americans with Disabilities Act (the “ADA”) prohibits discrimination on the basis of disability in public accommodations and employment. We are required to comply with the ADA and regulations relating to accommodating the needs of disabled persons in connection with the construction of new facilities and with significant renovations of existing facilities.
Failure to comply with these and other regulations could negatively impact our reputation and could have an adverse effect on our business, financial condition, results of operations or cash flows.
We May Face Liability Under Dram Shop Statutes.
Our sale of alcoholic beverages subjects us to “dram shop” statutes, which allow an injured person to recover damages from an establishment that served alcoholic beverages to an intoxicated person. If we receive a judgment substantially in excess of our insurance coverage, or if we fail to maintain our insurance coverage, our business, financial condition, operating results or cash flows could be materially and adversely affected. There are currently no “dram shop” claims pending against us. See “Item 1. Business—Government Regulation” for a discussion of the regulations with which we must comply.
Concerns relating to pandemics and other diseases, food safety and food-borne illness could reduce customer traffic to our restaurants, disrupt our food supply chain or cause us to be the target of litigation, which could materially adversely affect our financial performance.
The COVID-19 pandemic had a significant adverse impact on our customer traffic and ability to operate our restaurants and may do so again in the foreseeable future. Future pandemics and other diseases may have a similar or more severe impact.
In years past, several nationally known restaurants experienced outbreaks of food poisoning believed to be caused by E.coli contained in fresh spinach, which is not included in any of the items on our menu, Asian and European countries experienced outbreaks of avian flu and incidents of “mad cow” disease have occurred in Canadian and U.S. cattle herds. These problems, other food-borne illnesses (such as, hepatitis A, trichinosis or salmonella) and injuries caused by food tampering have in the past, and could in the future, adversely affect the price and availability of affected ingredients and cause changes in consumer preference. As a result, our sales could decline.
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Instances of food-borne illnesses, real or perceived, whether at our restaurants or those of our competitors, could also result in negative publicity about us or the restaurant industry, which could adversely affect sales. If we react to negative publicity by changing our menu or other key aspects of the dining experience we offer, we may lose customers who do not accept those changes and may not be able to attract enough new customers to produce the revenue needed to make our restaurants profitable. If our guests become ill from food-borne illnesses, we could be forced to temporarily close some restaurants. A decrease in guest traffic as a result of health concerns or negative publicity, or as a result of a change in our menu or dining experience or a temporary closure of any of our restaurants, could materially harm our business.
If We Are Unable To Protect Our Customers’ Credit Card Data, We Could Be Exposed To Data Loss, Litigation And Liability, And Our Reputation Could Be Significantly Harmed.
In connection with credit card sales, we transmit confidential credit card information by way of secure private retail networks. Although we use private networks, third parties may have the technology or know-how to breach the security of the customer information transmitted in connection with credit card sales, and our security measures and those of our technology vendors may not effectively prohibit others from obtaining improper access to this information. If a person is able to circumvent these security measures, he or she could destroy or steal valuable information or disrupt our operations. Any security breach could expose us to risks of data loss, litigation, and liability, and could seriously disrupt our operations and any resulting negative publicity could significantly harm our reputation. We have not experienced any security breaches to date.
If We Experience a Significant Failure in or Interruption of Certain Key Information Technology Systems, our Business could be Adversely Impacted.
We use a variety of applications and systems to manage the flow of information securely within each of our restaurants and within our centralized corporate infrastructure. The services available within our systems and applications include restaurant and store operations, supply chain, inventory, scheduling, training, human capital management, financial tools and data protection services. The restaurant and store structure is based primarily on a point-of-sale system that operates locally and is integrated with other functions necessary to operations. It records sales transactions, receives out of store orders and authorizes, batches and transmits credit card transactions. The system also allows employees to enter time clock information and to produce a variety of management reports. Select information that is captured from this system at each restaurant or store is collected in the central corporate infrastructure, which enables management to continually monitor operating results. Our ability to manage efficiently and effectively our business depends significantly on the reliability and capacity of these and other systems and our operations depend substantially on the availability of our point-of-sale system and related networks and applications. These systems may be vulnerable to attacks or outages from security breaches, viruses and other disruptive problems, as well as from physical theft, fire, power loss, telecommunications failure or other catastrophic events. Any failure of these systems to operate effectively, whether from security breaches, maintenance problems, upgrades or transitions to new platforms, or other factors could result in interruptions to or delays in our restaurant or other operations, adversely impacting the restaurant or store experience for our customers or negatively impacting our ability to manage our business. If our information technology systems fail and our redundant systems or disaster recovery plans are not adequate to address such failures, or if our business interruption insurance does not sufficiently compensate us for any losses that we may incur, our revenues and profits could be reduced and the reputation of our brand and our business could be materially adversely affected. In addition, remediation of any problems with our systems could result in significant, unplanned expenses.
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The Effect of Recent Changes to U.S. Healthcare Laws May Increase Our Healthcare Costs and Negatively Impact Our Financial Results.
We offer eligible full-time employees the opportunity to enroll in healthcare coverage subsidized by the Company. For various reasons, many of our eligible employees currently choose not to participate in our healthcare plans. However, under the comprehensive U.S. health care reform law enacted in 2010, the Affordable Care Act, certain provisions, including, the employer mandate, may increase our labor costs significantly. In general, implementing the requirements of the Affordable Care Act is likely to impose additional administrative costs on us. The costs and other effects of these new healthcare requirements cannot be determined with certainty, but they may have a material adverse effect on our financial and operating results.
Governmental Regulation in One or More of the Following Areas May Adversely Affect Our Existing and Future Operations and Results, Including by Harming Our Ability to Open New Restaurants or Increasing Our Operating Costs.
Employment and Immigration Regulations
We are subject to various federal and state laws governing our relationship with and other matters pertaining to our employees, including wage and hour laws, requirements to provide meal and rest periods or other benefits, healthcare, family leave mandates, requirements regarding working conditions and accommodations to certain employees, citizenship or work authorization and related requirements, insurance and workers’ compensation rules and anti-discrimination laws. Complying with these rules subjects us to substantial expense and can be cumbersome and can also expose us to liabilities from claims for non-compliance. For example, historically, lawsuits have been filed against us alleging violations of federal and state laws regarding employee wages and payment of overtime. We could suffer losses from and we incur legal costs to defend, these and similar cases and the amount of such losses or costs could be significant. In addition, several states and localities in which we operate and the federal government have from time to time enacted minimum wage increases, paid sick leave and mandatory vacation accruals and similar requirements and these changes could increase our labor costs. Changes in U.S. healthcare laws could also adversely impact us if they result in significant new welfare and benefit costs or increased compliance expenses.
We also are subject to being audited from time to time for compliance with citizenship or work authorization requirements. From time to time, the State of Florida considers adopting new state immigration laws and the U.S. Congress and Department of Homeland Security from time to time consider or implement changes to Federal immigration laws, regulations or enforcement programs as well. Changes in immigration or work authorization laws may increase our obligations for compliance and oversight, which could subject us to additional costs and make our hiring process more cumbersome or reduce the availability of potential employees. Although we require all workers to provide us with government-specified documentation evidencing their employment eligibility, some of our employees may, without our knowledge, be unauthorized workers. We currently participate in the “E-Verify” program, an Internet-based, free program run by the U.S. government to verify employment eligibility for all employees throughout our company. However, use of E-Verify does not guarantee that we will properly identify all applicants who are ineligible for employment. Unauthorized workers may subject us to fines or penalties and we could experience adverse publicity that negatively affects our brand and may make it more difficult to hire and keep qualified employees. Termination of a significant number of employees would disrupt our operations including slowing our throughput and could also cause additional adverse publicity and temporary increases in our labor costs as we train new employees. We could also become subject to fines, penalties and other costs related to claims that we did not fully comply with all recordkeeping obligations of federal and state immigration compliance laws. Our reputation and financial performance may be materially harmed as a result of any of these factors.
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On the other hand, in the event we wrongfully reject work authorization documents or if our compliance procedures are found to have a disparate impact on a protected class, such as a racial minority or based on the citizenship status of applicants, we could be found to be in violation of anti-discrimination laws. We could experience adverse publicity arising from enforcement activity related to work authorization compliance, anti-discrimination compliance, or both, that negatively impacts our brand and may make it more difficult to hire and keep qualified employees. Moreover, our business could be adversely affected by increased labor costs or difficulties in finding the right employees for our restaurants.
Additionally, while we do not currently have any unionized employees, union organizers have engaged in efforts to organize employees of other restaurant companies. If a significant portion of our employees were to become union organized, our labor costs could increase and our efforts to maintain a culture appealing only to top performing employees could be impaired. Potential changes in labor laws, including the possible passage of legislation designed to make it easier for employees to unionize, could increase the likelihood of some or all of our employees being subjected to greater organized labor influence and could have an adverse effect on our business and financial results by imposing requirements that could potentially increase our costs, reduce our flexibility and impact our employee culture.
Americans with Disabilities Act and Similar State Laws
We are subject to the U.S. Americans with Disabilities Act, or ADA, and similar state laws that give civil rights protections to individuals with disabilities in the context of employment, public accommodations and other areas. We have incurred legal fees in connection with ADA-related complaints in the past and we may in the future have to modify restaurants, for example by adding access ramps or redesigning certain architectural features, to provide service to or make reasonable accommodations for disabled persons under these laws. The expenses associated with these modifications or any damages, legal fees and costs associated with litigating or resolving claims under the ADA or similar state laws, could be material.
Nutrition and Food Regulation
In recent years there has been an increased legislative, regulatory and consumer focus at the federal, state and municipal levels on the food industry including nutrition and advertising practices. Restaurants operating in the quick-service and fast-casual segments have been a particular focus. For example, the State of California, New York City and a number of other jurisdictions around the U.S. have adopted regulations requiring that chain restaurants include calorie information on their menus and/or make other nutritional information available and nation-wide nutrition disclosure requirements included in the U.S. health care reform law went into effect as of December 1, 2015. These nutrition disclosure requirements may increase our expenses or slow customers as they select their food and beverage choices decreasing our throughput. These initiatives may also change customers’ buying habits in a way that adversely impacts our sales.
Privacy/Cybersecurity
We are required to collect and maintain personal information about our employees and we collect information about customers as part of some of our marketing programs as well. The collection and use of such information is regulated at the federal and state levels and the regulatory environment related to information security and privacy is increasingly demanding. If our security and information systems are compromised or if we otherwise fail to comply with these laws and regulations, we could face litigation and the imposition of penalties that could adversely affect our financial performance. Our reputation as a brand or as an employer could also be adversely affected from these types of security breaches or regulatory violations, which could impair our sales or ability to attract and keep qualified employees.
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Local Licensure, Zoning and Other Regulation
Each of our restaurants is also subject to state and local licensing and regulation by health, alcoholic beverage, sanitation, food and workplace safety and other agencies. We may experience material difficulties or failures in obtaining the necessary licenses or approvals for new restaurants, which could delay planned restaurant openings. In addition, stringent and varied requirements of local regulators with respect to zoning, use and environmental factors could delay or prevent development of new restaurants in particular locations.
Environmental Laws
We are subject to federal, state and local environmental laws and regulations concerning the discharge, storage, handling, release and disposal of hazardous or toxic substances, as well as local ordinances relating to our operations. We have not conducted a comprehensive environmental review of our properties or operations. We cannot predict what environmental laws will be enacted in the future, how existing or future environmental laws will be administered or interpreted, or the amount of future expenditures that we may need to make to comply with or to satisfy claims relating to environmental laws.
We Could Be Party To Litigation That Could Adversely Affect Us By Distracting Management, Increasing Our Expenses or Subjecting Us to Material Money Damages and Other Remedies.
We could be party to litigation that could adversely affect us by distracting management, increasing our expenses or subjecting us to material money damages and other remedies. We could become subject to numerous claims alleging violations of federal and state laws regarding workplace and employment matters, including wages, work hours, overtime, vacation and family leave, discrimination, wrongful termination and similar matters, and we could become subject to class action or other lawsuits related to these or different matters. Our customers could file complaints or lawsuits against us alleging that we are responsible for some illness or injury they suffered at or after a visit to our restaurants or that we have problems with food quality, operations or our food related disclosure or advertising practices. The restaurant industry has been subject to a growing number of claims based on the nutritional content of food products sold and disclosure and advertising practices.
Regardless of whether any claims against us are valid or whether we are ultimately held liable for such claims, they may be expensive to defend and may divert time and money away from our operations and hurt our performance. A significant judgment for any claims against us could materially and adversely affect our financial condition or results of operations. Any adverse publicity resulting from these allegations, whether directed at us or at fast casual or quick-service restaurants generally, may also materially and adversely affect our reputation or prospects, which in turn could adversely affect our results.
Our Success May Depend on the Continued Service and Availability of Key Personnel.
Our Chairman and Chief Executive Officer and President, James Flanigan, has been the principal architect of our business strategy since 2002. August Bucci, Jeffrey Kastner and Christopher O’Neil, our Chief Operating Officer, Chief Financial Officer and Vice President of Package Operations, respectively, have also served with us since 2002 in the case of Mr. Bucci, since 2004 in the case of Mr. Kastner and 2016 in the case of Mr. O’Neil, and much of our growth has occurred under their direction as well. We believe our executive officers have created an employee culture, food culture and business strategy at our company that has been critical to our success and that may be difficult to replicate under another management team. We also believe that it may be difficult to locate and retain executive officers who are able to grasp and implement our unique strategic vision. If our company culture were to deteriorate following a change in leadership, or if a new management team were to be unsuccessful in executing our strategy or were to change important elements of our current strategy, our growth prospects or future operating results may be adversely impacted.
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We are Exposed to Risks Related to Cybersecurity.
Although we maintain systems and processes that are designed to protect the security of our computer systems, software, networks and other technology, there is no assurance that all of our security measures will provide absolute security. Any material incidents could cause us to experience financial losses that are either not insured against or not fully covered through any insurance maintained by us and increased expenses related to addressing or mitigating the risks associated with any such material incidents. Cyber threats are rapidly evolving and are becoming increasingly sophisticated. Despite our efforts to ensure the integrity of our systems, as cyber threats evolve and become more difficult to detect and successfully defend against, one or more cyber threats might defeat the measures that we or our vendors take to anticipate, detect, avoid or mitigate such threats. Certain techniques used to obtain unauthorized access, introduce malicious software, disable or degrade service, or sabotage systems may be designed to remain dormant until a triggering event and we may be unable to anticipate these techniques or implement adequate preventative measures since techniques change frequently or are not recognized until launched, and because cyberattacks can originate from a wide variety of sources. If our information security systems or data are compromised in a material way, our ability to conduct our business may be impaired, we may incur financial losses and we may incur costs to remediate possible harm and/or to pay fines or take other action which could have a material adverse impact on our business.
If There is a Material Failure in our Information Technology Systems, Our Business Operations and Profits could be Negatively Affected and our Systems may be Inadequate to Support our Future Growth Strategies.
We rely heavily on information technology systems in all aspects of our operations including our restaurant point-of sale systems, financial systems, marketing programs, employee engagement, supply chain management, cyber-security, and various other processes and transactions. Our ability to effectively manage and run our business depends on the reliability and capacity of our information technology systems, including technology services and systems for which we contract from third parties. These systems and services may be insufficient to effectively manage and run our business. These systems and our business needs will continue to evolve and require upgrading and maintenance over time, consequently requiring significant future commitments of resources and capital.
Moreover, these technology services and systems, communication systems, and electronic data could be subject or vulnerable to damage or interruption from hurricanes, terrorist attacks, floods, fires, power loss, telecommunications failures, computer viruses, loss of data, data breaches, or other attempts to harm our systems. A failure of these systems to operate effectively, problems with transitioning to upgraded or replacement systems, or any other failure to maintain a continuous and secure information technology network for any of the above reasons could result in interruption and delays in customer services, adversely affect our reputation, and negatively impact our results of operations.
Acts of Violence at or Threatened Against our Restaurants or the Centers in which they are Located, including Active Shooter Situations and Terrorism, Could Unfavorably Impact our Restaurant Sales, which could Materially Adversely Affect our Financial Performance.
Any act of violence at or threatened against our restaurants or the centers in which they are located, including active shooter situations and terrorist activities, may result in restricted access to our restaurants and/or restaurant closures in the short-term and, in the long-term, may cause our customers and staff to avoid our restaurants. Any such situation could adversely impact customer traffic and make it more difficult to staff our restaurants fully, which could materially adversely affect our financial performance.
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The occurrence or threat of extraordinary events, such as active shooter or future terrorist attacks military and governmental responses, and the protest of future wars, may result in negative changes to economic conditions likely resulting in decreased consumer spending. Additionally, decreases in consumer discretionary spending may impact the frequency with which our customers choose to dine out at restaurants or the amount they spend on meals while dining out at restaurants, thereby adversely affecting our sales and results of operations. A decrease in consumer discretionary spending may also adversely affect our ability to achieve the benefit of planned menu price increases to help preserve our operating margins.
Social Media Impact on Customer Perceptions of our Brand.
The considerable expansion in the use of social media over recent years can further amplify any negative publicity that may be generated. The adverse impact of publicity on customers’ perception of us could have a further negative impact on our sales. If the impact of any such publicity is particularly long-lasting, the value of our brand may suffer and our ability to grow could be diminished.
Our digital business, which has become an increasing significant part of our business, is subject to risks.
Primarily due to the COVID-19 pandemic, our revenue derived from digital orders, which includes delivery and customer pickup has increased substantially. While we are uncertain as to whether this business will continue to increase and/or be significant, we have implemented technology, targeted advertising and promotions and to some extent remodeled our restaurants, to accommodate the growth of our digital business. If we do not continue to grow our digital business, it may be difficult for us to recoup these costs or achieve our sales growth potential. We rely on third-party delivery services to fulfill package store delivery orders, and the ordering and payment platforms used by these third-parties, or online ordering system, could be interrupted by technological failures, user errors, cyber-attacks or other factors, which could adversely impact sales through these channels and negatively impact our reputation. Additionally, our delivery partners are responsible for order fulfillment and errors or failures to make timely deliveries could cause guests to stop ordering from us. The third-party delivery business is competitive, with a number of players competing for market share and delivery drivers. If the third-party delivery services that we utilize cease or curtail operations, increase their fees, or give greater priority or promotions on their platforms to our competitors, our delivery business and our sales may be negatively impacted
Our institutional lender no longer originates, renews or modifies loans at LIBOR effective January 1, 2022.
Effective January 1, 2022, our institutional lender no longer originates, renews or modifies loans at LIBOR, except in limited situations. The limited exceptions include our LIBOR transactions which reduce or hedge our LIBOR exposure on contracts entered into before January 1, 2022. As of October 1, 2022, we had two variable rate instruments outstanding that are impacted by changes in interest rates. The interest rate of the first variable rate debt instrument is equal to the lender’s LIBOR Rate plus two and one-quarter percent (2.25%) per annum and was paid in full subsequent to October 1, 2022. The second variable rate debt instrument is equal to the lender’s BSBY Screen Rate plus one and one-half percent (1.50%) per annum. As a means of managing our interest rate risk on the second debt instrument, we entered into an interest rate swap agreement with our unrelated third party lender to convert this variable rate debt obligation to fixed rate.
| ITEM 1B. | UNRESOLVED STAFF COMMENTS |
As a Smaller Reporting Company as defined by Rule 12b-2 of the Exchange Act and in Item 10(f)(1) of Regulation S-K, we are electing scaled disclosure reporting obligations and therefore are not required to provide the information requested by this Item 1B.
| ITEM 2. | PROPERTIES. |
Our operations are conducted primarily on leased property with the exception of the following:
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| (i) | a 10,000 square foot stand-alone building located in Fort Lauderdale, Florida that we purchased in December 1999, which since April 2001 has housed our corporate headquarters; |
| (ii) | a 4,600 square foot stand-alone building located in Hallandale, Florida that we purchased in July 2006 and which since September 1968 has housed our Hallandale, Florida Company-owned combination restaurant and package liquor store (Store #31); |
| (iii) | a 4,120 square foot stand-alone building in Hollywood, Florida we constructed in November 2003, upon real property we acquired in September 2001 pursuant to a 25 year ground lease interest, (a portion of this building is leased to an unaffiliated third party), and which since November 2003 has housed our Hollywood, Florida Company-owned package liquor store (Store #4); |
| (iv) | a 4,500 square foot stand-alone building located in Hollywood, Florida that we purchased in October 2009 and which housed our Hollywood, Florida Company-owned combination restaurant and package liquor store (Store #19) from March, 1972 until it was destroyed by fire on October 2, 2018 and the vacant parcel of real property adjacent thereto which we purchased in February 2015. Subsequent to the fire, (i) we have constructed a 3,000 square foot stand-alone building on the vacant parcel of real property for the operation of our Company-owned package liquor store (Store #19P), which opened for business subsequent to the end of our fiscal year 2022; and (ii) are constructing a 4,500 square foot stand-alone building here for the operation of the Company-owned restaurant, (Store #19R), which we anticipate will open for business subsequent to our fiscal year end 2023. |
| (v) | a 4,600 square foot stand-alone building located in Fort Lauderdale, Florida that we purchased in August 2010 and which since December 1968 has housed our Fort Lauderdale, Florida Company-owned restaurant (Store #22); |
| (vi) | a 5,100 square foot stand-alone building in North Miami, Florida that we purchased in November 2010; the two parcels of real property adjacent thereto which we purchased in December 2012, one of which is contiguous to the real property and which we previously leased for non-exclusive parking and the vacant parcel of real property adjacent to the two parcels of real property which we purchased in March 2017. The stand-alone building housed our North Miami, Florida Company-owned combination restaurant and package liquor store, (Store #20), from July, 1968 until June 2017 when the package liquor store was re-located to a new building we constructed on the adjacent property; |
| (vii) | a 23,678 square foot two building shopping center in Miami, Florida that we purchased in November 2010: (A) one stand-alone building, approximately 18,828 square feet, (i) houses our recently opened (October 2019) new package liquor store and (ii) is otherwise leased to ten unaffiliated third party retailers; and (B) the second stand-alone building, approximately 4,850 square feet, has housed our limited partnership owned Kendall, Florida based restaurant since April 4, 2000, (Store #70); |
| (viii) | a 6,400 square foot building in Fort Lauderdale, Florida that we purchased in February 2014, 4,000 square feet of which has been leased to a related franchisee (Store #15) since April 1, 1997 and the balance (2,400 square feet) of which we use as storage. In August 2018 we purchased the real property and quadraplex adjacent thereto to insure adequate parking for the franchised restaurant in the future, if needed; |
| (ix) | a 6,000 square foot stand-alone building in Fort Lauderdale, Florida and the vacant real property diagonally adjacent that we purchased in October 2015, which we use as office and warehouse space, covered parking for our food truck and as a storage yard; and |
| (x) | a 6,900 square foot stand-alone building in Sunrise, Florida, which we purchased in March, 2021 and houses our limited partnership owned Sunrise, Florida based restaurant, (Store #85), which opened for business in March, 2022. |
All of our units require periodic refurbishing in order to remain competitive. We have budgeted $650,000 for our refurbishing program for fiscal year 2023, although capital expenditures of our refurbishing program for our fiscal year 2023 may be significantly higher. See Item 7, "Liquidity and Capital Resources" for discussion of the amounts spent in fiscal year 2022.
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The following table summarizes information related to the properties upon which our operations are conducted. For all locations that include lease options, the lessor must extend the term of the lease for a location if we exercise the lease option. If there is no lease option or if we do not exercise the same, the lessor is not required to extend the term of the lease upon expiration.
|
Name and Location |
Approx. Square Footage |
Seats | Franchised/ Owned by |
Lease Terms |
|
Big Daddy's Liquors #4 Flanigan's Enterprises Inc. (5) 7003 Taft Street Hollywood, Florida
|
1,978 | N/A | Company | 3/1/02 to 2/28/27 Options to 2/28/47 |
|
Big Daddy's Liquors #7 Flanigan's Enterprises, Inc. 1550 W. 84th Street Hialeah, Florida
|
1,450 | N/A | Company |
11/1/00 to
|
|
Big Daddy's Liquors #8 Flanigan's Enterprises, Inc. 959 State Road 84 Fort Lauderdale, Florida
|
4,084 | N/A | Company | 5/1/99 to 4/30/24 Option to 4/30/29 |
|
Flanigan’s Seafood Bar and Grill #9 Flanigan’s Enterprises, Inc. 1550 W. 84th Street Hialeah, Florida
|
4,700 | 130 | Company | 1/1/10 to 12/31/24 Options to 12/31/49 |
|
Flanigan's Legends Seafood Bar and Grill #11 11 Corporation, Inc. (1) 330 Southern Blvd. W. Palm Beach, Florida
|
5,000 | 150 | Franchise | 1/4/00 to 1/3/25 |
|
Flanigan's Seafood Bar and Grill #12 Flanigan’s Enterprises, Inc. 2405 Tenth Ave. North Lake Worth, Florida
|
5,000 | 180 | Company |
11/16/92 to Options to |
|
Flanigan's Seafood Bar and Grill #14 Big Daddy's #14, Inc. (1) (4) 2041 NE Second St. Deerfield Beach, Florida
|
3,320 | 90 | Franchise | 6/1/79 to 6/1/24 Options to 6/1/34 |
|
Flanigan’s Seafood Bar and Grill #15 CIC Investors #15 Ltd. (1) (7) 1479 E. Commercial Blvd. Ft. Lauderdale, Florida
|
4,000 | 90 | Franchise/ Limited Partnership |
1/1/09 to 8/31/26 Options to 8/31/36 |
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|
Name and Location |
Approx. Square Footage |
Seats | Franchised/ Owned by |
Lease Terms |
|
Flanigan’s Seafood Bar and Grill #18 Twenty Seven Birds Corp. (1) (2) 2721 Bird Avenue Miami, Florida
|
4,500 | 200 | Franchise |
2/15/72 to Options to |
|
Big Daddy's Liquors #18 Twenty Seven Birds Corp. (1) (2) 2988 S.W. 27th Avenue Miami, Florida
|
3,000 | N/A | Franchise |
2/15/72 to Options to |
|
Flanigan’s Wine & Liquors #19 (8) Flanigan’s Enterprises, Inc. 7990 Davie Road Extension Hollywood, Florida
|
3,000 | N/A | Company | Company-Owned |
|
Flanigan’s Seafood Bar and Grill #19 (9) Flanigan’s Enterprises, Inc. 2505 N. University Dr. Hollywood, Florida
|
4,500 | 160 | Company | Company-Owned |
|
Flanigan's Seafood Bar and Grill #20 Flanigan's Enterprises, Inc. 13205 Biscayne Blvd. North Miami, Florida
|
5,100 | 150 | Company | Company-Owned |
|
Big Daddy’s Liquors #20 Flanigan's Enterprises, Inc. 13185 Biscayne Blvd. North Miami, Florida
|
2,500 | N/A | Company | Company-Owned |
|
Flanigan's Seafood Bar and Grill #22 Flanigan's Enterprises, Inc. 2600 W. Davie Blvd. Ft. Lauderdale, Florida
|
4,100 | 200 | Company | Company-Owned |
|
Big Daddy’s Wine & Liquors #24 Flanigan’s Enterprises, Inc. (12) 11225 Miramar Parkway, #245 Miramar, Florida
|
2,000 | N.A. | Company |
3/5/22 to 3/5/32 Options to 3/5/47 |
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|
Name and Location |
Approx. Square Footage |
Seats | Franchised/ Owned by |
Lease Terms |
| Brendan’s Sports Pub | 3,500 | 85 | Company | 6/16/22 to 6/30/72 |
|
Flanigan’s Enterprises, Inc. 868 S. Federal Highway Pompano Beach, Florida
|
||||
|
Flanigan's Seafood Bar and Grill #31 Flanigan's Enterprises, Inc. 4 N. Federal Highway Hallandale, Florida
|
4,600 | 150 | Company | Company-Owned |
|
Flanigan's Seafood Bar and Grill #33 Flanigan’s Enterprises, Inc. 45 S. Federal Highway Boca Raton, Florida
|
4,620 | 130 | Company | 10/1/10 to 6/30/30 |
|
Big Daddy's Liquors #34 Flanigan's Enterprises, Inc. 9494 Harding Ave. Surfside, Florida
|
3,000 | N/A | Company | 5/29/97 to 5/28/27 Options to 5/28/37 |
|
Flanigan's Seafood Bar and Grill #40 Flanigan's Enterprises, Inc. 5450 N. State Road 7 N. Lauderdale, Florida
|
4,600 | 140 | Company | Company-Owned |
|
Piranha Pat's #43 BD 43 Corporation (1) (2) 2500 E. Atlantic Blvd. Pompano Beach, Florida
|
4,500 | 90 | Franchise | 12/1/72 to 11/30/27 |
|
Big Daddy’s Liquors #45 Flanigan’s Enterprises, Inc. 12776 S.W. 88th Street Miami, Florida
|
3,250 | N/A | Company |
7/1/19 to 6/30/24 Options to 6/30/34 |
|
Big Daddy's Liquors #47 Flanigan's Enterprises, Inc. (3) 8600 Biscayne Blvd. Miami, Florida
|
6,000 | N/A | Company | 12/21/68 to 1/1/30 Options to 1/1/50 |
|
Flanigan’s Seafood Bar and Grill #13 CIC Investors #13, Ltd. 11415 S. Dixie Highway Pinecrest, Florida
|
8,000 | 200 | Limited Partnership |
6/01/91 to 1/31/31 Option to 1/31/36 |
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|
Name and Location |
Approx. Square Footage |
Seats | Franchised/ Owned by |
Lease Terms |
|
Flanigan’s #25 CIC Investors #25, Ltd. (11) 11225 Miramar Parkway, #250 Miramar, Florida
|
6,000 | 200 |
Limited Partnership |
3/5/22 to 3/5/32 Options to 3/5/47
|
|
Flanigan’s Seafood Bar and Grill #50 CIC Investors #50, Ltd. 17185 Pines Boulevard Pembroke Pines, Florida
|
4,000 | 200 | Limited Partnership |
10/24/06 to 10/23/26 and Options to 10/23/31 |
|
Flanigan’s Seafood Bar and Grill #55 CIC Investors #55, Ltd. 2190 S. University Drive Davie, Florida
|
5,900
|
200 |
Limited Partnership
|
1/5/07 to 12/31/26 Option to 12/31/31 |
|
Flanigan’s Seafood Bar and Grill #60 CIC Investors #60 Ltd. 9516 Harding Avenue Surfside, Florida
|
6,800 | 200 | Limited Partnership |
8/1/97 to 12/31/26 |
|
Flanigan’s Seafood Bar and Grill #65 CIC Investors #65, Ltd. 2335 State Road 7, Suite 100 Wellington, Florida
|
6,128 |
200 |
Limited Partnership |
5/01/05 to 6/30/25 |
|
Flanigan's Seafood Bar and Grill #70 CIC Investors #70 Ltd. 12790 SW 88 St. Miami, Florida
|
4,850 | 200 | Limited Partnership |
4/1/00 to 3/31/25 Option to 3/31/30 |
|
Flanigan’s Seafood Bar and Grill #75 Flanigan’s Enterprises, Inc. 950 S. Federal Highway Stuart, Florida
|
7,000 | 200 | Company | 5/1/10 to 4/30/26 Option to 4/30/31 |
|
Flanigan's Seafood Bar and Grill #80 CIC Investors #80 Ltd. 8695 N.W. 12th St Miami, Florida
|
5,000 | 165 | Limited Partnership |
6/15/01 to 2/14/24 Options to 2/14/39 |
|
Flanigan's Seafood Bar and Grill #85 CIC Investors #85 Ltd. (10) 14301 W. Sunrise Blvd. Sunrise, Florida
|
6,900 | 200 | Limited Partnership |
3/1/19 to 2/28/29 Options to 2/28/44 Company-Owned
|
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|
Name and Location |
Approx. Square Footage |
Seats | Franchised/ Owned by |
Lease Terms |
|
Flanigan's Seafood Bar and Grill #90 CIC Investors #90 Ltd. 9857 S.W. 40th Street Miami, Florida
|
6,400 | 200 | Limited Partnership |
4/1/11 to 3/31/31 Option to 3/31/36 |
|
Flanigan's Seafood Bar and Grill #95 Flanigan’s Enterprises, Inc. 2460 Weston Road Weston, Florida
|
5,700 | 235 | Company |
10/1/17 to 9/30/27 Option to 9/30/32
|
|
Flanigan’s Calusa Center, LLC (6) 12750 – 12790 S.W. 88th Street Miami, Florida
|
23,700 | Company |
Company-owned shopping center |
---------------------------------------------
| (1) | Franchised by Company. |
| (2) | Lease assigned to franchisee. We are no longer contingently liable on the lease. |
| (3) | In 1974, we sold and assigned the underlying ground lease to unaffiliated third parties and simultaneously subleased it back. We have re-purchased from the unaffiliated third parties and currently own 52% of the underlying ground lease, as well as the sublease agreement. As a result, we pay all rent due under the ground lease, but only 48% of the rent due under the sublease agreement. |
| (4) | Effective December 1, 1998, we purchased the Management Agreement to operate the franchised restaurant for the franchisee. |
| (5) | Ground lease executed by us on September 25, 2001. We constructed a 4,120 square foot building, of which 1,978 square feet is used by us for the operation of a package liquor store and the other 2,142 square feet is subleased to an unaffiliated third party as retail space. The package liquor store opened for business on November 17, 2003. |
| (6) | During the first quarter of our fiscal year 2012, our wholly owned subsidiary, Flanigan’s Calusa Center, LLC, closed on the purchase of a two building shopping center in Miami, Florida, which consists of (i) one stand-alone building which is leased to ten unaffiliated third parties and houses our recently opened (October 2019) package liquor store (approximately 3,250 square feet) and (ii) a second stand-alone building where our limited partnership owned restaurant located at 12790 SW 88th Street, Miami, Florida, (Store #70), operates. |
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| (7) | During the second quarter of our fiscal year 2014, we closed on the purchase of the building in Fort Lauderdale, Florida, which is leased to our franchisee owned restaurant located at 1479 E. Commercial Boulevard, Fort Lauderdale, Florida, (Store #15). |
| (8) | During the first quarter of our fiscal year 2019, our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19), was damaged by a fire and was forced to close. We determined that Store #19 should be demolished and rebuilt as separate buildings. As a result, the package liquor store has been closed since our first quarter year 2019, but re-opened for business subsequent to the end of our fiscal year 2022 in a newly constructed stand-alone building. |
| (9) | During the first quarter of our fiscal year 2019, our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19), was damaged by a fire and was forced to close. We determined that Store #19 should be demolished and rebuilt as separate buildings. As a result, the restaurant has been closed since our first quarter year 2019. |
| (10) | During the second quarter of our fiscal year 2019, we entered into a lease for this location, which lease was subsequently assigned to a limited partnership. We raised funds to renovate this new location for operation as a “Flanigan’s Seafood Bar and Grill” restaurant using our limited partnership ownership model. The option to purchase was retained by the Company when the lease was assigned to the limited partnership and the option to purchase was exercised by the Company during the second quarter of our fiscal year 2021. This new restaurant opened for business during the second quarter of our fiscal year 2022. |
| (11) | During the fourth quarter of our fiscal year 2019, we entered into a lease for this location, which lease was subsequently assigned to a limited partnership. We raised funds to renovate this new location for operation as a “Flanigan’s” restaurant using our limited partnership ownership model, which location we believe will open for business in February, 2023. |
| (12) | During the fourth quarter of our fiscal year 2019, we entered into a lease for this location. We are developing this new location for operation as a “Big Daddy’s Wine & Liquors” retail package liquor store. |
Casualty Loss
During the first quarter of our fiscal year 2019, our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19) was damaged by a fire and was forced to close. Due to the damage caused by the fire, we determined that Store #19 should be demolished and rebuilt and as a result, the package liquor store and restaurant were closed for our fiscal years 2022, 2021, 2020 and 2019. The package liquor store re-opened for business subsequent to the end of our fiscal year 2022 in a newly constructed stand-alone building. We believe the restaurant will reopen for business in our fiscal year 2024 in a newly constructed stand-alone building where our combination package liquor store and restaurant at 2505 N. University Drive, Hollywood, Florida was previously located.
