U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark one)
X Annual Report Pursuant to Section 13 or 15(d) of the Securities
--- Exchange Act of 1934 for the fiscal year ended December 31, 2009.
Transition Report Pursuant to Section 13 or 15 (d) of the Securities
--- Exchange Act of 1934
for the transition period from ____ to____.
Commission file number 0-11104
NOBLE ROMAN'S, INC.
(Exact name of registrant as specified in its charter)
Indiana 35-1281154
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Virginia Avenue, Suite 300
Indianapolis, Indiana 46204
(Address of principal executive offices)
Registrant's telephone number, including area code: (317) 634-3377
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock
Indicate by check mark if the registrant is a well-known seasoned issuer,
as defined in Rule 405 of the Securities Act. Yes No X
--- ---
Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Act. Yes No X
--- ---
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark whether the registratnt has submitted electronically
and posted on its corporate Website, if any, every Interactive Data File
required to be submitted and posted pursuant to Rule 405 of Regulation S-T
(Section 232,405 of this chapter) during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such files).
Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K (Section 229,405 of this chapter) is not contained herein,
and will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. X
---
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer or a smaller reporting company.
See the definitions of "large accelerated filer," "accelerated filer" and
"smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large Accelerated Filer Accelerated Filer
--- ---
Non-Accelerated Filer Smaller Reporting Company X
(do not check if a smaller --- ---
reporting company)
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Act). Yes No X
--- ---
The aggregate market value of the common stock held by non-affiliates of
the registrant as of June 30, 2009, the last business day of the registrant's
most recently completed second fiscal quarter, based on the closing price of the
registrant's common shares on such date was $5.6 million.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date: 19,412,499 shares of
common stock as of March 8, 2010.
Documents Incorporated by Reference:
Portions of the definitive proxy statement for the registrant's 2010 Annual
Meeting of Shareholders are incorporated by reference in Part III.
NOBLE ROMAN'S, INC.
FORM 10-K
Year Ended December 31, 2009
Table of Contents
Item # in
Form 10-K Page
PART I
1. Business 4
1A. Risk Factors 9
1B. Unresolved Staff Comments 12
2. Properties 12
3. Legal Proceedings 12
4. [Removed and Reserved] 15
PART II
5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity
Securities 15
6. Selected Financial Data 17
7. Management's Discussion and Analysis of Financial Condition and Results of Operations
17
7A. Quantitative and Qualitative Disclosures About Market Risk 24
8. Financial Statements and Supplementary Data 25
9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
43
9A. Controls and Procedures 43
9B. Other Information 44
PART III
10. Directors, Executive Officers and Corporate Governance 44
11. Executive Compensation 44
12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
44
13. Certain Relationships and Related Transactions, and Director Independence 45
14. Principal Accounting Fees and Services 45
PART IV
15. Exhibits, Financial Statements Schedules 45
3
PART 1
ITEM 1. BUSINESS
General Information
-------------------
Noble Roman's, Inc., an Indiana corporation incorporated in 1972 (the
"Company"), sells and services franchises for non-traditional and co-branded
foodservice operations under the trade names "Noble Roman's Pizza", "Noble
Roman's Bistro", "Noble Roman's Take-N-Bake", "Tuscano's Italian Style Subs" and
"Tuscano's Grab-N-Go Subs". The concepts' hallmarks include high quality pizza
and sub sandwiches, along with other related menu items, simple operating
systems, fast service times, labor-minimizing operations, attractive food costs
and overall affordability. Since 1997, the Company has focused its efforts and
resources primarily on franchising for non-traditional and co-branded locations
and now has awarded franchises in 45 states plus Washington, D.C., Puerto Rico,
Guam, Italy and Canada. In 2005 the Company began selling franchises for its
concepts in traditional restaurant locations. In 2006 the Company began selling
development territories to area developers in an attempt to accelerate growth in
the dual-branded traditional concept. However, with the current economic
environment and the related difficulties in obtaining third party financing, the
Company believes its non-traditional franchises currently offer more favorable
growth potential. Therefore, the Company is currently focusing all of its sales
efforts on selling franchises for non-traditional locations. Prior to 1997, the
Company had approximately 25 years' experience operating pizza restaurants in
traditional locations, giving it expertise in the design and support of
foodservice systems for franchisees. Royalties and franchise fees from the
Company's franchise operations were $10,411,326, $7,561,440 and $6,949,192 for
2007, 2008 and 2009, respectively. Royalties and fees from franchise operations
accounted for 90.0%, 83.7% and 92.1% of total revenue for 2007, 2008 and 2009,
respectively. Other financial information about the Company's business,
including revenue, profit and loss and total assets, is detailed in Item 8 -
Financial Statements and Supplementary Data in this report.
Products & Systems
------------------
The Company sells and services franchises for non-traditional and stand-alone
foodservice operations under the trade names "Noble Roman's Pizza", "Tuscano's
Italian Style Subs", "Noble Roman's Bistro", "Noble Roman's Take-N-Bake" and
"Tuscano's Grab-N-Go Subs". The Company believes the attributes of these
concepts include high quality products, simple operating systems, labor
minimizing operations, attractive food costs and overall affordability.
Noble Roman's Pizza
-------------------
"Superior quality that our customers can taste" - that is the hallmark of Noble
Roman's Pizza. Every ingredient and process has been designed with a view to
producing superior results. We believe the following make our products unique:
o Crust made with only specially milled flour with above average protein
and yeast.
o Fresh packed, uncondensed sauce made with secret spices, parmesan
cheese and vine-ripened tomatoes.
o 100% real cheese blended from mozzarella and Muenster, with no soy
additives or extenders.
4
o 100% real meat toppings, again with no additives or extenders - a real
departure from many pizza concepts.
o Vegetable and mushroom toppings that are sliced and delivered fresh,
never canned.
o An extended product line that includes breadsticks with dip, pasta,
baked sandwiches, salads, wings and a line of breakfast products.
o A fully-prepared pizza crust that captures the made-from-scratch
pizzeria flavor which gets delivered to the franchise location
shelf-stable so that dough handling is no longer an impediment to a
consistent product.
The Company carefully developed nearly all of its menu items to be delivered in
a ready-to-use form requiring only on-site assembly and baking. These menu items
are manufactured by third party vendors and distributed by unrelated
distributors who deliver throughout much of the continental United States. We
believe this process results in products that are great tasting, quality
consistent, easy to assemble and relatively low in food cost and that require
relatively low amounts of labor.
Noble Roman's Take-N-Bake Pizza
-------------------------------
The Company has recently developed a take-n-bake version
of its pizza as an addition to its menu offerings. The take-n-bake pizza is
designed as an add-on component for new and existing convenience store
franchisees, and as a stand-alone offering for grocery store chains. Since
adding this component in late 2009, the Company has signed agreements for 87
grocery store locations to operate the take-n-bake pizza program. Grocery store
chains that have signed agreements for certain of their grocery store locations
to operate the take-n-bake pizza program will total 255 if those chains enter
into agreements for the remainder of their grocery stores, as they have
indicated they will do. However, there can be no assurance that they will add
those additional agreements. The Company is also in discussions with several
other grocery store chains. The Company expects the number of grocery store
locations for take-n-take to increase significantly over the next several
months. The take-n-bake program has also been integrated into the operations of
29 existing convenience stores, generating significant add-on sales, and is now
being offered to all convenience store franchisees. The take-n-bake program in
grocery stores is being offered as a supply agreement rather than a franchise
agreement. The Company uses the same high-quality pizza ingredients for its
take-n-bake product as with its standard pizza, with slight modifications to
portioning for increased home baking performance.
Tuscano's Italian Style Subs
----------------------------
Tuscano's Italian Style Subs is a separate restaurant concept that focuses on
sub sandwich menu items. Tuscano's was designed to be comfortably familiar from
a customer's perspective but with many distinctive features that include an
Italian-themed menu. The franchise fee and ongoing royalty for a Tuscano's is
identical to that charged for a Noble Roman's Pizza franchise. For the most
part, the Company awards Tuscano's franchises for the same facilities as Noble
Roman's Pizza franchises, although Tuscano's franchises are also available for
locations that do not have a Noble Roman's Pizza franchise.
With its Italian theme, Tuscano's offers a distinctive yet recognizable format.
Like most other brand name sub concepts, customers select menu items at the
start of the counter line then choose toppings and sauces according to their
preference until they reach the check out point. Tuscano's, however, has many
unique competitive features, including its Tuscan theme, the extra rich yeast
content of its fresh baked bread, thematic menu selections and serving options,
high quality meats, and generous yet cost-effective quality sauces and spreads.
Tuscano's was designed to be premium quality, simple to operate and
cost-effective.
5
The Company has recently developed a grab-n-go service system for a limited
portion of the Tuscano's menu. The grab-n-go system is designed to add sales
opportunities at existing non-traditional Noble Roman's Pizza and/or Tuscano's
Subs locations. The grab-n-go system has already been integrated into the
operations of several existing locations, generating significant add-on sales.
The system is now being made available to other existing franchisees.
The Company is now offering new, non-traditional franchisees the opportunity to
open with both take-n-bake pizza and grab-n-go subs when they acquire a
dual-branded franchise. Additionally, through changes in the menu, operating
systems and equipment structure, the Company is now able to offer dual Noble
Roman's Pizza and Tuscano's Subs franchises at a significantly reduced
investment cost. The Company recently began promoting these enhancements for
non-traditional locations, and has been demonstrating the dual-brand at a
variety of trade shows in recent months.
Noble Roman's Bistro
--------------------
Noble Roman's Bistro, introduced in October 2008, is an additional service
system specifically designed for non-traditional venues such as convenience
stores, entertainment facilities, universities, hospitals, bowling centers and
other high traffic facilities. The Bistro incorporates all of the ingredient
qualities described above for Noble Roman's Pizza, and retains simplicity by
using largely ready-to-use ingredients that require only final assembly and
baking on site. It features the SuperSlice pizza, one-fourth of a large pizza,
along with hot entrees such as chicken parmesan, baked pastas, hot sub
sandwiches, breadsticks and calzones plus fresh salads and snacks. The Bistro is
also available with an optional breakfast expansion menu featuring a variety of
standard breakfast favorites. Customers move along the food display counter and
are served to order as they go. The Bistro was demonstrated at a trade show for
parks and attractions in Branson, Missouri in October 2009 and at the IAAPA Show
in Las Vegas in November 2009.
