Rocky Mountain Chocolate Factory, Inc 10-Q for FY2023 Q2
Rocky Mountain Chocolate Factory, Inc. (RMCF)
About this 10-Q
Rocky Mountain Chocolate Factory, Inc filed this 10-Q on October 14, 2022, covering the quarter ended August 31, 2022 (FY2023 Q2).
Headline figures
Quarter ended August 31, 2022, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $7.53M
- down 5.1% from $7.93M a year earlier
- Net loss
- $3.64M
- compared with net income of $196.93K a year earlier
- Diluted EPS
- -$0.59
- compared with $0.03 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
(Mark One)
For the quarterly period ended
For the transition period from ________to________
Commission file number:
Rocky Mountain Chocolate Factory, Inc.
(Exact name of registrant as specified in its charter)
| | |
| (State or other jurisdiction of Incorporation or organization) | (I.R.S. Employer Identification No.) |
(Address of principal executive offices, including zip code)
(
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading symbol | Name of each exchange on which registered |
| | | |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| ☒ | Smaller reporting company | ||
| Emerging growth company |
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 pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes
On October 10, 2022, the registrant had outstanding
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. AND SUBSIDIARIES
FORM 10-Q
TABLE OF CONTENTS
Forward-Looking Statements
This Quarterly Report on Form 10-Q (“Quarterly Report”) includes statements of our expectations, intentions, plans and beliefs that constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are intended to come within the safe harbor protection provided by those sections. These forward-looking statements involve various risks and uncertainties. The statements, other than statements of historical fact, included in this Quarterly Report are forward-looking statements. Many of the forward-looking statements contained in this document may be identified by the use of forward-looking words such as "will," "intend," "believe," "expect," "anticipate," "should," "plan," "estimate," "potential," or similar expressions. However, the absence of these words or similar expressions does not mean that a statement is not forward-looking. All statements that address operating performance, events or developments that we expect or anticipate will occur in the future - including statements expressing general views about future operating results - are forward-looking statements. Management believes that these forward-looking statements are reasonable as and when made. However, caution should be taken not to place undue reliance on any such forward-looking statements because such statements speak only as of the date of this Quarterly Report. Our Company undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. In addition, forward-looking statements are subject to certain risks and uncertainties that could cause our Company’s actual results to differ materially from historical experience and our present expectations or projections. These risks and uncertainties include, but are not limited to: inflationary impacts, the impacts of the COVID-19 pandemic on our business, the outcome of the legal proceedings, including the proceedings against Immaculate Confections and the proceedings against the AB Value/Radoff Group (as defined herein), changes in the confectionery business environment, seasonality, consumer interest in our products, the success of our frozen yogurt business, receptiveness of our products internationally, consumer and retail trends, costs and availability of raw materials, competition, the success of our co-branding strategy, the success of international expansion efforts and the effect of government regulations. For a detailed discussion of the risks and uncertainties that may cause our actual results to differ from the forward-looking statements contained herein, please see Part II, “Item 1A. Risk Factors” and the risks described elsewhere in this report and the section entitled “Risk Factors” contained in Item 1A. of our Annual Report on Form 10-K for the fiscal year ended February 28, 2022 filed on May 27, 2022, as amended on June 28, 2022 as updated by the section.
Unless otherwise specified, the “Company,” “we,” “us” or “our” refers to Rocky Mountain Chocolate Factory, Inc., a Delaware corporation, and its consolidated subsidiaries (including its operating subsidiary with the same name, Rocky Mountain Chocolate Factory, Inc., a Colorado corporation (“RMCF”)).
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
| Three Months Ended August 31, | Six Months Ended August 31, | |||||||||||||||
| 2022 | 2021 | 2022 | 2021 | |||||||||||||
| Revenues | ||||||||||||||||
| Sales | $ | $ | $ | $ | ||||||||||||
| Franchise and royalty fees | ||||||||||||||||
| Total Revenue | ||||||||||||||||
| Costs and Expenses | ||||||||||||||||
| Cost of sales | ||||||||||||||||
| Franchise costs | ||||||||||||||||
| Sales and marketing | ||||||||||||||||
| General and administrative | ||||||||||||||||
| Retail operating | ||||||||||||||||
| Depreciation and amortization, exclusive of depreciation and amortization expense of $, $, $ and $, respectively, included in cost of sales | ||||||||||||||||
| Total costs and expenses | ||||||||||||||||
| Income (Loss) from Operations | ( | ) | ( | ) | ||||||||||||
| Other Income | ||||||||||||||||
| Interest Income | ||||||||||||||||
| Gain on insurance recovery | ||||||||||||||||
| Other income, net | ||||||||||||||||
| Income (Loss) Before Income Taxes | ( | ) | ( | ) | ||||||||||||
| Income Tax Provision | ||||||||||||||||
| Consolidated Net Income (Loss) | $ | ( | ) | $ | $ | ( | ) | $ | ||||||||
| Basic Earnings (Loss) per Common Share | $ | ( | ) | $ | $ | ( | ) | $ | ||||||||
| Diluted Earnings (Loss) per Common Share | $ | ( | ) | $ | $ | ( | ) | $ | ||||||||
| Weighted Average Common Shares Outstanding - Basic | ||||||||||||||||
| Dilutive Effect of Employee Stock Awards | ||||||||||||||||
| Weighted Average Common Shares Outstanding - Diluted | ||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
| August 31, | February 28, | |||||||
| 2022 | 2022 | |||||||
|
| (unaudited) | |||||||
| Assets | ||||||||
| Current Assets | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Accounts receivable, less allowance for doubtful accounts of $ and $, respectively | ||||||||
| Notes receivable, current portion, less current portion of the valuation allowance of $ and $, respectively | ||||||||
| Refundable income taxes | ||||||||
| Inventories | ||||||||
| Other | ||||||||
| Total current assets | ||||||||
| Property and Equipment, Net | ||||||||
| Other Assets | ||||||||
| Notes receivable, less current portion and valuation allowance of $ and $, respectively | ||||||||
| Goodwill, net | ||||||||
| Franchise rights, net | ||||||||
| Intangible assets, net | ||||||||
| Deferred income taxes, net | ||||||||
| Lease right of use asset | ||||||||
| Other | ||||||||
| Total other assets | ||||||||
| Total Assets | $ | $ | ||||||
| Liabilities and Stockholders' Equity | ||||||||
| Current Liabilities | ||||||||
| Accounts payable | $ | $ | ||||||
| Accrued salaries and wages | ||||||||
| Gift card liabilities | ||||||||
| Other accrued expenses | ||||||||
| Contract liabilities | ||||||||
| Lease liability | ||||||||
| Total current liabilities | ||||||||
| Lease Liability, Less Current Portion | ||||||||
| Contract Liabilities, Less Current Portion | ||||||||
| Commitments and Contingencies | ||||||||
| Stockholders' Equity | ||||||||
| Preferred stock, $ par value per share; authorized; -- shares issued and outstanding | ||||||||
| Common stock, par value, shares authorized, shares and shares issued and outstanding, respectively | ||||||||
| Additional paid-in capital | ||||||||
| Retained earnings | ||||||||
| Total stockholders' equity | ||||||||
| Total Liabilities and Stockholders' Equity | $ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
| Six Months Ended | ||||||||
| August 31, | ||||||||
| 2022 | 2021 | |||||||
| Cash Flows From Operating Activities | ||||||||
| Net income (loss) | $ | ( | ) | $ | ||||
| Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||
| Depreciation and amortization | ||||||||
| Provision for obsolete inventory | ||||||||
| Provision for loss on accounts and notes receivable | ( | ) | ||||||
| Loss (gain) on sale or disposal of property and equipment | ( | ) | ||||||
| Expense recorded for stock compensation | ||||||||
| Deferred income taxes | ( | ) | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | ( | ) | ||||||
| Refundable income taxes | ||||||||
| Inventories | ( | ) | ( | ) | ||||
| Contract liabilities | ||||||||
| Other current assets | ( | ) | ( | ) | ||||
| Accounts payable | ||||||||
| Accrued liabilities | ( | ) | ||||||
| Net cash (used in) provided by operating activities | ( | ) | ||||||
| Cash Flows from Investing Activities | ||||||||
| Addition to notes receivable | ( | ) | ||||||
| Proceeds received on notes receivable | ||||||||
| Proceeds from sale or distribution of assets | ||||||||
| Purchases of property and equipment | ( | ) | ( | ) | ||||
| Decrease (Increase) in other assets | ( | ) | ||||||
| Net cash used in investing activities | ( | ) | ( | ) | ||||
| Net Increase (Decrease) in Cash and Cash Equivalents | ( | ) | ||||||
| Cash and Cash Equivalents, Beginning of Period | ||||||||
| Cash and Cash Equivalents, End of Period | $ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS’ EQUITY
(unaudited)
| Additional | ||||||||||||||||||||
| Common Stock | Paid-in | Retained | ||||||||||||||||||
| Shares | Amount | Capital | Earnings | Total | ||||||||||||||||
| Balance as of May 31, 2021 | $ | $ | $ | $ | ||||||||||||||||
| Consolidated net (loss) income | ||||||||||||||||||||
| Issuance of common stock, vesting of restricted stock units and other | ( | ) | ||||||||||||||||||
| Equity compensation, restricted stock units | ||||||||||||||||||||
| Balance as of August 31, 2021 | $ | $ | $ | $ | ||||||||||||||||
| Balance as of February 28, 2021 | $ | $ | $ | |||||||||||||||||
| Consolidated net (loss) income | ||||||||||||||||||||
| Issuance of common stock, vesting of restricted stock units and other | ( | ) | ||||||||||||||||||
| Equity compensation, restricted stock units | ||||||||||||||||||||
| Balance as of August 31, 2021 | $ | $ | $ | $ | ||||||||||||||||
| Balance as of May 31, 2022 | $ | $ | $ | $ | ||||||||||||||||
| Consolidated net (loss) income | ( | ) | ( | ) | ||||||||||||||||
| Issuance of common stock, vesting of restricted stock units and other | ( | ) | ( | ) | ||||||||||||||||
| Equity compensation, restricted stock units | ||||||||||||||||||||
| Balance as of August 31, 2022 | $ | $ | $ | $ | ||||||||||||||||
| Balance as of February 28, 2022 | $ | $ | $ | |||||||||||||||||
| Consolidated net (loss) income | ( | ) | ( | ) | ||||||||||||||||
| Issuance of common stock, vesting of restricted stock units and other | ( | ) | ||||||||||||||||||
| Equity compensation, restricted stock units | ||||||||||||||||||||
| Balance as of August 31, 2022 | $ | $ | $ | $ | ||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
NOTE 1 – NATURE OF OPERATIONS AND BASIS OF PRESENTATION
Nature of Operations
The accompanying consolidated financial statements include the accounts of Rocky Mountain Chocolate Factory, Inc., a Delaware corporation, its wholly-owned subsidiaries, Rocky Mountain Chocolate Factory, Inc. (a Colorado corporation), Aspen Leaf Yogurt, LLC (“ALY”), and U-Swirl International, Inc. (“U-Swirl”), and U-Swirl, Inc. (“SWRL”) (collectively, the “Company,” or “RMCF”).
