Fat Brands, Inc 8-K/A, filed Mar 12, 2021
Fat Brands, Inc (FATAQ)
About this 8-K/A
Fat Brands, Inc filed this 8-K/A on March 12, 2021, reporting on events of December 22, 2020.
Items reported
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
Amendment No. 1
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 22, 2020
FAT Brands Inc.
(Exact name of Registrant as Specified in Its Charter)
| Delaware | 001-38250 | 82-1302696 | ||
| (State
or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS
Employer Identification No.) |
9720 Wilshire Blvd., Suite 500 Beverly Hills, CA |
90212 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (310) 319-1850
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
| [ ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| [ ] | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| [ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| [ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
Common Stock, par value $0.0001 per share |
FAT | The Nasdaq Stock Market LLC | ||
| Series B Cumulative Preferred Stock, par value $0.0001 per share | FATBP | The Nasdaq Stock Market LLC | ||
| Warrants to purchase Common Stock | FATBW | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company [X]
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. [X]
EXPLANATORY NOTE
As previously reported under Item 2.01 of the Current Report on Form 8-K filed on December 30, 2020 by FAT Brands Inc. (“FAT” or the “Company”), FAT completed its previously announced transaction involving the acquisition of Fog Cutter Capital Group Inc., a Delaware corporation (“FCCG”), through the merger of FCCG with and into Fog Cutter Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Sub”). The acquisition of FCCG by the Company (the “Merger”) was consummated on December 24, 2020, pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), dated December 10, 2020, by and among the Company, FCCG, Merger Sub and Fog Cutter Holdings, LLC, a Delaware limited liability company. As a result of the Merger, the Company acquired, through Merger Sub, all of FCCG’s assets, including its net operating loss federal tax carryforwards and wholly owned subsidiaries (other than the Company) that it held at closing, consisting of Homestyle Dining, LLC, Fog Cap Development LLC, Fog Cap Acceptance Inc. and BC Canyon LLC, together with certain of FCCG’s liabilities (collectively, the “FCCG Business”). The results of the FCCG Business have been included in FAT’s consolidated financial statements since the date of Merger.
This Current Report on Form 8-K/A amends the original Form 8-K to provide the historical financial statements of FCCG required under Item 9.01(a) and the pro forma financial information required under Item 9.01(b).
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
The audited financial statements of The Fog Cutter Group (a carveout of Fog Cutter Capital Group Inc.) for the years ended December 29, 2019 and December 30, 2018 are included as Exhibit 99.1 to this Current Report on Form 8-K/A and are incorporated by reference herein.
The unaudited financial statements of The Fog Cutter Group (a carveout of Fog Cutter Capital Group Inc.) for the interim thirty-nine week periods ended September 27, 2020 and September 29, 2019 are included as Exhibit 99.2 to this Current Report on Form 8-K/A and are incorporated by reference herein.
(b) Pro Forma Financial Information.
The unaudited pro forma consolidated financial statements of the Company and the FCCG Business with respect to the year ended December 29, 2019 and the thirty-nine weeks ended September 27, 2020 are included as Exhibit 99.3 to this Current Report on Form 8-K/A and are incorporated by reference herein.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: March 12, 2021
| FAT Brands Inc. | ||
| By: | /s/ Andrew A. Wiederhorn | |
| Andrew A. Wiederhorn | ||
| Chief Executive Officer | ||
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Current Report on Form 8-K/A, Amendment No. 1 of FAT Brands Inc. and in the Registration Statements of FAT Brands Inc. on Form S-8 (File No. 333-239031) and Form S-1 (File No. 333-239032) of our report dated October 13, 2020 relating to the combined financial statements of the Fog Cutter Group (a carveout of Fog Cutter Capital Group, Inc.) as of December 29, 2019 and December 30, 2018, and for the years then ended.
Our report contains an emphasis of matter paragraph regarding the forward triangular merger between FAT Brands Inc. and Fog Cutter Capital Group, Inc. and the carve out of any activity and ownership of FAT Brands Inc. on the combined financial statements. Our report also includes an emphasis of matter paragraph regarding the limited liquidity resources of the Fog Cutter Group (a carveout of Fog Cutter Capital Group, Inc.).
/s/ Baker Tilly US, LLP
Los Angeles, CA
March 12, 2021
Exhibit 99.1
FINANCIAL STATEMENT SCHEDULES
| The Fog Cutter Group (a carveout of Fog Cutter Capital Group Inc.) | |
| Audited Financial Statements | |
| Independent Auditor’s Report | F-1-F-2 |
| Combined Balance Sheets as of December 29, 2019 and December 30, 2018 | F-3 |
| Combined Statements of Operations for the years ended December 29, 2019 and December 30, 2018 | F-4 |
| Combined Statements of Equity (Deficit) for the years ended December 29, 2019 and December 30, 2018 | F-5 |
| Combined Statements of Cash Flows for the years ended December 29, 2019 and December 30, 2018 | F-6-F-7 |
| Notes to Combined Financial Statements | F-8 |
Stockholders and Board of Directors
Fog Cutter Capital Group Inc. and Subsidiaries
Beverly Hills, California
Report on the Financial Statements
We have audited the accompanying combined financial statements of the Fog Cutter Group, which comprise the combined balance sheets as of December 29, 2019 and December 30, 2018, the related combined statements of operations, changes in equity and cash flows for the years then ended, and the related notes to the combined financial statements (collectively, the “financial statements”). The Fog Cutter Group consists of Fog Cutter Capital Group Inc. and all of its subsidiaries and affiliated entities (excluding FAT Brands Inc, “FAT”).
Management’s Responsibility for the Financial Statements
Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
Auditor’s Responsibility
Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free from material misstatement.
An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor’s judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity’s preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity’s internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.
| F-1 |
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Opinion
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the Fog Cutter Group as of December 29, 2019 and December 30, 2018, and the results of their operations and cash flows for the years then ended in accordance with accounting principles generally accepted in the United States of America.
Emphasis of Matters
As discussed in Note 2, Fog Cutter Capital Group Inc. (“FCCG”) and FAT are contemplating a forward triangular merger in 2020 pursuant to which FCCG will merge with and into a newly formed subsidiary of FAT, leaving FAT as the surviving corporation. The accompanying combined financial statements reflect the accounts of the Group referred to above on a stand-alone basis, excluding the activity and ownership of FAT. Accordingly, these special purpose financial statements are not intended to be a complete presentation of the financial position or results of operations of FCCG and its subsidiaries taken as a whole. Our opinion is not modified with respect to this matter.
As discussed in Note 1, the Group is liable for debt obligations maturing in 2020 and has limited liquidity resources other than advances it receives from FAT. Therefore, the Group’s ability to meet its future liquidity requirements is dependent upon the operating and capital activities of FAT and the planned completion of its planned merger into FAT during the fourth quarter of 2020. The accompanying financial statements do not reflect the impact of this uncertainty. Our opinion is not modified with respect to this matter.
Very truly yours,
/s/ Squar Milner LLP
Los Angeles, CA
October 13, 2020
| F-2 |
FOG CUTTER GROUP
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
(dollars in thousands, except share data)
| December 29, 2019 | December 30, 2018 | |||||||
| Assets | ||||||||
| Current assets | ||||||||
| Cash | $ | 29 | $ | 29 | ||||
| Dividends receivable from FAT Brands Inc. | 209 | - | ||||||
| Other current assets | 127 | 104 | ||||||
| Total current assets | 365 | 133 | ||||||
| Property, plant and equipment, net of accumulated depreciation of $286 and $289, respectively | 63 | 72 | ||||||
| Investment in FAT Brands, Inc. Series A preferred stock | 1,500 | 1,500 | ||||||
| Loan to shareholder | 16,803 | 9,155 | ||||||
| Other assets | 56 | - | ||||||
| Total assets | $ | 18,787 | $ | 10,860 | ||||
| Liabilities and Stockholders’ Deficit | ||||||||
| Liabilities | ||||||||
| Accounts payable | $ | 4,554 | $ | 3,587 | ||||
| Accrued expenses | 11,264 | 11,116 | ||||||
| Current portion of long-term debt | 6,359 | 5,860 | ||||||
| Litigation reserve | 3,500 | 3,500 | ||||||
| Other | 65 | 64 | ||||||
| Total current liabilities | 25,742 | 24,127 | ||||||
| Due to Fat Brands Inc. | 25,967 | 15,514 | ||||||
| Other | 56 | 58 | ||||||
| Total liabilities | 51,765 | 39,699 | ||||||
| Commitments and contingencies (Note 11) | ||||||||
| Stockholders’ deficit | ||||||||
| Common stock, $.0001 par value; 200,000,000 shares authorized; 13,882,044 and 11,757,044 shares issued; 10,082,399 and 7,957,399 shares outstanding as of as of December 29, 2019 and December 30, 2018, respectively | 1 | 1 | ||||||
| Additional paid-in capital | 174,756 | 172,631 | ||||||
| Accumulated deficit | (195,724 | ) | (189,460 | ) | ||||
| Treasury stock, 3,799,645 common shares as of December 29, 2019 and December 30, 2018, at cost | (12,011 | ) | (12,011 | ) | ||||
| Total stockholders’ deficit | (32,978 | ) | (28,839 | ) | ||||
| Total liabilities and stockholders’ deficit | $ | 18,787 | $ | 10,860 | ||||
The accompanying notes are an integral part of these combined financial statements.
| F-3 |
FOG CUTTER GROUP
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED STATEMENTS OF OPERATIONS
(dollars in thousands, except share data)
For the Years Ended December 29, 2019 and December 30, 2018
| 2019 | 2018 | |||||||
| Revenue | ||||||||
| Restaurant sales | $ | - | $ | 828 | ||||
| Total revenue | - | 828 | ||||||
| General and administrative expenses | ||||||||
| Compensation expense | 1,825 | 223 | ||||||
| Restaurant operating expense | - | 889 | ||||||
| Other general and administrative expenses | 1,791 | 1,897 | ||||||
| Total general and administrative expenses | 3,616 | 3,009 | ||||||
| Loss from operations | (3,616 | ) | (2,181 | ) | ||||
| Other (expense) income | ||||||||
| Interest expense | (3,025 | ) | (2,123 | ) | ||||
| Interest income | 827 | 1,245 | ||||||
| Reserve for litigation settlement | - | (1,750 | ) | |||||
| Other expense | (448 | ) | (134 | ) | ||||
| Total other expense, net | (2,646 | ) | (2,762 | ) | ||||
| Loss before income tax expense | (6,262 | ) | (4,943 | ) | ||||
| Income tax expense | 2 | 3 | ||||||
| Net loss | $ | (6,264 | ) | $ | (4,946 | ) | ||
The accompanying notes are an integral part of these combined financial statements
| F-4 |
FOG CUTTER GROUP
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED STATEMENTS OF EQUITY (DEFICIT)
(dollars in thousands, except share data)
| Common Stock | ||||||||||||||||||||||||||||
| Additional | ||||||||||||||||||||||||||||
| Par | paid-in | Treasury | Accumulated | |||||||||||||||||||||||||
| Shares (1) | value | capital | Stock | Total | Deficit | Total | ||||||||||||||||||||||
| Balance at December 31, 2017 | 7,957,399 | $ | 1 | $ | 172,631 | $ | (12,011 | ) | $ | 160,621 | $ | (184,514 | ) | $ | (23,893 | ) | ||||||||||||
| Net loss | - | - | - | - | - | (4,946 | ) | (4,946 | ) | |||||||||||||||||||
| Balance at December 30, 2018 | 7,957,399 | 1 | 172,631 | (12,011 | ) | 160,621 | (189,460 | ) | (28,839 | ) | ||||||||||||||||||
| Net loss | - | - | - | - | - | (6,264 | ) | (6,264 | ) | |||||||||||||||||||
| Issuance of common stock in lieu of cash compensation payable | 1,825,000 | - | 1,825 | - | 1,825 | - | 1,825 | |||||||||||||||||||||
| Issuance of common stock in lieu of cash directors’ fees payable | 300,000 | - | 300 | - | 300 | - | 300 | |||||||||||||||||||||
| Balance at December 29, 2019 | 10,082,399 | $ | 1 | $ | 174,756 | $ | (12,011 | ) | $ | 162,746 | $ | (195,724 | ) | $ | (32,978 | ) | ||||||||||||
| (1) | Issued and outstanding, net of 3,799,645 shares of treasury stock. |
The accompanying notes are an integral part of these combined financial statements.
| F-5 |
FOG CUTTER GROUP
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED STATEMENTS OF CASH FLOWS
(dollars in thousands)
For the Years Ended December 29, 2019 and December 30, 2018
| 2019 | 2018 | |||||||
| Cash flows from operating activities | ||||||||
| Net loss | $ | (6,264 | ) | $ | (4,946 | ) | ||
| Adjustments to reconcile net loss to net cash used in operations: | ||||||||
| Deferred income taxes | - | 1,240 | ||||||
| Depreciation and amortization | 9 | 22 | ||||||
| Share based compensation and expenses | 2,125 | - | ||||||
| Capitalized interest | 212 | 35 | ||||||
| Loss on sale of FAT Series A Preferred | - | 100 | ||||||
| Impairment of goodwill | - | 125 | ||||||
| Change in: | ||||||||
| Dividends receivable from FAT Brands Inc. | (209 | ) | 36 | |||||
| Other current assets | (23 | ) | 4 | |||||
| Litigation reserve | - | 1,750 | ||||||
| Other assets | (56 | ) | 137 | |||||
| Accounts payable and accrued expenses | 1,115 | (3,904 | ) | |||||
| Deferred income | - | (6 | ) | |||||
| Total adjustments | 3,173 | (461 | ) | |||||
| Net cash used in operating activities | (3,091 | ) | (5,407 | ) | ||||
| Cash flows from investing activities | ||||||||
| Payments received on related party debt | - | 8,853 | ||||||
| Proceeds from resale of FAT Series A Preferred | - | 400 | ||||||
| Cash dividends received from FAT Brands Inc. | - | 147 | ||||||
| Loan to shareholder | (7,648 | ) | (9,155 | ) | ||||
| Net cash (used in) provided by investing activities | (7,648 | ) | 245 | |||||
| Cash flows from financing activities | ||||||||
| Proceeds from borrowings | 300 | - | ||||||
| Repayments of borrowings | (14 | ) | (3,012 | ) | ||||
| Change in due to affiliates | 10,453 | 8,158 | ||||||
| Net cash provided by financing activities | 10,739 | 5,146 | ||||||
| Net decrease in cash | - | (16 | ) | |||||
| Cash at beginning of period | 29 | 45 | ||||||
| Cash at end of period | $ | 29 | $ | 29 | ||||
| Supplemental disclosures of cash flow information: | ||||||||
| Cash paid for interest | $ | 509 | $ | 357 | ||||
| Cash paid for income taxes | $ | 6 | $ | 161 | ||||
(continued)
The accompanying notes are an integral part of these combined financial statements.
| F-6 |
FOG CUTTER GROUP
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED STATEMENTS OF CASH FLOWS
(dollars in thousands)
For the Years Ended December 29, 2019 and December 30, 2018
| 2019 | 2018 | |||||||
| Supplemental disclosure of non-cash financing and investing activities: | ||||||||
| Note receivable from FAT Brands Inc. exchanged for common and preferred stock of FAT Brands Inc. | $ | - | $ | 9,272 | ||||
| Common stock issued in payment of compensation and fees | $ | 2,125 | $ | - | ||||
| Income taxes (receivable) payable adjusting amounts due to FAT Brands Inc. | $ | (51 | ) | $ | 195 | |||
The accompanying notes are an integral part of these combined financial statements.
| F-7 |
NOTES TO COMBINED FINANCIAL STATEMENTS
NOTE 1. ORGANIZATION AND RELATIONSHIPS
Fog Cutter Capital Group, Inc., (the “Company” or “FCCG”) was originally incorporated as Wilshire Real Estate Investment Trust Inc. in the State of Maryland on October 24, 1997. However, the Company has never elected to be treated as a Real Estate Investment Trust (“REIT”) for tax purposes. Effective January 25, 2001, the Company changed its name to Fog Cutter Capital Group Inc. to better reflect the diversified nature of its business and investments. Initially, the Company made opportunistic equity and financial investments in a variety of industries. However, beginning in August 2003 with its acquisition of controlling interests in Fatburger North America, Inc, (“Fatburger”), the Company began to focus its business in the restaurant franchising sector. The Company is currently the controlling shareholder of FAT Brands, Inc. (“FAT”).