Private Offerings
CIC Investors #85, Ltd. (Flanigan’s, Sunrise, Florida)
On February 15, 2022, a Florida limited partnership (CIC Investors #85, Ltd.) in which the Company serves as general partner, completed a private placement of 1,000 Units of limited partnership interests at $5,000 per Unit for proceeds of $5,000,000, 74 Units of which ($370,000) were purchased by the Company upon the same terms and conditions as all other investors. The proceeds of the private placement were used to satisfy (including reimbursement to us for advances we have made), build-out and renovation expenses and the purchase of such furniture, fixtures and equipment necessary for operation of our Sunrise, Florida restaurant under the service mark “Flanigan’s”, which commenced operations on March 22, 2022. Capital raised from private investors is credited to sale of noncontrolling interests in our Statements of Stockholders’ Equity.
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Under ASC 810, Consolidation, the Company, which is the entity issuing financial statements, is required to consolidate CIC Investors #85, Ltd. as we have a controlling interest in CIC Investors #85, Ltd. as general partner, although the Company only has a 7.40% ownership.
CIC Investor #25, Ltd. (Flanigan’s, Miramar, Florida)
On February 15, 2022, a Florida limited partnership (CIC Investors #25, Ltd.) in which the Company serves as general partner, completed a private placement of 800 Units of limited partnership interests at $5,000 per Unit for gross proceeds of $4,000,000. No units of limited partnership interest were purchased by the Company. The proceeds of the private placement are being used to satisfy (including reimbursement to us for advances we have made), build-out and renovation expenses and the purchase of such furniture, fixtures and equipment necessary for operation of our Miramar, Florida restaurant under the service mark “Flanigan’s”, which we believe will commence operations in February, 2023. Capital raised from private investors is credited to sale of noncontrolling interests in our Statements of Stockholders’ Equity.
Under ASC 810, Consolidation, the Company, which is the entity issuing financial statements, is required to consolidate CIC Investors #25, Ltd. as we have a controlling interest in CIC Investors #25, Ltd. as general partner, although the Company has no direct ownership.
Execution of Lease for New Location; Business Acquisition of “Brendan’s Sports Pub”
Lease
Pompano Beach, Florida (Brendan’s Sports Pub)
During the third quarter of our fiscal year 2022, we entered into a Lease (the “BSP Lease”) with a non-affiliated third party from whom we rented approximately 3,556 square feet of commercial space located at 868 South Federal Highway, Pompano Beach, Florida, where we operate “Brendan’s Sports Pub” (Store #30), the assets of which we simultaneously purchased. The term of the BSP Lease is for fifty (50) years, triple net to the landlord with fixed rent of $78,000 per year, with two (2%) percent annual increases commencing in year five.
Assets
Brendan’s Sports Pub, Pompano Beach, Florida
During the third quarter of our fiscal year 2022 and simultaneously with the execution of the BSP Lease, we purchased the assets of the business known as “Brendan’s Sports Pub” located at 868 South Federal Highway, Pompano Beach, Florida for a purchase price of $75,000, including but not limited to the furniture, fixtures, equipment and service mark, “Brendan’s Sports Pub”, but excluding the 4 COP liquor license used in the operation of the business. We did not assume any obligations of the business.
We accounted for the purchase of the assets of the business known as “Brendan’s Sports Pub” as a business combination that is insignificant for purposes of all of the disclosures required under ASC 805.
Purchase of 4 COP Liquor License
During our fiscal year 2022, we purchased a 4 COP Quota Liquor License for Broward County, Florida from an unrelated third party for $445,000. The liquor license is currently inactive, but we intend to use it in connection with the operation of the package liquor store we are developing in Miramar, Florida. The 4 COP quota liquor license for Broward County, Florida which we purchased during the third quarter of our fiscal year 2021 and was inactive, was transferred for use in our operation of “Brendan’s Sports Pub”.
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Re-Financing of Existing Mortgages
Re-Finance of Mortgage on Real Property – Fort Lauderdale, Florida
During our fiscal year 2022, we requested and received a loan advance of $697,000 from an entity managed by a member of our Board of Directors who is also our Chief Financial Officer, which entity currently holds a first priority mortgage note on our real property and improvements where our restaurant located at 2600 West Davie Boulevard, Fort Lauderdale, Florida operates (the “West Davie Mortgage Note”). Including the $697,000 advance, the principal amount outstanding amount owed under the West Davie Mortgage Note as of October 1, 2022 is $1,100,000. The West Davie Mortgage Note accrues interest at 6% annually, (increased from 5% annually), is amortizable over 15 years with monthly installments of principal and interest of approximately $9,300 required to be made and a final balloon payment of approximately $487,000 required to be made August 1, 2032.
Re-Finance of Mortgage on Real Property – Hallandale Beach, Florida
During our fiscal year 2022, we re-financed our mortgage debt with our non-affiliated third-party lender relating to our real property located at 4 N. Federal Highway, Hallandale, Florida where our combination package liquor store and restaurant (Store #31) operates and borrowed an additional $8,012,000 increasing the principal balance owed by us to $8,900,000, (the “$8.90M Mortgage”). The $8.90M Mortgage bears interest at a variable rate equal to the BSBY Screen Rate – 1 Month plus 1.50%. We entered into an interest rate swap agreement to hedge the interest rate risk, which fixed the interest rate on the $8.90M Mortgage at 4.90% per annum throughout its term. The $8.90M Mortgage is fully amortized over fifteen (15) years, with our monthly payment of principal and interest totaling $33,000.
Subsequent Events
Re-Opening of Re-Constructed Package Liquor Store – Hollywood, Florida
Subsequent to the end of our fiscal year 2022, the package liquor store which was formerly a part of our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19) and was forced to close due to damage from a fire during the first quarter of our fiscal year 2019 re-opened for business in a newly constructed, free-standing building on the adjacent property located at 7990 Dave Road Extension, Hollywood, Florida (Store #19P).
Insurance Premiums
Subsequent to the end of our fiscal year 2022, for the policy year commencing December 30, 2022, we bound coverage on the following property, general liability, excess liability and terrorist policies with premiums totaling approximately $3.281 million, which property, general liability, excess liability and terrorist insurance includes coverage for our franchises (which is $658,000), which are not included in our consolidated financial statements:
(i) For the policy year beginning December 30, 2022, our general liability insurance, excluding limited partnerships, is a one (1) year policy with our insurance carriers. The one (1) year general liability insurance premium is in the amount of $512,000;
(ii) For the policy year beginning December 30, 2022, our general liability insurance for our limited partnerships is a one (1) year policy with our insurance carriers. The one (1) year general liability insurance premium is in the amount of $672,000;
(iii) For the policy year beginning December 30, 2022, our automobile insurance is a one (1) year policy. The one (1) year automobile insurance premium is in the amount of $190,000;
(iv) For the policy year beginning December 30, 2022, our property insurance is a one (1) year policy. The one (1) year property insurance premium is in the amount of $1,248,000;
(v) For the policy year beginning December 30, 2022, our excess liability insurance is a one (1) year policy. The one (1) year excess liability insurance premium is in the amount of $634,000;
(vi) For the policy year beginning December 30, 2022, our terrorist insurance is a one (1) year policy. The one (1) year terrorist insurance premium is in the amount of $14,000; and
(vii) For the policy year beginning December 30, 2022, our equipment breakdown insurance is a one (1) year policy. The one (1) year equipment breakdown insurance premium is in the amount of $11,000.
Of the $3,281,000 annual premium amounts, which includes coverage for our franchises which are not included in our consolidated financial statements, we paid the annual premium amounts in full with no financing due to high interest rates.
Payoff of Term Loan
Subsequent to the end of our fiscal year 2022, we satisfied the principal balance and all accrued interest due on our $5.5 million term loan to our unrelated lender. The outstanding principal balance ($367,000) and accrued interest ($-0-) was paid in full on December 28, 2022.
Subsequent events have been evaluated through the date these consolidated financial statements were issued and except as disclosed herein, no other events required disclosure.
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| ITEM 3. | LEGAL PROCEEDINGS |
From time to time, we are a defendant in litigation arising in the ordinary course of our business, including claims resulting from “slip and fall” accidents, dram shop claims, claims under federal and state laws governing access to public accommodations, employment-related claims and claims from guests alleging illness, injury or other food quality, health or operational concerns. To date, none of this litigation, some of which is covered by insurance, has had a material effect on us.
| ITEM 4. | MINE SAFETY DISCLOSURES. |
Not applicable.
PART II
| ITEM 5. | MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES. |
Our common stock is traded on the NYSE AMERICAN under the symbol “BDL”.
Holders
As of the close of business on December 8, 2022, there were approximately 159 holders of record of our common stock.
Dividend Policy
During our fiscal year 2022, our Board of Directors declared a cash dividend of $1.00 per share to shareholders of record on March 31, 2022 and paid on April 19, 2022. During our fiscal year 2021, we did not declare or pay a cash dividend on our capital stock. Any future determination to pay cash dividends will be at our Board’s discretion and will depend upon our financial condition, operating results, capital requirements and such other factors as our Board deems relevant.
Issuer Repurchases of Equity Securities
Pursuant to a discretionary plan approved by the Board of Directors at its meeting on May 17, 2007, the Board of Directors authorized management to purchase up to 100,000 shares of our common stock, at a purchase price up to $15.00 per share. Since the Board’s 2007 authorization, we have purchased an aggregate of 34,586 shares, none of which were purchased by us in our fiscal year 2022. As of October 1, 2022, we still have authority to purchase 65,414 shares of our common stock under the discretionary plan approved by the Board of Directors.
| ITEM 6. | RESERVED |
| ITEM 7. | MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. |
Except for the historical information contained herein, the following discussion contains forward-looking statements that are subject to known and unknown risks, uncertainties and other factors that may cause our actual results to differ materially from those expressed or implied by such forward-looking statements. We discuss such risks, uncertainties and other factors throughout this report and specifically under the captions “Risk Factors”. In addition, the following discussion and analysis should be read in conjunction with the 2022 and 2021 Consolidated Financial Statements and the related Notes to Consolidated Financial Statements included elsewhere in this report.
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OVERVIEW
Financial Information Concerning Industry Segments
Our business is conducted principally in two segments: the restaurant segment and the package liquor store segment. Financial information broken into these two principal industry segments for the two fiscal years ended October 1, 2022 and October 2, 2021 is set forth in the Consolidated Financial Statements which are attached hereto.
General
As of October 1, 2022, we (i) operated 30 units, consisting of restaurants, sports bar, package liquor stores and combination restaurants/package liquor stores that we either own or have operational control over and partial ownership in; and (ii) franchises an additional five units, consisting of two restaurants (one of which we operate) and three combination restaurants/package liquor stores. An additional limited partnership owned restaurant located at 11225 Miramar Parkway #250, Miramar, Florida (Store #25) is expected to open for business in February, 2023.
Franchised Units. In exchange for our providing management and related services to our franchisees and granting them the right to use our service marks "Flanigan's Seafood Bar and Grill" and "Big Daddy's Liquors", our franchisees (four of which are franchised to members of the family of our Chairman of the Board, officers and/or directors), are required to (i) pay to us a royalty equal to 1% of gross package liquor sales and 3% of gross restaurant sales; and (ii) make advertising expenditures equal to between 1.5% to 3% of all gross sales based upon our actual advertising costs allocated between stores, pro-rata, based upon gross sales.
Affiliated Limited Partnership Owned Units. We manage and control the operations of the ten restaurants owned by limited partnerships, except the Fort Lauderdale, Florida restaurant which is managed and controlled by a related franchisee. Accordingly, the results of operations of all limited partnership owned restaurants, except the Fort Lauderdale, Florida restaurant are consolidated with our results of operations for accounting purposes. The results of operations of the Fort Lauderdale, Florida restaurant are accounted for by us utilizing the equity method.
RESULTS OF OPERATIONS
REVENUES (in thousands):
| 52 Weeks Ended | 52 Weeks Ended | |||||||||||||||
| October 1, 2022 | October 2, 2021 | |||||||||||||||
|
Amount (In thousands) |
Percent |
Amount (In thousands) |
Percent |
|||||||||||||
| Restaurant food sales | $ | 97,429 | 62.7 | % | $ | 84,466 | 62.7 | % | ||||||||
| Restaurant bar sales | 26,198 | 16.9 | % | 20,832 | 15.5 | % | ||||||||||
| Package store sales | 31,692 | 20.4 | % | 29,304 | 21.8 | % | ||||||||||
| Total Sales | $ | 155,319 | 100.00 | % | $ | 134,602 | 100.00 | % | ||||||||
| Franchise related revenues | 1,826 | 1,673 | ||||||||||||||
| Rental income | 814 | 770 | ||||||||||||||
| Other operating income | 173 | 262 | ||||||||||||||
| Total Revenue | $ | 158,132 | $ | 137,307 | ||||||||||||
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Comparison of Fiscal Years Ended October 1, 2022 and October 2, 2021
Revenues. Total revenue for our fiscal year 2022 increased $20,825,000 or 15.17% to $158,132,000 from $137,307,000 for our fiscal year 2021 due primarily to increased package liquor store and restaurant sales, increased menu prices, revenue generated from the opening of our limited partnership owned restaurant in Sunrise, Florida, (Store #85) in March 2022 and the comparatively less adverse effects of COVID-19 on our operations during our fiscal year 2022 as compared with our fiscal year 2021. Effective October 3, 2021 and then effective December 19, 2021 we increased menu prices for our food offerings to target an increase to our food revenues of approximately 2.38% and 3.34% annually, respectively, to offset higher food costs and higher overall expenses and effective December 12, 2021 we increased menu prices for our bar offerings to target an increase to our bar revenues of approximately 7.80% annually, (collectively the “Recent Price Increases”). Prior to these increases, we previously raised menu prices in the third quarter of our fiscal year 2021.
Restaurant Food Sales. Restaurant revenue generated from the sale of food, including non-alcoholic beverages, at restaurants totaled $97,429,000 for our fiscal year 2022 as compared to $84,466,000 for our fiscal year 2021. The increase in restaurant food sales for our fiscal year 2022 as compared to restaurant food sales during our fiscal year 2021 is attributable to the Recent Price Increases, restaurant food sales generated from the opening of our limited partnership owned restaurant in Sunrise, Florida, (Store #85) in March 2022, the opening of Brendan’s Sports Pub (Store #30) in June, 2022 and the comparatively greater adverse effects of COVID-19 on our operations during our fiscal year 2021 as compared with our fiscal year 2022. Comparable weekly restaurant food sales (for restaurants open for all of our fiscal years 2022 and 2021 respectively, which consists of nine restaurants owned by us and eight restaurants owned by affiliated limited partnerships, (excluding our Sunrise, Florida location, (Store #85), and Brendan’s Sports Pub, (Store #30), both of which opened for business during the second quarter of our fiscal year 2022) was $1,798,000 and $1,610,000 for our fiscal years 2022 and 2021, respectively, an increase of 11.68%. Comparable weekly restaurant food sales for Company owned restaurants only was $886,000 and $797,000 for our fiscal years 2022 and 2021, respectively, an increase of 11.17%. Comparable weekly restaurant food sales for affiliated limited partnership owned restaurants only, (excluding Store #85 which opened for business during the second quarter of our fiscal year 2022), was $912,000 and $813,000 for our fiscal years 2022 and 2021 respectively, an increase of 12.18%. We expect that restaurant food sales, including non-alcoholic beverages, for our fiscal year 2023 will increase due to increased restaurant traffic and the opening for business of the 2023 Miramar Restaurant during our fiscal year 2023.
Restaurant Bar Sales. Restaurant revenue generated from the sale of alcoholic beverages at restaurants totaled $26,198,000 for our fiscal year 2022 as compared to $20,832,000 for our fiscal year 2021. The increase in restaurant bar sales during our fiscal year 2022 is primarily due to the Recent Price Increases, restaurant bar sales generated from the opening of our limited partnership owned restaurant in Sunrise, Florida, (Store #85) in March 2022, the opening of Brendan’s Sports Pub (Store #30) in June, 2022 and the comparatively more adverse effects of COVID-19 on our operations during our fiscal year 2021 as compared with our fiscal year 2022. Comparable weekly restaurant bar sales (for restaurants open for all of our fiscal years 2022 and 2021 respectively, which consists of nine restaurants owned by us and eight restaurants owned by affiliated limited partnerships, (excluding our Sunrise, Florida location (Store #85) and Brendan’s Sports Pub (Store #30) both of which opened for business during the second quarter of our fiscal year 2022) was $487,000 for our fiscal year 2022 and $401,000 for our fiscal year 2021, an increase of 21.45%. Comparable weekly restaurant bar sales for Company owned restaurants only was $211,000 and $172,000 for our fiscal years 2022 and 2021, respectively, an increase of 22.67%. Comparable weekly restaurant bar sales for affiliated limited partnership owned restaurants only was $276,000 and $229,000 for our fiscal years 2022 and 2021 respectively, an increase of 20.05%. We expect that restaurant bar sales for our fiscal year 2023 will increase due to increased restaurant traffic and the opening for business of the 2023 Miramar Restaurant during our fiscal year 2023.
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Package Liquor Store Sales. Revenue generated from sales of liquor and related items at package liquor stores totaled $31,692,000 for our fiscal year 2022 as compared to $29,304,000 for our fiscal year 2021, an increase of $2,388,000. This increase was primarily due to increased package liquor store traffic due to what appears to be continued increased demand for package liquor store products resulting from the COVID-19 pandemic. The weekly average of same store package liquor store sales, which includes nine (9) Company-owned package liquor stores, (excluding Store #19, which was closed for our fiscal years 2022 and 2021 due to a fire on October 2, 2018 but re-opened subsequent to our fiscal year ended October 1, 2022), was $609,000 and $564,000 for our fiscal years 2022 and 2021 respectively, an increase of 7.98%. We expect that package liquor store sales for our fiscal year 2023 will increase due to increased package liquor store traffic and the opening of the package liquor stores located at 7990 Davie Road Extension, Hollywood, Florida (Store #19P) which opened for business subsequent to our fiscal year end 2023 and 11225 Miramar Parkway, Miramar, Florida (Store #24) which we anticipate will open for business during our fiscal year 2023.
Operating Costs and Expenses. Operating costs and expenses, (consisting of cost of merchandise sold, payroll and related costs, occupancy costs and selling, general and administrative expenses), for our fiscal year 2022 increased $22,546,000 or 17.52% to $151,202,000 from $128,657,000 for our fiscal year 2021. The increase was primarily due to increased payroll and an expected general increase in food costs, costs and expenses incurred from the opening of our limited partnership owned restaurant in Sunrise, Florida, (Store #85) in March 2022, Brendan’s Sports Pub (Store #30) in June, 2022, pre-opening expenses from our limited partnership owned restaurant in Miramar, Florida (Store # 25) and pre-opening expenses from our package liquor store in Miramar, Florida, (Store #24), partially offset by actions taken by management to reduce and/or control costs. We anticipate that our operating costs and expenses will continue to increase through our fiscal year 2023. Operating costs and expenses increased as a percentage of total revenue to approximately 95.62% in our fiscal year 2022 from 93.70% in fiscal year 2021.
Gross Profit. Gross profit is calculated by subtracting the cost of merchandise sold from sales.
Restaurant Food and Bar Sales. Gross profit for food and bar sales for our fiscal year 2022 increased to $79,072,000 from $69,325,000 for our fiscal year 2021. Our gross profit margin for restaurant food and bar sales (calculated as gross profit reflected as a percentage of restaurant food and bar sales), was 63.96% for our fiscal year 2022 and 65.84% for our fiscal year 2021. Gross profit margin for restaurant food and bar sales decreased during our fiscal year 2022 when compared to our fiscal year 2021 due to higher food costs, partially offset by, among other things, the Recent Price Increases which did not fully absorb increased costs of restaurant food and bar sales.
Package Liquor Store Sales. Gross profit for package store sales for our fiscal year 2022 increased to $8,382,000 from $6,956,000 for our fiscal year 2021. Our gross profit margin, (calculated as gross profit reflected as a percentage of package liquor store sales), for package store sales was 26.45% for our fiscal year 2022 and 23.74% for our fiscal year 2021. We anticipate that the gross profit margin for package liquor store merchandise will decrease during our fiscal year 2023 due to higher costs and a reduction in pricing of certain package store merchandise to be more competitive.
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Payroll and Related Costs. Payroll and related costs for our fiscal year 2022 increased $6,271,000 or 14.43% to $49,736,000 from $43,465,000 for our fiscal year 2021. Payroll and related costs for our fiscal year 2022 were higher due primarily to the opening of our limited partnership owned restaurant in Sunrise, Florida, (Store #85) in March 2022, Brendan’s Sports Pub (Store #30) in June, 2022 and higher costs for employees such as cooks. Payroll and related costs as a percentage of total revenue was 31.45% for our fiscal year 2022 and 31.66% of total revenue for our fiscal year 2021.
Occupancy Costs. Occupancy costs (consisting of percentage rent, common area maintenance, repairs, real property taxes, amortization of leasehold purchases and rent expense associated with operating lease liabilities under ASC 842) for our fiscal year 2022 increased $436,000 or 6.61% to $7,031,000 from $6,595,000 for our fiscal year 2021. The increase in occupancy costs was primarily due to the commencement of rent for our retail package liquor store which we are developing located at 11225 Miramar Parkway, #245, Miramar, Florida (Store #24) and our restaurant location which we are developing located at 11225 Miramar Parkway, #250, Miramar, Florida (Store #25) during the second quarter of our fiscal year 2022, both of which we anticipate will open during our fiscal year 2023 and Brendan’s Sports Pub (Store #30) which we acquired and opened for business in June, 2022.
Selling, General and Administrative Expenses. Selling, general and administrative expenses (consisting of general corporate expenses, including but not limited to advertising, insurance, professional costs, clerical and administrative overhead) for our fiscal year 2022 increased $6,296,000 or 31.05% to $26,571,000 from $20,275,000 for our fiscal year 2021. Selling, general and administrative expenses increased as a percentage of total revenue in our fiscal year 2022 to 16.80% as compared to 14.77% in our fiscal year 2021, due primarily to increases in expenses across all categories. We anticipate that our selling, general and administrative expenses as a percentage of total revenue will increase during our fiscal year 2023 due primarily to increases across all categories.
Depreciation and Amortization. Depreciation and amortization expense for our fiscal year 2022, which is included in selling, general and administrative expenses, decreased $51,000 or 1.67% to $3,012,000 from $3,063,000 from our fiscal year 2021. As a percentage of total revenue, depreciation and amortization expense was 1.90% of revenue for our fiscal year 2022 and 2.23% of revenue for our fiscal year 2021.
Interest Expense, Net. Interest expense, net, for our fiscal year 2022 decreased $181,000 to $757,000 from $938,000 for our fiscal year 2021. Interest expense, net, decreased for our fiscal year 2022 due to the forgiveness of principal and all accrued interest on the borrowing by certain of our limited partnerships of an additional $3.35 million of 2nd PPP Loans during the first quarter of our fiscal year 2022, partially offset by interest on our borrowing of $4,300,000 during the third quarter of our fiscal year 2021 from an unrelated third party lender to re-finance our mortgage loan of our property located at 13105 – 13205 Biscayne Boulevard, North Miami, Florida (Store #20). Interest expense, net, will increase for our fiscal year 2023 due to interest on our borrowing of $8,900,000 during the fourth quarter of our fiscal year 2022 from an unrelated third party lender to re-finance the mortgage loan on our property located at 4 N. Federal Highway, Hallandale Beach, Florida (Store #31).
Income Taxes. Income tax for our fiscal year 2022 was an expense of $763,000, as compared to an expense of $1,185,000 for our fiscal year 2021. Income taxes as a percentage of income before provision for income taxes increased for our fiscal year 2022 (7.78%) as compared to our fiscal year 2021 (6.60%) due primarily to the higher income attributable to the forgiveness of debt of certain of our PPP Loans during our fiscal year 2021.
Net Income. Net income for our fiscal year 2022 decreased $7,716,000 or 46.02% to $9,049,000 from $16,765,000 for our fiscal year 2021 due primarily to the higher income attributable to the forgiveness of debt of certain of our PPP Loans during our fiscal year 2021 and higher food costs and overall increased expenses during our fiscal year 2022, partially offset by increased revenue at our restaurants during our fiscal year 2022 and the Recent Price Increases. As a percentage of revenue, net income for our fiscal year 2022 is 5.72%, as compared to 12.21% for our fiscal year 2021.
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Net Income Attributable to Flanigan’s Enterprise, Inc. Stockholders. Net income attributable to stockholders for our fiscal year 2022 decreased $5,472,000 or 46.44% to $6,312,000 from $11,784,000 for our fiscal year 2021 due primarily to the higher income attributable to noncontrolling interests as all income attributable to the forgiveness of debt of certain of our PPP Loans during our fiscal year 2021, higher net income attributable to noncontrolling interests as all income attributable to the forgiveness of debt of certain of our PPP Loans was attributed to our limited partnerships and higher food costs and overall increased expenses during our fiscal year 2022, partially offset by increased revenue at our restaurants during our fiscal year 2022 and the Recent Price Increases. As a percentage of revenue, net income attributable to stockholders for our fiscal year 2022 is 3.99%, as compared to 8.58% for our fiscal year 2021.
New Limited Partnership Restaurants
As new restaurants open, our income from operations will be adversely affected due to our obligation to advance pre-opening costs, including but not limited to pre-opening rent for the new locations. During our fiscal year 2022, we opened one new restaurant location in Sunrise, Florida for business as a new “Flanigan’s” and had a second new restaurant location in Miramar, Florida in the development stage, to house a new “Flanigan’s”. Rent for the new restaurant location in Miramar, Florida commenced during our fiscal year 2022.
Menu Price Increases and Trends
During our fiscal year 2022, we increased menu prices for our food offerings (effective October 3, 2021 and December 19, 2021, respectively) to target an aggregate increase to our food revenues of approximately 8.83% annually and we increased menu prices for our bar offerings (effective December 12, 2021) to target an increase to our bar revenues of approximately 7.80% annually to offset higher food and liquor costs and higher overall expenses. Prior to these increases, we previously raised menu prices in the third quarter of our fiscal year 2021.
COVID-19 has and will continue to materially and adversely affect our restaurant business for what may be a prolonged period of time. This damage and disruption has resulted from events and factors that were impossible for us to predict and are beyond our control. As a result, COVID-19 has materially adversely affected our results of operations for our fiscal year 2022 and will, in all likelihood, impact our results of operations, liquidity and/or financial condition throughout our fiscal year 2023. The extent to which our restaurant business may be adversely impacted and its effect on our operations, liquidity and/or financial condition cannot be accurately predicted.