The Company is an international franchisor, confectionery manufacturer and retail operator. Founded in 1981, the Company is headquartered in Durango, Colorado and manufactures an extensive line of premium chocolate candies and other confectionery products. U-Swirl franchises and operates self-serve frozen yogurt cafés. The Company also sells its candy in selected locations outside of its system of retail stores and through ecommerce channels, and licenses the use of its brand with certain consumer products.
U-Swirl operates self-serve frozen yogurt cafés under the names “U-Swirl,” “Yogurtini,” “CherryBerry,” “Yogli Mogli Frozen Yogurt,” “Fuzzy Peach Frozen Yogurt,” “Let’s Yo!” and “Aspen Leaf Yogurt.”
The Company’s revenues are currently derived from three principal sources: (i) sales to franchisees and others of chocolates and other confectionery products manufactured by the Company; (ii) the collection of franchise fees and royalties from franchisees’ sales; and (iii) sales at Company-owned stores of chocolates, frozen yogurt, and other confectionery products.
The following table summarizes the number of stores operating under the Rocky Mountain Chocolate Factory brand and frozen yogurt cafés as of August 31, 2022:
| Sold, Not Yet Open | Open | Total | ||||||||||
| Rocky Mountain Chocolate Factory | ||||||||||||
| Company-owned stores | ||||||||||||
| Franchise stores - Domestic stores and kiosks | ||||||||||||
| International license stores | ||||||||||||
| Cold Stone Creamery - co-branded | ||||||||||||
| U-Swirl (Including all associated brands) | - | |||||||||||
| Company-owned stores - co-branded | ||||||||||||
| Franchise stores - Domestic stores | ||||||||||||
| Franchise stores - Domestic - co-branded | ||||||||||||
| International license stores | ||||||||||||
| Total | ||||||||||||
During FY 2021 the Company initiated formal legal proceedings against Immaculate Confections (“IC”), the operator of RMCF locations in Canada. In its complaint, the Company alleged, among other things, that IC has utilized the Company’s trademarks and other intellectual property without authority to do so and that IC has been unjustly enriched by their use of the Company’s trademarks and intellectual property.
In June 2021 a court order was issued declaring the original 1991 Development Agreement for Canada between RMCF and IC had expired. In September 2021, the Company and IC reached a Settlement Agreement (the “IC Agreement”) whereby the parties agreed to a six month negotiation period to explore alternative solutions. The six month period lapsed in March 2022, however the parties have continued negotiations and negotiations continue as of the date of this filing. The IC Agreement contains provisions that would require IC to de-identify its locations if a solution is not reached. IC operates approximately
Basis of Presentation
The accompanying consolidated financial statements have been prepared by the Company, without audit, and reflect all adjustments which are, in the opinion of management, necessary for a fair statement of the results for the interim periods presented. The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) for interim financial reporting and Securities and Exchange Commission (the “SEC”) regulations. Certain information and footnote disclosures normally included in financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations. In the opinion of management, the consolidated financial statements reflect all adjustments (of a normal and recurring nature) which are necessary for a fair presentation of the financial position, results of operations and cash flows for the interim periods presented. The results of operations for the six months ended August 31, 2022 are not necessarily indicative of the results to be expected for the entire fiscal year.
These consolidated financial statements should be read in conjunction with the audited financial statements and notes thereto included in the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2022, as amended by Amendment No. 1 on Form 10-K/A filed on June 28, 2022. The year-end balance sheet data was derived from audited financial statements, but does not include all disclosures required by accounting principles generally accepted in the United States of America.
Subsequent Events
On September 28, 2022, the Company initiated a lawsuit in the Delaware Court of Chancery that seeks declaratory relief and monetary damages against Bradley L. Radoff, Andrew T. Berger, AB Value Partners LP, AB Value Management LLC (collectively, the “AB Value/Radoff Group) and Mary Bradley. The Company’s complaint alleges that the AB Value/Radoff Group and Ms. Bradley conspired to fraudulently induce the Company into entering a cooperation agreement on August 13, 2022 (the “Cooperation Agreement”), which was intended to settle the contested election at the upcoming 2022 Annual Meeting of Stockholders of the Company (the “2022 Annual Meeting”). The Cooperation Agreement specified that the Company would expand its Board of Directors to seven members by appointing the AB Value/Radoff Group’s nominee, Ms. Bradley, to the Board immediately following the 2022 Annual Meeting of Stockholders. The complaint alleges that the AB Value/Radoff Group and Ms. Bradley knew before signing the Cooperation Agreement there was no contested election to resolve, because Ms. Bradley had notified the AB Value/Radoff Group that she would not serve as a director for even one day and was therefore ineligible for election at the 2022 Annual Meeting—but withheld this information from the Company and the public. The complaint seeks (i) a declaration that the Cooperation Agreement is rescinded, null, and void, and that Company has no obligations under the Cooperation Agreement including, but not limited, to the payment of $
In connection with Mr. Dudley’s retirement, Mr. Dudley and the Company entered into a Separation Agreement and General Release (the “Separation Agreement”), dated as of September 30, 2022 (the “Effective Date”). Under the Separation Agreement, Mr. Dudley retired from the Company on the Effective Date and will be entitled, subject to the terms and conditions therein, to the following payments and separation benefits: (i) a cash separation payment amount in accordance with Mr. Dudley’s employment agreement dated May 21, 1999; (ii) acceleration of vesting of Mr. Dudley’s
Management evaluated all activity of the Company through the issue date of the financial statements and concluded that no subsequent events, except for those described above, have occurred that would require recognition or disclosure in the financial statements.
Recent Accounting Pronouncements
Except for the recent accounting pronouncements described below, other recent accounting pronouncements are not expected to have a material impact on our condensed consolidated financial statements.
In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments. ASU 2016-13 significantly changes the impairment model for most financial assets and certain other instruments. ASU 2016-13 will require immediate recognition of estimated credit losses expected to occur over the remaining life of many financial assets, which will generally result in earlier recognition of allowances for credit losses on loans and other financial instruments and affect the carrying value of accounts receivable. ASU 2016-13 is effective for the Company's fiscal year beginning March 1, 2023 and subsequent interim periods. The Company is currently evaluating the impact the adoption of ASU 2016-13 will have on the Company's consolidated financial statements.