FAT Brands Inc. was formed on March 21, 2017 as a wholly owned subsidiary of FCCG. On October 20, 2017, FAT completed an initial public offering and issued additional shares of common stock representing 20 percent of its ownership (the “Offering”). The net proceeds of the Offering were approximately $20,930,000 after deducting the selling agent fees and offering expenses. FAT’s common stock trades on the Nasdaq Capital Market under the symbol “FAT.”
Concurrent with the Offering, two subsidiaries of FCCG (the “Predecessor Companies”), Fatburger North America, Inc. (“Fatburger”) and Buffalo’s Franchise Concepts, Inc. (“Buffalo’s”) were contributed to FAT in exchange for a $30,000,000 note payable (the “Related Party Debt”). Concurrent with and subsequent to the Offering, FAT has acquired and is franchising additional restaurant brands.
The accompanying combined financial statements have been prepared to facilitate the proposed merger of FAT and FCCG. For this purpose, the accompanying financial statements include the accounts of the FCCG and all of its subsidiaries and affiliated entities (excluding FAT), which together are herein collectively referred to as the Fog Cutter Group or the Group. As of December 29, 2019 and December 30, 2018, the Group included the following entities:
| ● | Fog Cap Acceptance Inc. – Fog Cap Acceptance Inc. was originally formed to make opportunistic equity and financing investments, all of which have been previously divested. In recent years, the only activity of Fog Cap Acceptance Inc. has involved legacy debt related to these prior investments. | |
| ● | Fog Cap Development LLC. – Fog Cap Development LLC was originally formed to acquire, develop and sell a portfolio of retail real estate properties. Following the completion of the sale of the portfolio in 2007, the operations of Fog Cap Development have been limited to the provision of centralized corporate overhead management for all of the Company’s subsidiaries, with overhead expenses being allocated to the various subsidiaries. Following the Offering, FAT assumed overhead responsibility for itself and its subsidiaries. | |
| ● | Homestyle Dining LLC – In March 2017, the Company agreed to acquire Homestyle Dining LLC (“HSD”) from Metromedia Company and its affiliate (“Metromedia”) pursuant to a Membership Interest Purchase Agreement, as amended, which provided for a cash purchase price of $10,550,000 to be paid at closing. Effective October 20, 2017, FAT provided $10,550,000 of the net proceeds from the Offering to the Company to consummate the acquisition of HSD. In exchange, FAT received full ownership in the HSD operating subsidiaries: Ponderosa Franchising Company, Bonanza Restaurant Company, Ponderosa International Development, Inc. and Puerto Rico Ponderosa, Inc. (collectively, “Ponderosa”). These subsidiaries conduct the worldwide franchising of the Ponderosa Steakhouse Restaurants and the Bonanza Steakhouse Restaurants. The Company retained the HSD holding company and its remaining subsidiaries: Pon Realty and Coles, LLC. HSD owned one Cole’s Backyard Grill restaurant, located in Lindale, Texas. That restaurant closed in 2018. HSD and its remaining subsidiaries were otherwise inactive and primarily held only legacy liabilities relating to its prior operations. | |
| ● | BFCI Palmdale – BFCI Palmdale previously owned one Buffalo’s Café restaurant located in Palmdale, California. The restaurant was sold to a franchisee in early 2016. |
| F-8 |
NOTE 1. ORGANIZATION AND RELATIONSHIPS (continued)
| ● | BFCI Palm Desert – BFCI Palm Desert owned one Buffalo’s Café restaurant located in Palm Desert, California. The restaurant was closed in 2017. | |
| ● | BC Canyon – BC Canyon owned one Buffalo’s Café restaurant in Canyon, Texas. The restaurant was closed in 2018. | |
| ● | Fatburger Restaurants of New Jersey – Fatburger Restaurants of New Jersey owned a Fatburger restaurant in Atlantic City, New Jersey. The restaurant was closed in 2016. | |
| ● | Fatburger Restaurants China, LLC – Fatburger Restaurants China, LLC (“FB China”), together with its subsidiaries, Fatburger International and Fatburger Hong Kong, were organized to invest in Company owned Fatburger restaurants in greater China. By the end of 2016, all restaurants previously developed by FB China had all either been closed or transferred to franchise ownership. |
At December 29, 2019 and December 30, 2018, certain Group officers and directors controlled, directly or indirectly, significant voting influence of the Group. At December 29, 2019, the Group continued to control a significant voting majority of FAT.
Liquidity
Pursuant to ASU 2014-15, the Group evaluated its ability to continue as a going concern. The Group’s operations resulted in a net use of cash in the amounts of $3,091,000 and $5,407,000 for the years ended December 29, 2019 and December 30, 2018, respectively. These amounts were primarily funded by advances from FAT, and future liquidity resources will likely continue to be dependent upon the operating and capital activities of FAT. Additionally, as of December 29, 2019, the Company was subject to debt obligations maturing in 2020 in the amount of $6,359,000.
On April 24, 2020, the Company entered into an Intercompany Revolving Credit Agreement with FAT (“Intercompany Agreement”). FAT had previously extended credit to the Company pursuant to a certain Intercompany Promissory Note (the “Original Note”), dated October 20, 2017, with an initial principal balance of $11,906,000. Subsequent to the issuance of the Original Note, FAT and certain of its direct or indirect subsidiaries made additional intercompany advances. Pursuant to the Intercompany Agreement, the revolving credit facility bears interest at a rate of 10% per annum, has a five-year term with no prepayment penalties, and has a maximum capacity of $35,000,000. All additional borrowings under the Intercompany Agreement are subject to the approval of the FAT Board of Directors, in advance, on a quarterly basis and may be subject to other conditions as set forth by FAT. The initial balance under the Intercompany Agreement totaled $21,067,000 including the balance of the Original Note, borrowings subsequent to the Original Note, accrued and unpaid interest income, and other adjustments through December 29, 2019. (See Notes 11 and 12)
During the fourth quarter of 2020, the Company expects to complete a forward triangular merger (the “Merger”) pursuant to which FCCG would merge with and into a wholly-owned subsidiary of FAT, with the subsidiary of FAT becoming the parent. The Company anticipates that this structure will provide capital opportunities which will be sufficient to meet the Group’s financial obligations.
While the Company expects the COVID-19 pandemic to negatively impact its business, results of operations, and financial position, the related financial impact cannot be reasonably estimated at this time. However, the Company believes that the working capital available to it from FAT, both before and after the Merger, together with disciplined management of the Company’s operating expenses, will be sufficient for the twelve months of operations following the issuance of these combined financial statements. (See Note 12)
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of operations – The Group, together with its controlled subsidiary, FAT Brands Inc., is a multi-brand franchising company specializing in fast casual and casual dining restaurant concepts around the world. FAT operates through its subsidiaries: Fatburger, Buffalo’s Cafe, Buffalo’s Express, Hurricane Grill & Wings, Ponderosa Steakhouses, Bonanza Steakhouses, Yalla Mediterranean and Elevation Burger. Each subsidiary licenses the right to use its brand name and provides franchisees with operating procedures and methods of merchandising. Upon signing a franchise agreement, the franchisor is committed to provide training, some supervision and assistance, and access to operations manuals. As needed, the franchisor will also provide advice and written materials concerning techniques of managing and operating the restaurants.
| F-9 |
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
The Group operates on a 52-week calendar and its fiscal year ends on the last Sunday of the calendar year. Consistent with the industry practice, FAT measures its stores’ performance based upon 7-day work weeks. Using the 52-week cycle ensures consistent comparable weekly reporting for operations and ensures that each week has the same days, since certain days are more profitable than others. The use of this method means a 53rd week is added to the fiscal year every 5 or 6 years. In a 52-week year, all four quarters are comprised of 13 weeks. In a 53-week year, one extra week is added to the fourth quarter. Both 2019 and 2018 were both 52-week years.
Basis of Presentation – The accompanying combined financial statements are being produced to facilitate the merger of FAT and the Company. For this purpose, the accompanying financial statements include the accounts of the Group which includes the Company and all subsidiaries and affiliated entities (excluding FAT). Intercompany accounts have been eliminated in combination.
Use of estimates in the preparation of the combined financial statements – The preparation of the combined 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 and liabilities and disclosure of contingent assets and liabilities at the date of the combined financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates include the determination of fair values of certain financial instruments for which there is no active market, the allocation of basis between assets acquired, sold or retained, and valuation allowances for notes receivable and accounts receivable. Estimates and assumptions also affect the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Goodwill – Goodwill and other intangible assets with indefinite lives, such as trademarks, are not amortized but are reviewed for impairment annually or more frequently if indicators arise. Management assesses potential impairments to intangible assets at least annually, or when there is evidence that events or changes in circumstances indicate that the carrying amount of an asset may not be recovered. Judgments regarding the existence of impairment indicators and future cash flows related to intangible assets are based on operational performance of the acquired businesses, market conditions and other factors. The Group’s remaining balance of goodwill of $125,000 was fully impaired in 2018 when the restaurant generating the goodwill was closed. (See Note 1)
Income taxes – Effective October 20, 2017, the Company entered into a Tax Sharing Agreement with FAT that provides that the Company will, to the extent permitted by applicable law, file combined federal, California and Oregon (and possibly other jurisdictions where revenue is generated, at FCCG’s election) income tax returns with FAT and its subsidiaries. FAT will pay the Company the amount that its tax liability would have been had it filed a separate combined return.
The Group accounts for income taxes under the asset and liability method. Under this method, deferred tax assets and liabilities are determined based on the differences between financial reporting and tax reporting bases of assets and liabilities and are measured using enacted tax rates and laws that are expected to be in effect when the differences are expected to reverse. Realization of deferred tax assets is dependent upon future earnings, the timing and amount of which are uncertain.
A two-step approach is utilized to recognize and measure uncertain tax positions. The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained upon tax authority examination, including resolution of related appeals or litigation processes, if any. The second step is to measure the tax benefit as the largest amount that is more than 50% likely of being realized upon the ultimate settlement.
| F-10 |
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
Recently Adopted Accounting Standards
In May 2014, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2014-09, Revenue from Contracts With Customers (Topic 606), requiring an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods and services to customers. The updated standard replaces most existing revenue recognition guidance in U.S. GAAP.
These standards require that the transaction price received from customers be allocated to each separate and distinct performance obligation. The transaction price attributable to each separate and distinct performance obligation is then recognized as the performance obligations are satisfied as specified in the contract. The Company adopted ASU 2014-09 on January 1, 2018. The adoption of this standard did not have a material impact on the Group’s combined financial statements.
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments. The new guidance is intended to reduce diversity in practice in how transactions are classified in the statement of cash flows. This ASU is effective for fiscal years, and for interim periods within those fiscal years, beginning after December 15, 2017. The adoption of this standard did not have a material impact on the Group’s combined financial statements.
The FASB issued ASU 2019-12, Simplifying the Accounting for Income Taxes: This standard removes certain exceptions for recognizing deferred taxes for investments, performing intraperiod allocation and calculating income taxes in interim periods. It also adds guidance in certain areas, including the recognition of franchise taxes, recognition of deferred taxes for tax goodwill, allocation of taxes to members of a consolidated group, computation of annual effective tax rates related to enacted changes in tax laws, and minor improvements related to employee stock ownership plans and investments in qualified affordable housing projects accounted for using the equity method. The Company adopted this ASU on December 30, 2019. The adoption of this standard did not have a material effect on the Group’s combined financial position, results of operations or cash flows.
Recently Issued Accounting Standards
In July 2018, the FASB issued ASU 2018-09, Codification Improvements. This ASU makes amendments to multiple codification Topics. The transition and effective date guidance is based on the facts and circumstances of each amendment. Some of the amendments in this ASU do not require transition guidance and will be effective upon issuance of this ASU. However, many of the amendments in this ASU do have transition guidance with effective dates for annual periods beginning after December 15, 2018. The Group is currently assessing the effect that this ASU will have on its financial position, results of operations, and disclosures.
In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework – Changes to the Disclosure Requirements for Fair Value Measurement.” This ASU adds, modifies and removes several disclosure requirements relative to the three levels of inputs used to measure fair value in accordance with Topic 820, “Fair Value Measurement.” This guidance is effective for fiscal years beginning after December 15, 2019, including interim periods within that fiscal year. Early adoption is permitted. The Group is currently assessing the effect that this ASU will have on its financial position, results of operations, and disclosures.
Note 3. NOTE RECEIVABLE FROM FAT
Effective with the Offering on October 20, 2017, FCCG contributed two of its operating subsidiaries, Fatburger and Buffalo’s, to FAT in exchange for an unsecured promissory note with a principal balance of $30,000,000, bearing interest at a rate of 10.0% per annum, and maturing in five years (the “Related Party Debt”). The contribution was consummated pursuant to a Contribution Agreement between FAT and FCCG. Approximately $19,778,000 of the note payable to FCCG was subsequently repaid, reducing the balance to $10,222,000 at June 26, 2018. On June 27, 2018, FAT entered into the Note Exchange Agreement, as amended, under which it agreed with FCCG to exchange $9,272,053 of the remaining balance of FAT’s outstanding Related Party Debt for shares of capital stock of FAT in the following amounts:
| F-11 |
Note 3. NOTE RECEIVABLE FROM FAT (continued)
| ● | $2,000,000 of the Related Party Debt balance was exchanged for 20,000 shares of Series A Fixed Rate Cumulative Preferred Stock of FAT at $100 per share and warrants to purchase 25,000 of FAT’s common stock with an exercise price of $8.00 per share; and | |
| ● | A portion of the remaining Related Party Debt balance of $7,272,053 was exchanged for 989,395 shares of Common Stock of FAT, representing an exchange price of $7.35 per share, which was the closing trading price of the Common Stock on June 26, 2018. |
Following the exchange, the remaining balance of the Related Party Debt was $950,000. As of December 30, 2018, the Related Party Debt was fully paid off.
The transactions described above were exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D of the Securities Act and in reliance on similar exemptions under applicable state laws.
Interest income related to the Related Party Debt of $888,000 was recognized for the year ended December 30, 2018.
Note 4. INVESTMENT IN FAT BRANDS SERIES A PREFERRED STOCK
On June 27, 2018, FCCG acquired 20,000 shares of Series A Fixed Rate Cumulative Preferred Stock of FAT at $100 per share and warrants to purchase 25,000 of FAT’s common stock with an exercise price of $8.00 per share in exchange for $2,000,000 of the Related Party Debt balance (See Note 3).
The Series A Preferred Stock contains the following terms:
Dividends - Holders of Series A Preferred Stock will be entitled to receive cumulative dividends on the $100.00 per share stated liquidation preference of the Series A Preferred Stock, in the amount of (i) cash dividends at a rate of 9.9% per year, plus (ii) deferred dividends equal to 4.0% per year, payable on the Mandatory Redemption Date (defined below).
Liquidation and Redemption - Upon (i) the five-year anniversary of the initial issuance date (June 8, 2023), or (ii) the earlier liquidation, dissolution or winding-up of FAT (the “Series A Mandatory Redemption Date”), the holders of Series A Preferred Stock will be entitled to cash redemption of their shares in an amount equal to $100.00 per share plus any accrued and unpaid dividends.