LIQUIDITY AND CAPITAL RESOURCES
We fund our operations through cash from operations and borrowings from third parties. As of October 1, 2022, we had cash of approximately $42,138,000, an increase of $9,462,000 from our cash balance of $32,676,000 as of October 2, 2021. During our fiscal year 2022, we generated proceeds from the closing of the sale, in a private offering of limited partnership interests in (i) CIC Investors #85, Ltd., the limited partnership which owns and operates the 2022 Sunrise Restaurant, of $5,000,000, of which we purchased $370,000 of limited partnership interests; and (ii) CIC Investors #25, Ltd., the limited partnership which owns and is developing the “Flanigan’s” restaurant located at 11225 Miramar Parkway, Suite 250, Miramar, Florida 33025 of $4,000,000. We also generated net proceeds of $7.88 million from the re-finance of our mortgage loan encumbering the real property and improvements located at 4 N. Federal Highway, Hallandale Beach, Florida where our Flanigan’s Seafood Bar and Grill restaurant and Big Daddy’s Liquors retail package liquor store operate (Store #31) with an unrelated third-party lender, increasing the principal amount we borrowed to $8.90 million (the “Hallandale Mortgage Debt”). During our fiscal year 2022, we requested and received a loan advance of $697,000 from an entity managed by a member of our Board of Directors and who is also our Chief Financial Officer, which entity currently holds a first priority mortgage note on our real property and improvements where our restaurant located at 2600 West Davie Boulevard, Fort Lauderdale, Florida operates (the “West Davie Mortgage Note”), which loan advance increased the principal amount we borrowed to $1.1 million (the “West Davie Mortgage Debt”).
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During the second quarter of our fiscal year 2021, certain of the entities owning the limited partnership stores (the “LP’s”), as well as the store we manage but do not own (the “Managed Store”) (collectively, the “Borrowers”), applied for and received loans from an unrelated third party lender (the “Lender”) pursuant to the Paycheck Protection Program (the “PPP”) under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) enacted March 27, 2020, in the aggregate principal amount of approximately $3.98 million (the “2nd PPP Loans”), of which approximately: (i) $3.46 million was loaned to six (6) of the LP’s; and (ii) $0.52 million was loaned to the Managed Store. During first quarter of our fiscal year 2022, we applied for forgiveness for all PPP Loans, including the Managed Store, and as of October 1, 2022, the entire amount of principal and accrued interest was forgiven under the 2nd PPP Loans. During the third quarter of our fiscal year 2021, we generated net proceeds of $2.8 million from the re-finance of our mortgage loan encumbering the real property and improvements located at 13105 – 13205 Biscayne Boulevard, North Miami, Florida where our Flanigan’s Seafood Bar and Grill restaurant and Big Daddy’s Liquors retail package liquor store operate (Store #20) with an unrelated third-party lender, increasing the principal amount borrowed from $1.5 million to $4.3 million. During the fourth quarter of our fiscal year 2022 we closed on the purchase of a 4 COP Quota Liquor License for Broward County for $446,000. This 4 COP Quota Liquor license will be used at our package liquor store located at 11225 Miramar Parkway #245, Miramar, Florida (Store #24), which is currently under development. During the third quarter of our fiscal year 2022, we closed on the purchase of the assets of the business known as “Brendan’s Sports Pub” located at 868 South Federal Highway, Pompano Beach, Florida for a purchase price of $75,000. During the second quarter of our fiscal year 2021, we closed on the purchase of the real property and improvements located at 14301 West Sunrise Boulevard, Sunrise, Florida for $4,800,000 where our “Flanigan’s Seafood Bar and Grill” restaurant (Store #85) operates. We financed this acquisition with a loan from an unrelated third-party lender in the principal amount of $2.2 million and paid cash for the balance. During the first quarter of our fiscal year 2021, we closed on the purchase of the real property and improvements located at 5450 N. State Road 7, North Lauderdale, Florida where we operate a combination “Flanigan’s Seafood Bar and Grill” restaurant and “Big Daddy’s Liquors” package liquor store (Store #40) and paid $1,200,000 cash at closing.
The primary inflationary factors affecting our operations are food, beverage and labor costs. Supply chain issues also contribute to inflation. Inflation, including supply chain issues are having a material impact on our operating results, especially rising food, fuel and labor costs.
Notwithstanding the negative effects of COVID 19 and inflation, including supply chain issues on our operations, we believe that our current cash availability from our cash on hand, positive cash flow from operations and borrowed funds will be sufficient to fund our operations and planned capital expenditures for at least the next twelve months.
Any future determination to pay cash dividends will be at our Board’s discretion and will depend upon our financial condition, operating results, capital requirements and such other factors as our Board deems relevant. There can be no assurances that any future dividends will be paid.
CASH FLOWS
The following table is a summary of our cash flows for our fiscal years 2022 and 2021.
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| ---------Fiscal Years -------- | ||||||||
| 2022 | 2021 | |||||||
| (in thousands) | ||||||||
| Net cash and cash equivalents provided by operating activities | $ | 10,502 | $ | 14,016 | ||||
| Net cash used in investing activities | (9,542 | ) | (11,556 | ) | ||||
| Net cash provided by financing activities | 8,502 | 294 | ||||||
| Net Increase in Cash and Cash Equivalents | 9,462 | 2,754 | ||||||
| Cash and Cash Equivalents, Beginning | 32,676 | 29,922 | ||||||
| Cash and Cash Equivalents, Ending | $ | 42,138 | $ | 32,676 | ||||
Capital Expenditures
In addition to using cash for our operating expenses, we use cash to fund the development and construction of new restaurants and to fund capitalized property improvements for our existing restaurants. During our fiscal year 2022, we acquired property and equipment of $12,655,000, (of which $3,849,000 was for construction in progress; $3,258,000 construction in progress transferred to property and equipment; $969,000 construction in progress in accounts payable; $50,000 was deposits recorded in other assets; and $512,000 was deposits transferred to construction in progress as of October 2, 2021), which amount included $937,000 for renovations to three (3) existing limited partnership restaurants and $159,000 for renovations to two (2) Company-owned restaurants. During our fiscal year 2021, we acquired property and equipment of $13,255,000, (of which $58,000 was for the purchase of a motor vehicle; $3,229,000 was for the purchase of real property; $4,416,000 was for construction in progress; $14,000 was deposits recorded in other assets; and $48,000 was deposits transferred to construction in progress as of October 3, 2020), which amount included $464,000 for renovations to two (2) existing limited partnership restaurants and $440,000 for renovations to five (5) Company-owned restaurants. We anticipate the cost of this refurbishment in our fiscal year 2023 will be approximately $650,000, excluding construction/renovations to Store #19R (our restaurant which is being rebuilt due to damages caused by a fire) and Store #24 (our Miramar, Florida package store location in development), although capital expenditures for our refurbishing program for our fiscal year 2023 may be significantly higher.
Debt
As of October 1, 2022, we had long term debt of $25,389,000, as compared to $22,115,000 as of October 2, 2021. Our long term debt increased as of October 1, 2022 as compared to October 2, 2021 due (i) to an approximately $8.0 million increase in the amount we borrowed under the Hallandale Mortgage Debt; (ii) to a $403,000 increase in the amounts we borrowed to finance certain insurance premiums; and (iii) to a $697,000 increase in the amount we borrowed under the West Davie Mortgage Debt less any payments on account thereof, partially offset by the forgiveness of all principal and accrued interest of the 2nd PPP Loans. As of October 1, 2022, we are in compliance with the covenants of all loans with our lender. (See Item 7A. Quantitative and Qualitative Disclosures About Market Risk for a discussion of interest rate swap agreements that we used to fix interest rate fluctuations on certain of our borrowings on page 52.)
We repaid long term debt, including auto loans, financed insurance premiums and mortgages in the amount of $3,736,000 and $4,100,000 in our fiscal years 2022 and 2021, respectively.
(a) Advance on Existing Mortgage Loan – Fort Lauderdale, Florida
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During our fiscal year 2022, we requested and received a loan advance of $697,000 from an entity controlled by a member of our Board of Directors, which entity currently holds a first priority mortgage note on our real property and improvements where our restaurant located at 2600 West Davie Boulevard, Fort Lauderdale, Florida operates (the “West Davie Mortgage Note”). Including the $697,000 advance, the principal amount outstanding amount owed under the West Davie Mortgage Note as of October 1, 2022 is $1,100,000. The West Davie Mortgage Note accrues interest at 6% annually, (increased from 5% annually), is amortizable over 15 years with monthly installments of principal and interest of approximately $9,300 required to be made and a final balloon payment of approximately $487,000 required to be made August 1, 2032.
(b) Re-Finance of Mortgage on Real Property – Hallandale Beach, Florida
During our fiscal year 2022, we re-financed our mortgage debt with our non-affiliated third-party lender secured by our real property located at 4 N. Federal Highway, Hallandale, Florida where our combination package liquor store and restaurant (Store #31) operates and borrowed an additional $8,012,000 raising the principal balance to $8,900,000, (the “$8.90M Mortgage”). The $8.90M Mortgage bears interest at a variable rate equal to the BSBY Screen Rate – 1 Month plus 1.50%. We entered into an interest rate swap agreement to hedge the interest rate risk, which fixed the interest rate on the $8.90M Mortgage at 4.90% per annum throughout its term. The $8.90M Mortgage is fully amortized over fifteen (15) years, with our monthly payment of principal and interest totaling $33,000.
(c) Financed Insurance Premiums
During our fiscal year 2022, we financed the premiums on the following property, general liability, excess liability and terrorist policies, totaling approximately $2.54 million, which property, general liability, excess liability and terrorist insurance includes coverage for our franchises which are not included in our consolidated financial statements:
(i) For the policy year beginning December 30, 2021, our general liability insurance, excluding limited partnerships, is a one (1) year policy with our insurance carriers. The one (1) year general liability insurance premium is in the amount of $467,000;
(ii) For the policy year beginning December 30, 2021, our general liability insurance for our limited partnerships is a one (1) year policy with our insurance carriers. The one (1) year general liability insurance premium is in the amount of $589,000;
(iii) For the policy year beginning December 30, 2021, our automobile insurance is a one (1) year policy. The one (1) year automobile insurance premium is in the amount of $194,000;
(iv) For the policy year beginning December 30, 2021, our property insurance is a one (1) year policy. The one (1) year property insurance premium is in the amount of $700,000;
(v) For the policy year beginning December 30, 2021, our excess liability insurance are two (2) one (1) year policies. The aggregate one (1) year excess liability insurance premiums are in the amount of $576,000;
(vi) For the policy year beginning December 30, 2021, our terrorist insurance is a one (1) year policy. The one (1) year terrorist insurance premium is in the amount of $8,900; and
(vii) For the policy year beginning December 30, 2021, our equipment breakdown insurance is a one (1) year policy. The one (1) year equipment breakdown insurance premium is in the amount of $6,800.
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Of the $2,542,000 annual premium amounts, which includes coverage for our franchises which are not included in our consolidated financial statements, we financed $2,328,000 through an unaffiliated third party lender. The finance agreement obligates us to repay the amounts financed together with interest at the rate of 2.55% per annum, over 11 months, with monthly payments of principal and interest of $215,000. The finance agreement is secured by a first priority security interest in all insurance policies, all unearned premium, return premiums, dividend payments and loss payments thereof.
As of October 1, 2022, the aggregate principal balance owed from the financing of our property and general liability insurance policies, excluding coverage for our franchises, (of approximately $136,000), which are not included in our consolidated financial statements is $507,000.
Construction Contracts
(a) 7990 Davie Road Extension, Hollywood, Florida (Store #19 – “Big Daddy’s Wine & Liquors”)
During the third quarter of our fiscal year 2019, we entered into an agreement with a third party unaffiliated general contractor for site work at this location totaling $1,618,000, (i) to connect the real property where this restaurant operated (Store #19) to city sewer and (ii) to construct a new building on the adjacent parcel of real property for the operation of a package liquor store. During our fiscal years 2020, 2021 and 2022, we agreed to change orders to the agreement for additional construction services increasing the total contract price by $624,000 to $2,242,000, of which $1,951,000 has been paid through October 1, 2022 and $-0- has been paid subsequent to the end of our fiscal year 2022 through the date of filing of this annual report.
(b) 2505 N. University Drive, Hollywood, Florida (Store #19 – “Flanigan’s”)
During the third quarter of our fiscal year 2019, we entered into an agreement with an unaffiliated third party architect for design and development services totaling $77,000 for the re-build of our restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19), which has been closed since October 2, 2018 due to damages caused by a fire, of which $62,000 has been paid. During the first quarter of our fiscal year 2022, we entered into an agreement with a third party unaffiliated general contractor to re-build our restaurant at this location for $2,515,000, of which $226,000 has been paid through October 1, 2022 and $75,000 has been paid subsequent to the end of our fiscal year 2022 through the date of filing of this annual report.
(c) 14301 W. Sunrise Boulevard, Sunrise, Florida (Store #85 – “Flanigan’s”)
During the third quarter of our fiscal year 2019, we entered into an agreement with an unaffiliated third party design group for design and development services of our new location at 14301 W. Sunrise Boulevard, Sunrise, Florida 33323 (Store #85) for a total contract price of $122,000. During our fiscal year 2020, we agreed upon amendments to the $122,000 Contract for additional design and development services which had the effect of increasing the total contract price by $18,000 to $140,000, of which $131,000 has been paid through October 1, 2022. Additionally, during the fourth quarter of our fiscal year 2020, we entered into an agreement with a third party unaffiliated general contractor for interior renovations at this location totaling $1,236,000 and through our fiscal year 2022 we agreed to change orders to the agreement for additional interior renovations increasing the total contract price by $215,000 to $1,451,000, which has been paid in full by the end of our fiscal year 2022. During the second quarter of our fiscal year 2022, we entered into an agreement with a third party unaffiliated general contractor for exterior renovations at this location totaling $343,000 and through our fiscal year 2022 we agreed to change orders to the agreement for additional interior renovations increasing the total contract price by $61,000 to $404,000, of which $353,000 has been paid through October 1, 2022 and $-0- has been paid subsequent to the end of our fiscal year 2022 through the date of filing of this annual report.
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(d) 11225 Miramar Parkway, #250, Miramar, Florida (Store #25 - “Flanigan’s”)
During the second quarter of our fiscal year 2022, we entered into an agreement with a third party unaffiliated general contractor for interior renovations at this location totaling $1,421,000, and through our fiscal year 2022 we agreed to change orders to the agreement increasing the total contract price by $128,000 to $1,549,000 of which $932,000 has been paid through October 1, 2022 and $226,000, has been paid subsequent to the end of our fiscal year 2022 through the date of filing of this annual report.
(e) 11225 Miramar Parkway, #245, Miramar, Florida (“Big Daddy’s Wine and Liquors”)
During the first quarter of our fiscal year 2022, we entered into an agreement with a third party unaffiliated general contractor for interior renovations at this location totaling $317,000, and through our fiscal year 2022 we agreed to change orders to the agreement increasing the total contract price by $45,000 to $362,000 of which $316,000 has been paid through October 1, 2022 and $-0- has been paid subsequent to the end of our fiscal year 2022 through the date of filing of this annual report.
Purchase Commitments/Supply
In order to fix the cost and ensure adequate supply of baby back ribs for our restaurants for calendar years 2022 and 2023, we entered into purchase agreements with our current rib supplier, whereby we agreed to purchase approximately $10.4 million and $ 6.8 million of “2.25 & Down Baby Back Ribs” (industry jargon for the weight range in which slabs of baby back ribs are sold) from this vendor during calendar years 2022 and 2023, at prescribed costs, which we believe are competitive. The decrease in our cost of baby back ribs for calendar year 2023 as compared to calendar year 2022 is due to a decrease in market price.
While we anticipate purchasing all of our rib supply from this vendor, we believe there are several other alternative vendors available, if needed.
Flanigan’s Fish Company, LLC
As of October 1, 2022, Flanigan’s Fish Company, LLC, a Florida limited liability company (“FFC”) supplies certain of the fish to all of our restaurants. Since we hold the controlling interest of FFC, the balance sheet and operating results of this entity are consolidated into the accompanying financial statements of the Company. Sales and purchases of fish are recognized in restaurant food sales and restaurant and lounges (cost of merchandise sold), respectively, in the consolidated statements of income at the time of sale to the restaurant. In addition, the 49% of FFC owned by the unrelated third party is recognized as a noncontrolling interest in our consolidated financial statements.
Purchase of Limited Partnership Interests
During our fiscal year 2022 we purchased 74 limited partnership units (7.4% limited partnership interest) in CIC Investors #85, Ltd. (Store #85). During our fiscal year 2021, we did not purchase any limited partnership interests.
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Working Capital
The table below summarizes the current assets, current liabilities, and working capital as of the end of our fiscal years 2022 and 2021.
| Item | Oct. 1, 2022 | Oct. 2, 2021 | ||||||
| (in Thousands) | ||||||||
| Current Assets | $ | 50,893 | $ | 39,790 | ||||
| Current Liabilities | 22,176 | 20,223 | ||||||
| Working Capital | $ | 28,717 | $ | 19,567 | ||||
Our working capital increased as of October 1, 2022 from our working capital as of October 2, 2021 due to our increased borrowings resulting from the Hallandale Mortgage Debt and the West Davie Mortgage Debt, significant portions of which we classified as long term liabilities as of October 1, 2022.
While there can be no assurance due to, among other things, unanticipated expenses or unanticipated decline in revenues, or both, especially in the current economic conditions, we believe that our cash on hand, cash flow from operations and funds available from our borrowings will adequately fund operations, debt reductions and planned capital expenditures throughout our fiscal year 2023.
During our fiscal year 2023, we plan to use certain funds on-hand, funds raised through our private offerings, borrowed funds and/or insurance proceeds to construct a new building on the real property we own located at 2505 N. University Drive, Hollywood, Florida (Store #19 restaurant) where we plan to re-build our “Flanigan’s” restaurant; and (ii) for the cost of renovations to develop the “Big Daddy’s Wine & Liquors” which we are currently developing at 11225 Miramar Parkway, #245, Miramar, Florida (Store #24). There can be no assurances as to the timing for us to re-build the restaurant for Store #19 or to complete the renovations for the retail package liquor store for our Store #24.
Off-Balance Sheet Arrangements
We do not have off-balance sheet arrangements.
Recently Adopted and Recently Issued Accounting Pronouncements
Recently Adopted
There are no accounting pronouncements that we have recently adopted.
Issued
The FASB issued guidance, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting, which provides optional expedient and exceptions for applying generally accepted accounting principles to contracts, hedging relationships, and other transactions affected by reference rate reform if certain criteria are met. In response to the concerns about structural risks of interbank offered rates (“IBORs”) and, particularly, the risk of cessation of the LIBOR, regulators in several jurisdictions around the world have undertaken reference rate reform initiatives to identify alternative reference rates that are more observable or transaction based and less susceptible to manipulation. This accounting standards update provides companies with optional guidance to ease the potential accounting burden associated with transitioning away from reference rates that are expected to be discontinued. LIBOR rates will be published until June 30, 2023. All principal and interest of the Term Loan was paid in full as of December 28, 2022, so the discontinuance of LIBOR rates will have no impact on us.
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There are no recently issued accounting pronouncements that we have not yet adopted that we believe will have a material effect on our financial statements.
Critical Accounting Policies
Our significant accounting policies are more fully described in Note 1 to our consolidated financial statements located in Item 8 of this Annual Report on Form 10-K. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, and expenses, and the related disclosures of contingent assets and liabilities. Actual results could differ from those estimates under different assumptions or conditions. We believe that the following critical accounting policies are subject to estimates and judgments used in the preparation of our consolidated financial statements:
Estimated Useful Lives of Property and Equipment
The estimates of useful lives for property and equipment are significant estimates. Expenditures for the leasehold improvements and equipment when a restaurant is first constructed are material. In addition, periodic refurbishing takes place and those expenditures can be material. We estimate the useful life of those assets by considering, among other things, expected use, life of the lease on the building, and warranty period, if applicable. The assets are then depreciated using a straight line method over those estimated lives. These estimated lives are reviewed periodically and adjusted if necessary. Any necessary adjustment to depreciation expense is made in the income statement of the period in which the adjustment is determined to be necessary.
Consolidation of Limited Partnerships
As of October 1, 2022, we operate ten (10) restaurants as general partner of the limited partnerships that own the operations of these restaurants. We expect that any expansion which takes place in opening new restaurants will also result in us operating the restaurants as general partner. In addition to the general partnership interest we also purchased limited partnership units ranging from 0% to 49% of the total units outstanding. As a result of these controlling interests, we consolidate the operations of these limited partnerships with ours despite the fact that we do not own in excess of 50% of the equity interests. All intercompany transactions are eliminated in consolidation. The non-controlling interests in the earnings of these limited partnerships are removed from net income and are not included in the calculation of earnings per share.
Income Taxes
We account for our income taxes using FASB ASC Topic 740, “Income Taxes”, which requires among other things, recognition of future tax benefits measured at enacted rates attributable to deductible temporary differences between financial statement and income tax basis of assets and liabilities and tax credits to the extent that realization of said tax benefits is more likely than not. For discussion regarding our carryforwards refer to Note 12 to the consolidated financial statements for our fiscal year 2022.
Leases
Effective September 29, 2019, we adopted Accounting Standards Codification Topic 842, Leases (“ASC 842”), which requires that lease arrangements be presented on the lessee’s balance sheet by recording a right-of-use asset and a lease liability equal to the present value of the related future minimum lease payments. We adopted the standard in the first quarter of fiscal 2020, using the modified retrospective approach. This standard had a material impact on our Consolidated Statements of Income due to the escalations of rent in the extensions but did not have a material impact on the Consolidated Statement of Cash Flows. Estimates associated with leases include lease classification, discount rate and lease term.
Loyalty Programs
We offer loyalty programs to customers of our restaurants and package liquor stores. The gift cards distributed as a part of our loyalty programs have expiration dates and we estimate breakage for such gift cards.
51
Other Matters
Impact of Inflation
The primary inflationary factors affecting our operations are food, beverage and labor costs. A large number of restaurant personnel are paid at rates based upon applicable minimum wage and increases in minimum wage directly affect labor costs. Inflation is having a material impact on our operating results, especially rising food, fuel and labor costs.
| ITEM 7A. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
As part of our ongoing operations, we are exposed to interest rate fluctuations on our borrowings. As more fully described in Note 15 “Fair Value Measurements of Financial Instruments” to the Consolidated Financial Statements included in “Item 8. Financial Statements and Supplementary Data” of this Annual Report on Form 10-K for our fiscal year ended October 1, 2022, we use interest rate swap agreements to manage these risks. These instruments are not used for speculative purposes but are used to modify variable rate obligations into fixed rate obligations.
At October 1, 2022, we had two variable rate instruments outstanding that are impacted by changes in interest rates. The interest rate of the first variable rate debt instrument is equal to the lender’s LIBOR Rate plus two and one-quarter percent (2.25%) per annum and the second variable rate debt instrument is equal to the lender’s BSBY Screen Rate plus one and one-half percent (1.50%) per annum. The debt instrument further provides that the “LIBOR Rate” is a rate of interest equal to the British Bankers Association LIBOR Rate or successor thereto approved by the lender if the British Bankers Association is no longer making a LIBOR rate available and the “BSBY Screen Rate is a rate of interest equal to the Bloomberg Short-Term Bank Yield Interest Rate or successor thereto approved by the lender. In December 2016, we closed on a secured revolving line of credit which entitled us to borrow, from time to time through December 28, 2017, up to $5,500,000 (the “Credit Line”), which on December 28, 2017 converted to a term loan (the “Term Loan”). Subsequent to the end of our fiscal year 2022 (December 28, 2022), we paid the balance of the Term Loan in full. In September 2022, we refinanced the mortgage loan encumbering the property where our combination package liquor store and restaurant located at 4 N. Federal Highway, Hallandale Beach, Florida, (Store #31) operates, which mortgage loan is held by an unaffiliated third party lender (the “$8.90M Loan”).
As a means of managing our interest rate risk on these debt instruments, we entered into interest rate swap agreements with our unrelated third party lender to convert these variable rate debt obligations to fixed rates. We are currently party to the following two (2) interest rate swap agreements:
(i) The first interest rate swap agreement entered into in December 2016 and became effective December 28, 2017, relates to the Term Loan (the “Term Loan Swap”). The Term Loan Swap requires us to pay interest for a five (5) year period at a fixed rate of 4.61% on an initial amortizing notional principal amount of $5,500,000, while receiving interest for the same period at LIBOR – 1 Month, plus 2.25%, on the same amortizing notional principal amount. We determined that at October 1, 2022, the interest rate swap agreement is an effective hedging agreement and the fair value was not material. Subsequent to the end of our fiscal year 2022 (December 28, 2022) we paid the balance of the Term Loan in full, which was the same date the swap agreement matured; and
(ii) The second interest rate swap agreement entered into in September 2022 relates to the $8.90M Loan (the “$8.90M Term Loan Swap”). The $8.90M Term Loan Swap requires us to pay interest for a fifteen (15) year period at a fixed rate of 4.90% on an initial amortizing notional principal amount of $8,900,000, while receiving interest for the same period at BSBY Screen Rate – 1 Month, plus 1.50%, on the same amortizing notional principal amount. We determined that at October 1, 2022, the interest rate swap agreement is an effective hedging agreement and the fair value was not material.
52
At October 1, 2022, our cash resources offset our bank charges and any excess cash resources earn interest at variable rates. Accordingly, our return on these funds is affected by fluctuations in interest rates.
There is no assurance that interest rates will increase or decrease over our next fiscal year or that an increase will not have a material adverse effect on our operations.
| ITEM 8. | FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA. |
Our Consolidated Financial Statements are on pages F-1 through F-31.
| ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURES. |
None
| ITEM 9A. | CONTROLS AND PROCEDURES. |
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports filed with the U.S. Securities and Exchange Commission (the “SEC”) is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
As of October 1, 2022, an evaluation was performed under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) to the Securities Exchange Act of 1934). Based on that evaluation, management, including our Chief Executive Officer and Chief Financial Officer, concluded that our disclosure controls and procedures were effective as of October 1, 2022.
Changes in Internal Control Over Financial Reporting
During the period covered by this report, we have not made any change to our internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Management’s Assessment on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Management, including our Chief Executive Officer and Chief Financial Officer, performed an evaluation of the effectiveness of the Company’s internal control over financial reporting. This evaluation was based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013 (“COSO”). Based on that evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that as of October 1, 2022, our internal control over financial reporting was effective.
Limitations on the Effectiveness of Controls and Permitted Omission from Management’s Assessment
Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. All internal control systems, no matter how well designed, have inherent limitations, including the possibility of human error and the circumvention or overriding of controls. Accordingly, even effective internal controls can only provide reasonable assurance with respect to financial statement preparation. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
53
This annual report does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our independent registered public accounting firm pursuant to rules of the SEC that permit us to provide only management’s report in this Annual Report on Form 10-K.
| ITEM 9B. | OTHER INFORMATION. |
None.
| ITEM 9C | DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS. |
None.
PART III
The information required by Item 10 (Directors, Executive Officers and Corporate Governance), Item 11 (Executive Compensation), Item 12 ( Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters), Item 13 (Certain Relationships and Related Transactions, and Director Independence), and Item 14 (Principal Accountant Fees and Services) is incorporated by reference to our Proxy Statement for our 2023 Annual Meeting of Shareholders, which will be filed with the Securities and Exchange Commission no later than 120 days from the end of our 2022 fiscal year. The information under the heading “Executive Officers” in Part I of this Form 10-K is also incorporated herein by reference.
PART IV
| ITEM 15. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. |
(a)(1) Financial Statements
See Part II, Item 8, “Financial Statements and Supplementary Data” for Financial Statements included with this Annual Report on Form 10-K.
(a)(2) Financial Statement Schedules
All other schedules have been omitted because the required information is not applicable or the information is included in the consolidated financial statements or the Notes thereto.
(a)(3) Exhibits
The exhibits listed on the accompanying Index to Exhibits are filed as part of this Annual Report.
54
| Incorporated by Reference | ||||||||||
| Exhibit Number | Exhibit Description | Form | Date | Number | Filed Herewith | |||||
| 2 | Plan of Reorganization, Amended Disclosure Statement, Amended Plan of Reorganization, Modification of Amended Plan of Reorganization, Second Modification of Amended Plan of Reorganization, Order Confirming Plan of Reorganization | SB-2 | 5/5/1987 | 2 | ||||||
| 3 | Restated Articles of Incorporation, adopted January 9, 1984 | 10-K | 12/29/1982 | 3 | ||||||
| 10(a)(1) | Employment Agreement with Joseph G. Flanigan* | DEF14A | 1/27/1988 | 10(a)(1) | ||||||
| 10(a)(2) | Form of Employment Agreement between Joseph G. Flanigan and the Company (as ratified and amended by the stockholders at the 1988 annual meeting is incorporated herein by reference).* | 10-K | 10(a)(1) | |||||||
| 10(c) | Consent Agreement regarding the Company's Trademark Litigation | 8-K | 4/10/1985 | 10( c) | ||||||
| 10(d) | King of Prussia(#850)Partnership Agreement* | 8-K | 4/10/1985 | 10(d) | ||||||
| 10(o) | Management Agreement for Atlanta, Georgia, (#600)* | 10-K | 10/3/1992 | 10(o) | ||||||
| 10(p) | Settlement Agreement with Former Vice Chairman of the Board of Directors (re #5) | 10-K | 10/3/1992 | 10(p) | ||||||
| 10(q) | Hardware Purchase Agreement and Software License Agreement for restaurant point of sale system. | 10-KSB | 10/2/1993 | 10(q) | ||||||
| 10(a)(3) | Key Employee Incentive Stock Option Plan | DEF14A | 1/26/1994 | 10(a)(3) | ||||||
| 10( r) | Limited Partnership Agreement of CIC Investors #13, Ltd,. between Flanigan's Enterprises, Inc., as General Partner and fifty percent owner of the limited partnership, and Hotel Properties, LTD. * | 10-KSB | 9/30/1995 | 10(r) | ||||||
55
56
57
58
List of XBRL documents as exhibits 101
| ITEM 16. | FORM 10-K SUMMARY |
None.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| FLANIGAN'S ENTERPRISES, INC. | |
| By: /s/ JAMES G. FLANIGAN II | |
| JAMES G. FLANIGAN II | |
| Chief Executive Officer | |
| Date: 1/17/2023 | |
| By: /s/ JEFFREY D. KASTNER | |
| JEFFREY D. KASTNER | |
| Chief Financial Officer and Secretary | |
| (Principal Financial and Accounting Officer) | |
| Date: 1/17/2023 |
59
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in their capacities and on the dates indicated.
| /s/ JAMES G. FLANIGAN II | Chairman of the Board, | Date: 1/17/2023 |
| James G. Flanigan II | Chief Executive Officer, | |
| and Director | ||
| /s/ JEFFREY D. KASTNER | Chief Financial Officer, | Date: 1/17/2023 |
| Jeffrey D. Kastner | Secretary and Director | |
| /s/ AUGUST BUCCI | Chief Operating Officer | Date: 1/17/2023 |
| August Bucci | and Director | |
| /s/ MICHAEL B. FLANIGAN | Director | Date: 1/17/2023 |
| Michael B. Flanigan | ||
| /s/ PATRICK J. FLANIGAN | Director | Date: 1/17/2023 |
| Patrick J. Flanigan | ||
| /s/ CHRISTOPHER O’NEIL | Vice President of Package | Date: 1/17/2023 |
| Christopher O’Neil | Operations and Director | |
| /s/ MARY ELIZABETH BENNETT | Director | Date: 1/17/2023 |
| Mary Elizabeth Bennett | ||
| /s/ CHRISTOPHER J. NELMS | Director | Date: 1/17/2023 |
| Christopher J. Nelms | ||
| /s/ JOHN P. FOSTER | Director | Date: 1/17/2023 |
| John P. Foster | ||
60
|
|
|
Flanigan’s Enterprises, Inc. and Subsidiaries
CONSOLIDATED FINANCIAL STATEMENTS
OCTOBER 1, 2022 AND OCTOBER 2, 2021
Flanigan’s Enterprises, Inc. and Subsidiaries
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
|
|
|
|
PAGE |
|
|
|
|
|
|
|
|
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM |
F-1 |
(PCAOB ID
|
|
|
|
CONSOLIDATED FINANCIAL STATEMENTS |
|
|
|
|
|
Balance Sheets |
F-2 |
|
|
|
|
Statements of Income |
F-3 |
|
|
|
|
Statements of Stockholders’ Equity |
F-4 |
|
|
|
|
Statements of Cash Flows |
F-5 – F-6 |
|
|
|
|
Notes to Financial Statements |
F-7 – F-31 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and Board of Directors of
Flanigan’s Enterprises, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Flanigan’s Enterprises, Inc. (the “Company”) as of October 1, 2022, and October 2, 2021, the related consolidated statements of income, stockholders’ equity and cash flows for each of the two years in the period ended October 1, 2022, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of October 1, 2022 and October 2, 2021, and the results of its operations and cash flows for each of the two years in the period ended October 1, 2022, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. We determined that there are no critical audit matters.