Business Strategy
The Company's business strategy can be summarized as follows:
Intensify Focus on Sales of Non-Traditional Franchises. With a very weak retail
economy, and with the severe dislocations in the lending markets, the Company
believes that it has a unique opportunity for increasing unit growth and revenue
within its non-traditional venues such as hospitals, military bases,
universities, convenience stores, grocery stores, attractions, entertainment
facilities, casinos, airports, travel plazas, office complexes and hotels. The
Company's franchises in non-traditional locations are foodservice providers
within a host business, and usually require a minimal investment compared to a
stand-alone franchise. Non-traditional franchises are most often sold into
pre-existing facilities as a service and/or revenue enhancer for the underlying
business. Although the Company's current focus is on non-traditional franchise
expansion, the Company will still seek to capitalize on other franchising
opportunities as they present themselves.
As a result of the Company's major focus being on non-traditional franchising,
it's requirements for overhead and operating cost are reduced. In addition,
during December 2008 the Company discontinued operating restaurants, by selling
all but two of the restaurants it had been temporarily operating pending planned
re-franchising. This substantially reduced the Company's requirements for
overhead and operating cost for the foreseeable future. This change has also
allowed for a more complete focus on selling and servicing franchises to pursue
increased unit growth in non-traditional franchises.
6
Enhance Product Offerings. To augment the Company's sales opportunities within
non-traditional venues, it introduced the Noble Roman's Bistro service system in
October 2008. As an addition to the other service systems offered in its Noble
Roman's Pizza and Tuscano's Italian Style Subs concepts, the Bistro was designed
to appeal to additional types of businesses and operational objectives with its
fresh food display and serve-to-order serving system. Though presented or
packaged differently, the substantial majority of the menu selections are
comprised of ingredients already utilized in Noble Roman's Pizza and Tuscano's
Italian Style Subs, thereby leveraging the Company's simple systems,
distribution and purchasing power. In addition, in 2009, the Company developed a
take-n-bake pizza as an addition to its menu offering. The take-n-bake pizza is
designed as an add-on component for new and existing convenience store
franchisees, and as a stand-alone offering for grocery store chains. The
Company, since it started offering take-n-bake pizza to grocery store chains in
September 2009, has signed agreements with87 grocery store locations to operate
the take-n-bake pizza program. Grocery store chains that have signed agreements
for certain of their grocery store locations to operate the take-n-bake pizza
program will total 255 if those chains enter into agreements for the remainder
of their grocery stores, as they have indicated they will do. However, there can
be no assurance that they will add those additional agreements. The Company is
also in discussions with several other grocery store chains.
Maintain Superior Product Quality. The Company believes that the quality of its
products will contribute to the growth of its non-traditional locations. Every
ingredient and process was designed with a view to producing superior results.
Most of our menu items were developed to be delivered in a ready-to-use form
requiring only on-site assembly and baking except for take-n-bake pizza, which
is sold to bake at home. The Company believes this process results in products
that are great tasting, quality consistent, easy to assemble, and relatively low
in food cost and that require very low amounts of labor, which allows for a
significant competitive advantage due to the speed at which its products can be
prepared, baked and served to customers.
Competition
-----------
The restaurant industry in general is very competitive with respect to
convenience, price, product quality and service. In addition, the Company
competes for franchise sales on the basis of product engineering and quality,
investment cost, cost of sales, distribution, simplicity of operation and labor
requirements. Actions by one or more of the Company's competitors could have an
adverse effect on the Company's ability to sell additional franchises, maintain
and renew existing franchises or sell its products through its franchise system.
Many of the Company's competitors are very large, internationally established
companies.
Within the competitive environment of the non-traditional franchise segment of
the restaurant industry, management has defined what it believes to be certain
competitive advantages for the Company. First, several of the Company's
competitors in the non-traditional segment are also large chains operating
thousands of franchised, traditional restaurants. Because of the contractual
relationships with many of their franchisees, some competitors may be unable to
offer wide-scale site availability for potential non-traditional franchisees.
The Company is not faced with any significant geographic restrictions.
Several of the Company's competitors in the non-traditional segment were
established with little or no organizational history in owning and operating
traditional foodservice locations. This lack of operating experience may be a
limitation for them in attracting and maintaining non-traditional franchisees
who, by the nature of the segment, often have little exposure to foodservice
operations themselves. The Company's background in traditional restaurant
operations has provided it experience in structuring, planning, marketing, and
cost controlling franchise unit operations which may be of material benefit to
franchisees.
7
Seasonality of Sales
--------------------
Direct sales of non-traditional franchises may be affected by seasonalities and
holiday periods. Franchise sales to certain non-traditional venues may be slower
around major holidays such as Thanksgiving and Christmas, and during the first
quarter of the year. Franchise sales to other non-traditional venues show less
or no seasonality. Additionally, in middle and northern climates where adverse
winter weather conditions may hamper outdoor travel or activities, foodservice
sales by franchisees may be sensitive to sudden drops in temperature or
precipitation which would in turn affect Company royalties.
Employees
---------
As of March 8, 2010, the Company employed approximately 23 persons full-time and
15 persons on a part-time, hourly basis. No employees are covered under
collective bargaining agreements, and the Company believes that relations with
its employees are good.
Trademarks and Service Marks
----------------------------
The Company owns and protects several trademarks and service marks. Many of
these, including NOBLE ROMAN'S (R), Noble Roman's Pizza(R), THE BETTER PIZZA
PEOPLE (R) and Tuscano's Italian Style Subs(R) are registered with the U.S.
Patent and Trademark Office as well as with the corresponding agencies of
certain other foreign governments. The Company believes that its trademarks and
service marks have significant value and are important to its sales and
marketing efforts.
Government Regulation
---------------------
The Company and its franchisees are subject to various federal, state and local
laws affecting the operation of our respective businesses. Each franchise
location is subject to licensing and regulation by a number of governmental
authorities, which include health, safety, sanitation, building and other
agencies and ordinances in the state or municipality in which the facility is
located. The process of obtaining and maintaining required licenses or approvals
can delay or prevent the opening of a franchise location. Vendors, such as our
third party production and distribution services, are also licensed and subject
to regulation by state and local health and fire codes, and U. S. Department of
Transportation regulations. The Company, its franchisees and its vendors are
also subject to federal and state environmental regulations.
The Company is subject to regulation by the Federal Trade Commission ("FTC") and
various state agencies pursuant to federal and state laws regulating the offer
and sale of franchises. Several states also regulate aspects of the
franchisor-franchisee relationship. The FTC requires us to furnish to
prospective franchisees a disclosure document containing certain specified
information. Some states also regulate the sale of franchises and require
registration of a franchise disclosure document with state authorities.
Substantive state laws that regulate the franchisor-franchisee relationship
presently exist in a substantial number of states, and bills have been
introduced in Congress from time to time that would provide for additional
federal regulation of the franchisor-franchisee relationship in certain
respects. State laws often limit, among other things, the duration and scope of
non-competition provisions and the ability of a franchisor to terminate or
refuse to renew a franchise. Some foreign countries also have disclosure
requirements and other laws regulating franchising and the franchisor-franchisee
relationship, and the Company would be subject to applicable laws in each
jurisdiction where it seeks to market additional franchised units.
8
Available Information
---------------------
We make available, free of charge through our Internet website
(http://www.nobleromans.com), our Annual Report on Form 10-K, Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K and amendments to these reports
filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, as soon as reasonably practicable after we
electronically file these reports with, or furnish them to, the Securities and
Exchange Commission. The information on our website is not incorporated into
this annual report.
ITEM 1A. RISK FACTORS
All phases of the Company's operations are subject to a number of uncertainties,
risks and other influences, many of which are outside of its control and any one
of which, or a combination of which, could materially affect its results of
operations. Important factors that could cause actual results to differ
materially from the Company's expectations are discussed below. Prospective
investors should carefully consider these factors before investing in our
securities as well as the information set forth under "Forward-Looking
Statements" in Item 7 of this report. These risks and uncertainties include:
Competition from larger companies.
The Company competes for franchise sales with large national companies and
numerous regional and local companies. Many of its competitors have greater
financial and other resources than the Company. The restaurant industry in
general is intensely competitive with respect to convenience, price, product
quality and service. In addition, the Company competes for franchise sales on
the basis of several factors, including product engineering and quality,
investment cost, cost of sales, distribution, simplicity of operation and labor
requirements. Activities of the Company's competitors could have an adverse
effect on the Company's ability to sell additional franchises or maintain and
renew existing franchises or operating results of the Company's franchise
system. As a result of these factors, the Company may have difficulty competing
effectively from time to time or in certain markets.
Dependence on growth strategy.
The Company's primary growth strategy consists of selling new franchises for
non-traditional locations. The opening and success of new non-traditional
locations will depend upon various factors, including the traffic generated by
and viability of the underlying activity or business, the ability of the
franchisee to operate the franchised location, their ability to comply with
applicable regulatory requirements and the effect of competition and general
economic and business conditions including food and labor costs. Many of the
foregoing factors are not within the Company's control. There can be no
assurance that the Company will be able to achieve its plans with respect to the
opening or operation of new non-traditional locations.
Dependence on success of franchisees.
A significant portion of the Company's earnings comes from royalties generated
by its franchisees. Franchisees are independent operators, and their employees
are not the Company's employees. The Company provides training and support to
franchisees, but the quality of franchise store operations may be diminished by
9
any number of factors beyond the Company's control. Consequently, franchisees
may not successfully operate stores in a manner consistent with the Company's
standards and requirements, or may not hire and train qualified managers and
other store personnel. If they do not, the Company's image and reputation may
suffer, and its revenues and stock price could decline. While the Company
attempts to ensure that its franchisees maintain the quality of its brand and
branded products, franchisees may take actions that adversely affect the value
of the Company's intellectual property or reputation.