In addition, prior to the Series A Mandatory Redemption Date, FAT may optionally redeem the Series A Preferred Stock, in whole or in part, at the following redemption prices per share, plus any accrued and unpaid dividends:
| (i) | On or prior to June 30, 2021: $115.00 per share. | |
| (ii) | After June 30, 2021 and on or prior to June 30, 2022: $110.00 per share. | |
| (iii) | After June 30, 2022: $100.00 per share. |
Holders of Series A Preferred Stock may also optionally cause FAT to redeem all or any portion of their shares of Series A Preferred Stock beginning any time after the two-year anniversary of the initial issuance date for an amount equal to $100.00 per share plus any accrued and unpaid dividends.
During the year ended December 30, 2018, FCCG sold 5,000 shares of the Series A Fixed Rate Cumulative Preferred Stock of FAT, and the related warrants to purchase 6,250 of FAT’s common stock with an exercise price of $8.00 per share, to an unrelated investor for $400,000 and recognized a $100,000 loss on the sale.
As of December 29, 2019, FCCG owns 15,000 shares of the Series A Fixed Rate Cumulative Preferred Stock of FAT and warrants to purchase 18,750 of FAT’s common stock with an exercise price of $8.00 per share. As of December 29, 2019 and December 30, 2018, the carrying value of this investment on the balance sheet was $1,500,000. FCCG
| F-12 |
Note 4. INVESTMENT IN FAT BRANDS SERIES A PREFERRED STOCK (continued)
recognized dividend income relating to the Series A Preferred during the years ended December 29, 2019 and December 30, 2018 in the amount of $208,000 and $134,000, respectively.
Note 5. LOAN TO SHAREHOLDER
FCCG has made advances to Andrew A. Wiederhorn, the Company’s CEO and significant shareholder (the “Shareholder Loan”). As of December 29, 2019 and December 30, 2018, the balance outstanding on the Shareholder Loan was $16,803,000 and $9,155,000, respectively. The Shareholder Loan bears interest at 5% per annum on outstanding balances. The Group recognized interest income on the Shareholder Loan in the amount of $619,000 and $222,675 for the years ended December 29, 2019 and December 30, 2018, respectively.
NOTE 6. ACCRUED EXPENSES
Accrued expenses consist of the following (in thousands):
| December 29, 2019 | December 30, 2018 | |||||||
| Payroll taxes | $ | 6,621 | $ | 6,589 | ||||
| Professional fees | 1,680 | 1,390 | ||||||
| Vendor liabilities | 1,521 | 1,895 | ||||||
| Gift card balances | 135 | 156 | ||||||
| Credit card balance | 185 | 185 | ||||||
| Closed restaurant accruals | 728 | 728 | ||||||
| Other | 394 | 173 | ||||||
| Total | $ | 11,264 | $ | 11,116 | ||||
Note 7. Income Taxes
The Group’s deferred taxes reflect the net effect of temporary differences between the carrying amount of assets and liabilities for financial reporting purposes and the amounts used for calculating taxes payable on a stand-alone basis. Significant components of the Company’s deferred tax assets and liabilities are as follows (in thousands):
| December 29, 2019 | December 30, 2018 | |||||||
| Deferred tax assets (liabilities) | ||||||||
| Net operating loss carryforwards | $ | 18,513 | $ | 19,902 | ||||
| Other | 546 | (220 | ) | |||||
| Valuation allowance | (19,059 | ) | (19,682 | ) | ||||
| Total | $ | - | $ | - | ||||
Components of the income tax expense are as follows (in thousands):
| Fiscal Year Ended December 29, 2019 | Fiscal Year Ended December 30, 2018 | |||||||
| Current | ||||||||
| Federal | $ | - | $ | - | ||||
| State | 2 | 3 | ||||||
| Foreign | - | - | ||||||
| 2 | 3 | |||||||
| F-13 |
Note 7. Income Taxes (continued)
| Fiscal Year Ended December 29, 2019 | Fiscal Year Ended December 30, 2018 | |||||||
| Deferred | ||||||||
| Federal | $ | - | $ | - | ||||
| State | - | - | ||||||
| Total income tax expense | $ | 2 | $ | 3 | ||||
At December 29, 2019 and December 30, 2018, the differences between income taxes expected at the U.S. Federal statutory income tax rate of 21% and the reported income tax expense are primarily related to state taxes, net of federal benefit, various permanent items; and, change in federal, and state valuation allowances.
As of December 29, 2019, FCCG’s annual tax filings for the prior three years are open for audit by Federal tax agencies and for the prior four years for state tax agencies. Management evaluated the overall tax positions and has determined that no provision for uncertain income tax positions is necessary as of December 29, 2019.
Note 8. DEBT
The Group’s combined debt is summarized as follows (in thousands):
| December 29, 2019 | December 30, 2018 | |||||||
| Debt recorded at Fog Cutter Capital Group: | ||||||||
| Note payable to a private lender. The note bears interest at a fixed rate of 12% and is unsecured. Interest is due monthly in arrears. The note matures on December 31, 2020. | $ | 2,026 | $ | 1,970 | ||||
| Note payable to a private lender. The note bears interest at a fixed rate of 12% and is unsecured. Interest is due monthly in arrears. The note matures on December 31, 2020. | 2,989 | 2,907 | ||||||
| Note payable to a private lender, secured by the FCCG’s interest in certain shares of FAT Common Stock. The note bears interest at a fixed rate of 15%. The note matures December 1, 2020. | 311 | - | ||||||
| Note payable to a private lender, secured by the FCCG’s interest in certain shares of FAT Common Stock. The note bears interest at a fixed rate of 12%. Interest is due monthly in arrears. The maturity date of the note is December 31, 2020. | 688 | 624 | ||||||
| Debt recorded at Fog Cap Development, LLC: | ||||||||
| Note payable to a private lender secured by the FCCG’s interest in shares of FAT Common Stock. The note bears interest at a fixed rate of 15%. Interest is due at maturity. The note is due December 1, 2020. | 345 | 359 | ||||||
| Total debt | $ | 6,359 | $ | 5,860 | ||||
| F-14 |
Note 8. DEBT (continued)
The amounts due at December 30, 2018 were classified as current liabilities because of the maturity dates that were in effect at that time. The maturities were subsequently extended to the dates shown above.
Note 9. Related Party Transactions
The Group is obligated to FAT in the amount of $25,967,000 as of December 29, 2019 compared to $15,514,000 as of December 30, 2018. The payable to FAT bears interest at a rate of 10% per annum. During the fiscal years ended December 29, 2019 and December 30, 2018, the Group recorded accrued interest expense on the balance of the payable to FAT of $1,528,000 and $825,000, respectively.
The Group obligation to FAT includes a preferred capital investment made by FAT in Homestyle Dining LLC, a Delaware limited liability corporation (“HSD”) in the amount of $4.0 million made effective July 5, 2018 (the “Preferred Interest”). FCCG owns all of the common interests in HSD. The holder of the Preferred Interest is entitled to a 15% priority return on the outstanding balance of the investment (the “Preferred Return”). During the fiscal years ended December 29, 2019 and December 30, 2018, the Company recorded accrued interest expense of $600,000 and $300,000, respectively. Any available cash flows from HSD on a quarterly basis are to be distributed to pay the accrued Preferred Return and repay the Preferred Interest until fully retired. On or before the five-year anniversary of the investment, the Preferred Interest is to be fully repaid, together with all previously accrued but unpaid Preferred Return. The Company has unconditionally guaranteed repayment of the Preferred Interest in the event HSD fails to do so.
During the fiscal year ended December 29, 2019, FCCG recorded a receivable from FAT in the amount of $51,000 under the Tax Sharing Agreement, which was offset against the intercompany payable. During the fiscal year ended December 30, 2018, the Company recorded a payable to FAT in the amount of $195,000 relating to the Tax Sharing Agreement.
Prior to the Offering, FAT’s operations were insignificant other than structuring the Offering. During this time, the Company provided executive administration and accounting services for FAT. FAT reimbursed the Company for out-of-pocket costs associated with these services, but there was no allocation of FCCG’s overhead costs. Effective with the Offering, FAT assumed all direct and indirect administrative functions relating to its business.
Note 10. EQUITY
As of December 29, 2019 and December 30, 2018, the total number of authorized shares of common stock was 200,000,000. There were 13,882,044 and 11,757,044 shares issued and 10,082,399 and 7,957,399 shares outstanding, respectively. FCCG holds 3,799,645 shares of common stock in treasury.
Below are the changes to FCCG’s common stock during the fiscal year ended December 29, 2019:
| ● | On August 28, 2019, the Company issued a total of 1,825,000 shares of common stock at a value of $1.00 per share as compensation. | |
| ● | On August 28, 2019, the Company issued a total of 300,000 shares of common stock at a value of $1.00 per share to the non-employee members of the board of directors as consideration for directors’ fees. |
Note 11. Commitments and Contingencies
Litigation
Eric Rojany, et al. v. FAT Brands Inc., et al., Superior Court of California for the County of Los Angeles, Case No. BC708539, and Daniel Alden, et al. v. FAT Brands Inc., et al., Superior Court of California for the County of Los Angeles, Case No. BC716017.
| F-15 |
Note 11. Commitments and Contingencies (continued)
On June 7, 2018, FAT Brands, Inc., Andrew Wiederhorn, Ron Roe, James Neuhauser, Edward H. Rensi, Marc L. Holtzman, Squire Junger, Silvia Kessel, Jeff Lotman, Fog Cutter Capital Group Inc., and Tripoint Global Equities, LLC (collectively, the “Original Defendants”) were named as defendants in a putative securities class action lawsuit entitled Rojany v. FAT Brands, Inc., Case No. BC708539 (the “Rojany Case”), in the Superior Court of the State of California, County of Los Angeles. On July 31, 2018, the Rojany Case was designated as complex, pursuant to Rule 3.400 of the California Rules of Court and assigned the matter to the Complex Litigation Program. On August 2, 2018, the Original Defendants were named defendants in a second putative class action lawsuit, Alden v. FAT Brands, Case No. BC716017 (the “Alden Case”), filed in the same court. On September 17, 2018, the Rojany and Alden Cases were consolidated under the Rojany Case number. On October 10, 2018, plaintiffs Eric Rojany, Daniel Alden, Christopher Hazelton-Harrington and Byron Marin (“Plaintiffs”) filed a First Amended Consolidated Complaint against FAT Brands, Inc., Andrew Wiederhorn, Ron Roe, James Neuhauser, Edward H. Rensi, Fog Cutter Capital Group Inc., and Tripoint Global Equities, LLC (collectively, “Defendants”), thereby removing Marc L. Holtzman, Squire Junger, Silvia Kessel and Jeff Lotman as defendants. On November 13, 2018, Defendants filed a Demurrer to First Amended Consolidated Complaint. On January 25, 2019, the Court sustained Defendants’ Demurrer to First Amended Consolidated Complaint with Leave to Amend in Part. Plaintiffs filed a Second Amended Consolidated Complaint on February 25, 2019. On March 27, 2019, Defendants filed a Demurrer to the Second Amended Consolidated Complaint. On July 31, 2019, the Court sustained Defendants’ Demurrer to the Second Amended Complaint in Part, narrowing the scope of the case. Defendants filed their Answer to the Second Amended Consolidated Complaint on November 12, 2019. On January 29, 2020, Plaintiffs filed a Motion for Class Certification. Plaintiffs’ Motion for Class Certification is fully briefed, and the hearing on Plaintiffs’ Motion for Class Certification is set for September 10, 2020. Defendants dispute Plaintiffs’ allegations and will continue to vigorously defend themselves in this litigation.
Adam Vignola, et al. v. FAT Brands Inc., et al., United States District Court for the Central District of California, Case No. 2:18-cv-07469.
On August 24, 2018, the Original Defendants were named as defendants in a putative securities class action lawsuit entitled Vignola v. FAT Brands, Inc., Case No. 2:18-cv-07469-PSG-PLA, in the United States District Court for the Central District of California. On October 23, 2018, Charles Jordan and David Kovacs (collectively, “Lead Plaintiffs”) moved to be appointed lead plaintiffs, and the Court granted Lead Plaintiffs’ motion on November 16, 2018. On January 15, 2019, Lead Plaintiffs filed a First Amended Class Action Complaint against the Original Defendants. The allegations and claims for relief asserted in Vignola are substantively identical to those asserted in the Rojany Case. Defendants filed a Motion to Dismiss First Amended Class Action Complaint, or, in the Alternative, to Stay the Action In Favor of a Prior Pending Action. On June 14, 2019, the Court denied Defendants’ motion to stay but granted Defendants’ motion to dismiss the First Amended Class Action Complaint, with Leave to Amend. Lead Plaintiffs filed a Second Amended Class Action Complaint on August 5, 2019. On September 9, 2019, Defendants’ filed a Motion to Dismiss the Second Amended Class Action Complaint. On December 17, 2019, the Court granted Defendants’ Motion to Dismiss the Second Amended Class Action Complaint in Part, Without Leave to Amend. The allegations remaining in Vignola are substantively identical to those remaining in the Rojany Case. Defendants filed their Answer to the Second Amended Class Action Complaint on January 14, 2020. On December 27, 2019, Lead Plaintiffs filed a Motion for Class Certification. By order entered March 16, 2020, the Court denied Lead Plaintiffs’ Motion for Class Certification. By order entered April 1, 2020, the Court set various deadlines for the case, including a fact discovery cut-off of December 29, 2020, expert discovery cut-off of February 23, 2021 and trial date of March 30, 2021. On July 16, 2020, the parties reached an agreement in principle to settle this case, pursuant to which lead plaintiffs will dismiss their claims against defendants with prejudice in exchange for a payment by or on behalf of defendants of $75,000. The parties are in the process of documenting this settlement.
FCCG is obligated to indemnify its officers and directors to the extent permitted by applicable law in connection with the above actions, and has insurance for such individuals, to the extent of the limits of the applicable insurance policies and subject to potential reservations of rights. FCCG is also obligated to indemnify Tripoint Global Equities, LLC under certain conditions relating to the Rojany and Vignola matters. These proceedings are ongoing and FCCG is unable to predict the ultimate outcome of these matters. There can be no assurance that the defendants will be successful in defending against these actions.
| F-16 |
Note 11. Commitments and Contingencies (continued)
Stratford Holding LLC v. Foot Locker Retail Inc. (U.S. District Court for the Western District of Oklahoma, Case No. 5:12-cv-00772-HE)
In 2012 and 2013, two property owners in Oklahoma City, Oklahoma sued numerous parties, including FCCG, for alleged environmental contamination on their properties, stemming from dry cleaning operations on one of the properties. The property owners seek damages in the range of $12 million to $22 million. From 2002 to 2008, a former
FCCG subsidiary managed a lease portfolio, which included the subject property. FCCG denies any liability, although it did not timely respond to one of the property owners’ complaints and several of the defendants’ cross-complaints and thus is in default. The parties are currently conducting discovery, and the matter is scheduled for trial for November 2021. The Company is unable to predict the ultimate outcome of this matter, however, reserves in the amount of $3,500,000 have been recorded on the balance sheet relating to this litigation. There can be no assurance that the defendants will be successful in defending against these actions.