/s/
MARCUM LLP
We have served as the Company’s auditor since 1999.
January 17, 2023
Flanigan’s Enterprises, Inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
OCTOBER 1, 2022 AND OCTOBER 2, 2021
(rounded to the nearest thousandth, except share and per share amounts)
|
ASSETS |
2022 |
2021 |
||||||
|
Current Assets: |
||||||||
|
Cash and cash equivalents |
$ |
|
$ |
|
||||
|
Prepaid income taxes |
|
|
||||||
|
Other receivables |
|
|
||||||
|
Inventories |
|
|
||||||
|
Prepaid expenses |
|
|
||||||
|
Total current assets |
|
|
||||||
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|
||||||||
|
Property and Equipment, Net |
|
|
||||||
|
Construction in Progress |
|
|
||||||
| |
|
|||||||
|
|
||||||||
|
Right-of-Use Asset, Operating Leases |
|
|
||||||
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|
||||||||
|
Investment in Limited Partnerships |
|
|
||||||
|
|
||||||||
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Other Assets: |
||||||||
|
Liquor licenses |
|
|
||||||
|
Leasehold interests, net |
|
|
||||||
|
Deposits on property and equipment |
|
|
||||||
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Other |
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|
||||||
|
Total other assets |
|
|
||||||
|
Total assets |
$ |
|
$ |
|
||||
|
|
||||||||
|
LIABILITIES AND EQUITY |
||||||||
|
Current Liabilities: |
||||||||
|
Accounts payable and accrued expenses |
$ |
|
$ |
|
||||
|
Accrued compensation |
|
|
||||||
|
Due to franchisees |
|
|
||||||
|
Current portion of long-term debt |
|
|
||||||
|
Operating lease liability, current |
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|
||||||
|
Deferred revenue |
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|
||||||
|
Total current liabilities |
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||||||
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|
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|
Long-Term Debt, Net of Current Portion |
|
|
||||||
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|
||||||||
|
Operating lease liability, non current |
|
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||||||
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Deferred tax liabilities, net |
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Total liabilities |
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Commitments and Contingencies |
||||||||
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Equity: |
||||||||
|
Flanigan's Enterprises, Inc. stockholders' equity: |
||||||||
| Common stock, $ |
|
|
||||||
|
Capital in excess of par value |
|
|
||||||
|
Retained earnings |
|
|
||||||
| Treasury stock, at cost, |
( |
) |
( |
) |
||||
|
Total Flanigan's Enterprises, Inc. stockholders' equity |
|
|
||||||
|
Noncontrolling interests |
|
|
||||||
|
Total equity |
|
|
||||||
|
Total liabilities and equity |
$ |
|
$ |
|
|
|||
See notes to consolidated financial statements.
Flanigan’s Enterprises, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF INCOME
Years Ended October 1, 2022 and October 2, 2021
(rounded to the nearest thousandth, except share and per share amounts)
|
2022 |
2021 |
|||||||
|
Revenues: |
||||||||
|
Restaurant food sales |
$ |
|
$ |
|
||||
|
Restaurant bar sales |
|
|
||||||
|
Package store sales |
|
|
||||||
|
Franchise-related revenues |
|
|
||||||
|
Other operating income |
|
|
||||||
|
Rental income |
|
|
||||||
| |
|
|||||||
|
Costs and Expenses: |
||||||||
|
Cost of merchandise sold: |
||||||||
|
Restaurants and lounges |
|
|
||||||
|
Package goods |
|
|
||||||
|
Payroll and related costs |
|
|
||||||
|
Occupancy costs |
|
|
||||||
|
Selling, general and administrative expenses |
|
|
||||||
| |
|
|||||||
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|
||||||||
|
Income from Operations |
|
|
||||||
|
|
||||||||
|
Other Income (Expense): |
||||||||
|
Interest expense |
( |
) |
( |
) |
||||
|
Interest and other income |
|
|
||||||
|
Gain on forgiveness of debt |
|
|
||||||
|
Gain on sale of property and equipment |
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|
||||||
| |
|
|||||||
|
|
||||||||
|
Income Before Provision for Income Taxes |
|
|
||||||
|
|
||||||||
|
Provision for Income Taxes |
( |
) |
( |
) |
||||
|
|
||||||||
|
Net Income |
|
|
||||||
|
|
||||||||
|
Less: Net Income Attributable to Noncontrolling Interests |
( |
) |
( |
) |
||||
|
|
||||||||
|
Net Income Attributable to Flanigan's Enterprises, Inc. Stockholders |
$ |
|
$ |
|
||||
|
|
||||||||
|
Net Income Per Common Share: |
||||||||
| $ |
|
$ |
|
|||||
|
|
||||||||
|
Weighted Average Shares and Equivalent Shares Outstanding: |
||||||||
| |
|
|
||||||
See notes to consolidated financial statements.
Flanigan’s Enterprises, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED OCTOBER 1, 2022 AND OCTOBER 2, 2021
(rounded to nearest thousandth, except share amounts)
|
Common Stock |
Capital in |
Treasury Stock |
||||||||||||||||||||||||||||||
|
Excess of |
Retained |
Noncontrolling |
||||||||||||||||||||||||||||||
|
Shares |
Amount |
Par Value |
Earnings |
Shares |
Amount |
Interests |
Total |
|||||||||||||||||||||||||
|
|
||||||||||||||||||||||||||||||||
|
Balance, October 2, 2021 |
|
$ |
|
$ |
|
$ |
|
|
$ |
( |
) |
$ |
|
$ |
|
|||||||||||||||||
|
Net income |
— |
— |
— |
|
— |
— |
|
|
||||||||||||||||||||||||
|
Distributions to noncontrolling interests |
— |
— |
— |
— |
— |
— |
( |
) |
( |
) |
||||||||||||||||||||||
|
Sale of minority interest |
— |
— |
— |
— |
— |
— |
|
|
||||||||||||||||||||||||
|
Dividends paid |
— |
— |
— |
( |
) |
— |
— |
— |
( |
) |
||||||||||||||||||||||
|
Balance, October 1, 2022 |
|
$ |
|
$ |
|
$ |
|
|
$ |
( |
) |
$ |
|
$ |
|
|||||||||||||||||
|
|
||||||||||||||||||||||||||||||||
|
Balance, October 3, 2020 |
|
$ |
|
$ |
|
$ |
|
|
$ |
( |
) |
$ |
|
$ |
|
|||||||||||||||||
|
Net income |
— |
— |
— |
|
— |
— |
|
|
||||||||||||||||||||||||
|
Distributions to noncontrolling interests |
— |
— |
— |
— |
— |
— |
( |
) |
( |
) |
||||||||||||||||||||||
|
Balance, October 2, 2021 |
|
$ |
|
$ |
|
$ |
|
|
$ |
( |
) |
$ |
|
$ |
|
|
||||||||||||||||
See notes to consolidated financial statements.
Flanigan’s Enterprises, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED OCTOBER 1, 2022 AND OCTOBER 2, 2021
(rounded to nearest thousandth)
|
2022 |
2021 |
|||||||
|
Cash Flows from Operating Activities: |
||||||||
|
Net income |
$ |
|
$ |
|
||||
|
Adjustments to reconcile net income to net cash and cash equivalents provided by operating activities: |
||||||||
|
Depreciation and amortization |
|
|
||||||
|
Amortization of leasehold interests |
|
|
||||||
|
Amortization of finance lease right-of-use asset |
|
|||||||
|
Amortization of operating lease right-of-use asset |
|
|
||||||
|
Gain on forgiveness of PPP loans |
( |
) |
( |
) |
||||
|
Non-cash interest expense |
|
|||||||
|
Gain on sale of property and equipment |
( |
) |
( |
) |
||||
|
Loss on abandonment of property and equipment |
|
|
||||||
|
Amortization of deferred loan costs |
|
|
||||||
|
Deferred income taxes |
|
|
||||||
|
Income from unconsolidated limited partnership |
( |
) |
( |
) |
||||
|
Changes in operating assets and liabilities: |
||||||||
|
(Increase) decrease in: |
||||||||
|
Prepaid income taxes |
( |
) |
( |
) |
||||
|
Other receivables |
( |
) |
|
|||||
|
Inventories |
( |
) |
( |
) |
||||
|
Prepaid expenses |
|
|
||||||
|
Other assets |
( |
) |
( |
) |
||||
|
Increase (decrease) in: |
||||||||
|
Accounts payable and accrued expenses |
|
|
|
|||||
|
Operating lease liabilities |
( |
) |
( |
) |
||||
|
Due to franchisees |
|
|
||||||
|
Deferred revenue |
|
|
||||||
|
Net cash and cash equivalents provided by operating activities |
|
|
||||||
|
|
||||||||
|
Cash Flows from Investing Activities: |
||||||||
|
Purchase of property and equipment |
( |
) |
( |
) |
||||
|
Purchase of construction in progress |
( |
) |
( |
) |
||||
|
Deposit on property and equipment |
( |
) |
( |
) |
||||
|
Purchase of liquor license |
( |
) |
( |
) |
||||
|
Proceeds from sale of fixed assets |
|
|
||||||
|
Distributions from unconsolidated limited partnership |
|
|
||||||
|
Business acquisition |
( |
) |
||||||
|
Investment in limited partnership |
( |
) |
||||||
|
Net cash and cash equivalents used in investing activities |
( |
) |
( |
) |
||||
|
|
||||||||
|
Cash Flows from Financing Activities: |
||||||||
|
Payments of long-term debt |
( |
) |
( |
) |
||||
|
Deferred loan costs |
( |
) |
( |
) |
||||
|
Proceeds from long-term debt |
|
|
||||||
|
Proceeds from PPP loans |
|
|||||||
|
Principal payments on finance leases |
( |
) |
||||||
|
Dividends paid |
( |
) |
||||||
|
Distributions to noncontrolling interests |
( |
) |
( |
) |
||||
|
Proceeds from minority interest offering |
|
|||||||
|
Net cash and cash equivalents provided by financing activities |
|
|
||||||
|
|
||||||||
|
Net Increase in Cash and Cash Equivalents |
|
|
||||||
|
|
||||||||
|
Cash and Cash Equivalents, Beginning |
|
|
||||||
|
|
||||||||
|
Cash and Cash Equivalents, Ending |
$ |
|
$ |
|
|
|||
See notes to consolidated financial statements.
Flanigan’s Enterprises, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED OCTOBER 1, 2022 AND OCTOBER 2, 2021
(Continued)
(rounded to nearest thousandth)
|
2022 |
2021 |
|||||||
|
Supplemental Disclosure of Cash Flow Information: |
||||||||
|
Cash paid during the year for: |
||||||||
|
Interest |
$ |
|
$ |
|
||||
|
Income taxes |
$ |
|
$ |
|
||||
|
Supplemental Disclosure for Non-Cash Investing and Financing Activities: |
||||||||
|
Financing of insurance contracts |
$ |
|
$ |
|
||||
|
Purchase deposits transferred to property and equipment |
$ |
|
$ |
|
||||
|
Purchase deposits transferred to construction in progress |
$ |
|
$ |
|
||||
|
Construction in progress transferred to property and equipment |
$ |
|
$ |
|||||
|
Construction in progress in accounts payable and accrued expenses |
$ |
|
$ |
|
||||
|
Operating lease liabilities arising from right-of-use assets |
$ |
|
$ |
|
||||
|
Purchase of vehicle in exchange for debt |
$ |
$ |
|
|||||
|
Purchase of property in exchange for debt |
$ |
$ |
|
|
||||
See notes to consolidated financial statements.
Flanigan’s Enterprises, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED OCTOBER 1, 2022 AND OCTOBER 2, 2021
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and Capitalization
The Company was incorporated in 1959 and operates in South Florida as a chain of full-service restaurants and package liquor stores. Restaurant food and beverage sales make up the majority of our total revenue. As of October 1, 2022, we (i) operated 30 units consisting of restaurants, package liquor stores and combination restaurants/package liquor stores that we either own or have operational control over and partial ownership in; and (ii) franchise an additional five units, consisting of two restaurants, (one of which we operate) and three combination restaurants/package liquor stores. With the exception of one restaurant we operate under the name “The Whale’s Rib”, a restaurant in which we do not have an ownership interest, and “Brendan’s Sports Pub”, a restaurant/bar we own, all of the restaurants operate under our service marks “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” and all of the package liquor stores operate under our service marks “Big Daddy’s Liquors” or “Big Daddy’s Wine & Liquors”.
The Company’s Articles of Incorporation, as amended, authorize us to issue and have outstanding at any one time
We operate under a 52-53 week year ending the Saturday closest to September 30. Our fiscal years 2022 and 2021 are each comprised of a 52-week period.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and our subsidiaries, all of which are wholly owned, and the accounts of the ten limited partnerships in which we act as general partner and have controlling interests. All significant intercompany transactions and balances have been eliminated in consolidation.
Noncontrolling interests in consolidated subsidiaries are included in the consolidated balance sheets as a separate component of equity. We report consolidated net income inclusive of both the Company’s and the noncontrolling interests’ share, as well as amounts of consolidated net income (loss) attributable to each of the Company and the noncontrolling interests.
We use the consolidation method of accounting when we have a controlling interest in other companies and limited partnerships. We use the equity method of accounting when we have significant influence and an interest between twenty to fifty percent in other companies and limited partnerships, but do not exercise control. Under the equity method, our original investments are recorded at cost and are adjusted for our share of undistributed earnings or losses. All intercompany profits are eliminated.
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Use of Estimates
The consolidated financial statements and related disclosures are prepared in conformity with accounting principles generally accepted in the United States. We are required to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements, and revenue and expenses during the period reported. These estimates include assessing the estimated useful lives of tangible assets, the recognition of deferred tax assets and liabilities and estimates relating to the calculation of incremental borrowing rates and length of leases associated with right-of-use assets and corresponding liabilities, and estimates relating to loyalty reward programs. Estimates and assumptions are reviewed periodically and the effects of revisions are reflected in our consolidated financial statements in the period they are determined to be necessary. Although these estimates are based on our knowledge of current events and actions we may undertake in the future, they may ultimately differ from actual results.
Cash and Cash Equivalents
We consider all highly liquid investments with an original maturity of three months or less at the date of purchase and receivables from our credit card merchants to be cash equivalents.
We maintain deposit balances with financial institutions, which balances may from time to time, exceed the federally insured limits which are $
Inventories
Our inventories, which consist primarily of package liquor products, are stated at the lower of average cost or net realizable value.
Liquor Licenses
In accordance with the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) Topic 350, “Intangibles - Goodwill and Other”, our liquor licenses are indefinite lived assets, which are not being amortized, but are tested annually for impairment (see Note 11).
Property and Equipment
Our property and equipment are stated at cost less accumulated depreciation and amortization. We capitalize expenditures for major improvements and depreciation commences when the assets are placed in service. We record depreciation on a straight-line basis over the estimated useful lives of the respective assets. We charge maintenance and repairs, which do not improve or extend the life of the respective assets, to expense as incurred. When we dispose of assets, the cost and related accumulated depreciation are removed from the accounts and any gain or loss is included in income.
Our estimated useful lives range from three to
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Leasehold Interests
Our purchase of an existing restaurant location usually includes a lease to the business premises. As a result, a portion of the purchase price is allocated to the leasehold interest. We capitalize the cost of the leasehold interest and amortization commences upon our assumption of the lease. We amortize leasehold interests on a straight-line basis over the remaining term of the lease.
Concentrations of Credit Risk
Financial instruments that potentially subject us to concentrations of credit risk are cash and cash equivalents.
Major Suppliers
Throughout our fiscal years 2022 and 2021, we purchased a significant portion of our food products from one major supplier. This major supplier represents
Throughout our fiscal years 2022 and 2021, we purchased the majority of our alcoholic beverages from three local distributors. One of these three local distributors represents
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Revenue Recognition
Revenue-related to food, bar and package sales are recorded at the point of sale. Royalty-related revenues, which are
Our Big Daddy’s Good Customer Loyalty Program awards customers with a $
Pre-opening Costs
Advertising Costs
Our advertising costs are expensed as incurred. Advertising costs incurred during our fiscal years ended October 1, 2022 and October 2, 2021 were approximately $
General Liability Insurance
We have general liability insurance which incorporates a deductible of $
Our general policy is to settle only those legitimate and reasonable claims asserted and to aggressively defend and go to trial, if necessary, on frivolous and unreasonable claims. Under our current liability insurance policy, any expense incurred by us in defending a claim, including attorney's fees, are a part of our $
Fair Value of Financial Instruments
The respective carrying value of certain of our on-balance-sheet financial instruments approximated their fair value. These instruments include cash and cash equivalents, other receivables, accounts payables, accrued expenses and debt. We have assumed carrying values to approximate fair values for those financial instruments, which are short-term in nature or are receivable or payable on demand. We estimated the fair value of debt based on current rates offered to us for debt of comparable maturities and similar collateral requirements.
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Fair Value of Financial Instruments (Continued)
In accordance with FASB ASC Topic 820-10-50-1, we utilized a valuation model to determine the fair value of our swap agreements. As the valuation models for the swap agreements were based upon observable inputs, they are classified as Level 2 (see Note 15).
Derivative Instruments
We account for derivative instruments in accordance with FASB ASC Topic 815-10-05-4, “Accounting for Derivative Instruments and Hedging Activities” as amended, which establishes accounting and reporting standards for derivative instruments, including certain derivative instruments embedded in other contracts, and hedging activities. In accordance with FASB ASC Topic 815-10-05-4, derivative instruments are recognized as assets or liabilities in the Company’s consolidated balance sheets and are measured at fair value. We do not recognize changes in fair value through earnings because we currently have two derivatives which we have designated as effective hedges (See Note 15).
Income Taxes
We account for our income taxes using FASB ASC Topic 740, “Income Taxes”, which requires the recognition of deferred tax liabilities and assets for expected future tax consequences of events that have been included in the consolidated financial statements or tax returns. Under this method, deferred tax liabilities and assets are determined based on the difference between the financial statement and tax bases of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse.
We follow the provisions regarding Accounting for Uncertainty in Income Taxes, which require the recognition of a financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the more likely than not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. We applied these changes to tax positions for our fiscal years ended October 1, 2022 and October 2, 2021. We had no material unrecognized tax benefits and no adjustments to our financial position, results of operations or cash flows were required. Generally, federal, state and local authorities may examine the Company’s tax returns for three years from the date of filing and the current and prior three years remain subject to examination as of October 1, 2022. We do not expect that unrecognized tax benefits will increase within the next twelve months. We recognize accrued interest and penalties related to uncertain tax positions as income tax expense.
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Long-Lived Assets
We continually evaluate whether events and circumstances have occurred that may warrant revision of the estimated life of our intangible and other long-lived assets or whether the remaining balance of our intangible and other long-lived assets should be evaluated for possible impairment. If and when such factors, events or circumstances indicate that intangible or other long-lived assets should be evaluated for possible impairment, we will determine the fair value of the asset by making an estimate of expected future cash flows over the remaining lives of the respective assets and compare that fair value with the carrying value of the assets in measuring their recoverability. In determining the expected future cash flows, the assets will be grouped at the lowest level for which there are cash flows, at the individual store level.
Earnings Per Share
We follow FASB ASC Topic 260 - “Earnings per Share.” This section provides for the calculation of basic and diluted earnings per share. Basic earnings per share includes no dilution. Earnings per share are computed by dividing income available to common stockholders by the basic and diluted weighted average number of common shares.
Comparative Amounts
Certain amounts presented in the financial statements previously issued for the fiscal year ended October 2, 2021 have been reclassified to conform to the current year's presentation.
Recently Adopted and Recently Issued Accounting Pronouncements
Adopted
There are no accounting pronouncements that we have recently adopted.
Recently Issued
The FASB issued guidance, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting, which provides optional expedient and exceptions for applying generally accepted accounting principles to contracts, hedging relationships, and other transactions affected by reference rate reform if certain criteria are met. In response to the concerns about structural risks of interbank offered rates (“IBORs”) and, particularly, the risk of cessation of the LIBOR, regulators in several jurisdictions around the world have undertaken reference rate reform initiatives to identify alternative reference rates that are more observable or transaction based and less susceptible to manipulation. This accounting standards update provides companies with optional guidance to ease the potential accounting burden associated with transitioning away from reference rates that are expected to be discontinued. LIBOR rates will be published until June 30, 2023. All principal and interest of the Term Loan was paid in full subsequent to October 1, 2022 so the discontinuance of LIBOR rates will have no impact on us.
There are no other recently issued accounting pronouncements that we have not yet adopted that we believe will have a material effect on our financial statements.
NOTE 2. PROPERTY AND EQUIPMENT, NET
|
2022 |
2021 |
|||||||
|
|
||||||||
|
Furniture and equipment |
$ |
|
$ |
|
||||
|
Leasehold improvements |
|
|
||||||
|
Land and land improvements |
|
|
||||||
|
Building and improvements |
|
|
||||||
|
Vehicles |
|
|
||||||
| |
|
|||||||
|
Less accumulated depreciation and amortization |
( |
) |
( |
) |
||||
| |
|
|||||||
|
Construction in progress |
|
|
||||||
|
$ |
|
$ |
|
|
||||
Depreciation and amortization expense for the fiscal years ended October 1, 2022 and October 2, 2021 was approximately $
NOTE 3. LEASEHOLD INTERESTS
|
2022 |
2021 |
|||||||
|
|
||||||||
|
Leasehold interests, at cost |
$ |
|
$ |
|
||||
|
Less accumulated amortization |
|
|
||||||
|
$ |
|
$ |
|
|
||||
Future leasehold amortization as of October 1, 2022 is as follows:
|
2023 |
$ |
|
||
|
2024 |
|
|||
|
2025 |
|
|||
|
2026 |
|
|||
|
2027 |
|
|||
|
Total |
$ |
|
|
Leasehold amortization expense for the fiscal years ended October 1, 2022 and October 2, 2021 was approximately $
NOTE 4. INVESTMENT IN LIMITED PARTNERSHIPS
We have invested along with others (some of whom are affiliated with our officers and directors) in ten limited partnerships which currently own and operate
NOTE 4. INVESTMENT IN LIMITED PARTNERSHIPS (Continued)
Generally, the terms of the limited partnership agreements provide that until the investors’ cash investment in a limited partnership (including any cash invested by us) is returned in full, (available cash is distributed to the investors pro-rata based on ownership interest), the limited partnership distributes to the investors annually out of available cash from the operation of the restaurant, as a return of capital, up to
As of October 1, 2022, all limited partnerships, with the exception of the 2022 Sunrise Restaurant, which opened for business in March, 2022 and the 2023 Miramar Restaurant, which we anticipate will open for business in February, 2023, have returned all cash invested and we receive an annual management fee equal to one-half (½) of the cash available for distribution by the limited partnership. In addition to receipt of distributable amounts from the limited partnerships, we receive a fee equal to 3% of gross sales for use of the service mark “Flanigan’s Seafood Bar and Grill” or “Flanigan’s”. In addition to our receipt of distributable amounts from the limited partnerships, we receive a fee equal to 3% of gross sales for use of our “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” service marks, which use is authorized while we act as general partner only. This
Below is information on the eleven limited partnerships which own and operate “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” restaurants:
Surfside, Florida
We are the sole general partner and a
Kendall, Florida
We are the sole general partner and a
NOTE 4. INVESTMENT IN LIMITED PARTNERSHIPS (Continued)
West Miami, Florida
We are the sole general partner and a
Wellington, Florida
We are the sole general partner and a
Pinecrest, Florida
We are the sole general partner and
NOTE 4. INVESTMENT IN LIMITED PARTNERSHIPS (Continued)
Pembroke Pines, Florida
We are the sole general partner and a
Davie, Florida
We are the sole general partner and a
Miami, Florida
We are the sole general partner and a
Sunrise, Florida
We are the sole general partner and a
NOTE 4. INVESTMENT IN LIMITED PARTNERSHIPS (Continued)
Miramar, Florida
We are the sole general partner in this limited partnership which is developing a restaurant in Miramar, Florida under our “Flanigan’s” service mark. No units of limited partnership interest were purchased by the Company.
Fort Lauderdale, Florida
A corporation, owned by a member of our Board of Directors, acts as sole general partner of a limited partnership which has owned and operated a restaurant in Fort Lauderdale, Florida under our “Flanigan’s Seafood Bar and Grill” service mark since April 1, 1997. We have a 25% limited partnership interest in this limited partnership.
|
Oct. 1, 2022 |
Oct. 2, 2021 |
|||||||
|
Financial Position: |
||||||||
|
Current Assets |
$ |
|
$ |
|
||||
|
Non-Current Assets |
|
|
||||||
|
Total Assets |
|
|
||||||
|
|
||||||||
|
Current Liabilities |
|
|
||||||
|
Non-Current Liabilities |
||||||||
|
Total Liabilities |
|
|
||||||
|
Equity |
|
|
||||||
|
|
||||||||
|
Total Liabilities and Equity |
$ |
|
$ |
|
||||
|
Operating Results: |
||||||||
|
Revenues |
|
|
||||||
|
Gross profit |
|
|
||||||
|
Net income |
|
|
|
|||||
NOTE 5. PRIVATE OFFERINGS:
CIC Investors #85, Ltd. (Flanigan’s, Sunrise, Florida)
On February 15, 2022, a Florida limited partnership (CIC Investors #85, Ltd.) in which the Company serves as general partner, completed a private placement of
Under ASC 810, Consolidation, the Company, which is the entity issuing financial statements, is required to consolidate CIC Investors #85, Ltd. as we have a controlling interest in CIC Investors #85, Ltd. as general partner, although the Company only has a
CIC Investor #25, Ltd. (Flanigan’s, Miramar, Florida)
On February 15, 2022, a Florida limited partnership (CIC Investors #25, Ltd.) in which the Company serves as general partner, completed a private placement of
Under ASC 810, Consolidation, the Company, which is the entity issuing financial statements, is required to consolidate CIC Investors #25, Ltd. as we have a controlling interest in CIC Investors #25, Ltd. as general partner, although the Company has no direct ownership.
NOTE 6. PURCHASE OF 4 COP LIQUOR LICENSE
During our fiscal year 2022, we purchased a 4 COP quota liquor license for Broward County, Florida from an unrelated third party for $
NOTE 7. EXECUTION OF LEASE FOR NEW LOCATION; BUSINESS ACQUISITION OF “BRENDAN’S SPORTS PUB”
Lease
Pompano Beach, Florida (Brendan’s Sports Pub)
During the third quarter of our fiscal year 2022, we entered into a Lease (the “BSP Lease”) with a non-affiliated third party from whom we rented approximately
Assets
Brendan’s Sports Pub, Pompano Beach, Florida
During the third quarter of our fiscal year 2022 and simultaneously with the execution of the BSP Lease, we purchased the assets of the business known as “Brendan’s Sports Pub” located at 868 South Federal Highway, Pompano Beach, Florida for a purchase price of $
We accounted for the purchase of the assets of the business known as "Brendan's Sports Pub" as a business combination that is insignificant for purposes of all of the disclosuress required under ASC 805
NOTE 8. RE-FINANCING OF EXISTING MORTGAGES; FINANCED INSURANCE PREMIUMS:
Re-Finance of Mortgage on Real Property – Fort Lauderdale, Florida
During our fiscal year 2022, we requested and received an advance of $
Re-Finance of Mortgage on Real Property – Hallandale Beach, Florida
During our fiscal year 2022, we re-financed our debt with our non-affiliated third-party lender secured by our real property located at 4 N. Federal Highway, Hallandale, Florida where our combination package liquor store and restaurant (Store #31) operates and borrowed an additional $
Financed Insurance Premiums
During our fiscal year 2022, we financed the premiums on the following property, general liability, excess liability and terrorist policies, totaling approximately $
(i) For the policy year beginning December 30, 2021, our general liability insurance, excluding limited partnerships, is a one (1) year policy with our insurance carriers. The one (
(ii) For the policy year beginning December 30, 2021, our general liability insurance for our limited partnerships is a one (1) year policy with our insurance carriers. The one (
(iii) For the policy year beginning December 30, 2021, our automobile insurance is a one (1) year policy. The one (
(iv) For the policy year beginning December 30, 2021, our property insurance is a one (1) year policy. The one (
(v) For the policy year beginning December 30, 2021, our excess liability insurance are two (2) one (1) year policies. The aggregate one (
(vi) For the policy year beginning December 30, 2021, our terrorist insurance is a one (1) year policy. The one (
(vii) For the policy year beginning December 30, 2021, our equipment breakdown insurance is a one (1) year policy. The one (
Of the $
As of October 1, 2022, the aggregate principal balance owed from the financing of our property and general liability insurance policies, excluding coverage for our franchises (of approximately $
NOTE 9. CORONAVIRUS PANDEMIC:
In March 2020, a novel strain of coronavirus was declared a global pandemic and a National Public Health Emergency. The novel coronavirus pandemic and related “shelter-in- place” orders and other governmental mandates relating thereto (collectively, “COVID-19”) adversely affected and will, in all likelihood continue to adversely affect, our restaurant operations and financial results for the foreseeable future.
During the third quarter of our fiscal year 2020, we, certain of the entities owning the limited partnership stores (the “LP’s”), franchised stores (the “Franchisees”) as well as the store we manage but do not own (the “Managed Store”), collectively (the “Borrowers”), applied for and received loans from an unrelated third party lender pursuant to the Paycheck Protection Program (the “PPP”) under the United States Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) enacted March 27, 2020, in the aggregate principal amount of approximately $
During the second quarter of our fiscal year 2021, certain of the entities owning the limited partnership stores (the “LP’s”), as well as the store we manage but do not own (the “Managed Store”), applied for and received loans from an unrelated third party lender pursuant to the Paycheck Protection Program (the “PPP”) under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) enacted March 27, 2020, in the aggregate principal amount of approximately $
COVID-19 has had a material adverse effect on our access to supplies or labor and there can be no assurance that there will not be a significant adverse impact on our supply chain or access to labor in the future. We are actively monitoring our food suppliers to assess how they are managing their operations to mitigate supply flow and food safety risks. To ensure we mitigate potential supply availability risk, we are building additional inventory back stock levels when appropriate and we have also identified alternative supply sources in key product categories including but not limited to food, sanitation and safety supplies.
NOTE 10. RE-CONSTRUCTION FOLLOWING CASUALTY LOSS:
During the first quarter of our fiscal year 2019, our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19) was damaged by a fire and was forced to close. Due to the damage caused by the fire, we determined that Store #19 should be demolished and rebuilt and as a result, the package liquor store and restaurant were closed for our fiscal years 2022, 2021, 2020 and 2019. The package liquor store re-opened for business subsequent to the end of our fiscal year 2022. We also expect to receive building permits to construct the new building for our restaurant and expect to open for business during our fiscal year 2023.