NOTE 2 – SUPPLEMENTAL CASH FLOW INFORMATION
| Six Months Ended | ||||||||
| August 31, | ||||||||
| Cash paid (received) for: | 2022 | 2021 | ||||||
| Interest | $ | $ | ||||||
| Income taxes | $ | ( | ) | $ | ||||
NOTE 3 –REVENUE FROM CONTRACTS WITH CUSTOMERS
The Company recognizes revenue from contracts with its customers in accordance with Accounting Standards Codification® (“ASC”) 606, which provides that revenues are recognized when control of promised goods or services is transferred to a customer in an amount that reflects the consideration expected to be received for those goods or services. The Company generally receives a fee associated with the Franchise Agreement or License Agreement (collectively “Customer Contracts”) at the time that the Customer Contract is entered. These Customer Contracts have a term of up to
Initial Franchise Fees, License Fees, Transfer Fees and Renewal Fees
The initial franchise services are not distinct from the continuing rights or services offered during the term of the franchise agreement, and are treated as a single performance obligation. Initial franchise fees are being recognized as the Company satisfies the performance obligation over the term of the franchise agreement, which is generally
The following table summarizes contract liabilities as of August 31, 2022 and August 31, 2021:
| Six Months Ended | ||||||||
| August 31: | ||||||||
| 2022 | 2021 | |||||||
| Contract liabilities at the beginning of the year: | $ | $ | ||||||
| Revenue recognized | ( | ) | ( | ) | ||||
| Contract fees received | ||||||||
| Amortized gain on the financed sale of equipment | ( | ) | ||||||
| Contract liabilities at the end of the period: | $ | $ | ||||||
At August 31, 2022, annual revenue expected to be recognized in the future, related to performance obligations that are not yet fully satisfied, are estimated to be the following:
| FYE 23 | $ | |||
| FYE 24 | ||||
| FYE 25 | ||||
| FYE 26 | ||||
| FYE 27 | ||||
| Thereafter | ||||
| Total | $ |
Gift Cards
The Company’s franchisees sell gift cards, which do not have expiration dates or non-usage fees. The proceeds from the sale of gift cards by the franchisees are accumulated by the Company and paid out to the franchisees upon customer redemption. ASC 606 requires the use of the “proportionate” method for recognizing breakage. Under the guidance of ASC 606 the Company recognizes breakage from gift cards when the gift card is redeemed by the customer or the Company determines the likelihood of the gift card being redeemed by the customer is remote (“gift card breakage”). The determination of the gift card breakage rate is based upon Company-specific historical redemption patterns.
Factory Sales of Confectionary Items, Retail Sales and Royalty and Marketing Fees
Confectionary items sold to the Company’s franchisees, others and its Company-owned stores sales are recognized at the time of the underlying sale, based on the terms of the sale and when ownership of the inventory is transferred, and are presented net of sales taxes and discounts. Royalties and marketing fees from franchised or licensed locations, which are based on a percent of sales, are recognized at the time the sales occur.
NOTE 4 – DISAGGREGATION OF REVENUE
The following table presents disaggregated revenue by method of recognition and segment:
| Three Months Ended August 31, 2022 |
| Revenues recognized over time under ASC 606: |
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Franchise fees | $ | $ | $ | $ | $ | |||||||||||||||
| Revenues recognized at a point in time: | |||||
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Factory sales | ||||||||||||||||||||
| Retail sales | ||||||||||||||||||||
| Royalty and marketing fees | ||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | |||||||||||||||
| Three Months Ended August 31, 2021 |
| Revenues recognized over time under ASC 606: |
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Franchise fees | $ | $ | $ | $ | $ | |||||||||||||||
| Revenues recognized at a point in time: | |||||
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Factory sales | ||||||||||||||||||||
| Retail sales | ||||||||||||||||||||
| Royalty and marketing fees | ||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | |||||||||||||||
| Six Months Ended August 31, 2022 |
| Revenues recognized over time under ASC 606: |
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Franchise fees | $ | $ | $ | $ | $ | |||||||||||||||
| Revenues recognized at a point in time: | |||||
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Factory sales | ||||||||||||||||||||
| Retail sales | ||||||||||||||||||||
| Royalty and marketing fees | ||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | |||||||||||||||
| Six Months Ended August 31, 2021 | ||||||||||||||||||||
| Revenues recognized over time under ASC 606: | |||||
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Franchise fees | $ | $ | $ | $ | $ | |||||||||||||||
| Revenues recognized at a point in time: | |||||
| Franchising | Manufacturing | Retail | U-Swirl | Total | ||||||||||||||||
| Factory sales | ||||||||||||||||||||
| Retail sales | ||||||||||||||||||||
| Royalty and marketing fees | ||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | |||||||||||||||
NOTE 5 – INVENTORIES
Inventories consist of the following:
| August 31, 2022 | February 28, 2022 | |||||||
| Ingredients and supplies | $ | $ | ||||||
| Finished candy | ||||||||
| U-Swirl food and packaging | ||||||||
| Reserve for slow moving inventory | ( | ) | ( | ) | ||||
| Total inventories | $ | $ | ||||||
NOTE 6 – PROPERTY AND EQUIPMENT, NET
Property and equipment consists of the following:
| August 31, 2022 | February 28, 2022 | |||||||
| Land | $ | $ | ||||||
| Building | ||||||||
| Machinery and equipment | ||||||||
| Furniture and fixtures | ||||||||
| Leasehold improvements | ||||||||
| Transportation equipment | ||||||||
| Less accumulated depreciation | ( | ) | ( | ) | ||||
| Property and equipment, net | $ | $ | ||||||
Depreciation expense related to property and equipment totaled $
NOTE 7 – GOODWILL AND INTANGIBLE ASSETS
Goodwill and intangible assets consist of the following:
| August 31, 2022 | February 28, 2022 | |||||||||||||||||||||
| Amortization Period (in years) | Gross Carrying Value | Accumulated Amortization | Gross Carrying Value | Accumulated Amortization | ||||||||||||||||||
| Intangible assets subject to amortization | ||||||||||||||||||||||
| Store design | $ | $ | $ | $ | ||||||||||||||||||
| Packaging licenses | - | |||||||||||||||||||||
| Packaging design | ||||||||||||||||||||||
| Trademark/Non-competition agreements | - | |||||||||||||||||||||
| Franchise rights | ||||||||||||||||||||||
| Total | ||||||||||||||||||||||
| Goodwill and intangible assets not subject to amortization | ||||||||||||||||||||||
| Franchising segment- | ||||||||||||||||||||||
| Company stores goodwill | $ | $ | ||||||||||||||||||||
| Franchising goodwill | ||||||||||||||||||||||
| Manufacturing segment-goodwill | ||||||||||||||||||||||
| Trademark | ||||||||||||||||||||||
| Total | ||||||||||||||||||||||
| Total Goodwill and Intangible Assets | $ | $ | $ | $ | ||||||||||||||||||
Amortization expense related to intangible assets totaled $
At August 31, 2022, annual amortization of intangible assets, based upon the Company’s existing intangible assets and current useful lives, is estimated to be the following:
| FYE 23 | $ | |||
| FYE 24 | ||||
| FYE 25 | ||||
| FYE 26 | ||||
| FYE 27 | ||||
| Thereafter | ||||
| Total | $ |
NOTE 8 – LINE OF CREDIT
Revolving Credit Line
The Company has a $
NOTE 9 – STOCKHOLDERS’ EQUITY
Warrants
In consideration of an exclusive supplier agreement and the performance of specific obligations therein, on December 20, 2019, the Company issued a warrant (the “Warrant”) to purchase up to
The Company determined that the grant date fair value of the warrants was de minimis and did not record any amount in consideration of the warrants. The Company utilized a Monte Carlo model for purposes of determining the grant date fair value.
Stock-Based Compensation
Under the Company’s 2007 Equity Incentive Plan (as amended and restated) (the “2007 Plan”), the Company may authorize and grant stock awards to employees, non-employee directors and certain other eligible participants, including stock options, restricted stock and restricted stock units.
The following table summarizes restricted stock unit activity during the six months ended August 31, 2022 and 2021:
| Six Months Ended | ||||||||
| August 31, | ||||||||
| 2022 | 2021 | |||||||
| Outstanding non-vested restricted stock units as of February 28: | ||||||||
| Granted | ||||||||
| Vested | ( | ) | ( | ) | ||||
| Cancelled/forfeited | ( | ) | ( | ) | ||||
| Outstanding non-vested restricted stock units as of August 31: | ||||||||
| Weighted average grant date fair value | $ | $ | ||||||
| Weighted average remaining vesting period (in years) | ||||||||
The following table summarizes stock option activity during the six months ended August 31, 2022 and 2021:
| Six Months Ended | ||||||||
| August 31, | ||||||||
| 2022 | 2021 | |||||||
| Outstanding stock options as of February 28: | - | |||||||
| Granted | - | |||||||
| Exercised | - | |||||||
| Cancelled/forfeited | - | |||||||
| Outstanding stock options as of August 31: | - | |||||||
| Weighted average exercise price | n/a | |||||||
| Weighted average remaining contractual term (in years) | n/a | |||||||
The Company did issue any unrestricted shares of stock to non-employee directors during the three and six months ended August 31, 2022 compared to
During the six months ended August 31, 2022, the Company issued
The Company recognized $
NOTE 10 – EARNINGS PER SHARE
Basic earnings per share is calculated using the weighted-average number of common shares outstanding. Diluted earnings per share reflects the potential dilution that could occur from common shares issuable through the settlement of restricted stock units. Restricted stock units become dilutive within the period granted and remain dilutive until the units vest and are issued as common stock.
The weighted-average number of shares outstanding used in the computation of diluted earnings per share does not include outstanding common shares issuable if their effect would be anti-dilutive. During the six months ended August 31, 2022,
NOTE 11 – LEASING ARRANGEMENTS
The Company conducts its retail operations in facilities leased under non-cancelable operating leases of up to years. Certain leases contain renewal options for between and additional years at increased monthly rentals. Some of the leases provide for contingent rentals based on sales in excess of predetermined base levels.
The Company acts as primary lessee of some franchised store premises, which the Company then subleases to franchisees, but the majority of existing franchised locations are leased by the franchisee directly.
In some instances, the Company has leased space for its Company-owned locations that are now occupied by franchisees. When the Company-owned location was sold or transferred, the store was subleased to the franchisee who is responsible for the monthly rent and other obligations under the lease.