SBN FCCG LLC v FCCGI (Los Angeles Superior Court, Case No. BS172606)
SBN FCCG LLC (“SBN”) filed a complaint against Fog Cutter Capital Group, Inc. (“FCCG”) in New York state court for an indemnification claim (the “NY case”) stemming from an earlier lawsuit in Georgia regarding a certain lease portfolio formerly managed by a former FCCG subsidiary. In February 2018, SBN obtained a final judgment in the NY case for a total of $651,290, which included $225,030 in interest dating back to March 2012. SBN then obtained a sister state judgment in Los Angeles Superior Court, Case No. BS172606 (the “California case”), which included the $651,290 judgment from the NY case, plus additional statutory interest and fees, for a total judgment of $656,543. In May 2018, SBN filed a cost memo, requesting an additional $12,411 in interest to be added to the judgment in the California case, for a total of $668,954. In May 2019, the parties agreed to settle the matter for $580,000, which required the immediate payment of $100,000, and the balance to be paid in August 2019. Fog Cutter wired $100,000 to SBN in May 2019, but has not yet paid the remaining balance of $480,000. The parties have not entered into a formal settlement agreement, and they have not yet discussed the terms for the payment of the remaining balance.
The Group is involved in other claims and legal proceedings from time-to-time that arise in the ordinary course of business. The Company does not believe that the ultimate resolution of these actions will have a material adverse effect on its business, financial condition, results of operations, liquidity or capital resources.
Guarantee of FAT — Loan and Security Agreement
On January 29, 2019, the FAT as borrower, and its subsidiaries and affiliates as guarantors, entered into a Loan and Security Agreement (the “Loan and Security Agreement”) with The Lion Fund, L.P. and The Lion Fund II, L.P. (“Lion”). Pursuant to the Loan and Security Agreement, the FAT borrowed $20.0 million from Lion, and utilized the proceeds to repay $16.0 million in existing borrowings, plus accrued interest and fees, and provide additional general working capital to FAT.
In connection with the Loan and Security Agreement, FAT issued to Lion a warrant to purchase up to 1,167,404 shares of FAT’s common stock at $0.01 per share (the “Lion Warrant”), exercisable only if the amounts outstanding under the Loan and Security Agreement were not repaid in full by June 30, 2020, as extended. If the Loan and Security Agreement was repaid in full prior to June 30, 2020, the Lion Warrant would be terminated in its entirety.
The term loan under the Loan and Security Agreement was due to mature on June 30, 2020. Interest on the term loan accrued at an annual fixed rate of 20.0% and was payable quarterly. The FAT was allowed to prepay all or a portion of the outstanding principal and accrued and unpaid interest under the Loan and Security Agreement at any time upon prior notice to Lion without penalty, other than a make-whole provision providing for a minimum of six months’ interest.
| F-17 |
Note 11. Commitments and Contingencies (continued)
As security for its obligations under the Loan Agreement, the FAT granted a lien on substantially all of its assets to Lion. In addition, certain of FAT’s subsidiaries and affiliates entered into a Guaranty (the “Guaranty”) in favor of Lion, pursuant to which they guaranteed the obligations of FAT under the Loan and Security Agreement and granted as security for their guaranty obligations a lien on substantially all of their assets.
The Loan and Security Agreement contained customary affirmative and negative covenants, including covenants that limited or restricted FAT’s ability to, among other things, incur other indebtedness, grant liens, merge or consolidate, dispose of assets, pay dividends or make distributions, in each case subject to customary exceptions. The Loan and Security Agreement also included customary events of default that included, among other things, non-payment, inaccuracy of representations and warranties, covenant breaches, events that result in a material adverse effect (as defined in the Loan and Security Agreement), cross default to other material indebtedness, bankruptcy, insolvency and material judgments. The occurrence and continuance of an event of default could have resulted in the acceleration of FAT’s obligations under the Loan and Security Agreement and an increase in the interest rate by 5.0% per annum.
The Loan and Security Agreement was subsequently amended several times which allowed FAT to increase its borrowing by $3,500,000 in connection with the acquisition of Elevation Burger; extended the exercise date of the Lion Warrant to June 30, 2020; extended the due date for certain quarterly payments and imposed associated extension and other loan fees.
On March 6, 2020, FAT repaid the Lion Loan and Security Agreement in full. As a result of the prepayment, the Lion Warrant was cancelled in its entirety and the guarantee by the Company was cancelled.
Guarantee of FAT — Elevation Note
On June 19, 2019, the FAT completed the acquisition of Elevation Burger. A portion of the purchase price included the issuance to the Seller of a convertible subordinated promissory note (the “Elevation Note”) with a principal amount of $7,509,816, bearing interest at 6.0% per year and maturing in July 2026. The Elevation Note is convertible under certain circumstances into shares of the FAT’s common stock at $12.00 per share. The Company has guaranteed payment of the Elevation Note.
FAT is required to make fully amortizing payments of $110,000 per month during the term of the Elevation Note. The Elevation Note is a general unsecured obligation of Company and is subordinated in right of payment to all indebtedness of the Company arising under any agreement or instrument to which FAT or any of its Affiliates is a party that evidences indebtedness for borrowed money that is senior in right of payment.
NOTE 12. SUBSEQUENT EVENTS
Pursuant to FASB ASC 855, Management has evaluated all events and transactions that occurred from December 29, 2019 through the date of issuance of these combined financial statements. During this period, the Company did not have any significant subsequent events, except as disclosed below:
Guarantee of FAT — Loan and Security Agreement
On March 6, 2020, FAT repaid the Lion Loan and Security Agreement in full. As a result of the prepayment, the Lion Warrant was cancelled in its entirety and the guarantee by FCCG was cancelled. (See Note 11).
COVID-19
In March 2020, the World Health Organization declared the outbreak of a novel coronavirus (COVID-19) as a pandemic, which continues to spread throughout the United States and other countries. As a result, FAT Brand’s restaurant franchisees have temporarily closed some retail locations, modified store operating hours, adopted a “to-go” only operating model, or a combination of these actions. These actions have reduced consumer traffic, all resulting
in a negative impact to FAT Brands’ revenues. While the business disruption from the COVID-19 pandemic is currently expected to be temporary, there is a great deal of uncertainty around the severity and duration of the
| F-18 |
NOTE 12. SUBSEQUENT EVENTS (continued)
COVID-19 (continued)
disruption. The Group may experience longer-term effects on its business, economic growth and consumer demand in the U.S. and worldwide. The effects of COVID-19 may materially adversely affect our business, results of operations, liquidity and ability to service our existing debt, particularly if these effects continue in place for a significant amount of time. While the disruption is currently expected to be temporary, there is uncertainty around the duration. Therefore, while the Company expects this matter to negatively impact its business, results of operations, and financial position, the related financial impact cannot be reasonably estimated at this time.
Intercompany Agreement
On April 24, 2020, FCCG entered into an Intercompany Revolving Credit Agreement with FAT (“Intercompany Agreement”). FAT had previously extended credit to the Company pursuant to a certain Intercompany Promissory Note (the “Original Note”), dated October 20, 2017, with an initial principal balance of $11,906,000. Subsequent to the issuance of the Original Note, the Company and certain of its direct or indirect subsidiaries received additional intercompany advances in the aggregate amount of $10,523,000. Pursuant to the Intercompany Agreement, the revolving credit facility bears interest at a rate of 10% per annum, has a five-year term with no prepayment penalties, and has a maximum capacity of $35,000,000. All additional borrowings under the Intercompany Agreement are subject to the approval of the Board of Directors of FAT, in advance, on a quarterly basis and may be subject to other conditions as set forth by FAT. The initial balance under the Intercompany Agreement totaled $21,067,000 including the balance of the Original Note, borrowings subsequent to the Original Note, accrued and unpaid interest income, and other adjustments through December 29, 2019. (See Note 9).
FAT Preferred Stock Exchange Agreement
On July 13, 2020, FCCG entered into an agreement to exchange its 15,000 shares of FAT Brands’ Series A Preferred Stock, plus accrued dividends thereon at face value, for shares of FAT Brands 8.25% Series B Cumulative Preferred Stock valued at $25.00 per share. (See Note 4).
Holders of FAT’s Series B Preferred Stock will be entitled to receive, when declared by the FAT’s Board of Directors, cumulative cash dividends payable monthly in an amount per share equal to $2.0625 each year, which is equivalent to 8.25% per annum of the $25.00 liquidation preference per share. Dividends on the Series B Preferred Stock will be payable monthly in arrears. If FAT fails to make a cash dividend payment with respect to 12 or more consecutive or non-consecutive monthly dividends, the dividend rate on the Series B Preferred Stock will increase to $2.50 per share each year, which is equivalent to 10% of the $25.00 liquidation preference per share until the Company has paid all accumulated accrued and unpaid dividends on the Series B Preferred Stock in full and has paid accrued dividends for all dividend periods during the two most recently completed dividend periods in full. In addition, if the Company fails to make a cash dividend payment with respect to 18 or more consecutive or non-consecutive monthly dividends, the holders of the Series B Preferred Stock, voting as a separate class, will be entitled to vote for the election of two additional directors to serve on the Company’s Board of Directors until all dividends that are owed have been paid in full.
Loan to Shareholder
During the six months ended June 28, 2020, FCCG forgave the Shareholder Loan.
Reverse Stock Split
On September 2, 2020, FCCG’s shares of common stock were the subject of a reverse stock split, reducing the number of issued shares in the ratio of 326,000 shares to one. Shareholders owning less than one share following the reverse split were issued notes in lieu of their fractional share in the amount of $2.75 per original share.
| F-19 |
NOTE 12. SUBSEQUENT EVENTS (continued)
Reverse Stock Split (continued)
Immediately following these transactions, FCCG declared a stock split which was exactly the opposite of the previous reverse stock split (issuing 326,000 shares for each share of stock), thus eliminating the effects of the reverse stock split.
| F-20 |
Exhibit 99.2
Fog Cutter Group
(A carveout of Fog Cutter Capital Group, Inc.)
Combined Financial Statements
For the Thirty-Nine Weeks Ended September 27, 2020 and September 29, 2019
FINANCIAL STATEMENT SCHEDULES
| The Fog Cutter Group (a carveout of Fog Cutter Capital Group, Inc.) | |
| Unaudited Financial Statements | |
| Combined Balance Sheets as of September 27, 2020 and December 29, 2019 | F-1 |
| Combined Statements of Operations for the thirty-nine weeks ended September 27, 2020 and September 29, 2019 | F-2 |
| Combined Statements of Changes in Stockholders’ Deficit for the thirty-nine weeks ended September 27, 2020 and September 29, 2019 | F-3 |
| Combined Statements of Cash Flows for the thirty-nine weeks ended September 27, 2020 and September 29, 2019 | F-4 |
| Notes to Combined Financial Statements | F-5 |
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED BALANCE SHEETS
(dollars in thousands, except share data)
| September 27, 2020 | December 29, 2019 | |||||||
| (Unaudited) | (Audited) | |||||||
| Assets | ||||||||
| Current assets | ||||||||
| Cash | $ | 30 | $ | 29 | ||||
| Dividends receivable from FAT Brands Inc. | - | 209 | ||||||
| Other current assets | 129 | 127 | ||||||
| Total current assets | 159 | 365 | ||||||
| Property, plant and equipment, net of accumulated depreciation of $287 and $286, respectively | 58 | 63 | ||||||
| Investment in FAT Brands Inc. preferred stock and warrants | 1,861 | 1,500 | ||||||
| Loan to stockholder | 5,606 | 16,803 | ||||||
| Other assets | 56 | 56 | ||||||
| Total assets | $ | 7,740 | $ | 18,787 | ||||
| Liabilities and Stockholders’ Deficit | ||||||||
| Liabilities | ||||||||
| Accounts payable | $ | 3,101 | $ | 4,554 | ||||
| Accrued expenses | 10,293 | 11,264 | ||||||
| Current portion of long-term debt | 10,385 | 6,359 | ||||||
| Litigation reserve | 3,980 | 3,500 | ||||||
| Other | 65 | |||||||
| Total current liabilities | 27,759 | 25,742 | ||||||
| Due to FAT Brands Inc. | 38,732 | 25,967 | ||||||
| Other | 75 | 56 | ||||||
| Total liabilities | 66,566 | 51,765 | ||||||
| Commitments and contingencies (Note 10) | ||||||||
| Stockholders’ deficit | ||||||||
| Common stock, $.0001 par value; 10,100,000 shares authorized; 8,428,692 shares issued and outstanding as of September 27, 2020; 200,000,000 shares authorized, 13,882,044 shares issued, and 10,082,399 outstanding as of December 29, 2019 | 1 | 1 | ||||||
| Additional paid-in capital | 158,197 | 174,756 | ||||||
| Accumulated deficit | (217,024 | ) | (195,724 | ) | ||||
| Treasury stock, 3,799,645 common shares as of December 29, 2019 | - | (12,011 | ) | |||||
| Total stockholders’ deficit | (58,826 | ) | (32,978 | ) | ||||
| Total liabilities and stockholders’ deficit | $ | 7,740 | $ | 18,787 | ||||
The accompanying notes are an integral part of these combined financial statements.
| F-1 |
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED STATEMENTS OF OPERATIONS
(dollars in thousands, except share data)
(Unaudited)
For the Thirty-nine Weeks Ended September 27, 2020 and September 29, 2019
| September 27, 2020 | September 29, 2019 | |||||||
| Revenue | $ | - | $ | - | ||||
| Expenses | ||||||||
| Compensation | 1,325 | 1,675 | ||||||
| General and administrative | 634 | 1,277 | ||||||
| Total expenses | 1,959 | 2,952 | ||||||
| Loss from operations | (1,959 | ) | (2,952 | ) | ||||
| Other (expense) income | ||||||||
| Interest expense | (3,199 | ) | (1,884 | ) | ||||
| Interest income | 406 | 582 | ||||||
| Loss on forgiveness of loan to stockholder | (16,948 | ) | - | |||||
| Other income, net | 402 | (523 | ) | |||||
| Total other expense, net | (19,339 | ) | (1,825 | ) | ||||
| Loss before income tax expense | (21,298 | ) | (4,777 | ) | ||||
| Income tax expense | 2 | 1 | ||||||
| Net loss | $ | (21,300 | ) | $ | (4,778 | ) | ||
The accompanying notes are an integral part of these combined financial statements
| F-2 |
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED STATEMENTS OF STOCKHOLDERS’ DEFICIT
(dollars in thousands, except share data)
(Unaudited)
For the thirty-nine weeks ended September 27, 2020
| Common Stock | ||||||||||||||||||||||||||||
| Additional | ||||||||||||||||||||||||||||
| Par | Paid-in | Treasury | Accumulated | |||||||||||||||||||||||||
| Shares | Value | Capital | Stock | Total | Deficit | Total | ||||||||||||||||||||||
| Balance at December 29, 2019 (1) | 10,082,399 | $ | 1 | $ | 174,756 | $ | (12,011 | ) | $ | 162,746 | $ | (195,724 | ) | $ | (32,978 | ) | ||||||||||||
| Net loss | - | - | - | - | - | (21,300 | ) | (21,300 | ) | |||||||||||||||||||
| Cancellation of treasury stock (2) | - | - | (12,011 | ) | 12,011 | - | - | - | ||||||||||||||||||||
| Redemption of fractional shares | (1,653,707 | ) | - | (4,548 | ) | - | (4,548 | ) | - | (4,548 | ) | |||||||||||||||||
| Balance at September 27, 2020 | 8,428,692 | $ | 1 | $ | 158,197 | $ | - | $ | 158,198 | $ | (217,024 | ) | $ | (58,826 | ) | |||||||||||||
| (1) | Issued and outstanding, net of 3,799,645 shares of treasury stock. | |
| (2) | All 3,799,645 shares of treasury stock were cancelled as of July 6, 2020. |
For the thirty-nine weeks ended September 29, 2019
| Common Stock | ||||||||||||||||||||||||||||
| Additional | ||||||||||||||||||||||||||||
| Par | paid-in | Treasury | Accumulated | |||||||||||||||||||||||||
| Shares (1) | value | capital | Stock | Total | Deficit | Total | ||||||||||||||||||||||
| Balance at December 30, 2018 | 7,957,399 | $ | 1 | $ | 172,631 | $ | (12,011 | ) | $ | 160,621 | $ | (189,460 | ) | $ | (28,839 | ) | ||||||||||||
| Net loss | - | - | - | - | - | (4,778 | ) | (4,778 | ) | |||||||||||||||||||
| Issuance of common stock in lieu of cash compensation payable | 1,825,000 | - | 1,825 | - | 1,825 | - | 1,825 | |||||||||||||||||||||
| Issuance of common stock in lieu of cash directors’ fees payable | 300,000 | - | 300 | - | 300 | - | 300 | |||||||||||||||||||||
| Balance at September 29, 2019 | 10,082,399 | $ | 1 | $ | 174,756 | $ | (12,011 | ) | $ | 162,746 | $ | (194,238 | ) | $ | (31,492 | ) | ||||||||||||
| (1) | Issued and outstanding, net of 3,799,645 shares of treasury stock. |
The accompanying notes are an integral part of these combined financial statements.
| F-3 |
(A carveout of FOG CUTTER CAPITAL GROUP, INC.)