NOTE 11. LIQUOR LICENSES
Liquor licenses, which are indefinite lived assets, are tested for impairment in September of each of our fiscal years. The fair value of liquor licenses at October 1, 2022, exceeded the carrying amount; therefore, we recognized no impairment loss. The fair value of the liquor licenses was evaluated by comparing the carrying value to recent sales for similar liquor licenses in the County issued. At October 1, 2022 and October 2, 2021, the total carrying amount of our liquor licenses was $
NOTE 12. INCOME TAXES
The components of our provision for income taxes for our fiscal years 2022 and 2021 are as follows:
|
2022 |
2021 |
|||||||
|
Current: |
||||||||
|
Federal |
$ |
|
$ |
|
||||
|
State |
|
|
||||||
|
Deferred: |
|
|
||||||
|
Federal |
|
|
||||||
|
State |
|
|
||||||
| |
|
|||||||
|
$ |
|
$ |
|
|
||||
A reconciliation of income tax computed at the statutory federal rate to income tax expense is as follows:
|
2022 |
2021 |
|||||||
|
Tax provision at the statutory rate |
$ |
|
$ |
|
||||
|
Non-controlling interests |
( |
) |
( |
) |
||||
|
State income taxes, net of federal income tax |
|
|
||||||
|
FICA tip credit |
( |
) |
( |
) |
||||
|
True up adjustment |
|
|
||||||
|
Tax effect of rate change due to Tax Reform |
( |
) |
||||||
|
PPP forgiveness |
( |
) |
( |
) |
||||
|
Other permanent items, net |
|
|
||||||
|
$ |
|
$ |
|
|
||||
We have deferred tax liabilities and assets which arise primarily due to depreciation recorded at different rates for tax and book purposes offset by cost basis differences in depreciable assets due to the deferral of the recognition of insurance recoveries on casualty losses for tax purposes, investments in and management fees paid by limited partnerships, accruals for potential uninsured claims, bonuses accrued for book purposes but not paid within two and a half months for tax purposes, the capitalization of certain inventory costs for tax purposes not recognized for financial reporting purposes, the recognition of revenue from gift cards not redeemed within twelve months of issuance, allowances for uncollectable receivables, unfunded limited retirement commitments and FICA tax credit.
The components of our deferred tax assets (liabilities) at October 1, 2022 and October 2, 2021 were as follows:
|
2022 |
2021 |
|||||||
|
Reversal of aged payables |
$ |
|
$ |
|
||||
|
Capitalized inventory costs |
|
|
||||||
|
Accrued bonuses |
|
|
||||||
|
Accruals for potential uninsured claims |
|
|
||||||
|
Gift cards |
|
|
||||||
|
Limited partnership management fees |
( |
) |
( |
) |
||||
|
Tip credit |
|
|
||||||
|
Book/tax differences in property and equipment |
( |
) |
( |
) |
||||
|
Book/tax differences in operating leases |
|
|
||||||
|
Limited partnership investments |
|
|
||||||
|
Accrued limited retirement |
|
|
||||||
|
Total Deferred Tax Liabilities, Net |
$ |
( |
$ |
( |
|
NOTE 13. DEBT
Long-Term Debt
|
2022 |
2021 |
|||||||
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
|
|
NOTE 13. DEBT (Continued)
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
|
|||||||
|
|
||||||||
| |
||||||||
|
|
|
NOTE 13. DEBT (Continued)
|
Other |
|
|
||||||
|
|
||||||||
|
Less unamortized loan costs |
( |
) |
( |
) |
||||
| |
|
|||||||
|
Less current portion |
|
|
||||||
|
$ |
|
$ |
|
|
|
2023 |
$ |
|
||
|
2024 |
|
|||
|
2025 |
|
|||
|
2026 |
|
|||
|
2027 |
|
|||
|
Thereafter |
|
|||
| |
||||
|
Less unamortized loan costs |
( |
) |
||
|
$ |
|
|
As of October 1, 2022, we are in compliance with the financial covenants contained in our loans with our unrelated third party institutional lender (the “Institutional Lender”). We owe in the aggregate, approximately $
There can be no assurances that we will be in compliance with our financial covenants thereafter due to, among other things, that our results of operations will likely continue to be materially impacted by the COVID-19 pandemic. Absent a waiver, failure to be in compliance with our financial covenants would constitute a default under the Institutional Loans with our Institutional Lender when reported. Such a default, if not cured or waived, would allow the Institutional Lender to accelerate the maturity of the indebtedness we owe under the Institutional Loans, making it due and payable at the time. If maturity of the Institutional Loans were accelerated, it would have a material adverse impact on our consolidated financial statements and results of operations.
NOTE 14. COMMITMENTS, CONTINGENCIES AND OTHER MATTERS
Construction Contracts
a. 7990 Davie Road Extension, Hollywood, Florida (Store #19 – “Big Daddy’s Wine & Liquors”)
During the third quarter of our fiscal year 2019, we entered into an agreement with a third party unaffiliated general contractor for site work at this location totaling $
b. 2505 N. University Drive, Hollywood, Florida (Store #19 – “Flanigan’s”)
During the third quarter of our fiscal year 2019, we entered into an agreement with an unaffiliated third party architect for design and development services totaling $
NOTE 14. COMMITMENTS, CONTINGENCIES AND OTHER MATTERS (Continued)
Construction Contracts (Continued)
c. 14301 W. Sunrise Boulevard, Sunrise, Florida (Store #85 – “Flanigan’s”)
During the third quarter of our fiscal year 2019, we entered into an agreement with an unaffiliated third party design group for design and development services of our new location at 14301 W. Sunrise Boulevard, Sunrise, Florida 33323 (Store #85) for a total contract price of $
d. 11225 Miramar Parkway, #250, Miramar, Florida (“Flanigan’s”)
During the second quarter of our fiscal year 2022, we entered into an agreement with a third party unaffiliated general contractor for interior renovations at this location totaling $
e. 11225 Miramar Parkway, #245, Miramar, Florida (“Big Daddy’s Wine and Liquors”)
During the first quarter of our fiscal year 2022, we entered into an agreement with a third party unaffiliated general contractor for interior renovations at this location totaling $
Legal Matters
Our sale of alcoholic beverages subjects us to “dram shop” statutes, which allow an injured person to recover damages from an establishment that served alcoholic beverages to an intoxicated person. If we receive a judgment substantially in excess of our insurance coverage or if we fail to maintain our insurance coverage, our business, financial condition, operating results or cash flows could be materially and adversely affected. We currently have no “dram shop” claims pending.
We are a party to various other claims, legal actions and complaints arising in the ordinary course of our business. It is our opinion that all such matters are without merit or involve such amounts that an unfavorable disposition would not have a material adverse effect on our financial position or results of operations.
Leases
To conduct certain of our operations, we lease restaurant and package liquor store space in South Florida from unrelated third parties. Our leases have remaining lease terms of up to
Following adoption of ASC 842 during our fiscal year ended October 3, 2020, common area maintenance and property taxes are not considered to be lease components.
The components of lease expense are as follows:
|
52 Weeks Ended October 1, 2022 |
52 Weeks Ended October 2, 2021 |
|||||||
|
Finance Lease Amortization |
$ |
$ |
|
|||||
|
Finance Lease Expense, which is included in interest expense |
|
|||||||
|
Operating Lease Expense, which is included in occupancy costs |
|
|
||||||
|
$ |
|
$ |
|
|
||||
NOTE 14. COMMITMENTS, CONTINGENCIES AND OTHER MATTERS (Continued)
Leases (Continued)
Supplemental balance sheet information related to leases is as follows:
|
Classification on the Consolidated Balance Sheet |
October 1, 2022 |
October 2, 2021 |
||||||
|
|
||||||||
|
Assets |
||||||||
|
Operating lease assets |
$ |
|
$ |
|
||||
|
|
||||||||
|
Liabilities |
||||||||
|
Operating current liabilities |
$ |
|
$ |
|
||||
|
Operating lease non-current liabilities |
$ |
|
$ |
|
||||
|
|
||||||||
|
Weighted Average Remaining Lease Term: |
||||||||
|
Operating leases |
|
|
||||||
|
|
||||||||
|
Weighted Average Discount: |
||||||||
|
Operating leases |
|
% |
|
% |
||||
The following table outlines the minimum future lease payments for the next five years and thereafter:
|
For fiscal year |
Operating |
|||
|
2023 |
$ |
|
||
|
2024 |
|
|||
|
2025 |
|
|||
|
2026 |
|
|||
|
2027 |
|
|||
|
Thereafter |
|
|||
|
Total lease payments (Undiscounted cash flows) |
|
|||
|
Less imputed interest |
( |
) |
||
|
Total |
$ |
|
|
|
Purchase Commitments
In order to fix the cost and ensure adequate supply of baby back ribs for our restaurants for calendar years 2022 and 2023, we entered into purchase agreements with our current rib supplier, whereby we agreed to purchase approximately $
While we anticipate purchasing all of our rib supply from this vendor, we believe there are several other alternative vendors available, if needed.
Flanigan’s Fish Company, LLC
As of October 1, 2022, Flanigan’s Fish Company, LLC, a Florida limited liability company (“FFC”) supplies certain of the fish to all of our restaurants. Since we hold the controlling interest of FFC, the balance sheet and operating results of this entity are consolidated into the accompanying consolidated financial statements of the Company. Sales and purchases of fish are recognized in restaurant food sales and restaurant and lounges (cost of merchandise sold), respectively, in the consolidated statements of income at the time of sale to the restaurant. In addition, the
Franchise Program
At October 1, 2022 and October 2, 2021, we were the franchisor of five units under franchise agreements. Of the five franchised stores, three are combination restaurant/package liquor stores and two are restaurants (one of which we operate). Four franchised stores are owned and operated by related parties as follows:
• James G. Flanigan, our Chairman of the Board of Directors, Chief Executive Officer and President of the Company, and Michael B. Flanigan, a member of our Board of Directors and James G. Flanigan’s brother, are each a
•Patrick J. Flanigan, brother to both James G. Flanigan and Michael B. Flanigan and a member of our Board of Directors, owns
NOTE 14. COMMITMENTS, CONTINGENCIES AND OTHER MATTERS (Continued)
Franchise Program (Continued)
•Our officers and directors collectively own
•Patrick J. Flanigan is the sole general partner and a
Under the franchise agreements, we provide guidance, advice and management assistance to the franchisees. In addition and for an additional annual fee of approximately $
Employment Agreements/Bonuses
As of October 1, 2022 and October 2, 2021, we had no employment agreements.
Our Board of Directors approved an annual performance bonus, with
Our Board of Directors also approved an additional annual performance bonus, with
Management Agreements
Deerfield Beach, Florida
Since January 2006, we have managed “The Whale’s Rib”, a casual dining restaurant located in Deerfield Beach, Florida, pursuant to a management agreement. We paid $
NOTE 15. FAIR VALUE MEASUREMENTS OF FINANCIAL INSTRUMENTS
We follow FASB (ASC) Topic 820, “Fair Value Measurement”, for financial assets and liabilities and for non-financial assets and liabilities that are recognized or disclosed at fair value on at least an annual basis. Topic 820 defines fair value as the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for assets and liabilities required or permitted to be recorded at fair value, we consider the principal or most advantageous market in which it would transact and consider assumptions that market participants would use when pricing the asset or liability, such as inherent risk, transfer restrictions and risk of non-performance. Topic 820 establishes a fair market hierarchy that requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. Topic 820 establishes three levels of inputs that may be used to measure fair value:
•
Level 1 Inputs – Unadjusted quoted prices in active markets for identical assets or liabilities.
•
Level 2 Inputs – Inputs other than quoted prices included in Level 1 that are either directly or indirectly observable through correlation with market data. These include quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; and inputs to evaluation models or other pricing methodologies that do not require significant judgment because the inputs used in the model, such as interest rates and volatility, can be corroborated by readily observable market data.
•
Level 3 Inputs – One or more significant inputs that are unobservable and supported by little or no market activity, and that reflect the use of significant management judgment. Level 3 assets and liabilities include those whose fair value measurements are determined using pricing models, discounted cash flow methodologies or similar valuation techniques, and significant management judgment or estimation.
Interest Rate Swap Agreements
At October 1, 2022, we had
NOTE 15. FAIR VALUE MEASUREMENTS OF FINANCIAL INSTRUMENTS (Continued)
Interest Rate Swap Agreements (Continued)
As a means of managing our interest rate risk on these debt instruments, we entered into interest rate swap agreements with our unrelated third party lender to convert these variable rate debt obligations to fixed rates. We are currently party to the following two (2) interest rate swap agreements:
(i) The first interest rate swap agreement entered into in December 2016 and became effective December 28, 2017, relates to the Term Loan (the “Term Loan Swap”). The Term Loan Swap requires us to pay interest for a five (
(ii) The second interest rate swap agreement entered into in September 2022 relates to the $
NOTE 16. COMMON STOCK
Treasury Stock
Purchase of Common Shares
During our fiscal years 2022 and 2021, we did not purchase any shares of our common stock. As of October 1, 2022, we still have authority to purchase
NOTE 17. BUSINESS SEGMENTS
We operate principally in two reportable segments – package stores and restaurants. The operation of package stores consists of retail liquor sales and related items. Information concerning the revenues and operating income for our fiscal years ended 2022 and 2021, and identifiable assets for the two reportable segments in which we operate, are shown in the following table. Operating income is total revenue less cost of merchandise sold and operating expenses relative to each segment. In computing operating income, none of the following items have been included: interest expense, other non-operating income and expense and income taxes. Identifiable assets by segment are those assets that are used in our operations in each segment. Corporate assets are principally cash and real property, improvements, furniture, equipment and vehicles used at our corporate headquarters. We do not have any operations outside of the United States and transactions between restaurants and package liquor stores are not material.
|
2022 |
2021 |
||||||
|
Operating Revenues: |
|||||||
|
Restaurants |
$ |
|
$ |
|
|||
|
Package stores |
|
|
|||||
|
Other revenues |
|
|
|||||
|
Total operating revenues |
$ |
|
$ |
|
|||
|
Income from Operations Reconciled to Income after Income Taxes and Net Income Attributable to Noncontrolling Interests: |
|||||||
|
Restaurants |
$ |
|
$ |
|
|||
|
Package stores |
|
|
|||||
| |
|
||||||
|
Corporate expenses, net of other revenues |
( |
) |
( |
) |
|||
|
Income from Operations |
|
|
|||||
|
Interest expense |
( |
) |
( |
) |
|||
|
Interest and Other Income |
|
|
|||||
|
Gain on forgiveness of debt |
|
|
|||||
|
Gain on sale of property and equipment |
|
|
|||||
|
Income before provision for income taxes |
$ |
|
$ |
|
|||
|
Provision for Income Taxes |
( |
) |
( |
) |
|||
|
Net Income |
|
|
|||||
|
Net Income Attributable to Noncontrolling Interests |
( |
) |
( |
) |
|||
|
Net Income Attributable to Flanigan’s Enterprises, Inc, Stockholders |
$ |
|
$ |
|
|||
|
|
|||||||
|
Identifiable Assets: |
|||||||
|
Restaurants |
$ |
|
$ |
|
|||
|
Package stores |
|
|
|||||
| |
|
||||||
|
Corporate |
|
|
|||||
|
Consolidated Totals |
$ |
|
$ |
|
|||
|
|
|||||||
|
Capital Expenditures |
|||||||
|
Restaurants |
$ |
|
$ |
|
|||
|
Package stores |
|
|
|||||
| |
|
||||||
|
Corporate |
|
|
|||||
|
Total Capital Expenditures |
$ |
|
$ |
|
|||
|
|
|||||||
|
Depreciation and Amortization: |
|||||||
|
Restaurants |
$ |
|
$ |
|
|||
|
Package stores |
|
|
|||||
| |
|
||||||
|
Corporate |
|
|
|||||
|
Total Depreciation and Amortization |
$ |
|
$ |
|
|
||
NOTE 18. QUARTERLY INFORMATION (UNAUDITED)
The following is a summary of our unaudited quarterly results of operations for the quarters in our fiscal years 2022 and 2021.
|
Quarter Ended |
|||||||||||||
|
Jan. 1, 2022 |
April 2, 2022 |
July 2, 2022 |
Oct. 1, 2022 |
||||||||||
|
Revenues |
$ |
|
$ |
|
$ |
|
$ |
|
|||||
|
Income from operations |
|
|
|
|
|||||||||
|
Net income attributable to stockholders |
|
|
|
|
|||||||||
| |
|
|
|
||||||||||
| |
|
|
|
|
|||||||||
NOTE 18. QUARTERLY INFORMATION (UNAUDITED) (Continued)
|
Quarter Ended |
|||||||||||||
|
Jan. 2, 2021 |
April 3, 2021 |
July 3, 2021 |
Oct. 2, 2021 |
||||||||||
|
Revenues |
$ |
|
$ |
|
$ |
|
$ |
|
|||||
|
Income from operations |
|
|
|
|
|||||||||
|
Net income attributable to stockholders |
|
|
|
|
|||||||||
| Net income per share – basic and diluted |
|
|
|
|
|||||||||
| Weighted average common stock outstanding – basic and diluted |
|
|
|
|
|
||||||||
Quarterly operating results are not necessarily representative of our operations for a full year for various reasons including the seasonal nature of both the restaurant and package store segments.
NOTE 19. 401(k) PLAN
Effective July 1, 2004, we began sponsoring a 401(k) retirement plan covering substantially all employees who meet certain eligibility requirements. Employees may contribute elective deferrals to the plan up to amounts allowed under the Internal Revenue Code. We are not required to contribute to the plan but may make discretionary profit sharing and/or matching contributions. During our fiscal years ended October 1, 2022 and October 2, 2021, the Board of Directors approved discretionary matching contributions totaling $
NOTE 20. SUBSEQUENT EVENTS
Re-Opening of Re-Constructed Package Liquor Store – Hollywood, Florida
Subsequent to the end of our fiscal year 2022, the package liquor store which was formerly a part of our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19) and was forced to close due to damage from a fire during the first quarter of our fiscal year 2019 re-opened for business in a newly constructed, free-standing building on the adjacent property located at 7990 Dave Road Extension, Hollywood, Florida (Store #19P).
Insurance Premiums
Subsequent to the end of our fiscal year 2022, for the policy year commencing December 30, 2022, we bound coverage on the following property, general liability, excess liability and terrorist policies, with premiums totaling approximately $
(i) For the policy year beginning December 30, 2022, our general liability insurance, excluding limited partnerships, is a one (1) year policy with our insurance carriers. The one (
(ii) For the policy year beginning December 30, 2022, our general liability insurance for our limited partnerships is a one (1) year policy with our insurance carriers. The one (
(iii) For the policy year beginning December 30, 2022, our automobile insurance is a one (1) year policy. The one (
(iv) For the policy year beginning December 30, 2022, our property insurance is a one (1) year policy. The one (
(v) For the policy year beginning December 30, 2022, our excess liability insurance is a one (1) year policy. The one (
(vi) For the policy year beginning December 30, 2022, our terrorist insurance is a one (1) year policy. The one (
(vii) For the policy year beginning December 30, 2022, our equipment breakdown insurance is a one (1) year policy. The one (
Of the $
Payoff of Term Loan
Subsequent to the end of our fiscal year 2022, we satisfied the principal balance and all accrued interest due on our $
Subsequent events have been evaluated through the date these consolidated financial statements were issued and except as disclosed herein, no other events required disclosure.
F-31
Exhibit 10(gg)
LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT
THIS LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT, (the “Agreement”), made and entered into this _4th_ day of April, 2019, by and among FLANIGAN’S ENTERPRISES, INC., a Florida corporation, (the “General Partner”), and all other parties who shall execute this Agreement or any counterpart thereof, collectively, (the “Limited Partners”). The Limited Partners, as constituted from time to time, and the General Partner are sometimes herein collectively referred to as the “Partners”.
W I T N E S S E T H :
WHEREAS, the Partners desire to form a limited partnership (the “Partnership”) pursuant to the Uniform Limited Partnership Act of the State of Florida upon the terms and conditions hereinafter set forth;
NOW THEREFORE, intending to be legally bound hereby, the Partners agree as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall (unless otherwise expressly provided herein or unless the context clearly requires otherwise) have the following meanings:
1.1 Additional Capital Balance. The Additional Capital Contributions, if any, of the General Partner, as reduced from time to time by all cash distributions to such General Partner which, pursuant to the terms of this Agreement, are in reduction of the General Partner’s Additional Capital Balance, and as increased from time to time by any contributions of the General Partner which are Additional Capital Contributions.
-1-
1.2 Additional Capital Contributions. Any additional cash contributions of the General Partner to the capital of the Partnership pursuant to Section 3.5 hereof.
1.3 Agreement. This Limited Partnership Certificate and Agreement.
1.4 Capital Balance. The Initial Capital Contribution made by a Partner in cash and the fair market value of any contributions in kind, (as set forth in this Agreement), as reduced from time to time by all cash distributions to such Partner which, pursuant to the terms of this Agreement, are in reduction of a Partner’s Capital Balance.
1.5 Capital Commitment. The Capital Commitment with respect to any Limited Partner is his obligation to contribute the aggregate amount to be paid for the Units (computed at the rate of $5,000.00 per Unit) subscribed for by him pursuant to his Subscription Agreement and set opposite his name on the signature page attached to this Agreement, and with respect to the General Partner, is its obligation to make its original Capital Contribution pursuant to Section 3.1 hereof.
1.6 Initial Capital Contribution. The Contribution made by each Partner pursuant to its Capital Commitment.
1.7 Code. The Internal Revenue Code of 1954, as amended.
1.8 General Partner. The General Partner is FLANIGAN’S ENTERPRISES, INC. or any successor general partner as provided herein.
1.9 General Partner’s Capital. The combined total Capital Balance and Additional Capital Balance of the General Partner.
1.10 Law. The Uniform Limited Partnership Act of the State of Florida in effect from time to time during the term hereof.
-2-
1.11 Limited Partner. The Limited Partners hereunder and any such persons admitted to the Partnership as substituted Limited Partners.
1.12 Limited Partners’ Capital. The total of the Capital Balance of all Limited Partners.
1.13 Limited Partner Percentage. In respect of any Limited Partner the percentage obtained by converting to a percentage the fraction having the Initial Capital Contribution of such Limited Partner as its numerator and having the Limited Partners’ Capital as its denominator.
1.14 Net Cash Flow. Net Cash Flow of the Partnership, with respect to a fiscal period, shall mean Net Income of the Partnership for such period, reduced by (i) any repayments of principal on loans of the Partnership, (excluding General Partner’s Loans, the principal amounts of which are payable out of Net Cash Flow as stated in Article VIII hereof), (ii) any capital expenditures and prepaid expenses to the extent not included in the determination of Net Income, (iii) any Net Sale Proceeds to the extent included in the determination of Net Income, and (iv) reasonable additions to a reserve, (as determined in the sole discretion of the General Partner); and increased by any receipts by the Partnership which are not included in the determination of Net Income.
1.15 Net Income. Net Income of the Partnership with respect to any fiscal period shall mean the excess of the gross sales for such period over all operating expenses for such period, as those terms are defined herein, determined on an accrual basis and determined without regard to amounts deducted by the Partnership for cost recovery of tangible assets or amortization of capitalized or other capital accounts.
-3-
1.16 Net Loss. Net Loss of the Partnership with respect to any fiscal period shall mean that excess of all operating expenses for such period over the gross sales for such period, as those terms are defined herein, determined on an accrual basis and determined without regard to amounts deducted by the Partnership for cost recovery of tangible assets or amortization of capitalized expenditures or other capital accounts.
1.17 Net Sale Proceeds. The proceeds realized by the Partnership upon the sale, exchange or other disposition of all or any substantial part of the Partnership property, net of expenses incident to such sale, the payment of any Partnership indebtedness secured by or related to any such assets and satisfaction of any right of any creditor of the partnership (other than a Partner) to receive such proceeds.
1.18 Participation Percentage. Throughout the term of this Agreement, the Participation Percentage of the Limited Partners is fifty percent (50%) (allocated to each Limited Partner in proportion to his Limited Partnership Percentage) and the Participation Percentage of the General Partner is fifty percent (50%).
1.19 General Partner’s Loans. All amounts loaned by the General Partner to the Partnership pursuant to Section 3.5 hereof.
1.20 Subscription Agreement. The Instrument by which each prospective Limited Partner agrees to purchase Units.
1.21 Substitute Limited Partner. A person admitted to all of the rights of a Limited Partner who has died or assigned his interest in the Partnership, or in the case of a Limited Partner that is a partnership, joint venture, association, corporation or trust, that has been dissolved or assigned its interest in the Partnership.
1.22 Unit. A Unit means an interest of a Limited Partner in the Limited Partners’ Capital of the Partnership with an original subscription value of $5,000.00.
-4-
ARTICLE II
THE LIMITED PARTNERSHIP
2.1 Formation of Partnership. The parties hereto agree to form and by execution of this Agreement do hereby enter into a limited partnership pursuant to Chapter 620, et seq., of the Florida Statutes, entitled “Uniform Limited Partnership Act” (“Law”) which Law shall govern the rights and liabilities of the parties hereto, except as otherwise herein expressly stated.
2.2 Partnership Name. The name of the Partnership is CIC INVESTORS #85, LTD. The General Partner, in its sole discretion, may change the name of the Partnership at any time and from time to time. The General Partner and the Limited Partners hereto shall promptly execute and the General Partner shall file and record with the proper offices in each state, including any political subdivision thereof, in which the Partnership does, or elects to do, business and publish such certificates or other statements or instruments as are required by the Limited Partnership Law, Beverage Regulations, Fictitious Name Law, Assumed Name Law or any other similar statute in effect from time to time in such state or political subdivision in order to validly conduct the business of the Partnership therein as a limited partnership.
2.3 Character of Business and Purpose of the Partnership. The business and purpose of the Partnership shall be to own, renovate and operate a restaurant located at 14301 W. Sunrise Boulevard, Sunrise, Broward County, Florida under the service mark “FLANIGAN’S SEAFOOD BAR AND GRILL”, (the “Business”), but specifically excludes any interest of any kind in the property owned by the landlord.
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2.4 Principal Place of Business. The principal place of business of the Partnership shall be at 5059 NE 18th Avenue, Fort Lauderdale, Florida 33334. The General Partner may change the principal place of business or establish such other place or places of business for the Partnership as it may, from time to time, deem necessary or appropriate, provided however, that the General Partner shall give the Limited Partners notice of any change of address of the principal place of business of the Partnership at least ten (10) days prior to any such change.
2.5 Term of Partnership. The Partnership shall commence on the date that this Agreement has been filed in accordance with the provision of the Law and shall continue until the earlier of the following:
| (i) | Failure of the Partners to have a liquor license issued for the Business by the Division of Alcoholic Beverages and Tobacco within three (3) years of the date of this Agreement; or |
| (ii) | Revocation of the liquor license for the Business by the Division of Alcoholic Beverage and Tobacco followed by the inability of the Partners, after the exercise of their best efforts, to cause such liquor license to be reinstated within a ninety (90) day period; or |
| (iii) | Dissolution or termination pursuant to the provisions of Article X of this Agreement. |
2.6 Names and Residences of Partners.
| A. | The name and address of the General Partner is: |
Flanigan’s Enterprises, Inc.
5059 NE 18th Avenue
Fort Lauderdale, Florida 33334
| B. | The names and places of residences of the Limited Partners are set forth on the signature pages attached hereto together with those persons who may, from time to time, be admitted by the General Partner as Substitute Limited Partners in accordance with the terms of this Agreement. |
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2.7 Nature of Partners’ Interests. The interests of the Partners in the Partnership shall be personal property for all purposes. All property owned by the Partnership, whether real or personal, tangible or intangible, shall be owned by the Partnership as an entity and no Partner, individually, shall have any ownership of such property.
2.8 Non-Partition. No Partner shall be entitled to seek partition of any Partnership property.
ARTICLE III
CAPITAL CONTRIBUTIONS;
ADDITIONAL CAPITAL CONTRIBUTIONS;
GENERAL PARTNER’S LOANS; AND
REIMBURSEMENT OF EXCESS CAPITAL CONTRIBUTION
3.1 General Partner. The General Partner shall contribute to the Partnership cash in an amount equal to one percent (1%) of the total Initial Contributions of the Partners and other property as set opposite its name on the signature page attached to this Agreement.
3.2 Limited Partners. The Limited Partners’ Capital shall be measured in terms of Units and a Limited Partner shall contribute $5,000.00 for each Unit purchased. Each Limited Partner shall purchase a minimum of two (2) Units. Each Limited Partner shall contribute to the Partnership as his Initial Capital Contribution an amount equal to the amount of his Capital Commitment as set forth in the Subscription Agreement executed by him and set opposite his name on the signature page attached to this Agreement. The amount of Capital Commitment shall be paid in cash by the Limited Partner upon execution and delivery of the Subscription Agreement.
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3.3 Capital Accounts. The Partnership will maintain for each Partner an account to be designated “Capital Account”, to which will be added the Partner’s Initial Capital Contribution, Additional Capital Contributions and distributive share of the profits of the Partnership, and against which will be deducted the Partner’s distributive share of the losses of the Partnership and all distributions made to the Partner. A Partner’s Capital Account may, at any point in time, be the same as or different from such Partner’s Capital Balance and may have a negative balance resulting from the Partner’s share of distributions and losses in excess of the Partner’s Initial Capital Contribution and Additional Capital Contributions.
3.4 Use of Capital Contributions and Loans. The Initial Capital Contributions of the Partners, all proceeds of Partnership borrowings, and any Additional Capital Contributions or General Partner’s Loans made pursuant to this Agreement, shall be used to change and convert the business premises of the Business to the General Partner’s “Flanigan’s Seafood Bar and Grill” restaurant concept and as working capital.
3.5 Additional Capital Contributions and General Partner’s Loans.
A. Other than as expressly set forth in this Article III, no Limited Partner shall be required or permitted to make any Additional Capital Contributions, Partner’s Loans, or other contributions, loans or advances to the Partnership; however, the General Partner may make, in its sole discretion, Additional Capital Contributions, Loans, or advances to the Partnership.
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B. If the General Partner advances any funds to the Partnership after the date of this Agreement (except in the case of Additional Capital Contributions), such advances will be treated as General Partner’s Loans, will not increase the General Partner’s Participation Percentage, and the amount thereof will be a debt due from the Partnership to the General Partner, entitled to the priorities described in Sections 8.1 and 8.2 hereof, to be repaid with such interest as provided.
3.6 Withdrawal of Capital. Prior to the dissolution and liquidation of the Partnership, no Partner shall have the right, during the term of the Partnership, to require the return of all or any portion of his Initial Capital Contribution, except that distributions made in accordance with Article VIII may represent in whole or in part a return of capital. Upon any return of partnership capital this Agreement shall be amended as provided by the Law.
3.7 Interest on Capital Contributions. No interest shall be payable with respect to any capital contributed to the Partnership.
3.8 No Priority Among Limited Partners. No Limited Partner shall have any priority over any other Limited Partner as to the return of his Initial Capital Contribution or as to compensation by way of income or as to allocation of profits and losses or distributions of cash.
3.9 Excess Capital Contribution. In the event that the cost to change and convert the business premises of the Business, including both cash and the fair market value of any property contributed in kind, reasonable reserves and organizational costs hereof do not equal or exceed Five Million Dollars ($5,000,000.00), any excess shall be returned to the Limited Partners, pro-rata, as a partial refund of their Initial Capital Contribution. Upon any return of partnership capital, this Agreement shall be amended as required by Law.