Dependence on consumer preferences and perceptions.
The restaurant industry is often affected by changes in consumer tastes,
national, regional and local economic conditions, demographic trends, traffic
patterns and the type, number and location of competing restaurants. The Company
can be substantially adversely affected by publicity resulting from food
quality, illness, injury, or other health concerns or operating issues stemming
from one restaurant or a limited number of restaurants.
Interruptions in supply or delivery of fresh food products.
Dependence on frequent deliveries of fresh product from unrelated third-party
manufacturers through unrelated third-party distributors also subjects the
Company to the risk that shortages or interruptions in supply caused by
inclement weather or other conditions could adversely affect the availability,
quality and cost of ingredients. In addition, factors such as inflation, market
conditions for cheese, wheat, meats, paper and labor may also adversely affect
the franchisees and, as a result, can adversely affect the Company's ability to
add new franchised restaurants.
Dependence on key executives.
The Company's business has been and will continue to be dependent upon the
efforts and abilities of certain members of its management, particularly Paul
Mobley, our Chairman, Chief Executive Officer and Chief Financial Officer, and
A. Scott Mobley, our President and Chief Operating Officer. The loss of either
of their services could have a material adverse effect on the Company.
The Company is subject to ongoing litigation.
As described in Item 3 of this report, the Company is a defendant in a lawsuit
filed by certain of its former traditional franchisees. The plaintiffs in this
lawsuit allege that they purchased traditional franchises from the Company as a
result of certain fraudulent representations by the defendants in the case and
the omission of certain material facts regarding the franchises. If the Company
is subject to adverse findings in this litigation, it could be required to pay
damages or have other remedies imposed, which could have a material adverse
effect on the Company. The resolution of this matter could also be
time-consuming, expensive and distract the Company's management from the conduct
of the Company's business. Although the Company believes that it has strong and
meritorious legal and factual defenses to these claims and will vigorously
defend its interest in the case and the Court has granted the Company's motion
to dismiss several claims, there is no assurance the Company will prevail.
The Company is subject to Indiana law with regard to purchases of our stock.
Certain provisions of Indiana law applicable to the Company could have the
effect of making it more difficult for a third party to acquire, or of
10
discouraging a third party from attempting to acquire, control of the Company.
Such provisions could also limit the price that certain investors might be
willing to pay in the future for shares of its common stock. These provisions
include prohibitions against certain business combinations with persons that
become "interested shareholders" (persons owning or controlling shares with
voting power equal to 10% or more) unless the board of directors approves either
the business combination or the acquisition of stock before the person becomes
an "interested shareholder."
The Company and its franchisees are subject to various federal, state and local
laws with regard to the operation of the businesses.
The Company is subject to regulation by the FTC and various state agencies
pursuant to federal and state laws regulating the offer and sale of franchises.
Several states also regulate aspects of the franchisor-franchisee relationship.
The FTC requires the Company to furnish to prospective franchisees a disclosure
document containing certain specified information. Some states also regulate the
sale of franchises and require registration of a franchise disclosure document
with state authorities. Substantive state laws that regulate the
franchisor-franchisee relationship presently exist in a substantial number of
states, and bills have been introduced in Congress from time to time that would
provide for federal regulation of the franchisor-franchisee relationship in
certain respects. The state laws often limit, among other things, the duration
and scope of non-competition provisions and the ability of a franchisor to
terminate or refuse to renew a franchise. Some foreign countries also have
disclosure requirements and other laws regulating franchising and the
franchisor-franchisee relationship, and the Company would be subject to
applicable laws in each jurisdiction where it seeks to market additional
franchise units.
Each franchise location is subject to licensing and regulation by a number of
governmental authorities, which include health, safety, sanitation, building and
other agencies and ordinances in the state or municipality in which the facility
is located. The process of obtaining and maintaining required licenses or
approvals can delay or prevent the opening of a franchise location. Vendors,
such as the Company's third party production and distribution services, are also
licensed and subject to regulation by state and local health and fire codes, and
U. S. Department of Transportation regulations. The Company, its franchisees and
its vendors are also subject to federal and state environmental regulations.
The Company's stock is quoted on the OTC Bulletin Board and, accordingly, we are
not subject to the same corporate governance standards that would apply if our
shares were listed on a national exchange, which limits the liquidity and price
of our securities more than if our securities were quoted or listed on a
national exchange.
Our stock is quoted on the OTC Bulletin Board, a Nasdaq-sponsored and operated
inter-dealer automated quotation system for equity securities not included on
the Nasdaq Stock Market. We are not subject to the same corporate governance
requirements that apply to exchange-listed companies. These requirements include
having: a majority of independent directors; an audit committee of independent
directors; and shareholder approval of certain equity compensation plans. As a
result, quotation of our stock on the OTC Bulletin Board limits the liquidity
and price of our stock more than if our stock was quoted or listed on a national
exchange. There is no assurance that the Company's stock will continue to be
authorized for quotation by the OTC Bulletin Board or any other market in the
future.
Compliance with external assurance requirements of the Sarbanes-Oxley Act of
2002 will require substantial financial and management resources.
11
The Company is not now required to comply with the external assurance
requirements of Section 404 of the Sarbanes-Oxley Act of 2002. Section 404
requires us to evaluate and report on our system of internal controls over
financial reporting, however, the Company is not currently required to have its
independent registered public accountants report on management's evaluation of
our system of internal controls or certify its compliance with the rules related
to its system of internal controls. If we fail to maintain the adequacy of our
internal controls, we could be subject to various sanctions. Any inability to
provide reliable financial reports could harm our business. Any failure to
implement required new or improved controls, or difficulties encountered in the
implementation of adequate controls over our financial processes and reporting
in the future, could adversesly affect our operating results or cause us to fail
to meet our reporting obligations. Inferior internal controls could also cause
investors to lose confidence in our reported financial information, which could
have a negative effect on the trading price of our stock.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2. PROPERTIES
The Company's headquarters are located in 7,600 square feet of leased office
space in Indianapolis, Indiana. The lease for this property expires in March
2015.
The Company also leases space for the Company-owned dual-branded restaurant in
Indianapolis, Indiana which is used as a demonstration and test restaurant. The
lease for this property expires December 31, 2010. The Company has the option to
extend the term of this lease for two additional five-year periods.
The Company leases space for operating an additional dual-branded restaurant in
Indianapolis, Indiana. The lease for this property expires December 5, 2010. The
Company has the option to extend the term of this lease for two additional
five-year periods. This lease also provides for the Company to assign the lease
to a franchisee when it is franchised.
ITEM 3. LEGAL PROCEEDINGS
The Company, from time to time, is involved in various litigation relating to
claims arising out of its normal business operations.
The Company is a Defendant in a lawsuit styled Kari Heyser, Fred Eric Heyser and
Meck Enterprises, LLC, et al v. Noble Roman's, Inc. et al, filed in Superior
Court in Hamilton County, Indiana on June 19, 2008. The Plaintiffs are former
franchisees of the Company's traditional location venue. In addition to the
Company, the Defendants include certain of the Company's officers. Lenders to
certain of the Plaintiffs were also named as Defendants, but the Court dismissed
the claims against them. The Plaintiffs allege that the Defendants induced them
to purchase traditional franchises through fraudulent representations and
omissions of material facts regarding the franchises, and seek compensatory and
punitive damages. In the complaint, the Plaintiffs claimed damages in the
aggregate in the amount of $6.8 million and in some cases requested punitive
damages, court costs and/or prejudgment interest. Discovery is in progress, but
has not yet been completed. Defendants filed the First Request for Production of
12
Documents in February 2009 and certain Plaintiffs produced some documents
requested by the Company. However, many of the Plaintiffs produced no documents
and the Company, in July 2009, filed a Motion to Compel the production against
the Plaintiffs. In September 2009 the Judge entered a Stipulated Order on the
Motion to Compel stating that all Plaintiffs in this litigation were ordered to:
(1) fully and completely and without objection or evasion, file written
responses to the Company's Request by September 30, 2009 demonstrating what
documents and things exists which are responsive to the Request and (2) fully
and completely without objection or evasion, produce all documents and things
that are responsive to the Request by October 15, 2009. The Company believes
that the written responses submitted by the Plaintiffs do not comply with the
Order. Further, many of the Plaintiffs have not submitted any documents and most
of the others have not fully complied with the Order to Compel.
The Company filed a Counter-Claim for Damages against all of the Plaintiffs and
moved to obtain Preliminary and Permanent Injunctions against a majority of the
Plaintiffs to remedy the Plaintiffs' continuing breaches of the applicable
franchise agreements. The Company's Motion for Preliminary Injunction was
granted in October 2008. The Company has asserted that none of the preliminarily
enjoined Plaintiffs fully complied with the Court's Order and that several of
them only minimally complied. Accordingly, the Company filed a Motion to Require
Full Compliance and To Show Cause why they should not be held in contempt and
for attorney's fees as sanctions.
The Company filed a Motion to Revoke the Temporary Admission Pro Hac Vice of
David M. Duree, Plaintiffs' former counsel, for filing fraudulent affidavits
with the Court. The Court granted this motion in March 2009. In the same ruling
the Court: continued the Motion to Show Cause to allow parties time to conduct
discovery, including depositions on the preliminarily enjoined Plaintiffs, on
that issue; granted preliminary injunctions against Plaintiffs Gomes and
Villasenor; dismissed claims against CIT Small Business Lending Corporation and
PNC Bank with prejudice; and struck the fraudulent affidavits. New counsel for
Plaintiffs entered his appearance in the case on behalf of the Plaintiffs in May
2009.