The Company also leases trucking equipment and warehouse space in support of its manufacturing operations. Expense associated with trucking and warehouse leases is included in cost of sales on the consolidated statements of operations.
The Company accounts for payments related to lease liabilities on a straight-line basis over the lease term. During the six months ended August 31, 2022 and 2021, lease expense recognized in the Consolidated Statements of Income was $
The lease liability reflects the present value of the Company’s estimated future minimum lease payments over the life of its leases. This includes known escalations and renewal option periods reasonably assured of being exercised. Typically, renewal options are considered reasonably assured of being exercised if the sales performance of the location remains strong. Therefore, the Right of Use Asset and Lease Liability include an assumption on renewal options that have not yet been exercised by the Company, and are not currently a future obligation. The Company has separated non-lease components from lease components in the recognition of the Asset and Liability except in instances where such costs were not practical to separate. To the extent that occupancy costs, such as site maintenance, are included in the Asset and Liability, the impact is immaterial. For franchised locations, the related occupancy costs including property taxes, insurance and site maintenance are generally required to be paid by the franchisees as part of the franchise arrangement. In addition, the Company is the lessee under non-store related leases such as storage facilities and trucking equipment. For leases where the implicit rate is not readily determinable, the Company uses an incremental borrowing rate to calculate the lease liability that represents an estimate of the interest rate the Company would incur to borrow on a collateralized basis over the term of a lease. The weighted average discount rate used for operating leases was
As of August 31, 2022, maturities of lease liabilities for the Company’s operating leases were as follows:
| FYE 23 | $ | |||
| FYE 24 | ||||
| FYE 25 | ||||
| FYE 26 | ||||
| FYE 27 | ||||
| Thereafter | ||||
| Total | $ | |||
| Less: imputed interest | ( | ) | ||
| Present value of lease liabilities: | $ | |||
| Weighted average lease term |
During the six months ended August 31, 2022 the Company entered into leases for equipment used in the Company’s trucking operations. These leases resulted in the Company recognizing a total future lease liability of $
NOTE 12 – COMMITMENTS AND CONTINGENCIES
Contested Solicitation of Proxies
During the three and six months ended August 31, 2022, the Company incurred substantial costs associated with a stockholder’s contested solicitation of proxies in connection with our 2022 annual meeting of stockholders. During the three and six months ended August 31, 2022, the Company incurred approximately $
Employment Agreement Payments upon a Change in Control
We have entered into employment agreements with certain of our executives which contain, among other things, "change in control" severance provisions. The employment agreement for Mr. Dudley generally provides that, if the Company or the executive terminates the executive's employment under circumstances constituting a "triggering termination," the executive will be entitled to receive, among other benefits, 2.99 times the sum of (i) the executive's annual salary using the highest annual base compensation rate in effect at any time during employment and (ii) the greater of (a) two times the bonus that would be payable to the executive for the bonus period in which the change in control occurred or (b) 25% of the amount described in clause (i).. The executive will also receive an additional payment of $
A “change in control,” as used in the agreement for Mr. Dudley, generally means a change in the control of the Company following any number of events, but specifically a proxy contest in which our Board of Directors prior to the transaction constitutes less than a majority of our Board of Directors after the transaction or the members of our Board of Directors during any consecutive two-year period who at the beginning of such period constituted the Board of Directors cease to be the majority of the Board of Directors at the conclusion of that period. We have determined that a change in control has taken place on October 6, 2021. A “triggering termination” generally occurs when an executive is terminated during a specified period preceding a change in control of us, or if the executive or the Company terminates the executive’s employment under circumstances constituting a triggering termination during a specified period after a change in control. A triggering termination may also include a voluntary termination under certain scenarios.
As a result of the changes in our Board of Directors over the past 12 months, the Company may be liable to Mr. Dudley for change in control payments contingent upon a triggering termination event. As of August 31, 2022 the amount of the recorded cash severance payments and benefits contingent upon a subsequent triggering termination event are $
Mr. Sarlls’ employment agreement provides for the following upon “change in control”: If Mr. Sarlls’ employment is involuntarily terminated without cause or if he resigns for good reason on or within 2 years following consummation of a change in control, the cash severance amount (15 months of base salary) which would otherwise be payable on the regular payroll schedule over a 15-month period following separation (if severance were due outside the change in control context) will be accelerated and paid in a lump sum promptly following separation. Mr. Sarlls’ agreement incorporates by reference the change in control definition set forth in Treasury Regulation Section 1.409A-3(i)(5).
Mr. Arroyo’s employment agreement provides for the following upon “change in control”: If Mr. Arroyo’s employment is involuntarily terminated without cause or if he resigns for good reason on or within 2 years following consummation of a change in control, the cash severance amount (9 months of base salary) which would otherwise be payable on the regular payroll schedule over a 9-month period following separation (if severance were due outside the change in control context) will be accelerated and paid in a lump sum promptly following separation. Mr. Arroyo’s agreement incorporates by reference the change in control definition set forth in Treasury Regulation Section 1.409A-3(i)(5).
Purchase Contracts
The Company frequently enters into purchase contracts of between to months for chocolate and certain nuts. These contracts permit the Company to purchase the specified commodity at a fixed price on an as-needed basis during the term of the contract. Because prices for these products may fluctuate, the Company may benefit if prices rise during the terms of these contracts, but it may be required to pay above-market prices if prices fall and it is unable to renegotiate the terms of the contract. As of August 31, 2022, the Company was contracted for approximately $
NOTE 13 – OPERATING SEGMENTS
The Company classifies its business interests into
| Three Months Ended August 31, 2022 | Franchising | Manufacturing | Retail | U-Swirl | Other | Total | ||||||||||||||||||
| Total revenues | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
| Intersegment revenues | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Revenue from external customers | ||||||||||||||||||||||||
| Segment profit (loss) | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Total assets | ||||||||||||||||||||||||
| Capital expenditures | ||||||||||||||||||||||||
| Total depreciation & amortization | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
| Three Months Ended August 31, 2021 | Franchising | Manufacturing | Retail | U-Swirl | Other | Total | ||||||||||||||||||
| Total revenues | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
| Intersegment revenues | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Revenue from external customers | ||||||||||||||||||||||||
| Segment profit (loss) | ( | ) | ||||||||||||||||||||||
| Total assets | ||||||||||||||||||||||||
| Capital expenditures | ||||||||||||||||||||||||
| Total depreciation & amortization | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
| Six Months Ended August 31, 2022 | Franchising | Manufacturing | Retail | U-Swirl | Other | Total | ||||||||||||||||||
| Total revenues | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
| Intersegment revenues | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Revenue from external customers | ||||||||||||||||||||||||
| Segment profit (loss) | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Total assets | ||||||||||||||||||||||||
| Capital expenditures | ||||||||||||||||||||||||
| Total depreciation & amortization | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
| Six Months Ended August 31, 2021 | Franchising | Manufacturing | Retail | U-Swirl | Other | Total | ||||||||||||||||||
| Total revenues | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
| Intersegment revenues | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Revenue from external customers | ||||||||||||||||||||||||
| Segment profit (loss) | ( | ) | ||||||||||||||||||||||
| Total assets | ||||||||||||||||||||||||
| Capital expenditures | ||||||||||||||||||||||||
| Total depreciation & amortization | $ | $ | $ | $ | $ | $ | ||||||||||||||||||
NOTE 14 – INCOME TAXES
The Company provides for income taxes pursuant to the liability method. The liability method requires recognition of deferred income taxes based on temporary differences between financial reporting and income tax basis of assets and liabilities, using current enacted income tax rates and regulations. These differences will result in taxable income or deductions in future years when the reported amount of the asset or liability is recovered or settled, respectively. Considerable judgment is required in determining when these events may occur and whether recovery of an asset, including the utilization of a net operating loss or other carryforward prior to its expiration, is more likely than not.
Realization of the Company's deferred tax assets is dependent upon the Company generating sufficient taxable income, in the appropriate tax jurisdictions, in future years, to obtain benefit from the reversal of net deductible temporary differences. The amount of deferred tax assets considered realizable is subject to adjustment in future periods if estimates of future taxable income are changed. valuation allowance to reduce the carrying amount of deferred income tax assets is established when it is more likely than not that we will not realize some portion or all of the tax benefit of our deferred income tax assets. We evaluate, on a quarterly basis, whether it is more likely than not that our deferred income tax assets are realizable based upon recent past financial performance, tax reporting positions, and expectations of future taxable income. The determination of deferred tax assets is subject to estimates and assumptions. We periodically evaluate our deferred tax assets to determine if our assumptions and estimates should change.
During the three month ended August 31, 2022 the Company incurred a significant loss before income taxes, primarily as a result of substantial costs associated with a stockholder’s contested solicitation of proxies in connection with our 2022 annual meeting of stockholders. Management evaluated recent losses before income taxes and determined that it is no longer more likely than not that our deferred income taxes are fully realized. Because of this determination, the Company reserved for $
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Cautionary Note Regarding Forward-Looking Statements
This information should be read in conjunction with the consolidated financial statements and the notes included in Item 1 of Part I of this 10-Q and the audited consolidated financial statements and notes, and Management’s Discussion and Analysis of Financial Condition and Results of Operations, contained in the 10-K filed with the SEC on May 27, 2022, for the fiscal year ended February 28, 2022, as amended by Amendment No. 1 on Form 10-K/A filed on June 28, 2022. In addition to historical information, the following discussion contains certain forward-looking information. See “Cautionary Note Regarding Forward Looking Statements” above for certain information concerning forward-looking statements.