COMBINED STATEMENTS OF CASH FLOWS
(dollars in thousands)
(Unaudited)
For the thirty-nine weeks ended September 27, 2020 and September 29, 2019
| September 27, 2020 | September 29, 2019 | |||||||
| Cash flows from operating activities | ||||||||
| Net loss | $ | (21,300 | ) | $ | (4,778 | ) | ||
| Adjustments to reconcile net loss to net cash used in operations: | ||||||||
| Loss on forgiveness of loan to stockholder | 16,948 | - | ||||||
| Share based compensation and expenses | - | 2,125 | ||||||
| Depreciation and amortization | 1 | 14 | ||||||
| Accrued interest | 55 | 105 | ||||||
| Change in: | ||||||||
| Accounts payable | (1,453 | ) | 649 | |||||
| Accrued expenses | (55 | ) | (246 | ) | ||||
| Other liabilities | (478 | ) | - | |||||
| Other assets | (116 | ) | (151 | ) | ||||
| Total adjustments | 14,902 | 2,496 | ||||||
| Net cash used in operating activities | (6,398 | ) | (2,282 | ) | ||||
| Cash flows from investing activities | ||||||||
| Loan advances to stockholder | (5,751 | ) | (5,116 | ) | ||||
| Net cash used in investing activities | (5,751 | ) | (5,116 | ) | ||||
| Cash flows from financing activities | ||||||||
| Repayments of long-term debt | (576 | ) | - | |||||
| Change in due to FAT Brands Inc. | 12,726 | 7,372 | ||||||
| Net cash provided by financing activities | 12,150 | 7,372 | ||||||
| Net increase in cash | 1 | (26 | ) | |||||
| Cash at beginning of period | 29 | 29 | ||||||
| Cash at end of period | $ | 30 | $ | 3 | ||||
| Supplemental disclosures of cash flow information: | ||||||||
| Cash paid for interest | $ | 509 | $ | 429 | ||||
| Cash paid for income taxes | $ | 4 | $ | 1 | ||||
| Supplemental disclosure of non-cash financing and investing activities: | ||||||||
| Income taxes payable added to amounts due to FAT Brands Inc. | $ | 158 | $ | 30 | ||||
| Notes issued in exchange for fractional common shares | $ | 4,548 | $ | - | ||||
| Dividends receivable exchanged for FAT Series B Preferred Stock | $ | 361 | $ | - | ||||
The accompanying notes are an integral part of these combined financial statements.
| F-4 |
NOTES TO COMBINED FINANCIAL STATEMENTS
NOTE 1. ORGANIZATION AND RELATIONSHIPS
Fog Cutter Capital Group, Inc., (the “Company” or “FCCG”) was originally incorporated as Wilshire Real Estate Investment Trust Inc. in the State of Maryland on October 24, 1997. However, the Company has never elected to be treated as a Real Estate Investment Trust for tax purposes. Effective January 25, 2001, the Company changed its name to Fog Cutter Capital Group Inc. to better reflect the diversified nature of its business and investments. Initially, the Company made opportunistic equity and financial investments in a variety of industries. However, beginning in August 2003 with its acquisition of controlling interests in Fatburger North America, Inc, (“Fatburger”), the Company began to focus its business in the restaurant franchising sector. On July 29, 2020, the Company was reincorporated in the State of Delaware. At that time, the number of authorized shares decreased from 200,000,000 to 10,100,000.
As of September 27, 2020, the Company was the controlling shareholder of FAT Brands, Inc. (“FAT”). FAT was formed on March 21, 2017 as a wholly owned subsidiary of FCCG. On October 20, 2017, FAT completed an initial public offering and issued additional shares of common stock representing 20 percent of its ownership (the “Offering”). The net proceeds of the Offering were approximately $20,930,000 after deducting the selling agent fees and offering expenses. FAT’s common stock trades on the Nasdaq Capital Market under the symbol “FAT.”
Concurrent with the Offering, two subsidiaries of FCCG, Fatburger North America, Inc. (“Fatburger”) and Buffalo’s Franchise Concepts, Inc. (“Buffalo’s”), (collectively the “Predecessor Companies”), were contributed to FAT in exchange for a $30,000,000 note payable (the “Related Party Debt”). Concurrent with and subsequent to the Offering, FAT has acquired and is franchising additional restaurant brands.
The accompanying combined financial statements have been prepared to facilitate the merger of FAT and FCCG. For this purpose, the accompanying financial statements include the accounts of FCCG and all of its subsidiaries and affiliated entities (excluding FAT), which together are herein collectively referred to as the Fog Cutter Group or the Group. As of, and for the thirty-nine weeks ended September 27, 2020 and September 29, 2019, the Group included the following entities:
| ● | Fog Cap Acceptance Inc. – Fog Cap Acceptance Inc. was originally formed to make opportunistic equity and financing investments, all of which have been previously divested. In recent years, the only activity of Fog Cap Acceptance has involved legacy debt related to these prior investments. | |
| ● | Fog Cap Development LLC. – Fog Cap Development LLC was originally formed to acquire, develop and sell a portfolio of retail real estate properties. Following the completion of the sale of the portfolio in 2007, the operations of Fog Cap Development LLC have been limited to the provision of centralized corporate overhead management for all of the Company’s subsidiaries, with overhead expenses being allocated to the various subsidiaries. Following the Offering, FAT assumed overhead responsibility for itself and its subsidiaries. | |
| ● | Homestyle Dining LLC – In March 2017, the Company agreed to acquire Homestyle Dining LLC (“HSD”) from Metromedia Company and its affiliate (“Metromedia”) pursuant to a Membership Interest Purchase Agreement, as amended, which provided for a cash purchase price of $10,550,000 to be paid at closing. Effective October 20, 2017, FAT provided $10,550,000 of the net proceeds from the Offering to the Company to consummate the acquisition of HSD. In exchange, FAT received full ownership in the HSD operating subsidiaries: Ponderosa Franchising Company, Bonanza Restaurant Company, Ponderosa International Development, Inc. and Puerto Rico Ponderosa, Inc. (collectively, “Ponderosa”). These subsidiaries conduct the worldwide franchising of the Ponderosa Steakhouse Restaurants and the Bonanza Steakhouse Restaurants. The Company retained the HSD holding company and its remaining subsidiaries. HSD owned one Cole’s Backyard Grill restaurant, located in Lindale, Texas. That restaurant closed in 2018. HSD and its remaining subsidiaries were otherwise inactive and primarily held only legacy liabilities relating to its prior operations. | |
| ● | Buffalo’s Café Palmdale LLC – Buffalo’s Café Palmdale previously owned one Buffalo’s Café restaurant located in Palmdale, California. The restaurant was sold to a franchisee in early 2016. | |
| ● | BFCI Palm Desert LLC – BFCI Palm Desert LLC owned one Buffalo’s Café restaurant located in Palm Desert, California. The restaurant was closed in 2017. | |
| ● | BC Canyon – BC Canyon owned one Buffalo’s Café restaurant in Canyon, Texas. The restaurant was closed in 2018. |
| F-5 |
| ● | Fatburger Restaurants of New Jersey – Fatburger Restaurants of New Jersey owned a Fatburger restaurant in Atlantic City, New Jersey. The restaurant was closed in 2016. | |
| ● | Fatburger Restaurants China, LLC (“FB China”), together with its subsidiaries, Fatburger International, Inc. and Fatburger Hong Kong, were organized to invest in Company owned Fatburger restaurants in greater China. By the end of 2016, all restaurants previously developed by FB China had all either been closed or transferred to franchise ownership. |
On September 27, 2020, certain Company officers and directors controlled, directly or indirectly, significant voting influence of the Group. On September 27, 2020, the Company continued to control a significant voting majority of FAT.
Liquidity
Pursuant to ASU 2014-15, the Group evaluated its ability to continue as a going concern. During the thirty-nine weeks ended September 27, 2020, the Group’s operations resulted in a net use of cash in the amount of $6,398,000. These amounts were primarily funded by advances from FAT, and future liquidity resources will likely continue to be dependent upon the operating and capital activities of FAT. Additionally, as of September 27, 2020, the Group was subject to debt obligations maturing within twelve months in the amount of $10,385,000.
On April 24, 2020, the Company entered into an Intercompany Revolving Credit Agreement with FAT (the “Intercompany Agreement”). FAT had previously extended credit to the Company pursuant to a certain Intercompany Promissory Note (the “Original Note”), dated October 20, 2017, with an initial principal balance of $11,906,000. Subsequent to the issuance of the Original Note, FAT and certain of its direct or indirect subsidiaries made additional intercompany advances. Pursuant to the Intercompany Agreement, the revolving credit facility bears interest at a rate of 10% per annum, has a five-year term with no prepayment penalties, and has a maximum capacity of $35,000,000. All additional borrowings under the Intercompany Agreement are subject to the approval of the FAT Brands Board of Directors, in advance, on a quarterly basis and may be subject to other conditions as set forth by FAT. The initial balance under the Intercompany Agreement totaled $21,067,000, including the balance of the Original Note, borrowings subsequent to the Original Note, accrued and unpaid interest income, and other adjustments through December 29, 2019. As of September 27, 2020, the balance of the Intercompany Agreement totaled $33,382,000.
During the fourth quarter of 2020, the Company completed a forward triangular merger (the “Merger”) pursuant to which FCCG merged with and into a wholly owned subsidiary of FAT, with the subsidiary of FAT becoming the parent of FCCG and certain of its subsidiaries. The Company anticipates that this structure will provide capital opportunities which will be sufficient to meet the Group’s financial obligations.
COVID-19
In March 2020, the World Health Organization classified the outbreak of a novel coronavirus (“COVID-19”) as a pandemic, which continues to spread throughout the United States and other countries. As a result, FAT Brand’s restaurant franchisees have closed some retail locations, modified store operating hours, adopted a “to-go” only operating model, or a combination of these actions. These actions have reduced consumer traffic, all resulting in a negative impact to FAT Brands’ revenues. While the business disruption from the COVID-19 pandemic is currently expected to be temporary, there is a great deal of uncertainty around the severity and duration of the disruption. The Group may experience longer-term effects on its business, economic growth and consumer demand in the U.S. and worldwide. The effects of COVID-19 may materially adversely affect our business, results of operations, liquidity and ability to service our existing debt, particularly if these effects continue in place for a significant amount of time. While the disruption is currently expected to be temporary, there is uncertainty around the duration. Therefore, while the Company expects this matter to negatively impact its business, results of operations, and financial position, the related financial impact cannot be reasonably estimated at this time.
| F-6 |
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of operations – The Group, together with its controlled subsidiary, FAT Brands Inc., is a multi-brand franchising company specializing in fast casual and casual dining restaurant concepts around the world. FAT operates through its subsidiaries: Fatburger, Johnny Rockets, Buffalo’s Cafe, Buffalo’s Express, Hurricane Grill & Wings, Ponderosa Steakhouses, Bonanza Steakhouses, Yalla Mediterranean and Elevation Burger. Each subsidiary licenses the right to use its brand name and provides franchisees with operating procedures and methods of merchandising. Upon signing a franchise agreement, the franchisor is committed to provide training, some supervision and assistance, and access to operations manuals. As needed, the franchisor will also provide advice and written materials concerning techniques of managing and operating the restaurants.
To conform with FAT’s operations, the Group utilizes a 52-week calendar with its fiscal year ending on the last Sunday of the calendar year. Consistent with restaurant industry practice, FAT measures its stores’ performance based upon 7-day work weeks. Using the 52-week cycle ensures consistent comparable weekly reporting for operations and ensures that each week has the same days, since certain days are more profitable than others.
Basis of Presentation – The accompanying combined financial statements are being produced to facilitate the merger of FAT and the Company. For this purpose, the accompanying financial statements include the accounts of the Group which includes the Company and all subsidiaries and affiliated entities (excluding FAT and its subsidiaries). Intercompany accounts have been eliminated in combination.
Use of estimates in the preparation of the combined financial statements – The preparation of the combined 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 and liabilities and disclosure of contingent assets and liabilities at the date of the combined financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates include the determination of fair values of certain financial instruments for which there is no active market, the allocation of basis between assets acquired, sold or retained, and valuation allowances for notes receivable and accounts receivable. Estimates and assumptions also affect the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Income taxes – Effective October 20, 2017, the Group became part of a Tax Sharing Agreement between the Company and FAT which provides that the Company will, to the extent permitted by applicable law, file combined federal, California and Oregon (and possibly other jurisdictions where revenue is generated, at FCCG’s election) income tax returns with FAT and its subsidiaries. FAT will pay the Company the amount that its tax liability would have been had it filed a separate combined return.
The Group accounts for income taxes under the asset and liability method. Under this method, deferred tax assets and liabilities are determined based on the differences between financial reporting and tax reporting bases of assets and liabilities and are measured using enacted tax rates and laws that are expected to be in effect when the differences are expected to reverse. Realization of deferred tax assets is dependent upon future earnings, the timing and amount of which are uncertain.
A two-step approach is utilized to recognize and measure uncertain tax positions. The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained upon tax authority examination, including resolution of related appeals or litigation processes, if any. The second step is to measure the tax benefit as the largest amount that is more than 50% likely of being realized upon the ultimate settlement.
| F-7 |
Recently Adopted Accounting Standards
In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework – Changes to the Disclosure Requirements for Fair Value Measurement.” This ASU adds, modifies and removes several disclosure requirements relative to the three levels of inputs used to measure fair value in accordance with Topic 820, “Fair Value Measurement.” The Group adopted this ASU on December 30, 2019. The adoption of this standard did not have a material effect on the Group’s financial position, results of operations or cash flows.
The FASB issued ASU No. 2018-15, Intangibles-Goodwill and Other-Internal-Use Software (Subtopic 350-40). The new guidance reduces complexity for the accounting for costs of implementing a cloud computing service arrangement and aligns the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software (and hosting arrangements that include an internal use software license). The Group adopted this ASU on December 30, 2019. The adoption of this standard did not have a material effect on the Group’s financial position, results of operations or cash flows.
The FASB issued ASU 2019-12, Simplifying the Accounting for Income Taxes: This standard removes certain exceptions for recognizing deferred taxes for investments, performing intraperiod allocation and calculating income taxes in interim periods. It also adds guidance in certain areas, including the recognition of franchise taxes, recognition of deferred taxes for tax goodwill, allocation of taxes to members of a consolidated group, computation of annual effective tax rates related to enacted changes in tax laws, and minor improvements related to employee stock ownership plans and investments in qualified affordable housing projects accounted for using the equity method. The Group adopted this ASU on December 30, 2019. The adoption of this standard did not have a material effect on the Group’s financial position, results of operations or cash flows.