The Company also filed a Motion for Partial Summary Judgment as to several
claims in the Complaint, which the Judge granted on September 22, 2009. On
October 8, 2009 Plaintiffs filed a Motion to Correct Error, Reconsider And
Vacate Order; Request For Clarification; Alternatively, Motion For Certification
Of Appeal Of Interlocutory Order And For Stay Of Proceeding Pending Appeal. On
January 12, 2010, the Court denied Plaintiffs' Motion and, in the same Order the
Court denied Plaintiffs' Motion for Certification of Appeal of Interlocutory
Order and for Stay of Proceedings Pending Appeal. Further, the Court denied
Plaintiffs' request to amend their Complaint. In a January 15, 2010 Telephonic
Status Conference regarding scheduling and other matters between the Judge,
Plaintiffs' counsel and Defendants' counsel, the Plaintiffs' counsel orally
requested that the Court reconsider its January 12, 2010 rulings described above
concerning whether constructive fraud can be plead. Counsel for the Plaintiffs
further requested that if the Court does not grant leave to amend the Complaint
he would request the Court to certify such Order for an Interlocutory Appeal. In
a February 2, 2010 ruling, the Court reaffirmed the Order of January 12, 2010
denying Plaintiffs' Motion to Correct Error, Reconsider And Vacate Order;
Request For Clarification; Alternatively, Motion For Certification Of Appeal Of
Interlocutory Order And For Stay Of Proceeding Pending Appeal. Furthermore, the
Order of February 2, 2010 stated the following: "Finally, the Court does now
find that there is no just reason for delay and the Court does now expressly
enter Final Judgment as to the issues of whether or not the Plaintiffs included
in the Amended Complaint the theory of constructive fraud and that the
Plaintiffs may not have leave to file an Amended Complaint to include such
theory." On February 11, 2010, counsel for the Plaintiffs filed a Notice of
13
Appeal with the Indiana Court of Appeals. Defendants' Counsel is preparing a
motion to dismiss the appeal based on lack of jurisdiction.
On December 2, 2009, Plaintiffs filed a Motion for Extensions, Sanctions and
Other Relief claiming, in part, that the Defendants' claim against Plaintiffs'
counsel in Small Claims Court for reimbursement of fees and other expenses was
improper. In the Order of January 12, 2010, the Court granted Plaintiffs'
Request for Extensions, denied Plaintiffs' Request for Sanctions and Other
Relief, and ruled that Defendants' claim in Small Claims Court against
Plaintiffs' counsel was appropriate.
To date, 11 of the 14 Plaintiff groups have been deposed. The Company continues
to attempt to schedule the remaining Plaintiffs for depositions. On September
29, 2009, Defendants filed a Motion to Reopen Plaintiff Dunn's Deposition and
require him to come to Indianapolis and resume his deposition at the Plaintiff's
expense claiming that Plaintiffs' counsel wrongly interrupted a proper line of
questioning and prematurely ended the deposition. In the Court's Order of
January 12, 2010, Defendants' Motion was granted and Dunn was ordered to come to
Indianapolis to continue his deposition and further ordered that any privilege
regarding Mr. Dunn's communications with his son, an attorney, concerning his
son's review, recommendations and opinions about Noble Roman's franchise
documents has been waived and no further objection may be offered regarding
those topics. The continuation of Dunn's deposition was held on March 11, 2010.
On October 16, 2009, Defendants filed a motion to require Plaintiff Heyser to
travel to Indianapolis for her deposition as a result of her deposition, which
had been previously agreed to, being canceled at her request and agreeing,
through counsel, to come to Indianapolis at a later date for the deposition.
Many days later Plaintiffs' counsel denied that agreement even though it had
been confirmed by email. In the Order of January 12, 2010, Defendants' Motion to
Compel Plaintiff Kari Heyser to attend a deposition in Indianapolis was granted.
Ms. Heyser's deposition was taken in Indianapolis on March 8, 2010. Plaintiffs
Villasenors were scheduled for deposition in El Centro, California on January
20, 2010, however, even though Defendants' Counsel was present in El Centro for
the deposition, the Villasenors did not appear for deposition. As a result, by
agreement of counsels, those depositions are to be taken in Indianapolis,
Indiana and are in the process of being rescheduled in March 2010. Plaintiffs'
counsel has been unable to obtain a schedule for depositions of Plaintiffs
Morris and Plaintiffs Soltero and filed a motion with the court to withdraw
representation of those Plaintiffs.
The Defendants were scheduled for depositions by Plaintiffs' counsel during the
week of November 9, 2009, however, Plaintiffs' counsel canceled those
depositions. Defendants had been rescheduled for depositions during the week of
March 15, 2010, however, on March 12, 2010, Plaintiffs' counsel canceled those
scheduled depositions.
Defendants filed Motions for Summary Judgment as to Plaintiff Brintle on
November 6, 2009 and Plaintiff Clark on November 25, 2009, as a result of their
testimony at depositions. The Defendants are in the process of preparing motions
for Summary Judgment against all of the other Plaintiffs whose depositions have
been taken. In the Judge's Order of February 2, 2010, the Judge set a deadline
of April 30, 2010 for filing of all remaining Motions for Summary Judgment, a
deadline of June 4, 2010 for Plaintiffs' Response to all of the Summary Judgment
Motions and a deadline of June 18, 2010 for Defendants' Reply to Responses.
Although there can be no assurance regarding the outcome of litigation, the
Company believes that it has strong and meritorious legal and factual defenses
to these claims and viable counter claims against the Plaintiffs and will
vigorously defend its interests in this case and to pursue the counter claims.
Other than as disclosed above, the Company is involved in no other material
litigation.
14
ITEM 4. [Removed and Reserved]
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED
STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY
SECURITIES
Market Information
------------------
The Company's common stock is included on the Nasdaq "OTC Bulletin Board" and
trades under the symbol "NROM."
The following table sets forth for the periods indicated, the high and low bid
prices per share of common stock as reported by Nasdaq. The quotations reflect
inter-dealer prices without retail mark-up, mark-down or commissions and may not
represent actual transactions.
2008 2009
---- ----
Quarter Ended: High Low High Low
-------------- ---- ----- ---- ---
March 31 $ 1.35 $ 1.21 $.55 $.36
June 30 $ 1.30 $ 1.15 $.72 $.34
September 30 $ .79 $ .67 $.70 $.50
December 31 $ .38 $ .35 $.89 $.56
Holders of Record
-----------------
As of March 5, 2010, there were approximately 300 holders of record of the
Company's common stock. This excludes persons whose shares are held of record by
a bank, brokerage house or clearing agency.
Dividends
---------
The Company has never declared or paid dividends on its common stock. The
Company's current loan agreement, as described in Note 3 to the Company's
consolidated financial statements, prohibits the payment of dividends.
Sale of Unregistered Securities
-------------------------------
None.
Equity Compensation Plan Information
------------------------------------
The following table provides information as of December 31, 2009 with respect to
the shares of our common stock that may be issued under our existing equity
compensation plan.
15
Number of securities
remaining available for
Number of Securities to Weighted-average future issuance under
be issued upon exercise exercise price of equity compensation
of outstanding options, outstanding options, plans (excluding
warrants and rights warrants and rights securities reflected in
Plan Category (a) (b) column (a)) (c)
---------------------------------- ------------------------- -------------------- -----------------------
Equity compensation plans approved
by stockholders -- $ -- --
Equity compensation plans not
approved by stockholders 630,250 $ .64 (1)
------- -------
Total 630,250 $ .64 --
------- -------
(1) The Company may grant additional options under the employee stock option
plan. There is no maximum number of shares available for issuance under the
employee stock option plan.
The Company maintains an employee stock option plan for its employees and
officers. Any employees or officers of the Company are eligible to be awarded
options under the plan. The employee stock option plan provides that any options
issued pursuant to the plan will have a three-year vesting period and will
expire ten years after the date of grant. Awards under the plan are periodically
made at the recommendation of the Chairman/CEO and President and approved by the
Board of Directors. The employee stock option plan does not have a limit on the
number of shares that may be issued under the plan.
16
ITEM 6. SELECTED FINANCIAL DATA (In thousands except per share data)
Year Ended December 31,
------------------------------------------------------
Statement of Operations Data: 2005 2006 2007 2008 2009
-------- -------- -------- -------- --------
Royalties and fees $ 7,270 $ 8,084 $ 10,411 $ 7,562 $ 6,949
Administrative fees and other 72 63 68 48 64
Restaurant revenue 1,089 1,340 1,088 1,432 537
-------- -------- -------- -------- --------
Total revenue 8,431 9,487 11,567 9,042 7,550
Operating expenses 2,627 2,921 4,371 3,184 2,247
Restaurant operating expenses 1,059 1,284 1,011 1,369 497
Depreciation and amortization 70 84 97 92 79
General and administrative 1,491 1,550 1,680 1,625 1,485
-------- -------- -------- -------- --------
Operating income 3,184 3,648 4,408 2,772 3,242
Interest and other 817 776 651 616 467
Other income 2,801 -- -- -- --
-------- -------- -------- -------- --------
Income before income taxes from continuing
operations 5,168 2,872 3,757 2,156 2,775
Income taxes 1,757 976 1,268 733 1,099
-------- -------- -------- -------- --------
Net income from continuing operations 3,411 1,896 2,489 1,423 1,676
Loss from discontinued operations (560) -- -- (3,824) --
-------- -------- -------- -------- --------
Net income (loss) $ 2,851 $ 1,896 $ 2,489 $ (2,401) 1,676
Cumulative preferred dividends 16 163 127 66 66
-------- -------- -------- -------- --------
Net income (loss) available to common
stockholders $ 2,835 $ 1,733 $ 2,361 $ (2,467) $ 1,610
======== ======== ======== ======== ========
Weighted average number of common shares 16,849 16,406 17,676 19,213 19,412
Net income from continuing operations $ .17 $ .12 $ .14 $ .07 $ .09
Net income (loss) per share .17 .12 .14 (.13) .09
Net income (loss) available to common $ .17 $ .11 $ .13 $ (.13) $ .08
stockholders
Balance Sheet Data (at year end):
Working capital $ 2,793 $ 3,423 $ 3,806 $ 551 $ 1,517
Total assets 15,523 16,138 17,469 17,278 16,683
Long-term obligations, net of current portion . 7,125 5,625 4,125 5,625 4,125
Stockholders' equity $ 6,513 $ 8,617 $ 11,312 $ 8,962 $ 10,623
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Introduction
------------
The Company sells and services franchises for non-traditional, co-branded and
stand-alone foodservice operations under the trade names "Noble Roman's Pizza",
"Tuscano's Italian Style Subs", "Noble Roman's Bistro", "Noble Roman's
Take-N-Bake Pizza" and "Tuscano's Grab-N-Go Subs". We believe the attributes of
our franchise include high quality products, simple operating systems,
labor-minimizing operations, attractive food costs and overall affordability.