Overview
We are an international franchisor, confectionery manufacturer and retail operator. Founded in 1981, we are headquartered in Durango, Colorado and manufacture an extensive line of premium chocolate candies and other confectionery products. Our subsidiary, U-Swirl International, Inc. (“U-Swirl”), franchises and operates soft-serve frozen yogurt cafés. Our revenues and profitability are derived principally from our franchised/license system of retail stores that feature chocolate, frozen yogurt and other confectionary products. We also sell our candy outside of our system of retail stores and license the use of our brand with certain consumer products. As of August 31, 2022, there were two Company-owned, 100 licensee-owned and 162 franchised Rocky Mountain Chocolate Factory stores operating in 37 states, South Korea, Panama, and the Philippines. As of August 31, 2022, U-Swirl operated three Company-owned cafés and 57 franchised cafés located in 22 states. U-Swirl operates self-serve frozen yogurt cafés under the names “U-Swirl,” “Yogurtini,” “CherryBerry,” “Yogli Mogli Frozen Yogurt,” “Fuzzy Peach Frozen Yogurt,” “Let’s Yo!” and “Aspen Leaf Yogurt”.
Labor and Supply Chain
As a result of macro-economic inflationary trends and disruptions to the global supply chain, we have experienced and expect to continue experiencing higher raw material, labor, and freight costs. We have begun to see labor and logistics challenges, which we believe have contributed to lower factory, retail and e-commerce sales of our products due to the availability of material, labor and freight. In addition, we could experience additional lost sale opportunities if our products are not available for purchase as a result of continued disruptions in our supply chain relating to an inability to obtain ingredients or packaging, labor challenges at our logistics providers or our manufacturing facility, or if we or our franchisees experience delays in stocking our products. For additional information, see Item 1A. “Rick Factors - The Availability and Price of Principal Ingredients Used in Our Products Are Subject to Factors Beyond Our Control” in our Annual Report on Form 10-K for the fiscal year ended February 28, 2022, as amended by Amendment No. 1 on Form 10-K/A filed on June 28, 2022.
Contested Solicitation of Proxies
During the three and six months ended August 31, 2022, the Company incurred substantial costs associated with a stockholder’s contested solicitation of proxies in connection with our 2022 annual meeting of stockholders. During the three and six months ended August 31, 2022, the Company incurred approximately $1.8 million and $2.1 million, respectively, of costs associated with the contested solicitation of proxies, compared with $907,000 and $917,000 of costs associated with a contested solicitation of proxies incurred in the three and six months ended August 31, 2021. These costs are recognized as general and administrative expense in the Consolidated Statement of Operations. Future costs associated with the stockholder’s contested solicitation of proxies and the related legal proceedings described under the caption “PART II. OTHER INFORMATION - Item 1. Legal Proceedings” in this Form 10-Q may have a material impact on the result of future periods. Additionally, as a result of the contested solicitation of proxies in the prior year and the resulting changes to the composition of the Company’s Board of Directors, the Company incurred $859,000 of accrued severance costs during the three months ended August 31, 2022. As previously announced, Edward L. Dudley announced his retirement as Senior Vice President – Sales and Marketing of the Company effective in September 2022.
Results of Operations
Three Months Ended August 31, 2022, Compared to the Three Months Ended August 31, 2021
Results Summary
Basic earnings per share decreased from $0.03 per share in the three months ended August 31, 2021 to a loss of $0.59 per share in the three months ended August 31, 2022. Revenues decreased 5.1% from $7.9 million in the three months ended August 31, 2021 to $7.5 million in the three months ended August 31, 2022. Income from operations decreased from $258,000 in the three months ended August 31, 2021 to a loss from operations of $2.2 million in the three months ended August 31, 2022. Net income decreased from $197,000 in the three months ended August 31, 2021 to a net loss of $3.6 million in the three months ended August 31, 2022.
Revenues
| Three Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| ($'s in thousands) |
2022 |
2021 |
Change |
Change |
||||||||||||
| Factory sales |
$ | 4,808.2 | $ | 5,161.4 | $ | (353.2 | ) | (6.8 | )% | |||||||
| Retail sales |
796.7 | 782.6 | 14.1 | 1.8 | % | |||||||||||
| Franchise fees |
54.3 | 47.1 | 7.2 | 15.3 | % | |||||||||||
| Royalty and marketing fees |
1,866.5 | 1,935.0 | (68.5 | ) | (3.5 | )% | ||||||||||
| Total |
$ | 7,525.7 | $ | 7,926.1 | $ | (400.4 | ) | (5.1 | )% | |||||||
Factory Sales
The decrease in factory sales for the three months ended August 31, 2022, compared to the three months ended August 31, 2021 was primarily due to a 36.2%, $181,000, decrease in shipments of product to customers outside our network of franchised retail stores and a 3.7%, $172,000, decrease in sales of product to our network of franchised and licensed retail stores. The decrease in sales of product to our network of franchised and licensed retail stores was primarily the result of lower same store pounds purchased. Same store pounds purchased by domestic franchise and licensed locations decreased 15.4% during the three months ended August 31, 2022, when compared to the three months ended August 31, 2021.
Retail Sales
Retail sales at Company-owned stores increased 1.8% during the three months ended August 31, 2022, compared to the three months ended August 31, 2021, as a result of an increase in Company-owned same store sales. Same store sales at all Company-owned locations increased 1.8% during the three months ended August 31, 2022 when compared to the three months ended August 31, 2021.
Royalties, Marketing Fees and Franchise Fees
The decrease in royalties and marketing fees from the three months ended August 31, 2021 to the three months ended August 31, 2022 was primarily due to a decrease in same store sales at domestic Rocky Mountain Chocolate Factory locations mostly offset by an increase in same store sales at U-Swirl Frozen Yogurt cafés. Same store sales at domestic franchise Rocky Mountain Chocolate Factory locations decreased 3.1% and same store sales at U-Swirl Frozen Yogurt cafés increased 16.2% during the three months ended August 31, 2022 when compared to the three months ended August 31, 2021.
The increase in franchise fee revenue for the three months ended August 31, 2022, compared to the three months ended August 31, 2021 was the result of more franchise agreements outstanding and subject to revenue recognition.
Costs and Expenses
Cost of Sales
| Three Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| ($'s in thousands) |
2022 |
2021 |
Change |
Change |
||||||||||||
| Cost of sales - factory |
$ | 3,781.8 | $ | 3,814.3 | $ | (32.5 | ) | (0.9 | )% | |||||||
| Cost of sales - retail |
297.2 | 257.8 | 39.4 | 15.3 | % | |||||||||||
| Franchise costs |
524.0 | 737.2 | (213.2 | ) | (28.9 | )% | ||||||||||
| Sales and marketing |
481.9 | 405.9 | 76.0 | 18.7 | % | |||||||||||
| General and administrative |
4,067.6 | 1,864.3 | 2,203.3 | 118.2 | % | |||||||||||
| Retail operating |
470.7 | 440.2 | 30.5 | 6.9 | % | |||||||||||
| Total |
$ | 9,623.2 | $ | 7,519.7 | $ | 2,103.5 | 28.0 | % | ||||||||
Gross Margin
| Three Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| ($'s in thousands) |
2022 |
2021 |
Change |
Change |
||||||||||||
| Factory gross margin |
$ | 1,026.4 | $ | 1,347.1 | $ | (320.7 | ) | (23.8 | )% | |||||||
| Retail gross margin |
499.5 | 524.8 | (25.3 | ) | (4.8 | )% | ||||||||||
| Total |
$ | 1,525.9 | $ | 1,871.9 | $ | (346.0 | ) | (18.5 | )% | |||||||
| Three Months Ended |
||||||||||||||||
| August 31, |
% |
% |
||||||||||||||
| 2022 |
2021 |
Change |
Change |
|||||||||||||
| (Percent) |
||||||||||||||||
| Factory gross margin |
21.3 | % | 26.1 | % | (4.8 | )% | (18.4 | )% | ||||||||
| Retail gross margin |
62.7 | % | 67.1 | % | (4.4 | )% | (6.6 | )% | ||||||||
| Total |
27.2 | % | 31.5 | % | (4.3 | )% | (13.7 | )% | ||||||||
Adjusted Gross Margin
| Three Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| ($'s in thousands) |
2022 |
2021 |
Change |
Change |
||||||||||||
| Factory gross margin |
$ | 1,026.4 | $ | 1,347.1 | $ | (320.7 | ) | (23.8 | )% | |||||||
| Plus: depreciation and amortization |
160.8 | 157.7 | 3.1 | 2.0 | % | |||||||||||
| Factory adjusted gross margin |
1,187.2 | 1,504.8 | (317.6 | ) | (21.1 | )% | ||||||||||
| Retail gross margin |
499.5 | 524.8 | (25.3 | ) | (4.8 | )% | ||||||||||
| Total Adjusted Gross Margin |
$ | 1,686.7 | $ | 2,029.6 | $ | (342.9 | ) | (16.9 | )% | |||||||
| Factory adjusted gross margin |
24.7 | % | 29.2 | % | (4.5 | )% | (15.4 | )% | ||||||||
| Retail gross margin |
62.7 | % | 67.1 | % | (4.4 | )% | (6.6 | )% | ||||||||
| Total Adjusted Gross Margin |
30.1 | % | 34.1 | % | (4.0 | )% | (11.7 | )% | ||||||||
Adjusted gross margin and factory adjusted gross margin are non-GAAP measures. Adjusted gross margin is equal to the sum of our factory adjusted gross margin plus our retail gross margin calculated in accordance with GAAP. Factory adjusted gross margin is equal to factory gross margin plus depreciation and amortization expense. We believe adjusted gross margin and factory adjusted gross margin are helpful in understanding our past performance as a supplement to gross margin, factory gross margin and other performance measures calculated in conformity with GAAP. We believe that adjusted gross margin and factory adjusted gross margin are useful to investors because they provide a measure of operating performance and our ability to generate cash that is unaffected by non-cash accounting measures. Additionally, we use adjusted gross margin and factory adjusted gross margin rather than gross margin and factory gross margin to make incremental pricing decisions. Adjusted gross margin and factory adjusted gross margin have limitations as analytical tools because they exclude the impact of depreciation and amortization expense and you should not consider them in isolation or as a substitute for any measure reported under GAAP. Our use of capital assets makes depreciation and amortization expense a necessary element of our costs and our ability to generate income. Due to these limitations, we use adjusted gross margin and factory adjusted gross margin as measures of performance only in conjunction with GAAP measures of performance such as gross margin and factory gross margin.