Note 3. INVESTMENT IN FAT BRANDS PREFERRED STOCK
On June 27, 2018, FCCG acquired 20,000 shares of Series A Fixed Rate Cumulative Preferred Stock of FAT (“FAT Series A Preferred Stock”) at $100 per share and warrants to purchase 25,531 shares of FAT’s common stock with an exercise price of $7.83 per share (as adjusted for a common stock dividend declared by FAT in 2019) in exchange for $2,000,000 of a Related Party Debt balance.
The FAT Series A Preferred Stock contained the following terms:
Dividends - Holders of FAT Series A Preferred Stock were entitled to receive cumulative dividends on the $100.00 per share stated liquidation preference of the FAT Series A Preferred Stock, in the amount of (i) cash dividends at a rate of 9.9% per year, plus (ii) deferred dividends equal to 4.0% per year, payable on the Mandatory Redemption Date (defined below).
Liquidation and Redemption - Upon (i) the five-year anniversary of the initial issuance date (June 8, 2023), or (ii) the earlier liquidation, dissolution or winding-up of FAT (the “Series A Mandatory Redemption Date”), the holders of FAT Series A Preferred Stock would have been entitled to cash redemption of their shares in an amount equal to $100.00 per share plus any accrued and unpaid dividends.
In addition, prior to the Series A Mandatory Redemption Date, FAT could have optionally redeemed the FAT Series A Preferred Stock, in whole or in part, at scheduled redemption prices per share.
During the year ended December 30, 2018, FCCG sold 5,000 shares of the FAT Series A Preferred Stock, and the related warrants to purchase 6,383 of FAT’s common stock at an exercise price of $7.83 per share, to an unrelated investor.
| F-8 |
On July 13, 2020, FCCG entered into an agreement to exchange its 15,000 shares of FAT Brands’ Series A Preferred Stock, plus accrued dividends thereon at face value, for 60,000 shares of FAT Brands 8.25% Series B Cumulative Preferred Stock valued at $25.00 per share (“FAT Series B Preferred Stock”). The Company also received an additional 14,449 shares of FAT Series B Preferred Stock as consideration for accrued dividends due to FCCG.
Holders of FAT Series B Preferred Stock will be entitled to receive, when declared by the FAT’s Board of Directors, cumulative cash dividends payable monthly in an amount per share equal to $2.0625 each year, which is equivalent to 8.25% per annum of the $25.00 liquidation preference per share. Dividends on the Series B Preferred Stock will be payable monthly in arrears. If FAT fails to make a cash dividend payment with respect to 12 or more consecutive or non-consecutive monthly dividends, the dividend rate on the FAT Series B Preferred Stock will increase to $2.50 per share each year, which is equivalent to 10% of the $25.00 liquidation preference per share until FAT has paid all accumulated accrued and unpaid dividends on the FAT Series B Preferred Stock in full and has paid accrued dividends for all dividend periods during the two most recently completed dividend periods in full. In addition, if FAT fails to make a cash dividend payment with respect to 18 or more consecutive or non-consecutive monthly dividends, the holders of the FAT Series B Preferred Stock, voting as a separate class, will be entitled to vote for the election of two additional directors to serve on the FAT’s Board of Directors until all dividends that are owed have been paid in full.
FCCG recognized dividend income relating to the Series A Preferred Stock during the thirty-nine weeks ended September 27, 2020 and September 29, 2019 in the amount of $129,000 and $156,000, respectively.
As of September 27, 2020, FCCG owns 74,449 shares of FAT Series B Preferred Stock and warrants to purchase 19,148 shares of FAT’s common stock at an exercise price of $7.83 per share (as adjusted for a common stock dividend declared by FAT in 2019), with a combined carrying value of $1,861,000. FCCG recognized dividend income relating to the Series B Preferred Stock during the thirty-nine weeks ended September 27, 2020 in the amount of $31,000.
Note 4. LOAN TO STOCKHOLDER
FCCG has made advances to Andrew A. Wiederhorn, the Company’s CEO and significant stockholder (the “Stockholder Loan”). The Stockholder Loan bears interest at 5% per annum on outstanding balances. During the thirty-nine weeks ended September 27, 2020, FCCG forgave a portion of the Stockholder Loan and recorded a loss on forgiveness of loan to stockholder in the amount of $16,948,000. As of September 27, 2020, the balance outstanding on the Stockholder Loan was $5,606,000. FCCG recognized interest income on the Stockholder Loan in the amount of $277,000 and $426,000 for the thirty-nine weeks ended September 27, 2020 and September 29, 2019, respectively.
Note 5. Income Taxes
The Group’s deferred taxes reflect the net effect of temporary differences between the carrying amount of assets and liabilities for financial reporting purposes and the amounts used for calculating taxes payable on a stand-alone basis. Significant components of the Group’s deferred tax assets and liabilities are as follows (in thousands):
| September 27, 2020 | December 29, 2019 | |||||||
| Deferred tax assets (liabilities) | ||||||||
| Net operating loss carryforwards | $ | 17,552 | $ | 18,513 | ||||
| Other | 3,370 | 546 | ||||||
| Valuation allowance | (20,922 | ) | (19,059 | ) | ||||
| Total | $ | - | $ | - | ||||
Components of the income tax expense are as follows (in thousands):
| Thirty-nine Weeks Ended September 27, 2020 | Thirty-nine Weeks Ended | |||||||
| Current | ||||||||
| Federal | $ | - | $ | - | ||||
| State | 2 | 1 | ||||||
| Foreign | - | - | ||||||
| 2 | 1 | |||||||
| Deferred | ||||||||
| Federal | - | - | ||||||
| State | - | - | ||||||
| - | - | |||||||
| Total income tax expense | $ | 2 | $ | 1 | ||||
| F-9 |
The differences between income taxes expected at the U.S. Federal statutory income tax rate of 21% and the reported income tax expense are primarily related to state taxes, net of federal benefit, expiration of net operating loss carryforwards; and change in federal, and state valuation allowances.
As of September 27, 2020, FCCG’s annual tax filings for the prior three years are open for audit by Federal and for the prior four years for state tax agencies. Management evaluated the Group’s overall tax positions and has determined that no provision for uncertain income tax positions is necessary as of September 27, 2020.
NOTE 6. ACCRUED EXPENSES
Accrued expenses consist of the following (in thousands):
| September 27, 2020 | December 29, 2019 | |||||||
| Payroll taxes and related penalties | $ | 6,529 | $ | 6,621 | ||||
| Professional fees | 1,460 | 1,680 | ||||||
| Vendor liabilities | 1,502 | 1,521 | ||||||
| Gift card balances | 135 | 135 | ||||||
| Credit card balance | 185 | 185 | ||||||
| Closed restaurant accruals | 303 | 728 | ||||||
| Other | 179 | 394 | ||||||
| Total | $ | 10,293 | $ | 11,264 | ||||
Note 7. DEBT
The Group’s combined debt is summarized as follows (in thousands):
| September 27, 2020 | December 29, 2019 | |||||||
| Debt recorded at Fog Cutter Capital Group: | ||||||||
| Note payable to a private lender. The note bears interest at a fixed rate of 12% and is unsecured. Interest is due monthly in arrears. The note matures on December 31, 2020. | $ | 1,976 | $ | 2,026 | ||||
| Note payable to a private lender. The note bears interest at a fixed rate of 12% and is unsecured. Interest is due monthly in arrears. The note matures on December 31, 2020. | 2,871 | 2,989 | ||||||
| Note payable to a private lender, secured by FCCG’s interest in certain shares of FAT Common Stock. The note bears interest at a fixed rate of 15%. The note matures December 1, 2020. | 113 | 311 | ||||||
| Note payable to a private lender, secured by FCCG’s interest in certain shares of FAT Common Stock. The note bears interest at a fixed rate of 12%. Interest is due monthly in arrears. The maturity date of the note was June 30, 2020 | 743 | 688 | ||||||
| Consideration payable to former shareholders issued in redemption of fractional shares of the FCCG’s stock (Note 9). The consideration is unsecured and non-interest bearing and is due and payable on May 21, 2021. | 4,548 | - | ||||||
| Debt recorded at Fog Cap Development, LLC: | ||||||||
| Note payable to a private lender secured by FCCG’s interest in shares of FAT Common Stock. The note bears interest at a fixed rate of 15%. Interest is due at maturity. The note is due December 1, 2020. | 134 | 345 | ||||||
| Total debt | $ | 10,385 | $ | 6,359 | ||||
Subsequent to September 27, 2020, the maturity date of each of the above loans was amended to be May 21, 2021.
| F-10 |
Note 8. Related Party Transactions
As described in Note 1 - Liquidity, on April 24, 2020, FCCG entered into an Intercompany Agreement with FAT. As of September 27, 2020, the balance payable under the Intercompany Agreement was $33,382,000. The Group recognized $2,163,000 and $1,350,000 in interest expense related to the intercompany advances during the thirty-nine weeks ended September 27, 2020 and September 29, 2019, respectively.
Effective July 5, 2018, FAT made a preferred capital investment in Homestyle Dining LLC, a Delaware limited liability corporation (“HSD”) in the amount of $4.0 million (the “Preferred Interest”). FCCG owns all of the common interests in HSD. The holder of the Preferred Interest is entitled to a 15% priority return on the outstanding balance of the investment (the “Preferred Return”). During the thirty-nine weeks ended September 27, 2020, the Group recorded interest expense of $450,000. Any available cash flows from HSD on a quarterly basis are to be distributed to pay the accrued Preferred Return and repay the Preferred Interest until fully retired. On or before the five-year anniversary of the investment, the Preferred Interest is to be fully repaid, together with all previously accrued but unpaid Preferred Return. FCCG has unconditionally guaranteed repayment of the Preferred Interest in the event HSD fails to do so. As of September 27, 2020, the balance payable, including accrued and unpaid interest income, under the Preferred Interest was $5,350,000.
During the thirty-nine weeks ended September 27, 2020 and September 29, 2019, FCCG recorded a payable to FAT under the Tax Sharing Agreement in the amount of $158,000 and $30,000, respectively, which were included in the due to affiliate balance.
Note 9. EQUITY
Cancellation of Treasury Shares
On July 6, 2020, FCCG cancelled 3,799,645 shares of common stock previously held in treasury, with a cost basis of $12,011,000.
Reverse Stock Split
In the third quarter of 2020, FCCG’s shares of common stock were the subject of a reverse stock split, reducing the number of issued shares in the ratio of 326,000 shares to one. Shareholders owning less than one share following the reverse split were entitled to cash-in-lieu of their fractional shares in the amount of $2.75 per original share to be paid on or before May 21, 2021, without interest thereon. The amount of cash-in-lieu to be paid by the Company totals $4,548,000. Effective with the consummation of the Merger on December 24, 2020, the payment of the cash-in-lieu became the obligation of Fog Cutter Acquisition, LLC. (See Note 11)
Immediately following the reverse stock split, FCCG declared a forward stock split which was the exact inverse of the previous reverse stock split (issuing 326,000 shares for each remaining share of outstanding stock), thus eliminating the effects of the reverse stock split on the shares not receiving cash-in-lieu.
As of September 27, 2020, the total number of authorized shares of common stock was 10,100,000 and there were 8,428,692 shares issued and outstanding.
Stock-based Compensation
During the thirty-nine weeks ended September 29, 2019, FCCG completed the following stock-based transactions:
| ● | On August 28, 2019, the Company issued a total of 1,825,000 shares of common stock at a value of $1.00 per share as compensation. | |
| ● | On August 28, 2019, the Company issued a total of 300,000 shares of common stock at a value of $1.00 per share to the non-employee members of the board of directors as consideration for directors’ fees. |
| F-11 |
Note 10. Commitments and Contingencies
Litigation
Eric Rojany, et al. v. FAT Brands Inc., et al., Superior Court of California for the County of Los Angeles, Case No. BC708539, and Daniel Alden, et al. v. FAT Brands Inc., et al., Superior Court of California for the County of Los Angeles, Case No. BC716017.
On June 7, 2018, FAT Brands, Inc., Andrew Wiederhorn, Ron Roe, James Neuhauser, Edward H. Rensi, Marc L. Holtzman, Squire Junger, Silvia Kessel, Jeff Lotman, Fog Cutter Capital Group Inc., and Tripoint Global Equities, LLC (collectively, the “Original Defendants”) were named as defendants in a putative securities class action lawsuit entitled Rojany v. FAT Brands, Inc., Case No. BC708539 (the “Rojany Case”), in the Superior Court of the State of California, County of Los Angeles. On July 31, 2018, the Rojany Case was designated as complex, pursuant to Rule 3.400 of the California Rules of Court and assigned the matter to the Complex Litigation Program. On August 2, 2018, the Original Defendants were named defendants in a second putative class action lawsuit, Alden v. FAT Brands, Case No. BC716017 (the “Alden Case”), filed in the same court. On September 17, 2018, the Rojany and Alden Cases were consolidated under the Rojany Case number. On October 10, 2018, plaintiffs Eric Rojany, Daniel Alden, Christopher Hazelton-Harrington and Byron Marin (“Plaintiffs”) filed a First Amended Consolidated Complaint against FAT Brands, Inc., Andrew Wiederhorn, Ron Roe, James Neuhauser, Edward H. Rensi, Fog Cutter Capital Group Inc., and Tripoint Global Equities, LLC (collectively, “Defendants”), thereby removing Marc L. Holtzman, Squire Junger, Silvia Kessel and Jeff Lotman as defendants. On November 13, 2018, Defendants filed a Demurrer to First Amended Consolidated Complaint. On January 25, 2019, the Court sustained Defendants’ Demurrer to First Amended Consolidated Complaint with Leave to Amend in Part. Plaintiffs filed a Second Amended Consolidated Complaint on February 25, 2019. On March 27, 2019, Defendants filed a Demurrer to the Second Amended Consolidated Complaint. On July 31, 2019, the Court sustained Defendants’ Demurrer to the Second Amended Complaint in Part, narrowing the scope of the case. Defendants filed their Answer to the Second Amended Consolidated Complaint on November 12, 2019. Thereafter, plaintiffs Alden, Hazelton-Harrington and Marin, voluntarily dismissed their claims without prejudice, leaving only plaintiff Rojany as the putative class representative plaintiff (“Plaintiff”). On January 29, 2020, Plaintiff filed a Motion for Class Certification. On October 8, 2020, the Court denied Plaintiff’s Motion for Class Certification. On January 6, 2021, the parties executed a Settlement Agreement and Mutual Release pursuant to which plaintiff agreed to dismiss his individual claims against defendants with prejudice in exchange for a payment by or on behalf of defendants of $50,000. On January 27, 2021, plaintiff filed a request for dismissal of this action, with prejudice, in its entirety.
Adam Vignola, et al. v. FAT Brands Inc., et al., United States District Court for the Central District of California, Case No. 2:18-cv-07469.