There were 829 franchised outlets in operation on December 31, 2008 and 834 on
December 31, 2009. During that twelve-month period there were 96 new franchised
outlets opened and 91 franchised outlets left the system, 35 of which reached
17
the end of their franchise agreement term and 56 of which ceased operation for
other reasons.
As discussed in Note 1 to the Company's financial statements, the Company uses
significant estimates in evaluating such items as notes and accounts receivable
to reflect the actual amount expected to be collected for total receivables. At
December 31, 2008 and 2009, the Company reported net accounts and notes
receivable of $1.463 million and $2.137 million, respectively, which was net of
an allowance to reflect the amount the Company expects to realize for the
receivables. The Company has reviewed each of its accounts and notes receivable
and only included receivables in the amount expected to be collected. The
Company has provided an accrual for estimated future expense related to its
discontinued operations in the amount of $722 thousand as of December 31, 2008
and $186 thousand as of December 31, 2009, which was primarily to provide for
future legal expenses for the litigation described in Legal Proceedings of this
report which involves the discontinued operations of the Company. The Company,
at December 31, 2008 and December 31, 2009, had a deferred tax asset on its
balance sheet totaling $12.853 million and $11.754 million, respectively. After
reviewing expected results from the Company's current business plan, the Company
believes it is more likely than not that the deferred tax assets will be
utilized prior to their expiration, most of which expire between 2012 and 2028.
Financial Summary
-----------------
The preparation of the consolidated financial statements in conformity with
United States generally accepted accounting principles requires management to
make estimates and assumptions that affect the amounts reported in the
consolidated financial statements and accompanying notes. Actual results may
differ from those estimates. The Company evaluates the carrying values of its
assets, including property, equipment and related costs, accounts receivable and
deferred tax asset, periodically to assess whether any impairment indications
are present due to (among other factors) recurring operating losses, significant
adverse legal developments, competition, changes in demand for the Company's
products or changes in the business climate that affect the recovery of recorded
values. If any impairment of an individual asset is evident, a charge will be
provided to reduce the carrying value to its estimated fair value.
18
Condensed Consolidated Statement of Operations Data
Noble Roman's, Inc. and Subsidiaries
Years Ended December 31,
------------------------------------------------------------------
2007 2008 2009
---- ---- ----
Royalties and fees $10,411,326 90.0% $ 7,561,440 83.7% $ 6,949,192 92.1%
Administrative fees and other 67,467 .6 48,084 .5 63,503 .8
Restaurant revenue 1,088,022 9.4 1,432,435 15.8 536,885 7.1
----------- ----- ----------- ----- ----------- -----
Total revenue 11,566,815 100.0 9,041,959 100.0 7,549,580 100.0
Franchise-related operating
expenses:
Salaries and wages 1,642,529 14.2 1,366,861 15.1 1,057,675 14.0
Trade show expense 554,574 4.8 488,012 5.4 309,827 4.1
Travel expense 527,455 4.6 386,018 4.3 134,350 1.8
Sales commissions 621,928 5.4 62,960 .7 3,627 .0
Other operating expense 1,024,399 8.9 880,464 9.7 741,749 9.8
Restaurant expenses 1,011,146 8.7 1,369,139 15.2 496,614 6.6
Depreciation 96,682 .8 91,736 1.0 78,777 1.0
General and administrative 1,680,284 14.5 1,624,022 18.0 1,485,356 19.7
----------- ----- ----------- ----- ----------- -----
Operating income 4,407,818 38.1 2,772,747 30.6 3,241,605 43.0
Interest and other expense 650,802 5.6 616,333 6.8 466,944 6.2
----------- ----- ----------- ----- ----------- -----
Income before income taxes 3,757,016 32.5 2,156,414 23.8 2,774,661 36.8
Income taxes 1,268,489 11.0 733,180 8.1 1,099,044 14.6
----------- ----- ----------- ----- ----------- -----
Net income from continuing
operations $ 2,488,527 21.5% $ 1,423,234 15.7% $ 1,675,617 22.2%
=========== ===== =========== ===== =========== =====
2009 Compared with 2008
-----------------------
Total revenue decreased from $9.0 million in 2008 to $7.5 million in 2009 even
though royalty and fee income, less initial franchise fees, area development
fees and equipment commissions was approximately $6.7 million in both 2008 and
2009. The decrease in royalties and fees was primarily a result of selling fewer
franchises, less equipment commissions and less area development agreements, all
of which were impacted by the recent recession and crisis in the financial
markets and the Company's decision to focus all of its sales efforts on the sale
of non-traditional franchises. Royalties and fees decreased from approximately
$7.6 million in 2008 to approximately $6.9 million in 2009. Included in
royalties and fees were approximately $353,500 in 2008 and $203,450 in 2009 for
initial franchise fees. In addition, royalties and fees included approximately
$104,825 in 2008 and none in 2009, for the sale of area development agreements.
Also included in royalties and fees were approximately $397,200 in 2008 and
approximately $38,509 in 2009, for equipment commissions.
Restaurant revenues decreased from $1.4 million in 2008 to $537 thousand in
2009. The Company only operates two restaurants for testing and demonstration
purposes but from time to time did temporarily operate others until a suitable
franchisee was located. As of December 2008, the Company made a decision to no
longer temporarily operate restaurants.
Salaries and wages decreased from 15.1% of revenue in 2008 to 14.0% of revenue
in 2009. This decrease was primarily the result of the Company reducing
operating expenses in light of slower growth in the number of franchised units.
Actual salaries and wages decreased from $1.37 million in 2008 to $1.06 million
in 2009.
19
Trade show expenses decreased from 5.4% of revenue in 2008 to 4.1% of revenue in
2009. The decrease was primarily the result of a decrease in the number of trade
shows attended partially offset by fewer initial franchise fees and equipment
commissions. Actual trade show expenses decreased from $488 thousand in 2008 to
$310 thousand in 2009. This expense is anticipated to increase somewhat in 2010
as we have added grocery store trade shows to the events that we will be
attending.
Travel expenses decreased from 4.3% of revenue in 2008 to 1.8% of revenue in
2009. This decrease was primarily the result of having fewer supervisors and
trainers because of opening fewer new restaurants which was partially offset by
the decrease in fewer initial franchise fees and equipment commissions. The
Company anticipates that the trend toward lower travel expenses will continue in
2010.
Sales commission expense decreased from .7% of revenue in 2008 to 0% of revenue
in 2009. This decrease was primarily the result of selling no area development
agreements and fewer initial franchise fees in 2009 compared to 2008.
Other operating expenses increased from 9.7% of revenue in 2008 to 9.8% of
revenue in 2009. This increase was primarily the result of fewer initial
franchise fees and equipment commissions. Actual other operating expenses
decreased from approximately $880 thousand in 2008 to $742 thousand in 2009.
This decrease was primarily due to the reduction of expenses related to staff
reductions.
Restaurant expenses decreased from 15.2% of revenue in 2008 to 6.6% of revenue
in 2009. This decrease was the result of the Company operating fewer restaurants
in 2009 and discontinuing operating restaurants on a temporary basis in 2008 and
partially offset by the decrease in initial franchise fees and equipment
commissions. The Company now only operates two restaurants for testing and
demonstration purposes but did temporarily operate others until a franchisee was
located, which practice has been discontinued.
General and administrative expenses increased from 18.0% of revenue in 2008 to
19.7% of revenue in 2009. This increase was a result of the decrease in initial
franchise fees and equipment commissions. Actual general and administrative
expenses were $1.624 million in 2008 and $1.485 million in 2009. The Company
does not anticipate any material change in general and administrative expenses
in 2010.
Operating income increased from $2.8 million in 2008 to $3.2 million in 2009.
This was primarily the result of reduced operating expenses partially offset by
fewer initial franchise fees and equipment commissions.
Interest expense decreased from 6.8% of revenue in 2008 to 6.2% of revenue in
2009. This was a result of a decrease in interest expenses partially offset by
fewer initial franchisee fees and equipment commissions. Actual interest expense
was approximately $616 thousand in 2008 compared to $467 thousand in 2009 due to
a decrease in average outstanding borrowings. The actual loan balance decreased
by $1.5 million during 2009.
Net income from continuing operations increased from $1.4 million in 2008 to
$1.7 million in 2009. This increase was primarily the result of reduced
operating expenses partially offset by fewer initial franchise fees and
equipment commissions.
20
Net income per share from continuing operations increased from $.07 per share on
19.2 million weighted average shares outstanding in 2008 to $.09 per share on
19.4 million weighted average shares outstanding in 2009. The diluted net income
per share from continuing operations increased from $.07 per share on 20.1
million weighted average shares outstanding in 2008 to $.08 per share on 20.0
million weighted average shares outstanding in 2009.
Loss on discontinued operations was $3.8 million in 2008 and none in 2009. The
loss on discontinued operations was primarily the result of operating
traditional restaurants which had been acquired from struggling franchisees and
later sold to new franchisees. Noble Roman's made the decision in late 2008 to
discontinue that business and charged off or dramatically lowered the carrying
value of all receivables related to the traditional restaurants and accrued
future estimated related expenses.