Cost of Sales and Gross Margin
Factory gross margins decreased to 21.3% in the three months ended August 31, 2022 compared to 26.1% the three months ended August 31, 2021. This decrease was due primarily to the impacts of Employee Retention Credits recognized in the three months ended August 31, 2021 with no comparable credits in the three months ended August 31, 2022 and an increase in costs mostly offset by an increase in product prices. The Company recognized approximately $155,000 of payroll tax benefit associated with Employee Retention Credits (“ERC”) in the three months ended August 31, 2021. ERCs were enacted by the CARES Act in March 2020. In December 2020 the Consolidated Appropriations Act extended eligibility for the credits allowing the Company to retroactively benefit from ERCs.
Retail gross margins decreased from 67.1% during the three months ended August 31, 2021 to 62.7% during the three months ended August 31, 2022. The decrease in retail gross margins was primarily the result of an increase in costs of raw materials.
Franchise Costs
The decrease in franchise costs in the three months ended August 31, 2022 compared to the three months ended August 31, 2021 was due primarily to a decrease in professional fees, the result of litigation with our licensee in Canada incurred during the three months ended August 31, 2021 with no comparable legal expenses in the three months ended August 31, 2022. As a percentage of total royalty and marketing fees and franchise fee revenue, franchise costs decreased to 27.3% in the three months ended August 31, 2022 from 37.2% in the three months ended August 31, 2021. This decrease as a percentage of royalty, marketing and franchise fees is primarily a result of lower professional fees partially offset by a decrease in royalty revenues.
Sales and Marketing
The increase in sales and marketing costs for the three months ended August 31, 2022 compared to the three months ended August 31, 2021 was primarily due to an increase in advertising costs.
General and Administrative
The increase in general and administrative costs for the three months ended August 31, 2022 compared to the three months ended August 31, 2021 is primarily due to costs associated with a stockholder’s contested solicitation of proxies in connection with our 2022 annual meeting of stockholders. During the three months ended August 31, 2022, the Company incurred approximately $1.8 million of costs associated with the contested solicitation of proxies, compared with $907,000 of costs associated with a contested solicitation of proxies during the three months ended August 31, 2021. Additionally, due to a stockholder’s contested solicitation of proxies in connection with our 2021 annual meeting of stockholders the Company had become contingently liable for certain change in control severance payments to Mr. Dudley if a triggering termination was to occur. As a result of Mr. Dudley’s announced retirement in August 2022, Company management concluded that it is probable that the severance liability is paid. As of August 31, 2022, the Company had recorded $859,000 of associated severance liability. As a percentage of total revenues, general and administrative expenses increased to 54.0% in the three months ended August 31, 2022 compared to 23.5% in the three months ended August 31, 2021.
Retail Operating Expenses
The increase in retail operating expenses for the three months ended August 31, 2022 compared to the three months ended August 31, 2021 was due primarily to an increase in salaries and wages and utilities in our Company-owned stores and cafés. Retail operating expenses, as a percentage of retail sales, increased from 56.2% in the three months ended August 31, 2021 to 59.1% in the three months ended August 31, 2022. This increase is primarily the result of higher retail costs.
Depreciation and Amortization
Depreciation and amortization, exclusive of depreciation and amortization included in cost of sales, was $127,000 in the three months ended August 31, 2022, a decrease of 14.2% from $149,000 in the three months ended August 31, 2021. This decrease was the result of lower amortization of franchise rights, the result of a decrease in frozen yogurt cafés in operation. See Note 7 to the consolidated financial statements for a summary of annual amortization of intangible assets based upon existing intangible assets and current useful lives. Depreciation and amortization included in cost of sales increased 1.9% to $161,000 in the three months ended August 31, 2022 compared to $158,000 in the three months ended August 31, 2021.
Other Income
Net interest income was $3,900 in the three months ended August 31, 2022 compared to net interest income of $2,600 incurred in the three months ended August 31, 2021.
Income Tax Expense (Benefit)
During the three months ended August 31, 2022, we incurred income tax expense of $1.4 million on a loss before income taxes of $2.2 million. This expense was the result of recording a full reserve on our deferred income tax asset. Our effective income tax rate for the three months ended August 31, 2021 was 24.4%. See Note 14 to the financial statements for a description of income taxes, deferred tax assets and associated reserves.
Six Months Ended August 31, 2022 Compared to the Six Months Ended August 31, 2021
Results Summary
Basic earnings per share decreased from a net income of $0.13 per share for the six months ended August 31, 2021, to a net loss of $0.60 per share for the six months ended August 31, 2022. Revenues decreased 1.1% from $15.5 million for the six months ended August 31, 2021, to $15.4 million for the six months ended August 31, 2022. Income from operations decreased from $904,000 for the six months ended August 31, 2021, to a loss from operations of $2.4 million for the six months ended August 31, 2022. Net income decreased from net income of $777,000 for the six months ended August 31, 2021, to a net loss of $3.8 million for the six months ended August 31, 2022.
Revenues
| Six Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| ($'s in thousands) |
2022 |
2021 |
Change |
Change |
||||||||||||
| Factory sales |
$ | 9,965.8 | $ | 10,202.2 | $ | (236.4 | ) | (2.3 | )% | |||||||
| Retail sales |
1,589.3 | 1,572.1 | 17.2 | 1.1 | % | |||||||||||
| Franchise fees |
121.6 | 103.2 | 18.4 | 17.8 | % | |||||||||||
| Royalty and marketing fees |
3,675.6 | 3,642.3 | 33.3 | 0.9 | % | |||||||||||
| Total |
$ | 15,352.3 | $ | 15,519.8 | $ | (167.5 | ) | (1.1 | )% | |||||||
Factory Sales
The decrease in factory sales for the six months ended August 31, 2022, compared to the six months ended August 31, 2021 was primarily due to a 47.2%, $677,000, decrease in shipments of product to customers outside our network of franchised retail stores partially offset by a 5.0%, $441,000, increase in sales of product to our network of franchised and licensed retail stores.
Retail Sales
Retail sales at Company-owned stores were relatively flat during the six months ended August 31, 2022, compared to the six months ended August 31, 2021. Same store sales at all Company-owned locations increased 1.1% during the six months ended August 31, 2022 when compared to the six months ended August 31, 2021.
Royalties, Marketing Fees and Franchise Fees
The slight increase in royalty and marketing fees for the six months ended August 31, 2022, compared to the six months ended August 31, 2021, was primarily due to an increase in same-store sales at domestic franchise frozen yogurt cafés. Same store sales at all domestic franchise locations increased 3.1% during the six months ended August 31, 2022, when compared to the six months ended August 31, 2021, with same-store sales at the Company’s domestic franchise frozen yogurt cafés increasing 18.2% during the six months ended August 31, 2022, compared to the six months ended August 31, 2021.
The increase in franchise fee revenue for the six months ended August 31, 2022, compared to the six months ended August 31, 2021, was the result of store closures and the acceleration of unrecognized franchise fee revenue and more franchise agreements outstanding and subject to revenue recognition.