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ARTICLE IV
LIMITED PARTNERS
4.1 Limited Liability of Limited Partners. No Limited Partner shall be liable for any of the losses, debts or obligations of the Partnership beyond the amount of his Capital Commitment or be required to contribute any capital beyond his Capital Commitment, or be required to lend any funds to the Partnership, except that a Limited Partner may be required by law to return any or all of that portion of his Initial Capital Contribution which has been distributed to him, with interest, if necessary to discharge Partnership liabilities to all creditors who extended credit or whose claims arose prior to such return of capital.
4.2 Restrictions on Limited Partners.
A. No Limited Partner shall participate in the management and control of the business of the Partnership, transact any business for the Partnership, or attempt to do so; and
B. No Limited Partner shall have the power to represent, sign for or bind the General Partner or the Partnership.
4.3 Rights and Powers of Limited Partners.
A. Any Limited Partner may engage in or own an interest in any other business ventures which may be engaged in the same or similar businesses as that of the Partnership.
B. Each Limited Partner shall be entitled to participate in meetings regarding the affairs of the Partnership and to do all other things with respect to the business and affairs of the Partnership permitted by the Law.
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4.4 Admission of Additional Limited Partners. No additional Limited Partners shall be admitted to the Partnership; provided however, that the General Partner may admit Substitute Limited Partners at any time pursuant to Article IX.
ARTICLE V
GENERAL PARTNER
5.1 Rights and Powers.
A. The General Partner shall have the full and exclusive discretion, right and power to manage, control and operate the Partnership and to do all things necessary to operate the Business. The General Partner shall change and convert the existing facility to its “Flanigan’s Seafood Bar and Grill” restaurant concept. During the term of this Agreement and while the General Partner continues to act in the capacity of General Partner of the Partnership, and while the Partnership continues to pay a service mark fee equal to three (3%) percent of gross sales from the Business, as provided in Section VII hereof, but not thereafter, the General Partner shall permit the Partnership to use the service mark “Flanigan’s Seafood Bar and Grill” for the Business and shall supervise the day to day operation of the same under the same format and standards as used in its existing “Flanigan’s Seafood Bar and Grill” restaurants. The Business shall include exclusive management of the restaurant located within the business premises for the service of lunch and dinner each day.
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B. The General Partner is specifically authorized and empowered, on behalf of the Partnership, and without any further consent of the Limited Partners, to do any act or execute any document or enter into any contract or any agreement of any nature necessary or desirable, in the sole discretion of the General Partner, in pursuance of the business and purposes of the Partnership, including but not limited to the operation of the Business. Without limiting the generality of the foregoing, and subject to the provisions of Section 5.2, the General Partner shall have the following rights and powers to act on behalf of the Partnership, which it may exercise at the cost, expense and risk of the Partnership:
| (i) | Purchase such furniture, fixtures and equipment and make such leasehold improvements as are required by the General Partner for the renovation of the business premises of the Business. |
| (ii) | Place record title to, or the right to use, the property or other assets of the Partnership in the name or names of a nominee or nominees for any purpose convenient or beneficial to the Partnership. |
| (iii) | Execute contracts, leases, licenses, options to lease or purchase, rental agreements, concession agreements, use agreements and the like, of and with respect to Partnership property. |
| (iv) | Make elections under the tax laws of the United States or any state as to the treatment of Partnership income, gains, loss, deduction and credit, and as to all relevant matters. |
| (v) | Provide or contract for such management services as may be required for the operation of the Business, including but not limited to full payroll services, all accounting and bookkeeping services for the operation of the Business, as an expense of the Business, (including the preparation and forwarding of monthly sales tax returns, monthly liquor excise taxes and annual federal partnership returns), and prompt payment of all bills incurred in the normal operation of the Business. |
| (vi) | Establish overall business policy and objectives. |
| (vii) | Provide overall executive supervision of operations of the Business. |
| (viii) | Generally supervise employees and others performing services for the benefit of and in the operation of the Business. |
| (ix) | Provide, advise and arrange for advertising, display and sales promotion of the Business. |
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| (x) | Oversee the operation of the Business in the areas of management, sales and purchasing. |
| (xi) | Arrange for the supervision of the daily operations of the Business with responsibility for (1) hiring and firing employees and other service personnel, (2) salary administration and compensation policies, (3) incentive programs, (4) inventory purchase and control, (5) pricing of all goods and services, (6) business procedures, and (7) controlling daily operational expenses. |
| (xii) | Keep the Business insured against liability claims arising out of the operation of the restaurant, as an operating expense of the Business, with insurance coverage in an amount not less than One Million Dollars ($1,000.000.00), combined single limit, including liquor liability and products liability. The General Partner shall cause the Partnership, itself and the landlord of the business premises, to be named as additional insureds on the liability insurance policy and provide the Partnership, itself and the landlord of the business premises with Certificates of Insurance as evidence of its compliance with the provisions hereof. |
| (xiii) | Purchase and maintain worker’s compensation insurance for the employees of the Business, as an operating expense of the Business. |
| (xiv) | Keep the business premises reasonably insured against damage by fire and other casualty and maintain insurance in accordance with the provisions of the Lease for the business premises. The General Partner shall cause the Partnership, itself and the landlord of the business premises to be named as additional insureds on the property insurance policy and provide the Partnership, itself and the landlord of the business premises with Certificates of Insurance as evidence of its compliance with the provisions hereof. |
| (xv) | Keep the personal property, fixtures and equipment of the Business reasonably insured against damage by fire and other casualty, in an amount equal to its highest insurable value, with replacement cost endorsement, as an expense of the Business. |
| (xvi) | Keep the Business reasonably insured against loss of business due to fire and other casualty with business interruption insurance, in an amount to be determined by the General Partner, as an expense of the Business. |
| (xvii) | Arrange and pay all charges for telephone services, all utilities, including without limitation, electrical, gas and water, and cable or other electronic transmission necessary for operation of the Business, as an expense of the Business. |
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| (xviii) | Arrange for trash collection and removal from the Business, as an expense of the Business. |
| (xix) | Make all normal repairs and replacements to the kitchen equipment and interior, external, non-structural and structural repairs and replacements of the Business and the business premises, in order to keep the same in good condition and good working order to the extent that the General Partner deems it necessary and in accordance with the provisions of the Lease for the business premises. |
| (xx) | To pay, collect, compromise, arbitrate, resort to legal action or otherwise adjust claims or demands of or against the Partnership. |
| (xxi) | To borrow money for any Partnership purpose and to make all required payments of principal and interest with respect thereto. |
| (xxii) | To timely comply with and abide by all of those obligations, terms, covenants and conditions imposed upon the Partnership as tenant of the Lease for the business premises of the Business, including but not limited to the timely payment of rent, as an expense of the Business. |
| (xxiii) | To promptly comply with, execute and fulfill all governmental statutes, ordinances and regulations applicable to the Partnership in connection with the Business, including without limitation, all orders and requirements imposed by the Board of Health, sanitation, fire and police departments including without exception those for the correction, prevention and abatement of nuisances in or upon or connected with the business premises of the Business, as an expense of the Business. |
The General Partner shall be responsible for the procurement and hiring of all employees, agents and independent contractors required for on site operation on a day-to-day basis including, but not limited to, a manager. The General Partner shall control all of the day-to-day operations of the Business and shall handle all negotiations, complaints, objections and other matters involving the operation of the Business, the patrons of the Business, and the employees and staff or any sublessee of or operator of any portion of the Business in connection with activities at the Business. The General Partner shall hire, instruct, maintain and supervise personnel to properly staff the Business and shall maintain the Business, the interior, exterior, non-structural and structural portions of the building it occupies, its fixtures and its premises in a reasonable manner and condition, keeping it clean and serviceable, including arranging for janitorial services as an expense of the Business. The General Partner shall have the full responsibility to collect for all services and sales from the Business, except as hereinafter provided, to daily deposit all receipts in bank account(s) designated by the General Partner, shall arrange for advertising for the Business to the extent deemed desirable by the General Partner and maintain all necessary licenses, including liquor license, and permits required in connection with the operation of the Business. The cost of such activities, including license renewal fees, incurred for the Business shall be borne by the Business.
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In discharging the foregoing duties, the General Partner shall act and conduct the Business in a reasonable manner. In order for the General Partner to have the greatest opportunity to discharge such duties and to maximize profits from the Business, the Limited Partners shall cooperate fully with the General Partner and shall promptly provide the General Partner with all information and assistance as the General Partner may reasonably request pursuant to this Agreement. The General Partner shall devote such time to the Business as, in its judgment, the supervision of the Business shall reasonably require, but shall not be obligated to do or perform any act or thing in connection with the Business not expressly set forth herein.
5.2 Certain Limitations. In addition to other acts expressly prohibited by this Agreement or by the Law, the General Partner shall not have any authority to:
A. Do any act in contravention of this Agreement;
B. Do any act which would make it impossible to operate the Business or to otherwise carry on the ordinary business of the Partnership or any phase thereof, except as expressly provided in this Agreement;
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C. Assign the rights of the Partnership in specific property for other than a Partnership purpose;
D. Admit a person or entity as a General Partner or as a Limited Partner, except as otherwise provided in this Agreement;
E. Knowingly or willingly do any act which would cause the Partnership to become an association taxable as a corporation;
5.3 Contracts with Affiliates. Except as herein specified, all services which the General Partner is not obligated to perform under the terms of this Agreement and the materials necessary for the operation of the Business may be provided by the General Partner, or any entity affiliated with the General Partner, and the General Partner shall be compensated for such services or materials on such terms and conditions no less favorable than those obtainable in the marketplace, and such amounts shall be deemed to be operating expenses of the Business.
5.4 Liability of General Partner. The General Partner shall be liable to the Limited Partners for willful misconduct, bad faith or gross negligence, but shall not be liable for errors in judgment or for any acts or omissions that do not constitute willful misconduct, bad faith or gross negligence. In all transactions for or with the Partnership, the General Partner shall act in good faith and for the benefit of the Partnership. The Limited Partners shall look solely to the assets of the Partnership for the return of their Initial Capital Contributions and if the assets of the Partnership remaining after payment or discharge of the debts and liabilities of the Partnership are insufficient to return such Initial Capital Contributions, they shall have no recourse against the General Partner for such purpose. The doing of any act or the failure to do any act by the General Partner, the effect of which may cause or result in loss or damage of the Partnership, if done pursuant to advise of legal counsel or accountants employed by the General Partner on behalf of the Partnership, shall be conclusively presumed not to constitute willful misconduct, bad faith or gross negligence on the part of the General Partner.
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5.5 Indemnification. The General Partner, including any employee of the General Partner, shall not be liable for, and to the extent of its assets, the Partnership shall indemnify the General Partner or any such employee, against liabilities arising out of their activities as or for the General Partner resulting from errors in judgment or any acts or omissions, whether or not disclosed, unless caused by willful misconduct, bad faith or gross negligence; provided, however, that this provision shall not constitute a waiver by the Limited Partners of any rights it may have under applicable securities laws.
ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES
6.1 General. All Partnership items of income, gain, loss, deduction, credits, or tax preference items, (the “Tax Incidents”), shall be determined as of the end of each fiscal year. As between a Partner and his transferee, Tax Incidents for any fiscal year (or portion thereof, as the case may be) shall be apportioned in accordance with the ratio that the number of days in the Partnership fiscal year prior to the effective date of transfer bears to the number of such days thereafter (including the effective date of the transfer).
6.2 Allocation. The Tax Incidents shall be allocated as follows:
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A. Cost recovery deductions, amortization expense (including amortization of organizational expenses, start up costs, intangible assets, or other capital accounts), investment tax credits (including recapture of investment tax credits), and tax preference items shall be allocated ninety-nine percent (99%) to the Limited Partners and one percent (1%) to the General Partner (in proportion to each Partner’s Initial Capital Contribution), if incurred with respect to the expenditure by the Partnership of the aggregate Initial Capital Contributions of the Partners, (which shall be deemed expended prior to any other amounts available to the Partnership), otherwise to the Partners in accordance with their respective Participation Percentages.
B. Gains and losses from (i) sale, exchange or other disposition of all or any substantial part of the Partnership property, or (ii) from liquidation of the Partnership property following dissolution, as the case may be, shall be allocated on an asset by asset basis, as follows:
| (1) | Gains, to the extent of cost recovery deductions or amortization expense claimed by the Partnership with respect to the particular Partnership assets which are sold, exchanged or otherwise disposed of, shall be allocated ninety-nine percent (99%) to the Limited Partners and one percent (1%) to the General Partner (in proportion to each Partner’s Initial Capital Contribution), if realized with respect to an asset acquired by the Partnership through the expenditure of the aggregate Initial Capital Contributions of the Partners, (which shall be deemed expended prior to any other amounts available to the Partnership), otherwise to the Partners in accordance with their respective Participation Percentages; |
| (2) | Gains in excess of cost recovery deductions or amortization expense claimed by the Partnership with respect to the particular Partnership assets which are sold, exchanged or otherwise disposed of, shall be allocated to all Partners in the same proportion that the Partners actually receive distributions of proceeds from Net Sale Proceeds as provided in Section 8.2 hereof, (except distributions pursuant to Section 8.2(a)); and |
| (3) | All losses shall be allocated ninety-nine percent (99%) to the Limited Partners and one percent (1%) to the General Partner (in proportion to each Partner’s Initial Capital Contribution), if realized with respect to an asset acquired by the Partnership through the expenditure of the aggregate Initial Capital Contributions of the Partners, (which shall be deemed expended prior to any other amounts available to the Partnership), otherwise to the Partners in accordance with their respective Participation Percentages. |
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C. All Tax Incidents other than those specifically allocated by subparagraph (A) and (B), (“Other Tax Incidents”), shall be allocated to the Partners in the same proportion that the Partners actually receive in that same fiscal year cash distributions from Net Cash Flow as provided in Section 8.2 hereof, (except cash distributions pursuant to Section 8.2(a)), (the “Cash Distributions”), provided nevertheless as follows:
| (1) | Other Tax Incidents shall be allocated in any fiscal year to the Partners so receiving Cash Distributions in the same proportion that such Cash Distributions actually are received only if such Cash Distributions actually distributed equal or are greater than the Partnership’s Net Income for the same fiscal year; |
| (2) | To the extent the Partnership’s Net Income for that same fiscal year exceeds such Cash Distributions, Other Tax Incidents shall be allocated to the Partners in accordance with their respective Participation Percentages, except that (i) Net Income, in an amount equal to Cash Distributions actually received, shall be allocated to the Partners so receiving such Cash Distributions in the same proportion that such Cash Distributions actually are received, and (ii) any excess of Net Income over Cash Distributions actually received shall be allocated to the Partners in accordance with their respective Participation Percentages; |
| (3) | In the absence of any such Cash Distributions the Other Tax Incidents shall be allocated to the Partners in accordance with their respective Participation Percentages; and |
| (4) | Notwithstanding clauses (1) and (2) of this Subparagraph (C), Net Loss, (whether or not Cash Distributions are actually made), shall be allocated to the Partners in accordance with their respective Participation Percentages. |
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ARTICLE VII
ACCOUNTING
7.1 Accounting and Bookkeeping. The General Partner shall prepare and keep, for a period of not less than three (3) years, generally accepted accounting records, including cash registers having cumulative totals, bank books and duplicate deposit slips, records showing inventories and receipts of merchandise and other records from the operation of the Business which would normally be required to be kept or examined by an independent accountant pursuant to generally accepted auditing standards. The Limited Partners shall at all times during normal business hours have free access to and the right to inspect and copy the accounting records of the Business and/or Partnership, at the principal place of business of the Partnership.
The General Partner, as an expense of the Business, shall prepare for the Partnership and provide the Limited Partners with a complete monthly accounting of the operation of the Business on a form similar to that attached hereto as Exhibit “C”, within thirty (30) days of the end of each month during the term hereof. The monthly report shall also contain a statement of cumulative gross sales from the operation of the Business for the current year of this Agreement for purposes of determining any distributions pursuant to Article VIII below. The General Partner shall also provide copies of such other accounting records as may be reasonably requested by the Limited Partners and the Limited Partners may inspect the originals thereof at any reasonable time.
The General Partner shall mail within seventy- five (75) days after the close of each fiscal year, an annual report to the Limited Partners, which annual report shall constitute the accounting of the Partnership for such year. The annual report shall contain unaudited financial statements, certified by the Treasurer of the General Partner as accurate and correct, and shall otherwise be in such form and have such content as the General Partner deems proper. Such annual report shall include from every source, including net gains from disposition or sale of Partnership properties.
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Subject to the right of the Limited Partners to receive their share of the distributions pursuant to Article VIII hereof, all receipts from the operation of the Business, deposited into an account of the Partnership and/or the General Partner at a bank designated by the General Partner, shall only be withdrawn upon the direction of the General Partner, but cannot be unreasonably withheld. The Partners anticipate that payment of liquor purchases, payroll and general operations may be made from one or more additional accounts at one or more banks, selected by the General Partner. Funds from those accounts shall only be withdrawn by or at the direction of the General Partner.
7.2 Fiscal Year and Method of Accounting. The fiscal year of the Partnership shall be a calendar year and the books of the Partnership for income tax and accounting purposes shall be kept on the accrual method. All financial determinations hereunder made by the General Partner with respect to the calculation of profits and losses, all distributions pursuant to Article VIII and other accounting decisions shall be determined by the General Partner in accordance with generally accepted accounting principles consistently applied by the General Partner in making said determinations.
7.3 Audit. The Limited Partners shall have the right from time to time, upon two (2) business days prior notice to the General Partner, to cause a complete audit to be made of the business affairs conducted at the Business, and all of the books and records referred to in Article VII hereof. Such audit shall be performed by any person designated, selected and paid for by the Limited Partners, except as otherwise provided herein. The General Partner shall make all records and books relevant in any manner to the operation at the Business and/or Partnership available for audit at 5059 NE 18th Avenue, Fort Lauderdale, Florida 33334. If the results of such audit show that the “Net Income” for any month or year have been understated, the General Partner shall immediately pay to the Limited Partners the additional amount due and if such understatement amounts to three percent (3%) or more of “Net Income”, then the General Partner shall pay the cost of such audit, in addition to any deficiency payment required. If the audit shows that the General Partner has overpaid or the Limited Partners have received overpayment of any amount, the Limited Partners shall immediately repay such amount to the General Partner. Any accounting deficiencies revealed by such audit, which accounting deficiencies shall be defined as any accounting practices not in accordance with generally accepted accounting principles consistently applied, shall be corrected by the General Partner within fifteen (15) days of its receipt of notice of such deficiency.
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7.4 Definitions.
A. “Gross Sales” shall mean the gross income, price, money, cover charges, or other consideration charged or received from the operation of the Business, whether in cash, on credit, barter, exchange, or otherwise.
Gross sales as used herein shall not include, and the General Partner shall deduct from its calculations of gross sales, to the extent it has been included:
| (i) | Any sales or excise tax imposed by any governmental authority upon customers and added to the price of a sale or service and collected from the customer and in turn paid to such governmental authority; |
| (ii) | The amount of any credit or refund for any merchandise returned or exchanged or any allowance made for loss of or damage to merchandise sold but not in excess of original cost and only to the extent that it was previously included in the calculation of gross sales; |
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| (iii) | Fees or discounts paid to bona fide credit card agencies; |
| (iv) | Amounts paid to third party vending machine and coin operated devise operators as their share of proceeds from such machines and device; and |
| (v) | Complimentary and/or discounted sales made at the direction of the General Partner, including but not limited to discounted sales to the employees of the Business. |
B. “Operating Expenses” shall mean all cash expenses and liabilities incurred in the operation of the Business, and shall include, by way of example and without limitation hereby, rent, service mark fee, personal property taxes on personal property, fixtures and equipment used in the Business; liability insurance; real estate taxes; hazard insurance; trash collections; cleaning services; accounting and bookkeeping fees; advertising; telephone charges; utilities, including but not limited to electric, water and gas; cable; salaries for personnel employed at the business premises only; repairs and maintenance of kitchen equipment, furniture, fixtures, equipment and personal property used in the Business; repairs and maintenance of the interior and exterior of the business premises; cost of inventory; liquor license renewal fees; but excluding any allocation of salaries and expenses of “off-site” personnel of the General Partner.
7.5 Tax Matters.
A. The General Partner shall cause, as a part of its bookkeeping and accounting responsibilities, to be prepared and filed all income tax returns for the Partnership on an accrual basis. Necessary tax information shall be provided to the Limited Partners.
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B. In connection with the assignment of a Limited Partner’s interest in the Partnership permitted by Article X hereof, the General Partner, (in its sole discretion), shall have the right, but shall not be obligated, on behalf of the Partnership and at the time and in the manner provided by Section 754 of the Code, (or any successor section thereto), and the Regulations thereunder, to make an election to adjust the basis of Partnership property in the manner provided in Sections 734(b) and 743(b) of the Code, (or any successor sections thereto).
7.6 Contracting for Accounting Services. The General Partner shall, as an expense of the Business, provide the accounting and bookkeeping services provided in this Article VII at the same rate charged to its other franchisees.
ARTICLE VIII
DISTRIBUTIONS
8.1 Distributions of Net Cash Flow. All Net Cash Flow, if any, realized by or available to the Partnership shall first be applied or added to a reasonable reserve retained for working capital needs or to provide funds for contingencies and expenses of the Partnership, (all as determined in the sole discretion of the General Partner or as required by any loan agreement or instrument of the Partnership), and the balance, if any, shall be distributed, (from time to time in the sole discretion of the General Partner, but in the event, no less frequently than quarterly), in the following order of priority to the extent available:
A. To the General Partner in repayment of the entire principal amounts of any outstanding General Partner’s loans, together with all accrued but unpaid interest thereon, first on account of interest accrued thereon and then on account of the principal amounts thereof;
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B. To the General Partner in reduction of its then outstanding Additional Capital Balance;
C. To the Limited Partners, until such time as the Limited Partners have received the aggregate sum of Five Million Dollars ($5,000,000.00), which aggregate sum shall be reduced by an amount equal to the amount of initial working capital returned by the Partnership to the Limited Partners, a sum equal to the amount necessary to increase the aggregate distribution to the Limited Partners for the fiscal year to One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) shall be paid to the Limited Partners. Thereafter, any remaining amounts shall be distributed to the Partners in accordance with their respective Participation Percentages; and
D. Once the Limited Partners have received the aggregate sum of Five Million Dollars ($5,000,000.00), which aggregate sum shall be reduced by an amount equal to the amount of initial working capital returned by the Partnership to the Limited Partners, any remaining amounts shall be distributed to the Partners in accordance with their respective Participation Percentages.
8.2 Distributions of Net Sale Proceeds. All Net Sale Proceeds, if any, realized by or available to the Partnership shall first be applied or added to a reasonable reserve or escrow account retained to provide funds for contingencies and expenses of the Partnership, (all as determined by the General Partner or as required by any loan, escrow or other agreement or instrument of the Partnership), and the balance, if any, shall be distributed in the following order of priority to the extent available:
A. To the General Partner, in repayment of the entire principal amounts of any outstanding General Partner’s loans, together with all accrued but unpaid interest thereon, first on account of interest accrued thereon and then on account of the principal amounts thereof;
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B. To the General Partner in reduction of its then outstanding Additional Capital Balance, except as provided in Subparagraph E. of this section;
C. To the Partners in reduction of their then outstanding Capital Balances, (in proportion to the respective amounts of any such Capital Balances), except as provided in Subparagraph E. of this section;
D. Any remaining amounts (i) fifty one percent (51%) thereof to the Limited Partners and (ii) forty nine percent (49%) to the General Partner; and
E. Notwithstanding anything to the contrary in the above priority order, if there is an insufficient balance available to fully return to each Partner an amount equal to his then outstanding Capital Balance, the balance, if any, shall be distributed to the Partners in proportion to the combined amount of their then outstanding Capital Balance.
ARTICLE IX
TRANSFER OF PARTNERSHIP INTERESTS
9.1 General Partner.
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A. The General Partner shall not sell, assign, or otherwise dispose of all or any portion of its interest as General Partner in the Partnership, or enter into any agreement as a result of which any person, firm or corporation shall become interested with it in its interest in the Partnership without the prior consent in writing of the Limited Partners. No person shall be admitted as a substitute or additional General Partner without the prior written consent of the General Partner and the Limited Partners as set forth herein. The General Partner may not retire or withdraw as a General Partner unless it designates a nominee willing to serve as a General Partner which shall be an individual or corporation having the capacity to serve as such and who is able to meet any requirements then imposed by the Code or any rulings or regulations thereunder with respect to general partners or limited partnerships in order that the Partnership not become an association taxable as a corporation. Subject to the foregoing, the General Partner shall give the Limited Partners at least ninety (90) days notice of its proposed retirement or withdrawal as General Partner, in which event the Partnership shall be dissolved and terminated as provided in Article X hereof unless the Limited Partners select a new General Partner within said ninety (90) day period. Such new General Partner may be, but need not be, the nominee designated by the retiring or withdrawing General Partner.
B. The General Partner shall immediately be removed and cease to be a General Partner upon the dissolution of the General Partner.
9.2 Substitute Limited Partner. A Limited Partner or the transferee of a Limited Partner may transfer all, but not a part of his Unit(s) to a Substitute Limited Partner provided:
A. That the transferee, if an individual, is at least 21 years of age;
B. That the transferee executes an instrument satisfactory to the General Partner accepting and adopting the provisions and agreements set forth herein and pays any reasonable expenses in connection with his admission as a Substitute Limited Partner; and
C. That the General Partner shall consent to such transfer, which consent may be given or withheld in the General Partner’s sole discretion, and shall be withheld if:
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| (1) | In the opinion of counsel for the Partnership such transfer would result in the close of the Partnership’s taxable year with respect to all Partners, in the termination of the Partnership within the meaning of Section 708(b) of the Code, or in the termination of its status as a partnership under the Code; or |
| (2) | In the opinion of such counsel such transfer would be in violation of the Securities Act of 1933, as amended, or the securities laws of any other jurisdiction. |
9.3 Death, etc. of a Limited Partner. Upon the death, bankruptcy, legal incompetency or insolvency of a Limited Partner, (or, in the case of a Limited Partner that is a partnership, joint venture, association, corporation or trust, the dissolution of such Limited Partner), the personal representative, guardian or other successor in interest of such Limited Partner shall have the right of the Limited Partner for the sole purpose of settling the estate of such person pursuant to the provisions of Section 9.2, but such assignee may become a Substitute Limited Partner in the Partnership only in accordance with the provisions of Section 9.2.
9.4 Effective Date of Transfers. Permissible transfers of a Limited Partner’s Units shall be effective for purposes of allocations of distributions, profits and losses on the first day of the fiscal quarter following compliance with Section 9.2 and following amendment of this Agreement as required by the Law. Until such effective date, the General Partner may act and proceed as if no transfer had been made.
9.5 Transfers Other Than in Accordance Herewith. No transfers of Units or any part thereof which is in violation of this Article IX shall be valid or effective, and the Partnership shall not recognize the same for the purposes of making allocations or distributions of profits, losses, return of Capital Contribution or other distribution with respect to such Units or part thereof. The Partnership may enforce this provision either directly or indirectly or through its agents by entering an appropriate stop-transfer order on its books or otherwise refusing to register or transfer or permit the registration or transfer on its books of any proposed transfers not in accordance with this Article IX.
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ARTICLE X
DISSOLUTION AND SUCCESSOR PARTNERSHIP
10.1 Dissolution of Partnership. The Partnership shall be dissolved upon the earlier occurrence of any of the following events:
A. The bankruptcy, insolvency, liquidation or dissolution of the General Partner;
B. Upon the written consent of all Partners;
C. The sale of all or substantially all of the assets of the Partnership;
D. Pursuant to the provisions of Article II and IX hereof; or
E. Otherwise by operation of law.
10.2 Successor Partnership. If the Partnership is dissolved or to be dissolved for any reason specified in Section 10.1, and any Limited Partner shall deliver to each of the other Limited Partners within thirty (30) days of such event, a written notice demanding that a meeting of Limited Partners be held at the principal place of business of the Partnership at the time set forth in such notice (which shall be not less than ten (10) nor more than thirty (30) days after the date of such notice) the Limited Partners shall hold such meeting. Limited Partners attending such meeting, either in person or by proxy, and having an aggregate Limited Partner Percentage of not less than one hundred percent (100%) may continue the business of the Partnership and reconstitute the Partnership as a successor limited partnership with a new General Partner having the capacity to serve as such and who is able to meet any requirements then imposed by the Code or any rulings or regulations thereunder with respect to general partners of limited partnerships in order that the Partnership not become an association taxable as a corporation. If such Limited Partners shall exercise such right to continue the business of the Partnership, the person appointed by them as the new General Partner and each of the Limited Partners shall execute, acknowledge and file a Limited Partnership Certificate and Agreement. The Limited Partnership Certificate and Agreement shall contain substantially the same provisions as those contained herein, except that the new General Partner shall be allocated such share of the profits, losses and distributions of the Partnership as the Limited Partners appointing such new General Partner shall determine. Such new General Partner shall indicate his acceptance of the appointment by the execution of such Limited Partnership Certificate and Agreement.
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10.3 Procedure. Unless the Business of the Partnership is continued pursuant to Section 10.2, upon the dissolution of the Partnership, the General Partner or the person required by law to wind up the Partnership’s affairs shall cause the cancellation of this Agreement and shall liquidate the assets of the Partnership and apply the proceeds of such liquidation in the order of priority provided in Article VIII of this Agreement, unless the law requires distribution be made in a different order in which case the assets of the Partnership shall be distributed in accordance with the law.
ARTICLE XII
LIMITED POWER OF ATTORNEY
12.1 Appointment. Each Limited Partner hereby makes, constitutes and appoints the General Partner his true and lawful attorney-in-fact for him and in his name, place and stead and for his use and benefit, from time to time:
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A. To make all agreements amending this Agreement, as now or hereafter amended, that may be appropriate to reflect or effect, as the case may be, the following:
| (1) | A change of the name or the location of the principal place of business of the Partnership; |
| (2) | The transfer or acquisition of any Units by a Limited Partner in any manner permitted by this Agreement; |
| (3) | A person becoming a Substitute Limited Partner of the Partnership as permitted by this Agreement; |
| (4) | A change in any provision of this Agreement effected by the exercise by any person of any right or rights hereunder; |
| (5) | The dissolution of the Partnership pursuant to this Agreement; |
| (6) | Such amendments which are of an inconsequential nature and do not affect the rights of the Limited Partners in any material respect; |
| (7) | To execute such certificates, instruments and documents as may be required or may be appropriate in connection with the use of the name of the Partnership by the Partnership; and/or |
| (8) | To execute such certificates, instruments and documents as may be required, or as may be appropriate for the Limited Partner to make to reflect: |
| (a) | A change in the name or address of such Limited Partner; |
| (b) | Any changes in or amendments of this Agreement, or pertaining to the Partnership, of any kind referred to in this Section 12.1; and |
| (c) | Any other changes in or amendments of this Agreement but only if and when the consent thereto has been obtained from the General Partner and Limited Partners, having the aggregate Limited Partnership Percentage required by Section 13.6 hereof. |
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B. Each of the agreements, certificates, instruments and documents made pursuant to Section 12.1(A) shall be in such form as the General Partner and counsel for the Partnership shall deem appropriate. The powers conferred by Section 12.1(A) to execute agreements, certificates, instruments and documents, shall be deemed to include without limitation the powers to sign, acknowledge, swear to, verify, deliver, file, record or publish the same.
C. Each Limited Partner authorizes the General Partner as such attorney-in-fact to take any further action which the General Partner shall consider necessary or advisable in connection with any action taken pursuant to this Section 12.1 hereby giving the General Partner as such attorney-in-fact full power and authority to do and perform each and every act or thing whatsoever requisite or advisable to be done in and about any action taken pursuant to this Section 12.1 as fully as such Limited Partner might or could do if personally present, and hereby ratifying and confirming all that the General Partner as such attorney-in-fact shall lawfully do or cause to be done by virtue of this Section.