2008 Compared with 2007
-----------------------
Total revenue decreased from $11.6 million in 2007 to $9.0 million in 2008. This
decrease was primarily due to a decrease in royalties and fees as a result of
selling fewer franchises, less equipment commissions and less area development
agreements. Royalties and fees decreased from approximately $10.4 million in
2007 to approximately $7.6 million in 2008. Included in royalties and fees were
approximately $1,221,500 in 2007 and $353,500 in 2008 for initial franchise
fees. In addition, royalties and fees included approximately $1,537,700 in 2007
and $104,825 in 2008, for the sale of area development agreements. Also included
in royalties and fees were approximately $891,300 in 2007 and approximately
$397,200 in 2008, for equipment commissions. Royalty and fee income, less
initial franchise fees, area development fees and equipment commissions, were
$6.8 million in 2007 and $6.7 million in 2008.
Restaurant revenues increased from $1.1 million in 2007 to $1.4 million in 2008.
Although, as of December 31, 2008, the Company was operating only the two
restaurants, it operated more restaurants on a temporary basis during 2008 than
2007.
Salaries and wages increased from 14.2% of revenue in 2007 to 15.1% of revenue
in 2008. This increase was primarily the result of the decrease in revenue.
Actual salaries and wages decreased from $1.64 million in 2007 to $1.37 million
in 2008.
Trade show expenses increased from 4.8% of revenue in 2007 to 5.4% of revenue in
2008. The increase was primarily the result of the decrease in revenue. Actual
trade show expenses decreased from $555 thousand in 2007 to $488 thousand in
2008.
Travel expenses decreased from 4.6% of revenue in 2007 to 4.3% of revenue in
2008. This decrease was primarily the result of having fewer supervisors and
trainers because of opening fewer new restaurants which was offset by the
decrease in revenue.
Sales commission expense decreased from 5.4% of revenue in 2007 to .7% of
revenue in 2008. This decrease was primarily the result of selling fewer area
development agreements and fewer franchise agreements in 2008 compared to 2007.
Other operating expenses increased from 8.9% of revenue in 2007 to 9.7% of
revenue in 2008. This increase was primarily the result of the decrease in
revenue. Other operating expenses decreased from $1.024 million in 2007 to $880
thousand in 2008. This decrease was primarily due to the reduction of expenses
related to staff reductions.
21
Restaurant expenses increased from 8.7% of revenue in 2007 to 15.2% of revenue
in 2008. This increase was primarily the result of the Company operating more
restaurants on a temporary basis in 2008 and the decrease in royalty and fee
revenue. Although, as of December 31, 2008, the Company only operated the two
restaurants, it operated more restaurants on a temporary basis during 2008 than
2007.
General and administrative expenses increased from 14.5% of revenue in 2007 to
18.0% of revenue in 2008. This increase was a result of the decrease in revenue.
General and administrative expenses were $1.680 million in 2007 and $1.624
million in 2008.
Operating income decreased from $4.4 million in 2007 to $2.8 million in 2008.
This was primarily the result of the decrease in royalty and fee revenue as a
result of selling fewer franchises, less equipment commissions and less area
development agreements partially offset by a decrease in operating expenses.
Interest expense increased from 5.6% of revenue in 2007 to 6.8% of revenue in
2008. This was a result of the decrease in revenue. Actual interest expense was
approximately $651 thousand in 2007 compared to $616 thousand in 2008. The
actual loan balance was higher in 2008 than 2007 but was more than offset by a
lower interest rate.
Net income from continuing operations decreased from $2.5 million in 2007 to
$1.4 million in 2008. This decrease was primarily the result of the decrease in
revenue partially offset by a decrease in operating expenses.
Net income per share from continuing operations decreased from $.14 per share on
17.7 million weighted average shares outstanding in 2007 to $.07 per share on 19
million weighted average shares outstanding in 2008. The diluted net income per
share from continuing operations decreased from $.13 per share on 19.0 million
weighted average shares outstanding in 2007 to $.07 per share on 20 million
weighted average shares outstanding in 2008.
Loss on discontinued operations was $3.8 million in 2008. The Company reported
no discontinued operations in 2007. The loss on discontinued operations was
primarily the result of operating traditional restaurants which had been
acquired from struggling franchisees and later sold to new franchisees. Noble
Roman's made the decision in late 2008 to discontinue that business and charged
off or dramatically lowered the carrying value of all receivables related to the
traditional restaurants and accrued future estimated expenses related thereto.
Impact of Inflation
-------------------
The primary inflation factors affecting the Company's operations are food and
labor costs to the franchisee. The Company was affected in 2008 by the dramatic
increase in commodity prices, primarily cheese and meats, which negatively
affected its franchisees' food costs. The commodity prices returned to a more
normal level during the latter part of 2008 and the continued through 2009. The
competition for labor has resulted in higher salaries and wages for the
franchisees, however, that effect is mitigated by the relatively low labor
requirements of the Company's franchise concepts.
22
Liquidity and Capital Resources
-------------------------------
The Company's current strategy is to grow its business by concentrating largely
on franchising new non-traditional locations and by licensing additional
locations to sell its take-n-bake pizza. The Company increased its focus on
selling additional franchises for non-traditional locations and created the
Noble Roman's Bistro service system to help broaden the appeal to additional
types of locations and operations. The Company developed a take-n-bake pizza as
an addition to its menu offerings to accelerate non-traditional unit growth. The
take-n-bake pizza is designed as an add-on component for new and existing
convenience store franchises, and as a stand-alone offering for grocery store
chains. In addition, the Company has discontinued operating any restaurants
except for the two locations the Company operates for testing and demonstration
purposes. This change has allowed the Company to reduce operating expenses and
overhead. This strategy does not require significant capital investments.
The Company's current ratio increased from 1.2-to-1 to 1.8-to-1 from December
31, 2008 to December 31, 2009 due to profitable operations.
The net cash provided by operating activities was $2.1 million for 2009 and $582
thousand for 2008. The increase in net cash provided by operating activities was
primarily the result of the increase in the Company's net income patially offset
by increases in accounts and notes receivable and other assets in 2009 as
compared to 2008. Net cash used in financial activities was $2.2 million in 2009
and $945 thousand for 2008. This increase was primarily the result of no
additional borrowings in 2009 and the Company did receive proceeds of $2.96
million in 2008 from an amendment to the Company's loan agreement with Wells
Fargo, this affect was partially offset by the decrease in payments of
obligations from discontinued operations from 2008 to 2009.
As a result of the Company's strategy and the cash flow expected to be generated
from operations in the future, the Company believes it will have sufficient cash
flow to meet its obligations and to carry out its current business plan for the
foreseeable future.
In February 2008, the Company and certain of its subsidiaries entered into a
First Amendment to Loan Agreement (the "Amendment") with Wells Fargo Bank, N.A.
that amended the existing Loan Agreement entered into in August 2005, between
the Company and Wells Fargo (the "Loan Agreement"). Under the Amendment, Wells
Fargo loaned the Company an additional $3.0 million. The Amendment also reduced
the interest rate applicable to amounts borrowed under the Loan Agreement from
LIBOR plus 4% per annum to LIBOR plus 3.75% per annum and extended the maturity
date for borrowings under the loan from August 31, 2011 to August 31, 2013.
In February 2008, the Company elected to trade its previous swap contract for a
new swap contract fixing the rate on 50% of the principal balance under the Loan
Agreement, as amended by the Amendment (approximately $2.625 million as of March
1, 2010), at an annual interest rate of 8.2%.
The Company does not anticipate that any of the recently issued Statement of
Financial Accounting Standards will have a material impact on its Statement of
Operations or its Balance Sheet.
23
Contractual Obligations
-----------------------
The following table sets forth the contractual obligations of the Company as of
December 31, 2009:
Less than More than
Total 1 year 1-3 Years 3-5 Years 5 years
---------- ---------- ---------- ---------- ----------
Long-term debt $5,625,000 $1,500,000 $3,000,000 $1,125,000 $ --
Operating leases 831,611 226,646 287,724 280,813 36,428
---------- ---------- ---------- ---------- ----------
Total $6,456,611 $1,726,646 $3,287,724 $1,405,813 $ 36,428
========== ========== ========== ========== ----------
Forward-Looking Statements
--------------------------
The statements contained above in Management's Discussion and Analysis
concerning the Company's future revenues, profitability, financial resources,
market demand and product development are forward-looking statements (as such
term is defined in the Private Securities Litigation Reform Act of 1995)
relating to the Company that are based on the beliefs of the management of the
Company, as well as assumptions and estimates made by and information currently
available to the Company's management. The Company's actual results in the
future may differ materially from those projected in the forward-looking
statements due to risks and uncertainties that exist in the Company's operations
and business environment, including, but not limited to, competitive factors and
pricing pressures, the current litigation with certain former traditional
franchisees, shifts in market demand, general economic conditions and other
factors including, but not limited to, changes in demand for the Company's
products or franchises, the success or failure of individual franchisees, the
impact of competitors' actions and changes in prices or supplies of food
ingredients and labor as well as the factors discussed above under "Risk
Factors." Should one or more of these risks or uncertainties materialize, or
should underlying assumptions or estimates prove incorrect, actual results may
vary materially from those described herein as anticipated, believed, estimated,
expected or intended.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company's exposure to interest rate risk relates primarily to its
variable-rate debt. As of December 31, 2009, the Company had outstanding
interest-bearing debt in the aggregate principal amount of $5.625 million. The
Company's current borrowings are at a variable rate tied to the London Interbank
Offered Rate ("LIBOR") plus 3.75% per annum adjusted on a monthly basis. To
mitigate interest rate risk, the Company traded its previous swap contract for a
new swap contract fixing the rate on 50% of the principal balance outstanding at
8.2%. Based upon the principal balance outstanding as of March 1, 2010 of $5.25
million for each 1.0% increase in LIBOR, the Company would incur increased
interest expense of approximately $23,200 over the succeeding twelve-month
period.