Costs and Expenses
Cost of Sales
| Six Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| ($'s in thousands) |
2022 |
2021 |
Change |
Change |
||||||||||||
| Cost of sales - factory |
$ | 8,209.5 | $ | 8,104.3 | $ | 105.2 | 1.3 | % | ||||||||
| Cost of sales - retail |
593.0 | 514.3 | 78.7 | 15.3 | % | |||||||||||
| Franchise costs |
1,018.2 | 1,288.8 | (270.6 | ) | (21.0 | )% | ||||||||||
| Sales and marketing |
1,009.9 | 818.6 | 191.3 | 23.4 | % | |||||||||||
| General and administrative |
5,698.8 | 2,709.1 | 2,989.7 | 110.4 | % | |||||||||||
| Retail operating |
942.2 | 884.3 | 57.9 | 6.5 | % | |||||||||||
| Total |
$ | 17,471.6 | $ | 14,319.4 | $ | 3,152.2 | 22.0 | % | ||||||||
Gross Margin
| Six Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| 2022 |
2021 |
Change |
Change |
|||||||||||||
| Factory gross margin |
$ | 1,756.3 | $ | 2,097.9 | $ | (341.6 | ) | (16.3 | )% | |||||||
| Retail gross margin |
996.3 | 1,057.8 | (61.5 | ) | (5.8 | )% | ||||||||||
| Total |
$ | 2,752.6 | $ | 3,155.7 | $ | (403.1 | ) | (12.8 | )% | |||||||
| Six Months Ended |
||||||||||||||||
| August 31, |
% |
% |
||||||||||||||
| 2022 |
2021 |
Change |
Change |
|||||||||||||
| Factory gross margin |
17.6 | % | 20.6 | % | (2.9 | )% | (14.3 | )% | ||||||||
| Retail gross margin |
62.7 | % | 67.3 | % | (4.6 | )% | (6.8 | )% | ||||||||
| Total |
23.8 | % | 26.8 | % | (3.0 | )% | (11.1 | )% | ||||||||
Adjusted Gross Margin
| Six Months Ended |
||||||||||||||||
| August 31, |
$ |
% |
||||||||||||||
| ($'s in thousands) |
2022 |
2021 |
Change |
Change |
||||||||||||
| Factory gross margin |
$ | 1,756.3 | $ | 2,097.9 | $ | (341.6 | ) | (16.3 | )% | |||||||
| Plus: depreciation and amortization |
320.5 | 309.6 | 10.9 | 3.5 | % | |||||||||||
| Factory adjusted gross margin |
2,076.8 | 2,407.5 | (330.7 | ) | (13.7 | )% | ||||||||||
| Retail gross margin |
996.3 | 1,057.8 | (61.5 | ) | (5.8 | )% | ||||||||||
| Total Adjusted Gross Margin |
$ | 3,073.1 | $ | 3,465.3 | $ | (392.2 | ) | (11.3 | )% | |||||||
| Factory adjusted gross margin |
20.8 | % | 23.6 | % | (2.8 | )% | (11.7 | )% | ||||||||
| Retail gross margin |
62.7 | % | 67.3 | % | (4.6 | )% | (6.8 | )% | ||||||||
| Total Adjusted Gross Margin |
26.6 | % | 29.4 | % | (2.8 | )% | (9.6 | )% | ||||||||
Adjusted gross margin and factory adjusted gross margin are non-GAAP measures. Adjusted gross margin is equal to the sum of our factory adjusted gross margin plus our retail gross margin calculated in accordance with GAAP. Factory adjusted gross margin is equal to factory gross margin plus depreciation and amortization expense. We believe adjusted gross margin and factory adjusted gross margin are helpful in understanding our past performance as a supplement to gross margin, factory gross margin and other performance measures calculated in conformity with GAAP. We believe that adjusted gross margin and factory adjusted gross margin are useful to investors because they provide a measure of operating performance and our ability to generate cash that is unaffected by non-cash accounting measures. Additionally, we use adjusted gross margin and factory adjusted gross margin rather than gross margin and factory gross margin to make incremental pricing decisions. Adjusted gross margin and factory adjusted gross margin have limitations as analytical tools because they exclude the impact of depreciation and amortization expense and you should not consider them in isolation or as a substitute for any measure reported under GAAP. Our use of capital assets makes depreciation and amortization expense a necessary element of our costs and our ability to generate income. Due to these limitations, we use adjusted gross margin and factory adjusted gross margin as measures of performance only in conjunction with GAAP measures of performance such as gross margin and factory gross margin.
Cost of Sales and Gross Margin
Factory gross margins decreased to 17.6% in the six months ended August 31, 2022, compared to a gross margin of 20.6% during the six months ended August 31, 2021, due primarily to an increase in costs from wage and material inflation and the impacts of Employee Retention Credits recognized in the six months ended August 31, 2021 with no comparable credits in the six months ended August 31, 2022. These cost increases were partially offset by an increase in product prices. The Company recognized approximately $155,000 of payroll tax benefit associated with Employee Retention Credits (“ERC”) in the six months ended August 31, 2021. ERCs were enacted by the CARES Act in March 2020. In December 2020 the Consolidated Appropriations Act extended eligibility for the credits allowing the Company to retroactively benefit from ERCs.
Retail gross margins decreased from 67.3% during the six months ended August 31, 2021, to 62.7% during the six months ended August 31, 2022. The decrease in retail gross margins was primarily the result of an increase in costs of raw material.
Franchise Costs
The decrease in franchise costs in the six months ended August 31, 2022, compared to the six months ended August 31, 2021, was due primarily to a decrease in professional fees, the result of litigation with our licensee in Canada incurred during the six months ended August 31, 2021, with no comparable legal expense in the six months ended August 31, 2022. As a percentage of total royalty and marketing fees and franchise fee revenue, franchise costs decreased to 26.8% in the six months ended August 31, 2022, from 34.4% in the six months ended August 31, 2021. This decrease as a percentage of royalty, marketing and franchise fees is primarily the result of lower franchise costs.
Sales and Marketing
The increase in sales and marketing costs for the six months ended August 31, 2022, compared to the six months ended August 31, 2021 was primarily due to an increase in advertising costs.
General and Administrative
The increase in general and administrative costs for the six months ended August 31, 2022, compared to the six months ended August 31, 2021 was due primarily to costs associated with a stockholder’s contested solicitation of proxies in connection with our 2022 annual meeting of stockholders. During the six months ended August 31, 2022, the Company incurred approximately $2.1 million of costs associated with the contested solicitation of proxies, compared with $917,000 of costs associated with a contested solicitation of proxies during the six months ended August 31, 2021. The Company also incurred increased professional fees related to legal support for our Board of Directors and legal costs associated with compensation arrangements for our former Chief Executive Officer and Chief Financial Officer and legal and professional costs associated with the search for, and appointment of, a new Chief Executive Officer and a new Chief Financial Officer. Additionally, due to a stockholder’s contested solicitation of proxies in connection with our 2021 annual meeting of stockholders the Company had become contingently liable for certain change in control severance payments to Mr. Dudley if a triggering termination was to occur. As a result of Mr. Dudley’s announced retirement in August 2022, Company management concluded that it is probable that the severance liability is paid. As of August 31, 2022, the Company had recorded $859,000 of associated severance liability. As a percentage of total revenues, general and administrative expenses increased to 37.1% in the six months ended August 31, 2022, compared to 17.5% in the six months ended August 31, 2021.
Retail Operating Expenses
The increase in retail operating expenses for the six months ended August 31, 2022, compared to the six months ended August 31, 2021, was due primarily to an increase in salaries and wages and utilities in our Company-owned stores and cafés. Retail operating expenses, as a percentage of retail sales, increased from 56.2% in the six months ended August 31, 2021, to 59.3% in the six months ended August 31, 2022. This decrease is primarily the result of higher retail sales.
Depreciation and Amortization
Depreciation and amortization, exclusive of depreciation and amortization included in cost of sales, was $255,000 in the six months ended August 31, 2022, a decrease of 14.0% from $297,000 in the six months ended August 31, 2021. This decrease was the result of lower amortization of franchise rights, the result of a decrease in frozen yogurt cafés in operation. See Note 7 to the financial statements for a summary of annual amortization of intangible assets based upon existing intangible assets and current useful lives. Depreciation and amortization included in cost of sales increased 3.5% from $310,000 in the six months ended August 31, 2021 to $320,000 in the six months ended August 31, 2022. This increase was the result of investment in equipment.
Other Income
Other income was $6,500 in the six months ended August 31, 2022, compared to other income of $174,300 during the six months ended August 31, 2021. Interest income was $6,500 in the six months ended August 31, 2022, compared to interest income of $7,100 during the six months ended August 31, 2021.
The Company recognized a gain on insurance recovery of $167,100 during the six months ended August 31, 2021, compared with no similar amounts recognized during the six months ended August 31, 2022.
Income Tax Expense (Benefit)
During the six months ended August 31, 2022, we incurred income tax expense of $1.4 million on a loss before income taxes of $2.4 million. This expense was the result of recording a full reserve on our deferred income tax asset. Our effective income tax rate for the six months ended August 31, 2021 was 27.9%. See Note 14 to the financial statements for a description of income taxes, deferred tax assets and associated reserves.
Liquidity and Capital Resources
As of August 31, 2022, working capital was $7.3 million, compared to $9.7 million as of February 28, 2022, a decrease of $2.4 million. The decrease in working capital was primarily due to costs associated with a stockholder’s contested solicitation of proxies in connection with our 2022 annual meeting of stockholders.
Cash and cash equivalent balances decreased approximately $2.2 million to $5.4 million as of August 31, 2022 compared to $7.6 million as of February 28, 2022. This decrease in cash and cash equivalents was primarily due to funding of a rabbi trust established for severance payments to our former Chief Executive Officer and the resulting $1.3 million decrease in cash balances and an increase in inventory of $2.1 million. Our current ratio was 2.0 to 1 at August 31, 2022 compared to 2.8 to 1 at February 28, 2022. We monitor current and anticipated future levels of cash and cash equivalents in relation to anticipated operating, financing and investing requirements.