12.2 Irrevocability; Manner of Exercise. The power of attorney granted pursuant to Section 12.1:
A. Is a special power of attorney coupled with an interest and is irrevocable;
B. May be exercised by the General Partner as such attorney-in-fact by listing all of the Limited Partners executing any agreement, certificate, instrument or document with the single signature of the President or any Vice President of the General Partner acting as attorney-in-fact for all of them; and
C. Shall survive the transfer by a Limited Partner of all or a portion of his interest in the Partnership, except that where the purchaser, transferee or assignee thereof with the consent of the General Partner is admitted as a Substitute Limited Partner, the power of attorney shall survive the transfer for the sole purpose of enabling such attorney-in-fact to execute, acknowledge and file any such agreement, certificate, instrument or document necessary to effect such substitution.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. All notices or other communications required or permitted to be given pursuant to the Agreement shall in the case of notices or communications required or permitted to be given to Limited Partners, be in writing and shall be considered as properly given or made if personally delivered or if mailed by United States certified or registered mail, return receipt requested, postage prepaid, or if sent by prepaid telegram, and addressed to such Limited Partner’s address for notices as it appears on the records of the Partnership, and in the case of notices or communications required or permitted to be given to the General Partner, shall be in writing and shall be considered as properly given or made if personally delivered or if mailed by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the General Partner at the principal place of business of the Partnership. Any Limited Partner may change his address for notices by giving notice in writing, stating his new address for notices, to the General Partner, and the General Partner may change its address for notices by giving such notice to all Limited Partners. Commencing on the tenth (10th) day after the giving of such notice, such newly designated address shall be such Partner’s address for the purpose of all notices or other communications required or permitted to be given pursuant to the Agreement.
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13.2 Choice of Law. This Agreement and all rights and liabilities of the parties hereto with reference to the Partnership shall be subject to, construed in accordance with and governed by the laws of the State of Florida. To the extent that any provision hereof is in contravention with the Law, as in effect from time to time, the provisions of the Law shall supersede and replace any provision herein which is in contravention thereof. Additionally, the appropriate forum and jurisdiction for any legal action shall be the Courts of the County of Broward, State of Florida, and each party consents to such jurisdiction.
13.3 Titles and Captions. All article, section and subsection titles or captions contained in this Agreement are inserted for convenience only and are not deemed part of the text hereof.
13.4 Sole Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof.
13.5 Execution in Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had all signed the same document. All counterparts shall be construed together and shall constitute one (1) agreement.
13.6 Amendments. The General Partner may submit to the Partners in writing the text of any proposed amendment to this Agreement and a statement by the proposer of the purpose of such amendment. The General Partner shall include in any submission its view as to the proposed amendment. Any such amendment shall be adopted if, within ninety (90) days after the notice of such amendment is given to all Partners, the General Partner shall have approved such amendment in writing and shall have received written approval thereof from Limited Partners having a Limited Partnership Percentage aggregating eighty percent (80%) or more. A written approval may not be withdrawn or voided once it is filed with the General Partner. A Limited Partner filing a written objection may thereafter file a valid written approval. The date of adoption of an amendment pursuant to this Section 13.6 shall be the date on which the General Partner shall have received the requisite written approvals. Any proposed amendment which is not adopted may be resubmitted. In the event any proposed amendment is not adopted, any written approval received with respect thereto shall become void and shall not be effective with respect to any resubmission of the proposed amendment. Notwithstanding the foregoing provisions of this Section 13.6, no amendment may, without the prior written approval of all Partners;
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A. Enlarge the obligations of any Partner under this Agreement;
B. Enlarge the liability of the General Partner to the Limited Partners;
C. Amend this Article 13.6;
D. Alter the Partnership in such manner as will result in the Partnership no longer being classified as a limited partnership for Federal income tax purposes; or
E. Reduce any requirements for the prior approval of Substitute Limited Partners set forth in this Agreement.
13.7 Waiver of Action for Partition. Each of the parties hereto irrevocably waives during the term of the Partnership any right that he may have to maintain any action for partition with respect to the property of the Partnership.
13.8 Assignability. Subject to the restrictions on transferability contained herein, each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the respective parties hereto.
13.9 Independent Activities. Except as otherwise provided herein, the General Partner and its affiliates, and its (and its affiliates’), officers, directors, shareholders and employees, and each Limited Partner may, notwithstanding the existence of this Agreement, engage in whatever activities they choose, whether the same be competitive with the Business of the Partnership or otherwise, without having or incurring any obligation to offer any interest in such activities to any party hereto. Neither this Agreement nor any activity undertaken pursuant hereto shall prevent such persons from engaging in such activities, and as a material part of the consideration for the General Partner’s execution hereof, each Limited Partner hereby waives, relinquishes and renounces any such right or claim of participation. Nothing in the foregoing, however, shall be deemed to reduce any of the liabilities of the General Partner under this Agreement.
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13.10 Right to Rely on Authority of General Partner. No person dealing with the General Partner shall be required to determine its authority to make any undertaking on behalf of the Partnership, nor to determine any fact or circumstance bearing upon the existence of its authority.
13.11 Arbitration. Except as otherwise provided in this Agreement, any dispute or controversy arising out of or relating to this Agreement shall be determined and settled by arbitration in the City of Fort Lauderdale, Florida, in accordance with the rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Except as set forth in Sections 5.4 and 5.5, the expenses of the arbitration shall be borne equally by the parties to the arbitration.
13.12 Gender and Number. Whenever the context requires, the gender of all words used herein shall include the masculine, feminine and neuter and the singular and plural of all words shall include the singular and plural.
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13.13 Meetings. The Partnership shall hold an annual meeting in each fiscal year of its existence on such date and at such place and time as the General Partner shall determine, notice of the date and time to be given to all Limited Partners whose addresses are on record with the General Partner not later than fourteen (14) days prior to such date. Notwithstanding the foregoing, at any time or from time to time, Limited Partners having a Limited Partner Percentage aggregating fifty percent (50%) may by written notice to the General Partner specifying in general terms the subject to be considered require the General Partner to call, or the General Partner may on its own motion call, a special meeting of the Limited Partners and the General Partner shall within ten (10) days after any such notice is given, give notice of such special meeting in the same manner as is required for the annual meeting including in such notice a copy of the notice requiring the call. Any Limited Partner shall have the right, upon notice in writing, to require the General Partner to furnish by mail a list of the names, addresses and respective interest in the Partnership of all other Limited Partners in the Partnership as shown on the records of the Partnership at the time of the notice. Any Limited Partner, or his representative, shall have the right to inspect and copy the names and addresses of all other Limited Partners in the Partnership.
13.14 Severability. If any provision of this Agreement, or the application thereof, shall, for any reason and to any extent, be invalid or unenforceable, or contrary to law, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the maximum extent permissible under applicable law.
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IN WITNESS WHEREOF, this Limited Partnership Certificate and Agreement has
been sworn to and executed as of the date above written.
| GENERAL PARTNER: | |||
| FLANIGAN’S ENTERPRISES, INC. | |||
| /s/ Jordan Paz | By: | /s/ Jeffrey D. Kastner, CFO & Sec’y | |
| Jeffrey D. Kastner, CFO & Secretary | |||
| /s/ Paul Limperis | |||
STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this date by JEFFREY D. KASTNER, as Chief Financial Officer and Secretary of FLANIGAN’S ENTERPRISES, INC. on behalf of the said corporation. He is personally known to me or produced ________________ as identification.
WITNESS my hand and official seal on this the 4th day of April________, 2019.
| /s/ Jordan Paz | |
| NOTARY PUBLIC - State of Florida |
My commission expires:
SEE SIGNATURE PAGES FOR LIMITED PARTNERS ATTACHED HERETO
(Signature Pages Intentionally Omitted)
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Exhibit 10(hh)
LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT
THIS LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT, (the “Agreement”), made and entered into this _21st_ day of September, 2021, by and among FLANIGAN’S ENTERPRISES, INC., a Florida corporation, (the “General Partner”), and all other parties who shall execute this Agreement or any counterpart thereof, collectively, (the “Limited Partners”). The Limited Partners, as constituted from time to time, and the General Partner are sometimes herein collectively referred to as the “Partners”.
W I T N E S S E T H :
WHEREAS, the Partners desire to form a limited partnership (the “Partnership”) pursuant to the Uniform Limited Partnership Act of the State of Florida upon the terms and conditions hereinafter set forth;
NOW THEREFORE, intending to be legally bound hereby, the Partners agree as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall (unless otherwise expressly provided herein or unless the context clearly requires otherwise) have the following meanings:
1.1 Additional Capital Balance. The Additional Capital Contributions, if any, of the General Partner, as reduced from time to time by all cash distributions to such General Partner which, pursuant to the terms of this Agreement, are in reduction of the General Partner’s Additional Capital Balance, and as increased from time to time by any contributions of the General Partner which are Additional Capital Contributions.
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1.2 Additional Capital Contributions. Any additional cash contributions of the General Partner to the capital of the Partnership pursuant to Section 3.5 hereof.
1.3 Agreement. This Limited Partnership Certificate and Agreement.
1.4 Capital Balance. The Initial Capital Contribution made by a Partner in cash and the fair market value of any contributions in kind, (as set forth in this Agreement), as reduced from time to time by all cash distributions to such Partner which, pursuant to the terms of this Agreement, are in reduction of a Partner’s Capital Balance.
1.5 Capital Commitment. The Capital Commitment with respect to any Limited Partner is his obligation to contribute the aggregate amount to be paid for the Units (computed at the rate of $5,000.00 per Unit) subscribed for by him pursuant to his Subscription Agreement and set opposite his name on the signature page attached to this Agreement, and with respect to the General Partner, is its obligation to make its original Capital Contribution pursuant to Section 3.1 hereof.
1.6 Initial Capital Contribution. The Contribution made by each Partner pursuant to its Capital Commitment.
1.7 Code. The Internal Revenue Code of 1954, as amended.
1.8 General Partner. The General Partner is FLANIGAN’S ENTERPRISES, INC. or any successor general partner as provided herein.
1.9 General Partner’s Capital. The combined total Capital Balance and Additional Capital Balance of the General Partner.
1.10 Law. The Uniform Limited Partnership Act of the State of Florida in effect from time to time during the term hereof.
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1.11 Limited Partner. The Limited Partners hereunder and any such persons admitted to the Partnership as substituted Limited Partners.
1.12 Limited Partners’ Capital. The total of the Capital Balance of all Limited Partners.
1.13 Limited Partner Percentage. In respect of any Limited Partner the percentage obtained by converting to a percentage the fraction having the Initial Capital Contribution of such Limited Partner as its numerator and having the Limited Partners’ Capital as its denominator.
1.14 Net Cash Flow. Net Cash Flow of the Partnership, with respect to a fiscal period, shall mean Net Income of the Partnership for such period, reduced by (i) any repayments of principal on loans of the Partnership, (excluding General Partner’s Loans, the principal amounts of which are payable out of Net Cash Flow as stated in Article VIII hereof), (ii) any capital expenditures and prepaid expenses to the extent not included in the determination of Net Income, (iii) any Net Sale Proceeds to the extent included in the determination of Net Income, and (iv) reasonable additions to a reserve, (as determined in the sole discretion of the General Partner); and increased by any receipts by the Partnership which are not included in the determination of Net Income.
1.15 Net Income. Net Income of the Partnership with respect to any fiscal period shall mean the excess of the gross sales for such period over all operating expenses for such period, as those terms are defined herein, determined on an accrual basis and determined without regard to amounts deducted by the Partnership for cost recovery of tangible assets or amortization of capitalized or other capital accounts.
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1.16 Net Loss. Net Loss of the Partnership with respect to any fiscal period shall mean that excess of all operating expenses for such period over the gross sales for such period, as those terms are defined herein, determined on an accrual basis and determined without regard to amounts deducted by the Partnership for cost recovery of tangible assets or amortization of capitalized expenditures or other capital accounts.
1.17 Net Sale Proceeds. The proceeds realized by the Partnership upon the sale, exchange or other disposition of all or any substantial part of the Partnership property, net of expenses incident to such sale, the payment of any Partnership indebtedness secured by or related to any such assets and satisfaction of any right of any creditor of the partnership (other than a Partner) to receive such proceeds.
1.18 Participation Percentage. Throughout the term of this Agreement, the Participation Percentage of the Limited Partners is fifty percent (50%) (allocated to each Limited Partner in proportion to his Limited Partnership Percentage) and the Participation Percentage of the General Partner is fifty percent (50%).
1.19 General Partner’s Loans. All amounts loaned by the General Partner to the Partnership pursuant to Section 3.5 hereof.
1.20 Subscription Agreement. The Instrument by which each prospective Limited Partner agrees to purchase Units.
1.21 Substitute Limited Partner. A person admitted to all of the rights of a Limited Partner who has died or assigned his interest in the Partnership, or in the case of a Limited Partner that is a partnership, joint venture, association, corporation or trust, that has been dissolved or assigned its interest in the Partnership.
1.22 Unit. A Unit means an interest of a Limited Partner in the Limited Partners’ Capital of the Partnership with an original subscription value of $5,000.00.
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ARTICLE II
THE LIMITED PARTNERSHIP
2.1 Formation of Partnership. The parties hereto agree to form and by execution of this Agreement do hereby enter into a limited partnership pursuant to Chapter 620, et seq., of the Florida Statutes, entitled “Uniform Limited Partnership Act” (“Law”) which Law shall govern the rights and liabilities of the parties hereto, except as otherwise herein expressly stated.
2.2 Partnership Name. The name of the Partnership is CIC INVESTORS #25, LTD. The General Partner, in its sole discretion, may change the name of the Partnership at any time and from time to time. The General Partner and the Limited Partners hereto shall promptly execute and the General Partner shall file and record with the proper offices in each state, including any political subdivision thereof, in which the Partnership does, or elects to do, business and publish such certificates or other statements or instruments as are required by the Limited Partnership Law, Beverage Regulations, Fictitious Name Law, Assumed Name Law or any other similar statute in effect from time to time in such state or political subdivision in order to validly conduct the business of the Partnership therein as a limited partnership.
2.3 Character of Business and Purpose of the Partnership. The business and purpose of the Partnership shall be to own, renovate and operate a restaurant located at 11225 Miramar Parkway, Suite 250, Miramar, Broward County, Florida and operate the same as “FLANIGAN’S” restaurant, (the “Business”), but specifically excludes any interest of any kind in the property owned by the landlord.
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2.4 Principal Place of Business. The principal place of business of the Partnership shall be at 5059 NE 18th Avenue, Fort Lauderdale, Florida 33334. The General Partner may change the principal place of business or establish such other place or places of business for the Partnership as it may, from time to time, deem necessary or appropriate, provided however, that the General Partner shall give the Limited Partners notice of any change of address of the principal place of business of the Partnership at least ten (10) days prior to any such change.
2.5 Term of Partnership. The Partnership shall commence on the date that this Agreement has been filed in accordance with the provision of the Law and shall continue until the earlier of the following:
| (i) | Failure of the Partners to have a liquor license issued for the Business by the Division of Alcoholic Beverages and Tobacco within three (3) years of the date of this Agreement; or |
| (ii) | Revocation of the liquor license for the Business by the Division of Alcoholic Beverage and Tobacco followed by the inability of the Partners, after the exercise of their best efforts, to cause such liquor license to be reinstated within a ninety (90) day period; or |
| (iii) | Dissolution or termination pursuant to the provisions of Article X of this Agreement. |
2.6 Names and Residences of Partners.
| A. | The name and address of the General Partner is: |
Flanigan’s Enterprises, Inc.
5059 NE 18th Avenue
Fort Lauderdale, Florida 33334
| B. | The names and places of residences of the Limited Partners are set forth on the signature pages attached hereto together with those persons who may, from time to time, be admitted by the General Partner as Substitute Limited Partners in accordance with the terms of this Agreement. |
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2.7 Nature of Partners’ Interests. The interests of the Partners in the Partnership shall be personal property for all purposes. All property owned by the Partnership, whether real or personal, tangible or intangible, shall be owned by the Partnership as an entity and no Partner, individually, shall have any ownership of such property.
2.8 Non-Partition. No Partner shall be entitled to seek partition of any Partnership property.
ARTICLE III
CAPITAL CONTRIBUTIONS;
ADDITIONAL CAPITAL CONTRIBUTIONS;
GENERAL PARTNER’S LOANS; AND
REIMBURSEMENT OF EXCESS CAPITAL CONTRIBUTION
3.1 General Partner. The General Partner shall contribute to the Partnership cash in an amount equal to one percent (1%) of the total Initial Contributions of the Partners and other property as set opposite its name on the signature page attached to this Agreement.
3.2 Limited Partners. The Limited Partners’ Capital shall be measured in terms of Units and a Limited Partner shall contribute $5,000.00 for each Unit purchased. Each Limited Partner shall purchase a minimum of two (2) Units. Each Limited Partner shall contribute to the Partnership as his Initial Capital Contribution an amount equal to the amount of his Capital Commitment as set forth in the Subscription Agreement executed by him and set opposite his name on the signature page attached to this Agreement. The amount of Capital Commitment shall be paid in cash by the Limited Partner upon execution and delivery of the Subscription Agreement.
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3.3 Capital Accounts. The Partnership will maintain for each Partner an account to be designated “Capital Account”, to which will be added the Partner’s Initial Capital Contribution, Additional Capital Contributions and distributive share of the profits of the Partnership, and against which will be deducted the Partner’s distributive share of the losses of the Partnership and all distributions made to the Partner. A Partner’s Capital Account may, at any point in time, be the same as or different from such Partner’s Capital Balance and may have a negative balance resulting from the Partner’s share of distributions and losses in excess of the Partner’s Initial Capital Contribution and Additional Capital Contributions.
3.4 Use of Capital Contributions and Loans. The Initial Capital Contributions of the Partners, all proceeds of Partnership borrowings, and any Additional Capital Contributions or General Partner’s Loans made pursuant to this Agreement, shall be used to change and convert the business premises of the Business to the General Partner’s “Flanigan’s Seafood Bar and Grill” restaurant concept and as working capital.
3.5 Additional Capital Contributions and General Partner’s Loans.
A. Other than as expressly set forth in this Article III, no Limited Partner shall be required or permitted to make any Additional Capital Contributions, Partner’s Loans, or other contributions, loans or advances to the Partnership; however, the General Partner may make, in its sole discretion, Additional Capital Contributions, Loans, or advances to the Partnership.
B. If the General Partner advances any funds to the Partnership after the date of this Agreement (except in the case of Additional Capital Contributions), such advances will be treated as General Partner’s Loans, will not increase the General Partner’s Participation Percentage, and the amount thereof will be a debt due from the Partnership to the General Partner, entitled to the priorities described in Sections 8.1 and 8.2 hereof, to be repaid with such interest as provided.
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3.6 Withdrawal of Capital. Prior to the dissolution and liquidation of the Partnership, no Partner shall have the right, during the term of the Partnership, to require the return of all or any portion of his Initial Capital Contribution, except that distributions made in accordance with Article VIII may represent in whole or in part a return of capital. Upon any return of partnership capital this Agreement shall be amended as provided by the Law.
3.7 Interest on Capital Contributions. No interest shall be payable with respect to any capital contributed to the Partnership.
3.8 No Priority Among Limited Partners. No Limited Partner shall have any priority over any other Limited Partner as to the return of his Initial Capital Contribution or as to compensation by way of income or as to allocation of profits and losses or distributions of cash.
3.9 Excess Capital Contribution. In the event that the cost to change and convert the business premises of the Business, including both cash and the fair market value of any property contributed in kind, reasonable reserves and organizational costs hereof do not equal or exceed Four Million Dollars ($4,000,000.00), any excess shall be returned to the Limited Partners, pro-rata, as a partial refund of their Initial Capital Contribution. Upon any return of partnership capital, this Agreement shall be amended as required by Law.
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ARTICLE IV
LIMITED PARTNERS
4.1 Limited Liability of Limited Partners. No Limited Partner shall be liable for any of the losses, debts or obligations of the Partnership beyond the amount of his Capital Commitment or be required to contribute any capital beyond his Capital Commitment, or be required to lend any funds to the Partnership, except that a Limited Partner may be required by law to return any or all of that portion of his Initial Capital Contribution which has been distributed to him, with interest, if necessary to discharge Partnership liabilities to all creditors who extended credit or whose claims arose prior to such return of capital.
4.2 Restrictions on Limited Partners.
A. No Limited Partner shall participate in the management and control of the business of the Partnership, transact any business for the Partnership, or attempt to do so; and
B. No Limited Partner shall have the power to represent, sign for or bind the General Partner or the Partnership.
4.3 Rights and Powers of Limited Partners.
A. Any Limited Partner may engage in or own an interest in any other business ventures which may be engaged in the same or similar businesses as that of the Partnership.
B. Each Limited Partner shall be entitled to participate in meetings regarding the affairs of the Partnership and to do all other things with respect to the business and affairs of the Partnership permitted by the Law.
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4.4 Admission of Additional Limited Partners. No additional Limited Partners shall be admitted to the Partnership; provided however, that the General Partner may admit Substitute Limited Partners at any time pursuant to Article IX.
ARTICLE V
GENERAL PARTNER
5.1 Rights and Powers.
A. The General Partner shall have the full and exclusive discretion, right and power to manage, control and operate the Partnership and to do all things necessary to operate the Business. The General Partner shall change and convert the existing facility to its “Flanigan’s” restaurant concept. During the term of this Agreement and while the General Partner continues to act in the capacity of General Partner of the Partnership, and while the Partnership continues to pay a service mark fee equal to three (3%) percent of gross sales from the Business, as provided in Section VII hereof, but not thereafter, the General Partner shall permit the Partnership to use the service mark “Flanigan’s” for the Business and shall supervise the day to day operation of the same under the same format and standards as used in its existing “Flanigan’s Seafood Bar and Grill” restaurants. The Business shall include exclusive management of the restaurant located within the business premises for the service of lunch and dinner each day.
B. The General Partner is specifically authorized and empowered, on behalf of the Partnership, and without any further consent of the Limited Partners, to do any act or execute any document or enter into any contract or any agreement of any nature necessary or desirable, in the sole discretion of the General Partner, in pursuance of the business and purposes of the Partnership, including but not limited to the operation of the Business. Without limiting the generality of the foregoing, and subject to the provisions of Section 5.2, the General Partner shall have the following rights and powers to act on behalf of the Partnership, which it may exercise at the cost, expense and risk of the Partnership:
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| (i) | Purchase such furniture, fixtures and equipment and make such leasehold improvements as are required by the General Partner for the renovation of the business premises of the Business. |
| (ii) | Place record title to, or the right to use, the property or other assets of the Partnership in the name or names of a nominee or nominees for any purpose convenient or beneficial to the Partnership. |
| (iii) | Execute contracts, leases, licenses, options to lease or purchase, rental agreements, concession agreements, use agreements and the like, of and with respect to Partnership property. |
| (iv) | Make elections under the tax laws of the United States or any state as to the treatment of Partnership income, gains, loss, deduction and credit, and as to all relevant matters. |
| (v) | Provide or contract for such management services as may be required for the operation of the Business, including but not limited to full payroll services, all accounting and bookkeeping services for the operation of the Business, as an expense of the Business, (including the preparation and forwarding of monthly sales tax returns, monthly liquor excise taxes and annual federal partnership returns), and prompt payment of all bills incurred in the normal operation of the Business. |
| (vi) | Establish overall business policy and objectives. |
| (vii) | Provide overall executive supervision of operations of the Business. |
| (viii) | Generally supervise employees and others performing services for the benefit of and in the operation of the Business. |
| (ix) | Provide, advise and arrange for advertising, display and sales promotion of the Business. |
| (x) | Oversee the operation of the Business in the areas of management, sales and purchasing. |
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| (xi) | Arrange for the supervision of the daily operations of the Business with responsibility for (1) hiring and firing employees and other service personnel, (2) salary administration and compensation policies, (3) incentive programs, (4) inventory purchase and control, (5) pricing of all goods and services, (6) business procedures, and (7) controlling daily operational expenses. |
| (xii) | Keep the Business insured against liability claims arising out of the operation of the restaurant, as an operating expense of the Business, with insurance coverage in an amount not less than One Million Dollars ($1,000.000.00), combined single limit, including liquor liability and products liability. The General Partner shall cause the Partnership, itself and the landlord of the business premises, to be named as additional insureds on the liability insurance policy and provide the Partnership, itself and the landlord of the business premises with Certificates of Insurance as evidence of its compliance with the provisions hereof. |
| (xiii) | Purchase and maintain worker’s compensation insurance for the employees of the Business, as an operating expense of the Business. |
| (xiv) | Keep the business premises reasonably insured against damage by fire and other casualty and maintain insurance in accordance with the provisions of the Lease for the business premises. The General Partner shall cause the Partnership, itself and the landlord of the business premises to be named as additional insureds on the property insurance policy and provide the Partnership, itself and the landlord of the business premises with Certificates of Insurance as evidence of its compliance with the provisions hereof. |
| (xv) | Keep the personal property, fixtures and equipment of the Business reasonably insured against damage by fire and other casualty, in an amount equal to its highest insurable value, with replacement cost endorsement, as an expense of the Business. |
| (xvi) | Keep the Business reasonably insured against loss of business due to fire and other casualty with business interruption insurance, in an amount to be determined by the General Partner, as an expense of the Business. |
| (xvii) | Arrange and pay all charges for telephone services, all utilities, including without limitation, electrical, gas and water, and cable or other electronic transmission necessary for operation of the Business, as an expense of the Business. |
| (xviii) | Arrange for trash collection and removal from the Business, as an expense of the Business. |
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| (xix) | Make all normal repairs and replacements to the kitchen equipment and interior, external, non-structural and structural repairs and replacements of the Business and the business premises, in order to keep the same in good condition and good working order to the extent that the General Partner deems it necessary and in accordance with the provisions of the Lease for the business premises. |
| (xx) | To pay, collect, compromise, arbitrate, resort to legal action or otherwise adjust claims or demands of or against the Partnership. |
| (xxi) | To borrow money for any Partnership purpose and to make all required payments of principal and interest with respect thereto. |
| (xxii) | To timely comply with and abide by all of those obligations, terms, covenants and conditions imposed upon the Partnership as tenant of the Lease for the business premises of the Business, including but not limited to the timely payment of rent, as an expense of the Business. |
| (xxiii) | To promptly comply with, execute and fulfill all governmental statutes, ordinances and regulations applicable to the Partnership in connection with the Business, including without limitation, all orders and requirements imposed by the Board of Health, sanitation, fire and police departments including without exception those for the correction, prevention and abatement of nuisances in or upon or connected with the business premises of the Business, as an expense of the Business. |
The General Partner shall be responsible for the procurement and hiring of all employees, agents and independent contractors required for on site operation on a day-to-day basis including, but not limited to, a manager. The General Partner shall control all of the day-to-day operations of the Business and shall handle all negotiations, complaints, objections and other matters involving the operation of the Business, the patrons of the Business, and the employees and staff or any sublessee of or operator of any portion of the Business in connection with activities at the Business. The General Partner shall hire, instruct, maintain and supervise personnel to properly staff the Business and shall maintain the Business, the interior, exterior, non-structural and structural portions of the building it occupies, its fixtures and its premises in a reasonable manner and condition, keeping it clean and serviceable, including arranging for janitorial services as an expense of the Business. The General Partner shall have the full responsibility to collect for all services and sales from the Business, except as hereinafter provided, to daily deposit all receipts in bank account(s) designated by the General Partner, shall arrange for advertising for the Business to the extent deemed desirable by the General Partner and maintain all necessary licenses, including liquor license, and permits required in connection with the operation of the Business. The cost of such activities, including license renewal fees, incurred for the Business shall be borne by the Business.
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In discharging the foregoing duties, the General Partner shall act and conduct the Business in a reasonable manner. In order for the General Partner to have the greatest opportunity to discharge such duties and to maximize profits from the Business, the Limited Partners shall cooperate fully with the General Partner and shall promptly provide the General Partner with all information and assistance as the General Partner may reasonably request pursuant to this Agreement. The General Partner shall devote such time to the Business as, in its judgment, the supervision of the Business shall reasonably require, but shall not be obligated to do or perform any act or thing in connection with the Business not expressly set forth herein.
5.2 Certain Limitations. In addition to other acts expressly prohibited by this Agreement or by the Law, the General Partner shall not have any authority to:
A. Do any act in contravention of this Agreement;
B. Do any act which would make it impossible to operate the Business or to otherwise carry on the ordinary business of the Partnership or any phase thereof, except as expressly provided in this Agreement;
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C. Assign the rights of the Partnership in specific property for other than a Partnership purpose;
D. Admit a person or entity as a General Partner or as a Limited Partner, except as otherwise provided in this Agreement;
E. Knowingly or willingly do any act which would cause the Partnership to become an association taxable as a corporation;
5.3 Contracts with Affiliates. Except as herein specified, all services which the General Partner is not obligated to perform under the terms of this Agreement and the materials necessary for the operation of the Business may be provided by the General Partner, or any entity affiliated with the General Partner, and the General Partner shall be compensated for such services or materials on such terms and conditions no less favorable than those obtainable in the marketplace, and such amounts shall be deemed to be operating expenses of the Business.
5.4 Liability of General Partner. The General Partner shall be liable to the Limited Partners for willful misconduct, bad faith or gross negligence, but shall not be liable for errors in judgment or for any acts or omissions that do not constitute willful misconduct, bad faith or gross negligence. In all transactions for or with the Partnership, the General Partner shall act in good faith and for the benefit of the Partnership. The Limited Partners shall look solely to the assets of the Partnership for the return of their Initial Capital Contributions and if the assets of the Partnership remaining after payment or discharge of the debts and liabilities of the Partnership are insufficient to return such Initial Capital Contributions, they shall have no recourse against the General Partner for such purpose. The doing of any act or the failure to do any act by the General Partner, the effect of which may cause or result in loss or damage of the Partnership, if done pursuant to advise of legal counsel or accountants employed by the General Partner on behalf of the Partnership, shall be conclusively presumed not to constitute willful misconduct, bad faith or gross negligence on the part of the General Partner.
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5.5 Indemnification. The General Partner, including any employee of the General Partner, shall not be liable for, and to the extent of its assets, the Partnership shall indemnify the General Partner or any such employee, against liabilities arising out of their activities as or for the General Partner resulting from errors in judgment or any acts or omissions, whether or not disclosed, unless caused by willful misconduct, bad faith or gross negligence; provided, however, that this provision shall not constitute a waiver by the Limited Partners of any rights it may have under applicable securities laws.
ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES
6.1 General. All Partnership items of income, gain, loss, deduction, credits, or tax preference items, (the “Tax Incidents”), shall be determined as of the end of each fiscal year. As between a Partner and his transferee, Tax Incidents for any fiscal year (or portion thereof, as the case may be) shall be apportioned in accordance with the ratio that the number of days in the Partnership fiscal year prior to the effective date of transfer bears to the number of such days thereafter (including the effective date of the transfer).
6.2 Allocation. The Tax Incidents shall be allocated as follows:
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A. Cost recovery deductions, amortization expense (including amortization of organizational expenses, start up costs, intangible assets, or other capital accounts), investment tax credits (including recapture of investment tax credits), and tax preference items shall be allocated ninety-nine percent (99%) to the Limited Partners and one percent (1%) to the General Partner (in proportion to each Partner’s Initial Capital Contribution), if incurred with respect to the expenditure by the Partnership of the aggregate Initial Capital Contributions of the Partners, (which shall be deemed expended prior to any other amounts available to the Partnership), otherwise to the Partners in accordance with their respective Participation Percentages.