24
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Consolidated Balance Sheets
Noble Roman's, Inc. and Subsidiaries
December 31,
----------------------------
2008 2009
------------ ------------
Assets
Current assets:
Cash $ 450,968 $ 333,204
Accounts and notes receivable - net 1,046,545 1,337,207
Inventories 223,024 239,006
Assets held for resale 242,690 243,527
Prepaid expenses 222,095 241,852
Current portion of long-term notes receivable 5,810 6,293
Deferred tax asset - current portion 1,050,500 1,050,500
------------ ------------
Total current assets 3,241,632 3,451,589
------------ ------------
Property and equipment:
Equipment 1,206,979 1,133,312
Leasehold improvements 96,512 96,512
------------ ------------
1,303,491 1,229,824
Less accumulated depreciation and amortization 821,422 790,134
------------ ------------
Net property and equipment 482,069 439,690
Deferred tax asset (net of current portion) 11,802,637 10,703,594
Other assets including long-term portion of notes receivable net 1,752,102 2,087,644
------------ ------------
Total assets $ 17,278,440 $ 16,682,517
============ ============
Liabilities and Stockholders' Equity
Current liabilities:
Current portion of long-term note payable $ 1,500,000 $ 1,500,000
Accounts payable 290,895 119,938
Accrued expenses 900,221 314,728
------------ ------------
Total current liabilities 2,691,116 1,934,366
------------ ------------
Long-term obligations:
Note payable to bank (net of current portion) 5,625,000 4,125,000
------------ ------------
Total long-term liabilities 5,625,000 4,125,000
------------ ------------
Stockholders' equity:
Common stock - no par value (25,000,000 shares authorized, 19,412,499 issued
and outstanding as of December 31, 2008 and December 31, 2009) 23,023,250 23,074,160
Preferred stock (5,000,000 shares authorized, 20,625 issued and outstanding as
of December 31, 2008 and December 31, 2009) 800,250 800,250
Accumulated deficit (14,861,176) (13,251,559)
------------ ------------
Total stockholders' equity 8,962,324 10,622,851
------------ ------------
Total liabilities and stockholders' equity $ 17,278,440 $ 16,682,517
============ ============
See accompanying notes to consolidated financial statements.
25
Consolidated Statements of Operations
Noble Roman's, Inc. and Subsidiaries
Year Ended December 31,
-------------------------------------------
2007 2008 2009
------------ ------------ ------------
Royalties and fees $ 10,411,326 $ 7,561,440 $ 6,949,192
Administrative fees and other 67,467 48,084 63,503
Restaurant revenue 1,088,022 1,432,435 536,885
------------ ------------ ------------
Total revenue 11,566,815 9,041,959 7,549,580
Operating expenses:
Salaries and wages 1,642,529 1,366,861 1,057,675
Trade show expense 554,574 488,012 309,827
Travel expense 527,455 386,018 134,350
Sales commissions 621,928 62,960 3,627
Other operating expenses 1,024,399 880,464 741,749
Restaurant expenses 1,011,146 1,369,139 496,614
Depreciation and amortization 96,682 91,736 78,777
General and administrative 1,680,284 1,624,022 1,485,356
------------ ------------ ------------
Operating income 4,407,818 2,772,747 3,241,605
Interest and other expense 650,802 616,333 466,944
------------ ------------ ------------
Income before income taxes from
continuing operations 3,757,016 2,156,414 2,774,661
Income tax expense 1,268,489 733,180 1,099,044
------------ ------------ ------------
Net income from continuing operations 2,488,527 1,423,234 1,675,617
Loss from discontinued operations net of tax benefit
of $2,508,433 for 2008 -- (3,824,397) --
------------ ------------ ------------
Net income (loss) 2,488,527 (2,401,163) 1,675,617
Cumulative preferred dividends 127,116 66,181 66,000
------------ ------------ ------------
Net income (loss) available to common
stockholders $ 2,361,411 $ (2,467,344) $ 1,609,617
============ ============ ============
Earnings per share - basic:
Net income from continuing operations $ .14 $ .07 $ .09
Net loss from discontinued operations net of tax
benefit $ -- $ (.20) $ --
Net income (loss) $ .14 $ (.13) $ .09
Net income (loss) available to common
stockholders $ .13 $ (.13) $ .08
Weighted average number of common shares
outstanding 17,675,834 19,213,522 19,412,499
Diluted earnings per share:
Net income from continuing operations $ .13 $ .07 $ .08
Net loss from discontinued operations net of tax
benefit $ -- $ (.19) $ --
Net income (loss) $ .13 $ (.12) $ .08
Weighted average number of common shares
outstanding 18,973,291 20,147,150 19,950,027
See accompanying notes to consolidated financial statements.
26
Consolidated Statements of Changes in
Stockholders' Equity
Noble Roman's, Inc. and Subsidiaries
Preferred Common Stock Accumulated
Stock Shares Amount Deficit Total
------------ ------------ ------------ ------------ ------------
Balance at December 31, 2006 $ 1,978,800 16,602,661 $ 21,393,360 $(14,755,243) $ 8,616,917
2007 net income 2,488,527 2,488,527
Cumulative preferred dividends (127,116) (127,116)
Exercise of employee stock options 130,750 143,358 143,358
Amortization of value of employee
stock options 26,631 26,631
Conversion of preferred stock to
common stock (1,178,550) 539,994 1,178,550 --
Exercise of warrants from
previous debt holders 130,975 163,719 163,719
Cashless exercise of warrants 1,783,119 --
------------ ------------ ------------ ------------ ------------
Balance at December 31, 2007 $ 800,250 19,187,499 $ 22,905,618 $(12,393,832) $ 11,312,036
2008 net loss (2,401,163) (2,401,163)
Cumulative preferred dividends (66,181) (66,181)
Exercise of employee stock options 15,000 12,450 12,450
Amortization of value of employee
stock options 52,682 52,682
Exercise of warrants from
previous debt holders 10,000 12,500 12,500
Issuance of common stock 200,000 40,000 40,000
------------ ------------ ------------ ------------ ------------
Balance at December 31, 2008 $ 800,250 19,412,499 $ 23,023,250 $(14,861,176) $ 8,962,324
2009 net income 1,675,617 1,675,617
Cumulative preferred dividends (66,000) (66,000)
Amortization of value of employee
stock options 50,910 50,910
------------ ------------ ------------ ------------ ------------
Balance at December 31, 2009 $ 800,250 19,412,499 $ 23,074,160 $(13,251,559) $ 10,622,851
============ ============ ============ ============ ============
See accompanying notes to consolidated financial statements.
27
Consolidated Statements of Cash Flows
Noble Roman's, Inc. and Subsidiaries
Year ended December 31,
-----------------------------------------
2007 2008 2009
----------- ----------- -----------
OPERATING ACTIVITIES
Net income (loss) $ 2,488,527 $(2,401,163) $ 1,675,617
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 191,432 183,225 179,185
Non-cash expense from loss on discontinued operations -- 2,220,023 --
Deferred income taxes 1,268,489 733,180 1,099,044
Changes in operating assets and liabilities:
(Increase) decrease in:
Accounts and notes receivable (1,074,561) (40,591) (315,597)
Inventories (94,805) 6,337 (4,713)
Prepaid expenses (266,358) (49,363) (19,757)
Other assets (255,521) 88,673 (419,332)
Increase (decrease) in:
Accounts payable and accrued expenses 136,519 (158,020) (81,451)
----------- ----------- -----------
NET CASH PROVIDED BY OPERATING
ACTIVITIES 2,393,722 582,301 2,112,996
----------- ----------- -----------
INVESTING ACTIVITIES
Purchase of property and equipment (107,941) (16,778) (45,211)
Assets held for resale (312,539) (2,040) (837)
----------- ----------- -----------
NET CASH USED BY INVESTING ACTIVITIES (420,480) (18,818) (46,048)
----------- ----------- -----------
FINANCING ACTIVITIES
Payment of obligations from discontinued operations (929,484) (2,501,682) (652,522)
Payment of cumulative preferred dividends (127,116) (66,181) (66,000)
Payment of principal on outstanding debt (1,500,000) (1,500,000) (1,500,000)
Payment received on long-term notes receivable 187,898 133,736 33,810
Proceeds from issuance of long-term debt, net of debt
issue costs -- 2,964,455 --
Proceeds from the exercise of stock options and warrants 307,076 24,950 --
----------- ----------- -----------
NET CASH USED BY FINANCING ACTIVITIES (2,061,627) (944,722) (2,184,712)
----------- ----------- -----------
Decrease in cash (88,383) (381,239) (117,764)
Cash at beginning of year 920,590 832,207 450,968
----------- ----------- -----------
Cash at end of year $ 832,207 $ 450,968 $ 333,204
=========== =========== ===========
Supplemental Schedule of Non-Cash Investing and Financing Activities:
The holders of $1,215,000 in liquidation value of preferred stock exchanged
their preferred stock for 539,994 shares of common stock in 2007. The holders of
warrants to purchase 2,000,000 shares of stock exercised the cashless exercise
provisions of the warrants in 2007 and were issued 1,783,119 shares of common
stock.
See accompanying notes to consolidated financial statements.
28
Notes to Consolidated Financial Statements
Noble Roman's, Inc. and Subsidiaries
Note l: Summary of Significant Accounting Policies
Organization: The Company sells and services franchises for non-traditional and
co-branded foodservice operations under the trade names "Noble Roman's Pizza",
"Tuscano's Italian Style Subs", "Noble Roman's Bistro", "Noble Roman's
Take-N-Pizza" and "Tuscano's Grab-N-Go Subs".
Principles of Consolidation: The consolidated financial statements include the
accounts of Noble Roman's, Inc. and its wholly-owned subsidiaries, Pizzaco, Inc.
and N.R. Realty, Inc. (collectively, the "Company"). Inter-company balances and
transactions have been eliminated in consolidation.
Generally Accepted Accounting Principles: In June 2009, the Financial Accounting
Standards Board (FASB) issued the Accounting Standards Codification
("Codification" or "ASC") which became the single official source of
authoritative, nongovernmental U.S. generally accepted accounting principles
(GAAP). The Codification did not change GAAP but reorganized the literature and
changed the naming mechanism by which topics are referenced. Companies were
required to begin using the Codification for interim and annual periods ending
after September 15, 2009. As required, references to pre-codification accounting
literature have been changed throughout this Annual Report on Form 10-K to
appropriately reference the Codification. The consolidated results of the
Company were not impacted by this change.