During the six months ended August 31, 2022, we had a net loss of $3.8 million. Operating activities used cash of $1,584,693, with the principal adjustment to reconcile the net income to net cash used by operating activities being deferred income taxes of $1,388,271, depreciation and amortization of $575,429, an increase in accounts payable of $2,213,952 and refunded income taxes of $304,779, partially offset by an increase in inventory of $2,068,878. During the comparable 2021 period, we had net income of $776,738, and operating activities provided cash of $1,427,456. The principal adjustment to reconcile the net income to net cash used by operating activities being depreciation and amortization of $606,190, an increase in accounts payable of $1,201,485 and expense related to stock-based compensation of $269,624, partially offset by an increase in inventory of $1,199,304
During the six months ended August 31, 2022, investing activities used cash of $598,878, primarily due to the purchases of property and equipment of $586,879. In comparison, investing activities used cash of $329,405 during the six months ended August 31, 2021 primarily due to the purchases of property and equipment of $570,862 partially offset by proceeds from insurance recovery of $206,336.
There were no cash flows from financing activities during the six months ended August 31, 2022 or 2021.
The Company believes that cash flow from operations will be sufficient to fund capital expenditures and working capital requirements for FY 2023. If necessary, the Company has an available bank line of credit to help meet these requirements.
Off-Balance Sheet Arrangements
As of August 31, 2022, except for the purchase obligations as described below, we had no material off-balance sheet arrangements or obligations.
Purchase obligations: As of August 31, 2022, we had purchase obligations of approximately $53,000. These purchase obligations primarily consist of contractual obligations for future purchases of commodities for use in our manufacturing.
Impact of Inflation
Inflationary factors such as increases in the costs of ingredients and labor directly affect our operations. Most of our leases provide for cost-of-living adjustments and require us to pay taxes, insurance and maintenance expenses, all of which are subject to inflation. Additionally, our future lease costs for new facilities may include potentially escalating costs of real estate and construction. There is no assurance that we will be able to pass on increased costs to our customers.
Depreciation expense is based on the historical cost to us of our fixed assets, and is therefore potentially less than it would be if it were based on current replacement cost. While property and equipment acquired in prior years will ultimately have to be replaced at higher prices, it is expected that replacement will be a gradual process over many years.
Seasonality
We are subject to seasonal fluctuations in sales, which cause fluctuations in quarterly results of operations. Historically, the strongest sales of our products have occurred during key holidays and the summer vacation season. In addition, quarterly results have been, and in the future are likely to be, affected by the timing of new store openings and sales of franchises. Because of the seasonality of our business and the impact of new store openings and sales of franchises, results for any quarter are not necessarily indicative of results that may be achieved in other quarters or for a full fiscal year.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
As a smaller reporting company, we are not required to provide the information required by this Item.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) that are designed to ensure that material information relating to us is made known to the officers who certify as to our financial reports and to other members of senior management and the Board of Directors. These disclosure controls and procedures are designed to ensure that information required to be disclosed in our reports that are filed or submitted under the Exchange Act, are recorded, processed, summarized, and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
Management, with the participation of our Chief Executive Officer and Chief Financial Officer, conducted an evaluation of the effectiveness of our disclosure controls and procedures. Based upon this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective as of August 31, 2022.
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting that occurred during the quarter ended August 31, 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
On September 28, 2022, the Company initiated a lawsuit in the Delaware Court of Chancery that seeks declaratory relief and monetary damages against Bradley L. Radoff, Andrew T. Berger, AB Value Partners LP, AB Value Management LLC (collectively, the “AB Value/Radoff Group) and Mary Bradley. The Company’s complaint alleges that the AB Value/Radoff Group and Ms. Bradley conspired to fraudulently induce the Company into entering a cooperation agreement on August 13, 2022 (the “Cooperation Agreement”), which was intended to settle the contested election at the upcoming 2022 Annual Meeting of Stockholders of the Company (the “2022 Annual Meeting”). The Cooperation Agreement specified that the Company would expand its Board of Directors to seven members by appointing the AB Value/Radoff Group’s nominee, Ms. Bradley, to the Board immediately following the 2022 Annual Meeting of Stockholders. The complaint alleges that the AB Value/Radoff Group and Ms. Bradley knew before signing the Cooperation Agreement there was no contested election to resolve, because Ms. Bradley had notified the AB Value/Radoff Group that she would not serve as a director for even one day and was therefore ineligible for election at the 2022 Annual Meeting—but withheld this information from the Company and the public. The complaint seeks (i) a declaration that the Cooperation Agreement is rescinded, null, and void, and that Company has no obligations under the Cooperation Agreement including, but not limited, to the payment of $600,000 to the AB Value/Radoff Group, (ii) an award of damages for the Company’s costs and expenses, including attorneys’ fees, that the Company incurred to negotiate and execute the Cooperation Agreement after the AB Value/Radoff Group knew or should have known that Ms. Bradley was unwilling to serve as a Director of the Company, in an amount in excess of $500,000, (iii) an award of damages for the Company’s costs and expenses incurred in the contested election that was based on misrepresentations concerning Ms. Bradley’s qualifications in numerous filings with the Securities and Exchange Commission, in an amount in excess of $1,000,000.
In addition to the other information set forth in this Quarterly Report on Form 10-Q, you should carefully consider the factors discussed in Part 1, “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended February 28, 2022, as amended by Amendment No. 1 on Form 10-K/A filed on June 28, 2022, which could materially and adversely affect our business, financial condition and results of operations. Other than as set forth below, there have been no material changes in our risk factors from those disclosed in our Annual Report on Form 10-K for the fiscal year ended February 28, 2022, as amended by Amendment No. 1 on Form 10-K/A.
We Are Subject to Periodic Litigation, Which Could Result in Unexpected Expense of Time and Resources.
We are a party to lawsuits from time to time. In addition, on September 28, 2022, we commenced litigation against Bradley L. Radoff, Andrew T. Berger, AB Value Partners LP, AB Value Management LLC and Mary Bradley in the Delaware Court of Chancery as described under the caption “PART II. OTHER INFORMATION - Item 1. Legal Proceedings” in this Form 10-Q. Due to the inherent uncertainties of litigation, we cannot accurately predict the ultimate outcome of any such proceedings. An unfavorable outcome in any current or future legal proceedings could have an adverse impact on our business, and financial results. In addition, any significant litigation in the future, regardless of its merits, could divert management's attention from our operations and result in substantial legal fees. Any litigation could result in substantial costs and a diversion of management's attention and resources that are needed to successfully run our business.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
Issuer Purchases of Equity Securities
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Not Applicable.
None.
| 3.1 |
| 3.2 |
| 10.1 |
| 31.1* |
| 31.2* |
| 32.1** |
| 101.INS |
* Inline XBRL Instance Document (the Instance Document does not appear in the Interactive Data File because it’s XBRL (1)) |
| 101.SCH |
* Inline XBRL Taxonomy Extension Schema Document (1) |
| 101.CAL |
* Inline XBRL Taxonomy Extension Calculation Linkbase Document (1) |
| 101.DEF |
* Inline XBRL Taxonomy Extension Definition Linkbase Document (1) |
| 101.LAB |
* Inline XBRL Taxonomy Extension Label Linkbase Document (1) |
| 101.PRE |
* Inline XBRL Taxonomy Extension Presentation Linkbase Document (1) |
| 104 |
* Cover page Interactive Data File (formatted as Inline XBRL and combined in Exhibit 101.1) |
| (1) |
These interactive data files shall not be deemed filed for purposes of Section 11 or 12 of the Securities Act of 1933, as amended, or Section 18 of the Securities Exchange Act of 1937, as amended, or otherwise subject to liability under those sections. |
____________________________
* Filed herewith.
** Furnished herewith.
+ Management contract or compensatory plan
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.
ROCKY MOUNTAIN CHOCOLATE FACTORY, INC.
(Registrant)
| Date: October 14, 2022 |
/s/ Allen Arroyo |
|
| Allen Arroyo, Chief Financial Officer |
Exhibit 31.1
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Robert Sarlls, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Rocky Mountain Chocolate Factory, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
|
b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
|
c) |
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
|
d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
|
b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
|
Date: October 14, 2022 |
/s/ Robert Sarlls |
|
| Robert Sarlls, Chief Executive Officer and Director (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Allen Arroyo, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Rocky Mountain Chocolate Factory, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
|
b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
|
c) |
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
|
d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
|
b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
|
Date: October 14, 2022 |
/s/ Allen Arroyo |
|
| Allen Arroyo, Chief Financial Officer (Principal Financial Officer) |
Exhibit 32.1
CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
In connection with the Quarterly Report of Rocky Mountain Chocolate Factory, Inc. (the "Company") on Form 10-Q for the quarterly period ended August 31, 2022 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Robert Sarlls, Chief Executive Office, and Allen Arroyo, Chief Financial Officer, of the Company certify, in our capacity as such, pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| Date: October 14, 2022 | /s/ Robert Sarlls |
| Robert Sarlls, Chief Executive Officer and Director (Principal Executive Officer) | |
| Date: October 14, 2022 | /s/ Allen Arroyo |
| Allen Arroyo, Chief Financial Officer (Principal Financial Officer) |
The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. Section 1350, and is not being filed for purposes of Section 18 of the Exchange Act, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.