B. Gains and losses from (i) sale, exchange or other disposition of all or any substantial part of the Partnership property, or (ii) from liquidation of the Partnership property following dissolution, as the case may be, shall be allocated on an asset by asset basis, as follows:
| (1) | Gains, to the extent of cost recovery deductions or amortization expense claimed by the Partnership with respect to the particular Partnership assets which are sold, exchanged or otherwise disposed of, shall be allocated ninety-nine percent (99%) to the Limited Partners and one percent (1%) to the General Partner (in proportion to each Partner’s Initial Capital Contribution), if realized with respect to an asset acquired by the Partnership through the expenditure of the aggregate Initial Capital Contributions of the Partners, (which shall be deemed expended prior to any other amounts available to the Partnership), otherwise to the Partners in accordance with their respective Participation Percentages; |
| (2) | Gains in excess of cost recovery deductions or amortization expense claimed by the Partnership with respect to the particular Partnership assets which are sold, exchanged or otherwise disposed of, shall be allocated to all Partners in the same proportion that the Partners actually receive distributions of proceeds from Net Sale Proceeds as provided in Section 8.2 hereof, (except distributions pursuant to Section 8.2(a)); and |
| (3) | All losses shall be allocated ninety-nine percent (99%) to the Limited Partners and one percent (1%) to the General Partner (in proportion to each Partner’s Initial Capital Contribution), if realized with respect to an asset acquired by the Partnership through the expenditure of the aggregate Initial Capital Contributions of the Partners, (which shall be deemed expended prior to any other amounts available to the Partnership), otherwise to the Partners in accordance with their respective Participation Percentages. |
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C. All Tax Incidents other than those specifically allocated by subparagraph (A) and (B), (“Other Tax Incidents”), shall be allocated to the Partners in the same proportion that the Partners actually receive in that same fiscal year cash distributions from Net Cash Flow as provided in Section 8.2 hereof, (except cash distributions pursuant to Section 8.2(a)), (the “Cash Distributions”), provided nevertheless as follows:
| (1) | Other Tax Incidents shall be allocated in any fiscal year to the Partners so receiving Cash Distributions in the same proportion that such Cash Distributions actually are received only if such Cash Distributions actually distributed equal or are greater than the Partnership’s Net Income for the same fiscal year; |
| (2) | To the extent the Partnership’s Net Income for that same fiscal year exceeds such Cash Distributions, Other Tax Incidents shall be allocated to the Partners in accordance with their respective Participation Percentages, except that (i) Net Income, in an amount equal to Cash Distributions actually received, shall be allocated to the Partners so receiving such Cash Distributions in the same proportion that such Cash Distributions actually are received, and (ii) any excess of Net Income over Cash Distributions actually received shall be allocated to the Partners in accordance with their respective Participation Percentages; |
| (3) | In the absence of any such Cash Distributions the Other Tax Incidents shall be allocated to the Partners in accordance with their respective Participation Percentages; and |
| (4) | Notwithstanding clauses (1) and (2) of this Subparagraph (C), Net Loss, (whether or not Cash Distributions are actually made), shall be allocated to the Partners in accordance with their respective Participation Percentages. |
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ARTICLE VII
ACCOUNTING
7.1 Accounting and Bookkeeping. The General Partner shall prepare and keep, for a period of not less than three (3) years, generally accepted accounting records, including cash registers having cumulative totals, bank books and duplicate deposit slips, records showing inventories and receipts of merchandise and other records from the operation of the Business which would normally be required to be kept or examined by an independent accountant pursuant to generally accepted auditing standards. The Limited Partners shall at all times during normal business hours have free access to and the right to inspect and copy the accounting records of the Business and/or Partnership, at the principal place of business of the Partnership.
The General Partner, as an expense of the Business, shall prepare for the Partnership and provide the Limited Partners with a complete monthly accounting of the operation of the Business on a form similar to that attached hereto as Exhibit “C”, within thirty (30) days of the end of each month during the term hereof. The monthly report shall also contain a statement of cumulative gross sales from the operation of the Business for the current year of this Agreement for purposes of determining any distributions pursuant to Article VIII below. The General Partner shall also provide copies of such other accounting records as may be reasonably requested by the Limited Partners and the Limited Partners may inspect the originals thereof at any reasonable time.
The General Partner shall mail within seventy- five (75) days after the close of each fiscal year, an annual report to the Limited Partners, which annual report shall constitute the accounting of the Partnership for such year. The annual report shall contain unaudited financial statements, certified by the Treasurer of the General Partner as accurate and correct, and shall otherwise be in such form and have such content as the General Partner deems proper. Such annual report shall include from every source, including net gains from disposition or sale of Partnership properties.
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Subject to the right of the Limited Partners to receive their share of the distributions pursuant to Article VIII hereof, all receipts from the operation of the Business, deposited into an account of the Partnership and/or the General Partner at a bank designated by the General Partner, shall only be withdrawn upon the direction of the General Partner, but cannot be unreasonably withheld. The Partners anticipate that payment of liquor purchases, payroll and general operations may be made from one or more additional accounts at one or more banks, selected by the General Partner. Funds from those accounts shall only be withdrawn by or at the direction of the General Partner.
7.2 Fiscal Year and Method of Accounting. The fiscal year of the Partnership shall be a calendar year and the books of the Partnership for income tax and accounting purposes shall be kept on the accrual method. All financial determinations hereunder made by the General Partner with respect to the calculation of profits and losses, all distributions pursuant to Article VIII and other accounting decisions shall be determined by the General Partner in accordance with generally accepted accounting principles consistently applied by the General Partner in making said determinations.
7.3 Audit. The Limited Partners shall have the right from time to time, upon two (2) business days prior notice to the General Partner, to cause a complete audit to be made of the business affairs conducted at the Business, and all of the books and records referred to in Article VII hereof. Such audit shall be performed by any person designated, selected and paid for by the Limited Partners, except as otherwise provided herein. The General Partner shall make all records and books relevant in any manner to the operation at the Business and/or Partnership available for audit at 5059 NE 18th Avenue, Fort Lauderdale, Florida 33334. If the results of such audit show that the “Net Income” for any month or year have been understated, the General Partner shall immediately pay to the Limited Partners the additional amount due and if such understatement amounts to three percent (3%) or more of “Net Income”, then the General Partner shall pay the cost of such audit, in addition to any deficiency payment required. If the audit shows that the General Partner has overpaid or the Limited Partners have received overpayment of any amount, the Limited Partners shall immediately repay such amount to the General Partner. Any accounting deficiencies revealed by such audit, which accounting deficiencies shall be defined as any accounting practices not in accordance with generally accepted accounting principles consistently applied, shall be corrected by the General Partner within fifteen (15) days of its receipt of notice of such deficiency.
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7.4 Definitions.
A. “Gross Sales” shall mean the gross income, price, money, cover charges, or other consideration charged or received from the operation of the Business, whether in cash, on credit, barter, exchange, or otherwise.
Gross sales as used herein shall not include, and the General Partner shall deduct from its calculations of gross sales, to the extent it has been included:
| (i) | Any sales or excise tax imposed by any governmental authority upon customers and added to the price of a sale or service and collected from the customer and in turn paid to such governmental authority; |
| (ii) | The amount of any credit or refund for any merchandise returned or exchanged or any allowance made for loss of or damage to merchandise sold but not in excess of original cost and only to the extent that it was previously included in the calculation of gross sales; |
| (iii) | Fees or discounts paid to bona fide credit card agencies; |
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| (iv) | Amounts paid to third party vending machine and coin operated devise operators as their share of proceeds from such machines and device; and |
| (v) | Complimentary and/or discounted sales made at the direction of the General Partner, including but not limited to discounted sales to the employees of the Business. |
B. “Operating Expenses” shall mean all cash expenses and liabilities incurred in the operation of the Business, and shall include, by way of example and without limitation hereby, rent, service mark fee, personal property taxes on personal property, fixtures and equipment used in the Business; liability insurance; real estate taxes; hazard insurance; trash collections; cleaning services; accounting and bookkeeping fees; advertising; telephone charges; utilities, including but not limited to electric, water and gas; cable; salaries for personnel employed at the business premises only; repairs and maintenance of kitchen equipment, furniture, fixtures, equipment and personal property used in the Business; repairs and maintenance of the interior and exterior of the business premises; cost of inventory; liquor license renewal fees; but excluding any allocation of salaries and expenses of “off-site” personnel of the General Partner.
7.5 Tax Matters.
A. The General Partner shall cause, as a part of its bookkeeping and accounting responsibilities, to be prepared and filed all income tax returns for the Partnership on an accrual basis. Necessary tax information shall be provided to the Limited Partners.
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B. In connection with the assignment of a Limited Partner’s interest in the Partnership permitted by Article X hereof, the General Partner, (in its sole discretion), shall have the right, but shall not be obligated, on behalf of the Partnership and at the time and in the manner provided by Section 754 of the Code, (or any successor section thereto), and the Regulations thereunder, to make an election to adjust the basis of Partnership property in the manner provided in Sections 734(b) and 743(b) of the Code, (or any successor sections thereto).
7.6 Contracting for Accounting Services. The General Partner shall, as an expense of the Business, provide the accounting and bookkeeping services provided in this Article VII at the same rate charged to its other franchisees.
ARTICLE VIII
DISTRIBUTIONS
8.1 Distributions of Net Cash Flow. All Net Cash Flow, if any, realized by or available to the Partnership shall first be applied or added to a reasonable reserve retained for working capital needs or to provide funds for contingencies and expenses of the Partnership, (all as determined in the sole discretion of the General Partner or as required by any loan agreement or instrument of the Partnership), and the balance, if any, shall be distributed, (from time to time in the sole discretion of the General Partner, but in the event, no less frequently than quarterly), in the following order of priority to the extent available:
A. To the General Partner in repayment of the entire principal amounts of any outstanding General Partner’s loans, together with all accrued but unpaid interest thereon, first on account of interest accrued thereon and then on account of the principal amounts thereof;
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B. To the General Partner in reduction of its then outstanding Additional Capital Balance;
C. To the Limited Partners, until such time as the Limited Partners have received the aggregate sum of Four Million Dollars ($4,000,000.00), which aggregate sum shall be reduced by an amount equal to the amount of initial working capital returned by the Partnership to the Limited Partners, a sum equal to the amount necessary to increase the aggregate distribution to the Limited Partners for the fiscal year to One Million Dollars ($1,000,000.00) shall be paid to the Limited Partners. Thereafter, any remaining amounts shall be distributed to the Partners in accordance with their respective Participation Percentages; and
D. Once the Limited Partners have received the aggregate sum of Four Million Dollars ($4,000,000.00), which aggregate sum shall be reduced by an amount equal to the amount of initial working capital returned by the Partnership to the Limited Partners, any remaining amounts shall be distributed to the Partners in accordance with their respective Participation Percentages.
8.2 Distributions of Net Sale Proceeds. All Net Sale Proceeds, if any, realized by or available to the Partnership shall first be applied or added to a reasonable reserve or escrow account retained to provide funds for contingencies and expenses of the Partnership, (all as determined by the General Partner or as required by any loan, escrow or other agreement or instrument of the Partnership), and the balance, if any, shall be distributed in the following order of priority to the extent available:
A. To the General Partner, in repayment of the entire principal amounts of any outstanding General Partner’s loans, together with all accrued but unpaid interest thereon, first on account of interest accrued thereon and then on account of the principal amounts thereof;
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B. To the General Partner in reduction of its then outstanding Additional Capital Balance, except as provided in Subparagraph E. of this section;
C. To the Partners in reduction of their then outstanding Capital Balances, (in proportion to the respective amounts of any such Capital Balances), except as provided in Subparagraph E. of this section;
D. Any remaining amounts (i) fifty one percent (51%) thereof to the Limited Partners and (ii) forty nine percent (49%) to the General Partner; and
E. Notwithstanding anything to the contrary in the above priority order, if there is an insufficient balance available to fully return to each Partner an amount equal to his then outstanding Capital Balance, the balance, if any, shall be distributed to the Partners in proportion to the combined amount of their then outstanding Capital Balance.
ARTICLE IX
TRANSFER OF PARTNERSHIP INTERESTS
9.1 General Partner.
A. The General Partner shall not sell, assign, or otherwise dispose of all or any portion of its interest as General Partner in the Partnership, or enter into any agreement as a result of which any person, firm or corporation shall become interested with it in its interest in the Partnership without the prior consent in writing of the Limited Partners. No person shall be admitted as a substitute or additional General Partner without the prior written consent of the General Partner and the Limited Partners as set forth herein. The General Partner may not retire or withdraw as a General Partner unless it designates a nominee willing to serve as a General Partner which shall be an individual or corporation having the capacity to serve as such and who is able to meet any requirements then imposed by the Code or any rulings or regulations thereunder with respect to general partners or limited partnerships in order that the Partnership not become an association taxable as a corporation. Subject to the foregoing, the General Partner shall give the Limited Partners at least ninety (90) days notice of its proposed retirement or withdrawal as General Partner, in which event the Partnership shall be dissolved and terminated as provided in Article X hereof unless the Limited Partners select a new General Partner within said ninety (90) day period. Such new General Partner may be, but need not be, the nominee designated by the retiring or withdrawing General Partner.
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B. The General Partner shall immediately be removed and cease to be a General Partner upon the dissolution of the General Partner.
9.2 Substitute Limited Partner. A Limited Partner or the transferee of a Limited Partner may transfer all, but not a part of his Unit(s) to a Substitute Limited Partner provided:
A. That the transferee, if an individual, is at least 21 years of age;
B. That the transferee executes an instrument satisfactory to the General Partner accepting and adopting the provisions and agreements set forth herein and pays any reasonable expenses in connection with his admission as a Substitute Limited Partner; and
C. That the General Partner shall consent to such transfer, which consent may be given or withheld in the General Partner’s sole discretion, and shall be withheld if:
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| (1) | In the opinion of counsel for the Partnership such transfer would result in the close of the Partnership’s taxable year with respect to all Partners, in the termination of the Partnership within the meaning of Section 708(b) of the Code, or in the termination of its status as a partnership under the Code; or |
| (2) | In the opinion of such counsel such transfer would be in violation of the Securities Act of 1933, as amended, or the securities laws of any other jurisdiction. |
9.3 Death, etc. of a Limited Partner. Upon the death, bankruptcy, legal incompetency or insolvency of a Limited Partner, (or, in the case of a Limited Partner that is a partnership, joint venture, association, corporation or trust, the dissolution of such Limited Partner), the personal representative, guardian or other successor in interest of such Limited Partner shall have the right of the Limited Partner for the sole purpose of settling the estate of such person pursuant to the provisions of Section 9.2, but such assignee may become a Substitute Limited Partner in the Partnership only in accordance with the provisions of Section 9.2.
9.4 Effective Date of Transfers. Permissible transfers of a Limited Partner’s Units shall be effective for purposes of allocations of distributions, profits and losses on the first day of the fiscal quarter following compliance with Section 9.2 and following amendment of this Agreement as required by the Law. Until such effective date, the General Partner may act and proceed as if no transfer had been made.
9.5 Transfers Other Than in Accordance Herewith. No transfers of Units or any part thereof which is in violation of this Article IX shall be valid or effective, and the Partnership shall not recognize the same for the purposes of making allocations or distributions of profits, losses, return of Capital Contribution or other distribution with respect to such Units or part thereof. The Partnership may enforce this provision either directly or indirectly or through its agents by entering an appropriate stop-transfer order on its books or otherwise refusing to register or transfer or permit the registration or transfer on its books of any proposed transfers not in accordance with this Article IX.
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ARTICLE X
DISSOLUTION AND SUCCESSOR PARTNERSHIP
10.1 Dissolution of Partnership. The Partnership shall be dissolved upon the earlier occurrence of any of the following events:
A. The bankruptcy, insolvency, liquidation or dissolution of the General Partner;
B. Upon the written consent of all Partners;
C. The sale of all or substantially all of the assets of the Partnership;
D. Pursuant to the provisions of Article II and IX hereof; or
E. Otherwise by operation of law.
10.2 Successor Partnership. If the Partnership is dissolved or to be dissolved for any reason specified in Section 10.1, and any Limited Partner shall deliver to each of the other Limited Partners within thirty (30) days of such event, a written notice demanding that a meeting of Limited Partners be held at the principal place of business of the Partnership at the time set forth in such notice (which shall be not less than ten (10) nor more than thirty (30) days after the date of such notice) the Limited Partners shall hold such meeting. Limited Partners attending such meeting, either in person or by proxy, and having an aggregate Limited Partner Percentage of not less than one hundred percent (100%) may continue the business of the Partnership and reconstitute the Partnership as a successor limited partnership with a new General Partner having the capacity to serve as such and who is able to meet any requirements then imposed by the Code or any rulings or regulations thereunder with respect to general partners of limited partnerships in order that the Partnership not become an association taxable as a corporation. If such Limited Partners shall exercise such right to continue the business of the Partnership, the person appointed by them as the new General Partner and each of the Limited Partners shall execute, acknowledge and file a Limited Partnership Certificate and Agreement. The Limited Partnership Certificate and Agreement shall contain substantially the same provisions as those contained herein, except that the new General Partner shall be allocated such share of the profits, losses and distributions of the Partnership as the Limited Partners appointing such new General Partner shall determine. Such new General Partner shall indicate his acceptance of the appointment by the execution of such Limited Partnership Certificate and Agreement.
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10.3 Procedure. Unless the Business of the Partnership is continued pursuant to Section 10.2, upon the dissolution of the Partnership, the General Partner or the person required by law to wind up the Partnership’s affairs shall cause the cancellation of this Agreement and shall liquidate the assets of the Partnership and apply the proceeds of such liquidation in the order of priority provided in Article VIII of this Agreement, unless the law requires distribution be made in a different order in which case the assets of the Partnership shall be distributed in accordance with the law.
ARTICLE XII
LIMITED POWER OF ATTORNEY
12.1 Appointment. Each Limited Partner hereby makes, constitutes and appoints the General Partner his true and lawful attorney-in-fact for him and in his name, place and stead and for his use and benefit, from time to time:
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A. To make all agreements amending this Agreement, as now or hereafter amended, that may be appropriate to reflect or effect, as the case may be, the following:
| (1) | A change of the name or the location of the principal place of business of the Partnership; |
| (2) | The transfer or acquisition of any Units by a Limited Partner in any manner permitted by this Agreement; |
| (3) | A person becoming a Substitute Limited Partner of the Partnership as permitted by this Agreement; |
| (4) | A change in any provision of this Agreement effected by the exercise by any person of any right or rights hereunder; |
| (5) | The dissolution of the Partnership pursuant to this Agreement; |
| (6) | Such amendments which are of an inconsequential nature and do not affect the rights of the Limited Partners in any material respect; |
| (7) | To execute such certificates, instruments and documents as may be required or may be appropriate in connection with the use of the name of the Partnership by the Partnership; and/or |
| (8) | To execute such certificates, instruments and documents as may be required, or as may be appropriate for the Limited Partner to make to reflect: |
(a) A change in the name or address of such Limited Partner;
| (b) | Any changes in or amendments of this Agreement, or pertaining to the Partnership, of any kind referred to in this Section 12.1; and |
| (c) | Any other changes in or amendments of this Agreement but only if and when the consent thereto has been obtained from the General Partner and Limited Partners, having the aggregate Limited Partnership Percentage required by Section 13.6 hereof. |
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B. Each of the agreements, certificates, instruments and documents made pursuant to Section 12.1(A) shall be in such form as the General Partner and counsel for the Partnership shall deem appropriate. The powers conferred by Section 12.1(A) to execute agreements, certificates, instruments and documents, shall be deemed to include without limitation the powers to sign, acknowledge, swear to, verify, deliver, file, record or publish the same.
C. Each Limited Partner authorizes the General Partner as such attorney-in-fact to take any further action which the General Partner shall consider necessary or advisable in connection with any action taken pursuant to this Section 12.1 hereby giving the General Partner as such attorney-in-fact full power and authority to do and perform each and every act or thing whatsoever requisite or advisable to be done in and about any action taken pursuant to this Section 12.1 as fully as such Limited Partner might or could do if personally present, and hereby ratifying and confirming all that the General Partner as such attorney-in-fact shall lawfully do or cause to be done by virtue of this Section.
12.2 Irrevocability; Manner of Exercise. The power of attorney granted pursuant to Section 12.1:
A. Is a special power of attorney coupled with an interest and is irrevocable;
B. May be exercised by the General Partner as such attorney-in-fact by listing all of the Limited Partners executing any agreement, certificate, instrument or document with the single signature of the President or any Vice President of the General Partner acting as attorney-in-fact for all of them; and
C. Shall survive the transfer by a Limited Partner of all or a portion of his interest in the Partnership, except that where the purchaser, transferee or assignee thereof with the consent of the General Partner is admitted as a Substitute Limited Partner, the power of attorney shall survive the transfer for the sole purpose of enabling such attorney-in-fact to execute, acknowledge and file any such agreement, certificate, instrument or document necessary to effect such substitution.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. All notices or other communications required or permitted to be given pursuant to the Agreement shall in the case of notices or communications required or permitted to be given to Limited Partners, be in writing and shall be considered as properly given or made if personally delivered or if mailed by United States certified or registered mail, return receipt requested, postage prepaid, or if sent by prepaid telegram, and addressed to such Limited Partner’s address for notices as it appears on the records of the Partnership, and in the case of notices or communications required or permitted to be given to the General Partner, shall be in writing and shall be considered as properly given or made if personally delivered or if mailed by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the General Partner at the principal place of business of the Partnership. Any Limited Partner may change his address for notices by giving notice in writing, stating his new address for notices, to the General Partner, and the General Partner may change its address for notices by giving such notice to all Limited Partners. Commencing on the tenth (10th) day after the giving of such notice, such newly designated address shall be such Partner’s address for the purpose of all notices or other communications required or permitted to be given pursuant to the Agreement.
13.2 Choice of Law. This Agreement and all rights and liabilities of the parties hereto with reference to the Partnership shall be subject to, construed in accordance with and governed by the laws of the State of Florida. To the extent that any provision hereof is in contravention with the Law, as in effect from time to time, the provisions of the Law shall supersede and replace any provision herein which is in contravention thereof. Additionally, the appropriate forum and jurisdiction for any legal action shall be the Courts of the County of Broward, State of Florida, and each party consents to such jurisdiction.
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13.3 Titles and Captions. All article, section and subsection titles or captions contained in this Agreement are inserted for convenience only and are not deemed part of the text hereof.
13.4 Sole Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof.
13.5 Execution in Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had all signed the same document. All counterparts shall be construed together and shall constitute one (1) agreement.
13.6 Amendments. The General Partner may submit to the Partners in writing the text of any proposed amendment to this Agreement and a statement by the proposer of the purpose of such amendment. The General Partner shall include in any submission its view as to the proposed amendment. Any such amendment shall be adopted if, within ninety (90) days after the notice of such amendment is given to all Partners, the General Partner shall have approved such amendment in writing and shall have received written approval thereof from Limited Partners having a Limited Partnership Percentage aggregating eighty percent (80%) or more. A written approval may not be withdrawn or voided once it is filed with the General Partner. A Limited Partner filing a written objection may thereafter file a valid written approval. The date of adoption of an amendment pursuant to this Section 13.6 shall be the date on which the General Partner shall have received the requisite written approvals. Any proposed amendment which is not adopted may be resubmitted. In the event any proposed amendment is not adopted, any written approval received with respect thereto shall become void and shall not be effective with respect to any resubmission of the proposed amendment. Notwithstanding the foregoing provisions of this Section 13.6, no amendment may, without the prior written approval of all Partners;
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A. Enlarge the obligations of any Partner under this Agreement;
B. Enlarge the liability of the General Partner to the Limited Partners;
C. Amend this Article 13.6;
D. Alter the Partnership in such manner as will result in the Partnership no longer being classified as a limited partnership for Federal income tax purposes; or
E. Reduce any requirements for the prior approval of Substitute Limited Partners set forth in this Agreement.
13.7 Waiver of Action for Partition. Each of the parties hereto irrevocably waives during the term of the Partnership any right that he may have to maintain any action for partition with respect to the property of the Partnership.
13.8 Assignability. Subject to the restrictions on transferability contained herein, each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the respective parties hereto.
13.9 Independent Activities. Except as otherwise provided herein, the General Partner and its affiliates, and its (and its affiliates’), officers, directors, shareholders and employees, and each Limited Partner may, notwithstanding the existence of this Agreement, engage in whatever activities they choose, whether the same be competitive with the Business of the Partnership or otherwise, without having or incurring any obligation to offer any interest in such activities to any party hereto. Neither this Agreement nor any activity undertaken pursuant hereto shall prevent such persons from engaging in such activities, and as a material part of the consideration for the General Partner’s execution hereof, each Limited Partner hereby waives, relinquishes and renounces any such right or claim of participation. Nothing in the foregoing, however, shall be deemed to reduce any of the liabilities of the General Partner under this Agreement.
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13.10 Right to Rely on Authority of General Partner. No person dealing with the General Partner shall be required to determine its authority to make any undertaking on behalf of the Partnership, nor to determine any fact or circumstance bearing upon the existence of its authority.
13.11 Arbitration. Except as otherwise provided in this Agreement, any dispute or controversy arising out of or relating to this Agreement shall be determined and settled by arbitration in the City of Fort Lauderdale, Florida, in accordance with the rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Except as set forth in Sections 5.4 and 5.5, the expenses of the arbitration shall be borne equally by the parties to the arbitration.
13.12 Gender and Number. Whenever the context requires, the gender of all words used herein shall include the masculine, feminine and neuter and the singular and plural of all words shall include the singular and plural.
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13.13 Meetings. The Partnership shall hold an annual meeting in each fiscal year of its existence on such date and at such place and time as the General Partner shall determine, notice of the date and time to be given to all Limited Partners whose addresses are on record with the General Partner not later than fourteen (14) days prior to such date. Notwithstanding the foregoing, at any time or from time to time, Limited Partners having a Limited Partner Percentage aggregating fifty percent (50%) may by written notice to the General Partner specifying in general terms the subject to be considered require the General Partner to call, or the General Partner may on its own motion call, a special meeting of the Limited Partners and the General Partner shall within ten (10) days after any such notice is given, give notice of such special meeting in the same manner as is required for the annual meeting including in such notice a copy of the notice requiring the call. Any Limited Partner shall have the right, upon notice in writing, to require the General Partner to furnish by mail a list of the names, addresses and respective interest in the Partnership of all other Limited Partners in the Partnership as shown on the records of the Partnership at the time of the notice. Any Limited Partner, or his representative, shall have the right to inspect and copy the names and addresses of all other Limited Partners in the Partnership.
13.14 Severability. If any provision of this Agreement, or the application thereof, shall, for any reason and to any extent, be invalid or unenforceable, or contrary to law, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the maximum extent permissible under applicable law.
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IN WITNESS WHEREOF, this Limited Partnership Certificate and Agreement has been sworn to and executed as of the date above written.
| GENERAL PARTNER: | |||
| FLANIGAN’S ENTERPRISES, INC. | |||
| /s/ Jordan Paz | By: | /s/ Jeffrey D. Kastner, CFO & Sec’y | |
| Jeffrey D. Kastner, CFO & Secretary | |||
| /s/ Paul Limperis | |||
STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me by means of [ x ] physical presence or [ x ] online notarization this 21st day of September, 2021 by JEFFREY D. KASTNER, as Chief Financial Officer and Secretary of FLANIGAN’S ENTERPRISES, INC., a Florida corporation, on behalf of the said corporation, [ x ] who is personally known to me or has produced ________________ as identification.
| /s/ Jordan Paz | |
| NOTARY PUBLIC - State of Florida |
My commission expires:
SEE SIGNATURE PAGES FOR LIMITED PARTNERS ATTACHED HERETO
(Signature Pages Intentionally Omitted)
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| 31.1 | CERTIFICATION PURSUANT TO RULE 13a-14(a) AND RULE 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED |
I, James G. Flanigan, certify that:
| 1. | I have reviewed this Annual Report on Form 10-K of Flanigan’s Enterprises, Inc. for the period ended October 2, 2022; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periods covered by this report; |
| 3. | Based on my knowledge, the consolidated financial statements, and other financial information included in this report, fairly present in all material respects of the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under my supervision to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
| 5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee or registrant’s board of directors or persons performing the equivalent function: |
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| /s/ James G. Flanigan | |
| Name: James G. Flanigan | |
| Chief Executive Officer and President | |
| Date: January 17, 2023 |
| 31.2 | CERTIFICATION PURSUANT TO RULE 13a-14(a) AND RULE 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED |
I, Jeffrey D. Kastner, certify that:
| 1. | I have reviewed this Annual Report on Form 10-K of Flanigan’s Enterprises, Inc. for the period ended October 1, 2022; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the periods covered by this report; |
| 3. | Based on my knowledge, the consolidated financial statements, and other financial information included in this report, fairly present in all material respects of the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under my supervision to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
| 5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee or registrant’s board of directors or persons performing the equivalent function: |
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| /s/ Jeffrey D. Kastner | |
| Name: Jeffrey D. Kastner | |
| Chief Financial Officer and Secretary | |
| Date: January 17, 2023 |
32.1 CERTIFICATION PURSUANT TO 18 U. S. C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Flanigan’s Enterprises, Inc., (the “Company”) on Form 10-K for the fiscal year ended October 2, 2021, as filed with the Securities and Exchange Commission of the date hereof (the “Annual Report”), I, James G. Flanigan, Chief Executive Officer and President of the Company, certify, pursuant to 18 U.S.C. SS.1350, as adopted pursuant to ss.906 of the Sarbanes-Oxley Act of 2002, that:
1) This Annual Report on Form 10-K of the Company, to which this certification is attached as a Exhibit, fully complies with the requirements of Section 13 (a) or 15(d) of the Securities Exchange Act of 1934; and
2) The information contained in this Annual Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ James G. Flanigan | |
| Name: James G. Flanigan | |
| Chief Executive Officer and President | |
| Date: January 17, 2023 |
The foregoing certificate is provided solely for the purpose of complying with Section 906 of the Sarbanes-Oxley Act of 2002 and for no other purpose whatsoever. Notwithstanding anything to the contrary set forth herein or in any of the Company’s previous filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, that might incorporate the Company’s future filings, including this annual report on Form 10-K, in whole or in part, this certificate shall not be incorporated by reference into any such filings. A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
| 32.2 | CERTIFICATION PURSUANT TO 18 U. S. C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 |
In connection with the Annual Report of Flanigan’s Enterprises, Inc., (the “Company”) on Form 10-K for the fiscal year ended October 1, 2022, as filed with the Securities and Exchange Commission of the date hereof (the “Annual Report”), I, Jeffrey D. Kastner, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. SS.1350, as adopted pursuant to ss.906 of the Sarbanes-Oxley Act of 2002, that:
1) This Annual Report on Form 10-K of the Company, to which this certification is attached as an Exhibit, fully complies with the requirements of Section 13 (a) or 15(d) of the Securities Exchange Act of 1934; and
2) The information contained in this Annual Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Jeffrey D. Kastner | |
| Name: Jeffrey D. Kastner | |
| Chief Financial Officer and Secretary | |
| Date: January 17, 2023 |
The foregoing certificate is provided solely for the purpose of complying with Section 906 of the Sarbanes-Oxley Act of 2002 and for no other purpose whatsoever. Notwithstanding anything to the contrary set forth herein or in any of the Company’s previous filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, that might incorporate the Company’s future filings, including this annual report on Form 10-K, in whole or in part, this certificate shall not be incorporated by reference into any such filings. A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.