On August 24, 2018, the Original Defendants were named as defendants in a putative securities class action lawsuit entitled Vignola v. FAT Brands, Inc., Case No. 2:18-cv-07469-PSG-PLA, in the United States District Court for the Central District of California. On October 23, 2018, Charles Jordan and David Kovacs (collectively, “Lead Plaintiffs”) moved to be appointed lead plaintiffs, and the Court granted Lead Plaintiffs’ motion on November 16, 2018. On January 15, 2019, Lead Plaintiffs filed a First Amended Class Action Complaint against the Original Defendants. The allegations and claims for relief asserted in Vignola are substantively identical to those asserted in the Rojany Case. Defendants filed a Motion to Dismiss First Amended Class Action Complaint, or, in the Alternative, to Stay the Action In Favor of a Prior Pending Action. On June 14, 2019, the Court denied Defendants’ motion to stay but granted Defendants’ motion to dismiss the First Amended Class Action Complaint, with Leave to Amend. Lead Plaintiffs filed a Second Amended Class Action Complaint on August 5, 2019. On September 9, 2019, Defendants’ filed a Motion to Dismiss the Second Amended Class Action Complaint. On December 17, 2019, the Court granted Defendants’ Motion to Dismiss the Second Amended Class Action Complaint in Part, Without Leave to Amend. The allegations remaining in Vignola are substantively identical to those remaining in the Rojany Case. Defendants filed their Answer to the Second Amended Class Action Complaint on January 14, 2020. On December 27, 2019, Lead Plaintiffs filed a Motion for Class Certification. By order entered March 16, 2020, the Court denied Lead Plaintiffs’ Motion for Class Certification. By order entered April 1, 2020, the Court set various deadlines for the case, including a fact discovery cut-off of December 29, 2020, expert discovery cut-off of February 23, 2021 and trial date of March 30, 2021. On September 25, 2020, the parties executed a Settlement Agreement and Mutual Release pursuant to which lead plaintiffs agreed to dismiss their individual claims against defendants with prejudice in exchange for a payment by or on behalf of defendants of $75,000. On October 13, 2020, the Court ordered the stipulated dismissal of this action, with prejudice, in its entirety.
| F-12 |
FCCG is obligated to indemnify its officers and directors to the extent permitted by applicable law in connection with the above actions, and has insurance for such individuals, to the extent of the limits of the applicable insurance policies and subject to potential reservations of rights. FCCG is also obligated to indemnify Tripoint Global Equities, LLC under certain conditions relating to the Rojany and Vignola matters. These two proceedings are now concluded.
Stratford Holding LLC v. Foot Locker Retail Inc. (U.S. District Court for the Western District of Oklahoma, Case No. 5:12-cv-00772-HE)
In 2012 and 2013, two property owners in Oklahoma City, Oklahoma sued numerous parties, including Fog Cutter, for alleged environmental contamination on their properties, stemming from dry cleaning operations on one of the properties. The property owners seek damages in the range of $12 million to $22 million. From 2002 to 2008, a former Fog Cutter subsidiary managed a lease portfolio, which included the subject property. Fog Cutter denies any liability, although it did not timely respond to one of the property owners’ complaints and several of the defendants’ cross-complaints and thus is in default. The parties are currently conducting discovery, and the matter is scheduled for trial for November 2021. The Company is unable to predict the ultimate outcome of this matter, however, reserves in the amount of $3,500,000 have been recorded on the balance sheet relating to this litigation. There can be no assurance that the defendants will be successful in defending against these actions.
SBN FCCG LLC v FCCGI (Los Angeles Superior Court, Case No. BS172606)
SBN FCCG LLC (“SBN”) filed a complaint against Fog Cutter Capital Group, Inc. (“FCCG”) in New York state court for an indemnification claim (the “NY case”) stemming from an earlier lawsuit in Georgia regarding a certain lease portfolio formerly managed by a former FCCG subsidiary. In February 2018, SBN obtained a final judgment in the NY case for a total of $651,290, which included $225,030 in interest dating back to March 2012. SBN then obtained a sister state judgment in Los Angeles Superior Court, Case No. BS172606 (the “California case”), which included the $651,290 judgment from the NY case, plus additional statutory interest and fees, for a total judgment of $656,543. In May 2018, SBN filed a cost memo, requesting an additional $12,411 in interest to be added to the judgment in the California case, for a total of $668,954. In May 2019, the parties agreed to settle the matter for $580,000, which required the immediate payment of $100,000, and the balance to be paid in August 2019. FCCG wired $100,000 to SBN in May 2019, but has not yet paid the remaining balance of $480,000. The parties have not entered into a formal settlement agreement, and they have not yet discussed the terms for the payment of the remaining balance.
The Group is involved in other claims and legal proceedings from time-to-time that arise in the ordinary course of business. The Group does not believe that the ultimate resolution of these actions will have a material adverse effect on its business, financial condition, results of operations, liquidity or capital resources.
Guarantee of FAT — Elevation Note
On June 19, 2019, the FAT completed the acquisition of Elevation Burger. A portion of the purchase price included the issuance to the Seller of a convertible subordinated promissory note (the “Elevation Note”) with a principal amount of $7,509,816, bearing interest at 6.0% per year and maturing in July 2026. The Elevation Note is convertible under certain circumstances into shares of the FAT’s common stock at $12.00 per share. The Company has guaranteed payment of the Elevation Note.
| F-13 |
Guarantee of FAT — Elevation Note (continued)
FAT is required to make fully amortizing payments of $110,000 per month during the term of the Elevation Note. The Elevation Note is a general unsecured obligation of FAT and is subordinated in right of payment to all indebtedness of FAT arising under any agreement or instrument to which FAT or any of its affiliates is a party that evidences indebtedness for borrowed money that is senior in right of payment.
NOTE 11. SUBSEQUENT EVENTS
Pursuant to FASB ASC 855, Management has evaluated all events and transactions that occurred from December 29, 2019 through the date of issuance of these combined financial statements. During this period, the Company did not have any significant subsequent events, except as described below:
Loan to Stockholder
During the fourth quarter of 2020, FCCG transferred 74,449 shares of FAT Series B Preferred Stock and warrants to purchase 19,148 shares of FAT’s common stock at an exercise price of $7.83 per share, with a combined carrying value of $1,861,000 to Fog Cutter Holdings, LLC, a Delaware limited liability company (“Holdings”) owned by certain previous Company stockholders that were not cashed out as a result of the reserve stock split, including Andrew Wiederhorn. The Company recorded an advance on the Stockholder Loan in the amount of $1,861,000 as a result of the transfer of preferred shares and warrants.
On December 24, 2020, the Company cancelled the Stockholder Loan arrangement with Mr. Wiederhorn and forgave the ending balance, recording a related loss on forgiveness of loan to stockholder in the amount of $8,489,000.
Merger with FAT.
On December 10, 2020, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with FAT, Fog Cutter Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of FAT (“Merger Sub”), and Holdings.
Pursuant to the Merger Agreement, the Company agreed to merge with and into Merger Sub, with Merger Sub surviving as a wholly owned subsidiary of FAT (the “Merger”). Upon closing of the Merger, the former stockholders of the Company became direct stockholders of FAT, holding, in the aggregate, 9,679,288 shares of the FAT’s common stock (the same number of shares of Common Stock held by the Company immediately prior to the Merger) and received certain limited registration rights with respect to the shares received in the Merger. As a result of the Merger, FCCG’s wholly owned subsidiaries, Homestyle Dining, LLC, Fog Cap Development LLC, Fog Cap Acceptance Inc. and BC Canyon LLC, became indirect wholly owned subsidiaries of FAT.
Under the Merger Agreement, Holdings has agreed to indemnify FAT for any breaches of FCCG’s representations and warranties, covenants and certain other matters specified in the Merger Agreement, subject to certain exceptions and qualifications. Holdings has also agreed to hold a minimum fair market value of shares of Common Stock of FAT to ensure that it has assets available to satisfy such indemnification obligations if necessary.
The Company undertook the Merger primarily to provide a structure to allow its shareholders to participate directly in the potential growth of FAT and to simplify its corporate structure.
| F-14 |
Exhibit 99.3
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
On December 24, 2020, FAT Brands Inc., a Delaware corporation (the “Company”), completed its previously announced transaction involving the Merger of Fog Cutter Capital Group Inc., a Delaware corporation (“FCCG”), through the merger of FCCG with and into Fog Cutter Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Sub”). The merger of FCCG by the Company (the “Merger”) was consummated pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), dated December 10, 2020, by and among the Company, FCCG, Merger Sub and Fog Cutter Holdings, LLC, a Delaware limited liability company (“Holdings”). As a result of the Merger, the Company acquired, through Merger Sub, all of FCCG’s assets, including its net operating loss carryforwards and wholly owned subsidiaries that it held at closing, consisting of Homestyle Dining, LLC, Fog Cap Development LLC, Fog Cap Acceptance Inc. and BC Canyon LLC, and certain of FCCG’s liabilities (collectively, the “FCCG Business”). Other subsidiaries of FCCG were not included in the assets transferred to Merger Sub (the “Excluded Entities”).
The following consolidated financial information presents the unaudited pro forma consolidated balance sheet and unaudited pro forma consolidated statement of operations of the Company, its subsidiaries and the FCCG Business as of and for the thirty-nine weeks ended September 27, 2020, and for the year ended December 29, 2019 (the “Pro Forma Financial Statements”). The Pro Forma Financial Statements are based on historical financial statements of the entities, as adjusted to give effect to the Merger. The unaudited pro forma consolidated statements of operations for the thirty-nine weeks ended September 27, 2020 and for the year ended December 29, 2019 give effect to the Merger as if it had occurred on December 31, 2018 (the beginning of the Company’s 2019 fiscal year). The unaudited pro forma consolidated balance sheet as of September 27, 2020 gives effect to the Merger as if it had occurred on September 27, 2020.
The pro forma adjustments related to the Merger are described in the notes to the Pro Forma Financial Statements. These pro forma adjustments are based upon available information and methodologies that are factually supportable and specifically related to the Merger. The Pro Forma Financial Statements include various estimates and may not be indicative of what our operations or financial position would have been had the Merger taken place on the dates indicated, or that may be expected to occur in the future.
The Pro Forma Financial Statements do not purport to represent what the consolidated results of operations actually would have been if the Merger had occurred on December 31, 2018 or what those results will be for any future periods. The pro forma adjustments are based on information current as of March 9, 2021 (being the latest practicable date prior to the filing of this Form 8-K/A) and do not adjust to reflect any matters not directly attributable to the Merger. No adjustment, therefore, has been made for actions that may be taken following the completion of the Merger, such as any of our integration plans related to the FCCG Business. As a result, the actual amounts recorded in the future consolidated financial statements of the Company will differ from the amounts reflected in the Pro Forma Financial Statements, and the differences may be material.
FAT Brands Inc.
Unaudited Pro Forma Consolidated Balance Sheet
As of September 27, 2020
(In thousands)
| FAT Brands Inc. and Subsidiaries | Fog Cutter Group | Elimination of Excluded Entities (Note 2) | Merger Adjustments | Note Ref. | Pro Forma Consolidated Balance | |||||||||||||||||
| Assets | ||||||||||||||||||||||
| Current assets | ||||||||||||||||||||||
| Cash | $ | 12,110 | $ | 30 | $ | (3 | ) | $ | (29 | ) | 5(d) | $ | 12,108 | |||||||||
| Restricted cash | 1,758 | - | - | 1,758 | ||||||||||||||||||
| Accounts receivable, net | 4,453 | - | - | - | 4,453 | |||||||||||||||||
| Trade notes receivable, net | 206 | - | - | - | 206 | |||||||||||||||||
| Assets classified as held for sale | 11,048 | - | - | - | 11,048 | |||||||||||||||||
| Prepaid expenses and other current assets | 1,611 | 129 | (524 | ) | 520 | 5(c) | 1,736 | |||||||||||||||
| Total current assets | 31,186 | 159 | (527 | ) | 491 | 31,309 | ||||||||||||||||
| Non-current restricted cash | 400 | - | - | - | 400 | |||||||||||||||||
| Property and equipment, net | - | 58 | (39 | ) | - | 19 | ||||||||||||||||
| Due from affiliates | 38,732 | - | 1,955 | (40,687 | ) | 5(a)(g) | - | |||||||||||||||
| Trade notes receivable | 1,604 | - | - | - | 1,604 | |||||||||||||||||
| Loan to stockholder | - | 5,606 | - | (5,606 | ) | 4 | - | |||||||||||||||
| Operating lease right of use assets | 4,708 | - | - | - | 4,708 | |||||||||||||||||
| Investment in FAT preferred stock and warrants | - | 1,861 | - | (1,861 | ) | 4 | - | |||||||||||||||
| Deferred tax assets, net | - | - | - | 10,766 | 3 | 10,766 | ||||||||||||||||
| Goodwill | 19,141 | - | - | - | 19,141 | |||||||||||||||||
| Other intangible assets, net | 52,959 | - | - | - | 52,959 | |||||||||||||||||
| Other assets | 863 | 56 | 4 | - | 923 | |||||||||||||||||
| Total assets | $ | 149,593 | $ | 7,740 | $ | 1,393 | $ | (36,897 | ) | $ | 121,829 | |||||||||||
| Liabilities and Stockholder’s Deficit | ||||||||||||||||||||||
| Liabilities | ||||||||||||||||||||||
| Accounts payable | $ | 8,159 | $ | 3,101 | (1,346 | ) | $ | (360 | ) | 5(e)(f) | $ | 9,554 | ||||||||||
| Accrued expenses | 8,373 | 10,293 | (2,670 | ) | (899 | ) | 5(c)(f) | 15,097 | ||||||||||||||
| Accrued advertising | 271 | - | - | - | 271 | |||||||||||||||||
| Litigation reserve | - | 3,980 | - | - | 5(f) | 3,980 | ||||||||||||||||
| Deferred income | 1,812 | - | - | - | 1,812 | |||||||||||||||||
| Accrued interest payable | 864 | - | - | - | 864 | |||||||||||||||||
| Dividends payable on preferred shares | 272 | - | - | - | 272 | |||||||||||||||||
| Liabilities related to assets held for sale | 9,959 | - | - | - | 9,959 | |||||||||||||||||
| Current portion operating lease liabilities | 585 | - | - | - | 585 | |||||||||||||||||
| Current portion of long-term debt | 1,571 | 10,385 | - | - | 11,956 | |||||||||||||||||
| Total current liabilities | 31,866 | 27,759 | (4,016 | ) | (1,259 | ) | 54,350 | |||||||||||||||
| Deferred income - noncurrent | 8,872 | - | - | - | 8,872 | |||||||||||||||||
| Preferred shares | 7,945 | - | - | - | 7,945 | |||||||||||||||||
| Deferred tax liabilities, net | 2,367 | - | - | (2,367 | ) | 3 | - | |||||||||||||||
| Merger purchase price payable | 2,704 | - | - | - | 2,704 | |||||||||||||||||
| Due to FAT Brands, Inc. | - | 38,732 | - | (38,732 | ) | 5(a) | - | |||||||||||||||
| Deferred dividend payable on preferred shares | 418 | - | - | - | 418 | |||||||||||||||||
| Operating lease liability | 4,298 | - | - | - | 4,298 | |||||||||||||||||
| Long-term debt, net | 78,440 | - | - | - | 78,440 | |||||||||||||||||
| Other long-term liabilities | 201 | 75 | (73 | ) | - | 203 | ||||||||||||||||
| Total liabilities | 137,111 | 66,566 | (4,089 | ) | (42,358 | ) | 157,230 | |||||||||||||||
| Commitments and contingencies | - | - | - | - | - | |||||||||||||||||
| - | - | - | - | |||||||||||||||||||
| Stockholder’s deficit | - | - | - | - | ||||||||||||||||||
| Preferred stock | 13,041 | - | - | 8,885 | 5(d) | 21,926 | ||||||||||||||||
| Common stock | 12,666 | 158,198 | - | (167,112 | ) | 5(b)(d) | 3,752 | |||||||||||||||
| Accumulated deficit | (13,225 | ) | (217,024 | ) | 5,482 | 163,688 | 5(h) | (61,079 | ) | |||||||||||||
| Total stockholder’s deficit | 12,482 | (58,826 | ) | 5,482 | 5,461 | (35,401 | ) | |||||||||||||||
| Total liabilities and stockholder’s deficit | $ | 149,593 | $ | 7,740 | $ | 1,393 | $ | (36,897 | ) | $ | 121,829 | |||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
FAT
Brands Inc.
Unaudited Pro Forma Consolidated Statement of Operations
For the thirty-nine weeks ended September 27, 2020
(In thousands, except per share information)
| FAT Brands Inc. and Subsidiaries | Fog Cutter Group | Merger Adjustments | Note Ref. | Pro Forma Consolidated Balance | ||||||||||||||
| Revenue | ||||||||||||||||||
| Franchise royalties | $ | 8,678 | $ | - | $ | - | $ | 8,678 | ||||||||||
| Franchise fees | 571 | - | - | 571 | ||||||||||||||
| Advertising fees | 2,347 | - | - | 2,347 | ||||||||||||||
| Other | 23 | - | - | 23 | ||||||||||||||
| Total revenue | 11,619 | - | - | 11,619 | ||||||||||||||
| Costs and expenses | ||||||||||||||||||
| General and administrative expenses | 10,626 | 1,959 | (24 | ) | 2 | 12,561 | ||||||||||||
| Impairment of assets | 3,927 | - | - | 3,927 | ||||||||||||||
| Refranchising loss | 1,869 | - | - | 1,869 | ||||||||||||||
| Advertising expense | 2,358 | - | - | 2,358 | ||||||||||||||
| Total costs and expenses | 18,780 | 1,959 | (24 | ) | 20,715 | |||||||||||||
| Loss from operations | (7,161 | ) | (1,959 | ) | 24 | (9,096 | ) | |||||||||||
| Other expense, net | ||||||||||||||||||
| Interest expense, net | (2,034 | ) | (2,793 | ) | (254 | ) | 5(i)(j) | (5,081 | ) | |||||||||
| Interest expense related to preferred shares | (1,251 | ) | - | 122 | 5(j) | (1,129 | ) | |||||||||||
| Change in fair value of derivative liability | 887 | - | - | 887 | ||||||||||||||
| Loss on extinguishment of debt | (88 | ) | - | - | (88 | ) | ||||||||||||
| Loss on forgiveness of loan to stockholder | - | (16,948 | ) | 16,948 | 5(i) | - | ||||||||||||
| Gain on contingent consideration payable adjustment | 1,680 | - | - | 1,680 | ||||||||||||||
| Other expense, net | (627 | ) | 402 | 273 | 2, 5(k) | 48 | ||||||||||||
| Total other expense, net | (1,433 | ) | (19,339 | ) | 17,089 | (3,683 | ) | |||||||||||
| Loss before provision for income tax expense (benefit) | (8,594 | ) | (21,298 | ) | 17,113 | (12,779 | ) | |||||||||||
| Provision for income tax (benefit) expense | (1,405 | ) | 2 | - | (1,403 | ) | ||||||||||||
| Net loss | $ | (7,189 | ) | $ | (21,300 | ) | $ | 17,113 | $ | (11,376 | ) | |||||||
| Basic and diluted loss per common share | $ | (0.60 | ) | $ | N/A | $ | N/A | $ | (0.96 | ) | ||||||||
| Basic and diluted weighted average shares outstanding | 11,888,618 | N/A | N/A | 11,888,618 | ||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
FAT
Brands Inc.
Unaudited Pro Forma Consolidated Statement of Operations
For the Year Ended December 29, 2019
(In thousands, except per share information)
| FAT Brands Inc. and Subsidiaries | Fog Cutter Group | Merger Adjustments (Note 5) | Note Ref. | Pro Forma Consolidated Balance | ||||||||||||||
| Revenue | ||||||||||||||||||
| Franchise royalties | $ | 14,895 | $ | - | $ | - | $ | 14,895 | ||||||||||
| Franchise fees, initial country fees, and rental income | 3,433 | - | - | 3,433 | ||||||||||||||
| Advertising fees | 4,111 | - | - | 4,111 | ||||||||||||||
| Other | 66 | - | - | 66 | ||||||||||||||
| Total revenue | 22,505 | - | - | 22,505 | ||||||||||||||
| Costs and expenses | ||||||||||||||||||
| General and administrative expenses | 11,472 | 3,616 | (28 | ) | 2 | 15,060 | ||||||||||||
| Refranchising loss (income) | 219 | - | - | 219 | ||||||||||||||
| Advertising expense | 4,111 | - | - | 4,111 | ||||||||||||||
| Total costs and expenses | 15,802 | 3,616 | (28 | ) | 19,390 | |||||||||||||
| Income from operations | 6,703 | (3,616 | ) | 28 | 3,115 | |||||||||||||
| Other expense, net | ||||||||||||||||||
| Interest expense, net | (4,757 | ) | (2,198 | ) | (827 | ) | 5(i)(j) | (7,782 | ) | |||||||||
| Interest expense related to preferred shares | (1,773 | ) | - | 208 | 5(j) | (1,565 | ) | |||||||||||
| Other expense, net | (681 | ) | (448 | ) | - | (1,129 | ) | |||||||||||
| Total other expense, net | (7,211 | ) | (2,646 | ) | (619 | ) | (10,476 | ) | ||||||||||
| (Loss) income before provision for income tax expense | (508 | ) | (6,262 | ) | (591 | ) | (7,361 | ) | ||||||||||
| Provision for income tax expense | 510 | 2 | (1 | ) | 2 | 511 | ||||||||||||
| Net (loss) income | $ | (1,018 | ) | $ | (6,264 | ) | $ | (590 | ) | $ | (7,872 | ) | ||||||
| Basic and diluted (loss) income per common share | $ | (0.09 | ) | $ | N/A | $ | N/A | $ | (0.67 | ) | ||||||||
| Basic and diluted weighted average shares outstanding | 11,823,000 | N/A | N/A | 11,823,000 | ||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
FAT Brands, Inc. (the “Company” or “FAT”) is a multi-brand franchisor specializing in fast casual and casual dining restaurant concepts around the world. As of January 31, 2021, the Company owns and franchises nine restaurant brands: Fatburger, Johnny Rockets, Buffalo’s Cafe, Buffalo’s Express, Hurricane Grill & Wings, Ponderosa Steakhouses, Bonanza Steakhouses, Yalla Mediterranean and Elevation Burger. Combined, as of January 31, 2021, these brands franchise over 700 units worldwide and have more than 200 additional units under development.
The Company licenses the right to use its brand names and provides franchisees with operating procedures and methods of merchandising. Upon signing a franchise agreement, the franchisor is committed to provide training, some supervision and assistance, and access to operations manuals. As needed, the franchisor will also provide advice and written materials concerning techniques of managing and operating the restaurants.
With minor exceptions, the Company’s operations are comprised exclusively of franchising a growing portfolio of restaurant brands. This growth strategy is centered on expanding the footprint of existing brands and acquiring new brands through a centralized management organization which provides substantially all executive leadership, marketing, training and accounting services. As part of these ongoing franchising efforts, the Company will, from time to time, make opportunistic acquisitions of operating restaurants in order to convert them to franchise locations. During the refranchising period, the Company may operate the restaurants and classifies the operational activities as refranchising gains or losses and the assets and associated liabilities as held-for sale. Assets designated by the Company for refranchising meet the criteria requiring that they be classified as held for sale.
On December 24, 2020, the Company, completed the Merger of FCCG, through the merger of FCCG with and into Merger Sub. As a result of the Merger, the Company acquired, through Merger Sub, the FCCG Business.
Upon closing of the Merger, the former stockholders of FCCG became direct stockholders of the Company, holding in the aggregate 9,679,288 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), or approximately 81.2% of the outstanding shares of Common Stock at closing. Of these stockholders, Holdings was the largest stockholder, and upon closing of the Merger held 8,466,263 shares of Common Stock, or approximately 71.0% of the outstanding shares of Common Stock of the Company.
In connection with the Merger, the Company declared a special stock dividend (the “Special Dividend”) payable only to the non-FCCG holders of Common Stock on the record date, consisting of 0.2319998077 shares of the Company’s 8.25% Series B Cumulative Preferred Stock (liquidation preference $25.00 per share) (the “Series B Preferred Stock”) for each outstanding share of Common Stock held by such stockholders, with the value of any fractional shares of Series B Preferred Stock paid in cash. The Special Dividend was paid on December 23, 2020 and resulted in the issuance of 520,145 additional shares of Series B Preferred Stock.
NOTE 1. BASIS OF PRESENTATION
The Pro Forma Financial Statements are based on historical financial statements of the entities, as adjusted to give effect to the Merger. The historical financial statements utilized in this analysis consist of the following:
| ● | The consolidated financial statements of FAT and its subsidiaries, and | |
| ● | The combined financial statements of FCCG and its subsidiaries, excluding FAT (the “Fog Cutter Group”). |
The pro forma consolidated statements of operations for the thirty-nine weeks ended September 27, 2020 and for the year ended December 29, 2019 give effect to the Merger as if it had occurred on December 31, 2018 (the beginning of the Company’s 2019 fiscal year). The unaudited pro forma consolidated balance sheet as of September 27, 2020 gives effect to the Merger as if it had occurred on September 27, 2020. In addition to the historical financial statements included as exhibits to this Form 8-K/A, the Pro Forma Financial Statements should be read in conjunction with the Company’s Form 10-K as of December 29, 2019, the Form 10-Q as of September 27, 2020 and the Form 8-K filed with the Securities and Exchange Commission on December 11, 2020.
NOTE 2. ELIMINATION OF EXCLUDED ENTITIES
Certain inactive subsidiaries of the Fog Cutter Group were not included in the Merger. For the Pro Forma Financial Statements, in order to adjust the historical financial statements of the Fog Cutter Group to reflect only the FCCG Business, the assets, liabilities and operating results of the Excluded Entities have been eliminated. The following table summarizes the combined financial information of the Excluded Entities eliminated in these adjustments (dollars in thousands):
| Balance sheet accounts as of September 27, 2020: | ||||
| Cash | 3 | |||
| Other current assets | 524 | |||
| Property and equipment | 39 | |||
| Other assets | (4 | ) | ||
| Accounts payable | (1,346 | ) | ||
| Accrued expenses | (2,670 | ) | ||
| Due to affiliates | (1,955 | ) | ||
| Other liabilities | (73 | ) | ||
| Retained earnings | 5,482 | |||
| Statement of operations for the thirty-nine weeks ended September 27, 2020: | ||||
| General and administrative expense | 24 | |||
| Other expense | 304 | |||
| Statement of operations for the thirty-nine weeks ended September 27, 2020: | ||||
| General and administrative expense | 28 | |||
| Provision for income tax expense | 1 | |||
NOTE 3. DEFERRED TAX ASSET, NET
As of September 27, 2020, FAT had deferred tax liabilities, net of deferred tax assets, of $2,367,000, while the Fog Cutter Group had a full valuation allowance offsetting its net deferred tax assets. As a result of the Merger, based on our preliminary estimates and assumptions that are subject to change, the valuation allowance on the FCCG deferred tax asset has been reduced by $13,133,000, resulting in a pro forma adjusted net deferred tax asset of $10,766,000.
NOTE 4. LOAN TO STOCKHOLDER
The historic balance of the loan to stockholder was $5,606,000 as of September 27, 2020. Subsequently, but prior to the Merger, FCCG transferred 74,449 shares of FAT Series B Preferred Stock and warrants to purchase 19,148 shares of FAT’s common stock at an exercise price of $7.83 per share, with a combined carrying value of $1,861,000 to Holdings, which is owned by certain previous FCCG stockholders that were not cashed out as a result of the reserve stock split, including Andrew Wiederhorn. FCCG recorded an advance on the Loan to Stockholder in the amount of $1,861,000 as a result of the transfer of preferred shares and warrants, bringing the pro forma balance of the loan to stockholder to $7,467,000.
Immediately prior to the Merger, FCCG cancelled the loan to stockholder and forgave the ending balance, recording a related loss on forgiveness of loan to stockholder. The pro forma balance sheet reflects the cancellation of the balance of $7,467,000.
NOTE 5. PRO FORMA ADJUSTMENTS
The pro forma adjustments are based on our preliminary estimates and assumptions that are subject to change. The following adjustments have been reflected in the Pro Forma Financial Statements:
Adjustments to the pro forma consolidated balance sheet
| (a) | The $38,732,000 due to affiliate of the Fog Cutter Group has been reclassified to the due from affiliate line used by FAT so that the merged balances eliminate in consolidation. |
| (b) | The capital stock balance of the Fog Cutter Group in the amount of $158,198,000 has been closed out against accumulated deficit as a result of the Merger. |
| (c) | One of the Excluded Entities had an expired prepaid franchise fee in the amount of $520,000 and accrued expense relating to management fees payable in the amount of $1,783,000 with Fog Cap Development Inc. These amounts were charged off prior to the Merger, creating a net charge to equity of $1,263,000. |
| (d) | In connection with the Merger, FAT declared the Special Dividend, payable only to the non-FCCG holders of Common Stock. The Special Dividend resulted in the issuance of 520,145 additional shares of Series B Preferred Stock at a value of $8,885,000 and payment of $29,000 in cash for fractional shares, for a total dividend value of $8,914,000. |
| (e) | The Company incurred transaction costs in the approximate amount of $624,000 relating to the Merger. The Pro Forma Financial Statements include this amount in accounts payable as of September 27, 2020. |
| (f) | Certain liabilities of FCCG were excluded in the Merger, and FAT has been indemnified by a third party against claims that may arise in the future relating to these liabilities. The Pro Forma Financial Statements exclude liabilities consisting of accounts payable of $984,000 and accrued expenses of $2,682,000. FAT has also been indemnified from potential losses relating to existing legal matters in excess of $3,500,000, however, no adjustment to the current litigation reserve has been made as a result of the indemnification. |
| (g) | Prior to the Merger, Fog Cap Development LLC cancelled a total of $1,955,000 in affiliated debt due from two Excluded Entities |
| (h) | The adjustments described above have the following effect on pro forma accumulated deficit as of September 27, 2020 (in thousands): |
| Accumulated deficit adjustments | Note Reference | Amount | ||||
| Adjustment of deferred tax asset reserve | 3 | $ | 13,133 | |||
| Cancellation and forgiveness of loan to stockholder | 4 | (7,467 | ) | |||
| Closeout of FCCG capital stock | 5(b) | 158,198 | ||||
| Charge off accounts with Excluded Entity | 5(c) | (1,263 | ) | |||
| Accrual of Merger transaction expenses | 5(e) | (624 | ) | |||
| Excluded liabilities | 5(f) | 3,666 | ||||
| Adjustments in due to affiliates | 5(g) | (1,955 | ) | |||
| Net adjustments to accumulated deficit | $ | 163,688 | ||||
Adjustments to the pro forma statements of operations
| (i) | Prior to the Merger, the Stockholder Loan was cancelled, and the balance recorded as a loss on forgiveness of loan to stockholder. The historic financial statements recorded interest income relating to the loan to stockholder during year ended December 29, 2019 and the thirty-nine weeks ended September 27, 2020, and loss on forgiveness of loan to stockholder in the 2020 interim period. Had the Merger been completed as of the assumed pro forma date of December 31, 2018 (the beginning of the Company’s 2019 fiscal year), there would have been no further advances made subsequent to that date. As a result, the Pro Forma Financial statements have been adjusted as follows (in thousands): |
| Year ended December 29, 2019 | Amount | |||
| Reverse interest income on Stockholder Loan | $ | (619 | ) | |
| Thirty-nine weeks ended September 27, 2020 | Amount | |||
| Reverse interest income on Stockholder Loan | $ | (132 | ) | |
| Reverse loss on forgiveness of loan to stockholder recorded in the historic financial statements | $ | 16,948 | ||
| (j) | Adjustments are made to the statements of operations to eliminate intercompany interest relating to dividends on FAT preferred shares owned by FCCG. During the year ended December 29, 2019, the amount of these dividends totaled $208,000. During the thirty-nine weeks ended September 27, 2020, interest relating to dividends on FAT preferred shares was $122,000. |
| (k) | An adjustment is made during the thirty-nine weeks ended September 27, 2020 to eliminate intercompany dividend income earned by FCCG on preferred stock issued by FAT in the amount of $31,000. |