Inventories: Inventories consist of food, beverage, restaurant supplies,
restaurant equipment and marketing materials and are stated at the lower of cost
(first-in, first-out) or market.
Property and Equipment: Equipment and leasehold improvements are stated at cost.
Depreciation and amortization are computed on the straight-line method over the
estimated useful lives ranging from five years to 12 years. Leasehold
improvements are amortized over the shorter of estimated useful life or the term
of the lease.
Cash and Cash Equivalents: Includes actual cash balance plus cash invested
overnight pursuant to an agreement with a bank. Neither the cash or cash
equivalents are pledged nor are there any withdrawal restrictions.
Assets Held for Resale: The Company records the cost of franchised locations
held by the Company on a temporary basis until they are sold to a franchisee at
the Company's cost adjusted for impaired value, if any, to the estimated net
realizable value. The Company estimates net realizable value using comparative
replacement costs for other similar franchise locations that are being built at
the time the estimate is made.
Advertising Costs: The Company records advertising costs consistent with ASC
Other Expense topic and Advertising Costs subtopic. This statement requires the
Company to expense advertising production costs the first time the production
material is used.
Fair Value Measurements and Disclosures: The Fair Value Measurements and
Disclosures topic of the FASB's ASC requires companies to determine fair value
based on the price that would be received to sell the asset or paid to transfer
the liability to a market participant. The Fair Value Measurements and
Disclosures topic emphasizes that fair value is a market-based measurement, not
an entity-specific measurement. The new guideline required a phase-in approach:
(1) phase one was effective for financial assets and liabilities in our first
quarter of 2008 and (2) phase two was effective for non-financial assets and
liabilities in our first quarter of fiscal 2009. The new provisions did not have
a significant impact on our 2008 or 2009 consolidated financial statements.
29
The guidance requires that assets and liabilities carried at fair value be
classified and disclosed in one of the following categories:
o Level 1: Quoted market prices in active markets for identical assets
or liabilities.
o Level 2: Observable market based inputs or unobservable inputs that
are corroborated by market data.
o Level 3: Unobservable inputs that are not corroborated by market data.
As of December 31, 2008 and 2009, the Company held an interest rate swap, a
financial liability that is required to be measured at fair value on a recurring
basis utilizing Level 2 inputs. The carrying value for this liability
approximates its fair value, and is not material to our 2008 or 2009
consolidated financial statements.
Fair Value of Financial Instruments: The Company's current borrowings are at a
monthly variable rate tied to LIBOR. On February 6, 2008, the Company elected to
trade its previous swap contract for a new swap contract fixing the rate on 50%
of the principal balance under the Loan Agreement, as amended by the Amendment
(approximately $2.625 million as of March 1, 2010), at an annual interest rate
of 8.2%.
Our swap is a derivative instrument that is designated as cash flow hedge
because the swap provides a hedge against the effects of rising interest rates
on present and/or forecasted future borrowings. The effective portion of the
gain or loss on the swap is reported as a component of other comprehensive
income and reclassified into earnings in the same period or periods during which
the swap affects earnings. Gains or losses on the swap representing either hedge
ineffectiveness or hedge components excluded from the assessment of
effectiveness are recognized in current earnings. Amounts payable or receivable
under the swap is accounted for as adjustments to interest expense. The
financial liability was not material to our 2008 or 2009 consolidated financial
statements. There were no derivatives that were not designated as hedging
instruments under the provisions of the ASC topic, Derivatives and Hedging.
Use of Estimates: The preparation of the consolidated financial statements in
conformity with United States generally accepted accounting principles requires
management to make estimates and assumptions that affect the amounts reported in
the consolidated financial statements and accompanying notes. Actual results
could differ from those estimates. The Company records a valuation allowance in
a sufficient amount to adjust the total notes and accounts receivables value, in
its best judgment, to reflect the amount that the Company estimates will be
collected from its total receivables. As any accounts are determined to be
uncollectible, they are charged off against the valuation allowance. The Company
evaluates its assets held for resale, property and equipment and related costs
periodically to assess whether any impairment indications are present, including
recurring operating losses and significant adverse changes in legal factors or
business climate that affect the recovery of recorded value. If any impairment
of an individual asset is evident, a loss would be provided to reduce the
carrying value to its estimated fair value.
Intangible Assets: Debt issue costs are amortized to interest expense ratably
over the term of the applicable debt. The debt issue cost being amortized is
$438,236 with accumulated amortization at December 31, 2007 of $156,603,
December 31, 2008 of $207,243 and December 31, 2009 of $256,742.
Royalties, Administrative and Franchise Fees: Royalties are recognized as income
monthly and are based on a percentage of monthly sales of franchised
restaurants. Administrative fees are recognized as income monthly as earned.
Initial franchise fees are recognized as income when the services for the
franchised restaurant are substantially completed. Area development fees, since
they are fully earned and non-refundable when received, are recognized as income
when received.
30
Exit or Disposal Activities Related to Discontinued Operations: The Company
records exit or disposal activity for discontinued operations when management
commits to an exit or disposal plan and includes those charges under results of
discontinued operations, as required by ASC Exit or Disposal Cost Obligations
topic.
Income Taxes: The Company provides for current and deferred income tax
liabilities and assets utilizing an asset and liability approach along with a
valuation allowance as appropriate. The Company concluded that no valuation
allowance was necessary because it is more likely than not that the Company will
earn sufficient income before the expiration of its net operating loss carry
forwards to fully realize the value of the recorded deferred tax asset. As of
December 31, 2009, the net operating loss carry-forward was approximately $27
million which expires between the years 2012 and 2028. Management made the
determination that no valuation allowance was necessary after reviewing the
Company's business plans, all known facts to date, recent trends, current
performance and analysis of the backlog of franchises sold but not yet open.
Effective January 1, 2009, U.S. generally accepted accounting principles require
the Company to examine its tax positions for uncertain positions. Management is
not aware of any tax positions that are more likely than not to change in the
next twelve months, or that would not sustain an examination by applicable
taxing authorities. The Company's policy is to recognize penalties and interest
as incurred in its statement of operations, which were none for the years ended
December 31, 2007, 2008 and 2009. The Company's federal and various state income
tax returns for 2006 through 2009 are subject to examination by the applicable
tax authorities, generally for three years after the later of the original or
extended due date.
Basic and Diluted Net Income (Loss) Per Share: Net income (loss) per share is
based on the weighted average number of common shares outstanding during the
respective year. When dilutive, stock options and warrants are included as share
equivalents using the treasury stock method.
The following table sets forth the calculation of basic and diluted earnings per
share for the year ended December 31, 2007:
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
Net income $ 2,488,527
Less preferred stock dividends (127,116)
-----------
Earnings per share - basic
Income available to common
stockholders 2,361,411 17,675,834 $ .13
Effect of dilutive securities
Warrants -- 858,333
Options -- 72,458
Convertible preferred stock 127,116 366,666
----------- ----------
Diluted earnings per share
Income available to common stockholders
and assumed conversions $ 2,488,527 18,973,291 $ .13
31
The following table sets forth the calculation of basic and diluted loss per
share for the year ended December 31, 2008:
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
Net loss $ (2,401,163)
Less preferred stock dividends (66,181)
-----------
Loss per share - basic
Loss available to common
stockholders
(2,467,344) 19,213,522 $ (.13)
Effect of dilutive securities
Warrants -- 230,660
Options -- 336,302
Convertible preferred stock 66,181 366,666
----------- ----------
Diluted loss per share
Loss available to common stockholders
and assumed conversions $ (2,401,163) 20,147,150 $ (.12)
The following table sets forth the calculation of basic and diluted loss per
share for the year ended December 31, 2009:
Income Shares Per Share
(Numerator) (Denominator) Amount
----------- ------------- ---------
Net income $ 1,675,617
Less preferred stock dividends (66,000)
-----------
Income per share - basic
Income available to common
stockholders
1,609,617 19,412,499 $ .08
Effect of dilutive securities
Warrants -- --
Options -- 170,862
Convertible preferred stock 66,000 366,666
----------- ----------
Diluted loss per share
Income available to common stockholders
and assumed conversions $ 1,675,617 19,950,027 $ .08
Subsequent Events: The Subsequent Events topic of the ASC requires public
companies to evaluate subsequent events through the date the consolidated
financial statements are issued. Accordingly, we evaluated for subsequent events
occurring after December 31, 2009 (our consolidated financial statement date)
through March 16, 2010 (the date this report was filed). We determined no
subsequent events disclosures were required.
Note 2: Accounts and Notes Receivable
At December 31, 2008 and 2009, the carrying value of the Company's accounts
receivable has been reduced to anticipated realizable value. As a result of this
reduction of carrying value, the Company anticipates that substantially all of
its receivables reflected on the Consolidated Balance Sheet as of December 31,
2008 and 2009 will be collected.
32
Note 3: Notes Payable
In conjunction with a Settlement Agreement with SummitBridge National
Investments, LLC and related entities, Noble Roman's obtained a new six-year
term loan, in August 2005, in the principal amount of $9,000,000 requiring
principal payments of $125,000 per month plus interest at the rate of LIBOR plus
4% per annum adjusted on a monthly basis. On February 4, 2008, the Company
entered into a First Amendment to Loan Agreement (the "Amendment") with Wells
Fargo that amended the existing Loan Agreement between the Company and Wells
Fargo (the "Loan Agreement"). The Amendment provided for Wells Fargo to loan an
additional $3.0 million to the Company. The Amendment also reduced the interest
rate applicable to amounts borrowed under the Loan Agreement to LIBOR plus 3.75%
per annum and extended the maturity date for borrowings under the loan from
August 31, 2011 to August 31, 2013. On February 6, 2008, the Company elected to
trade its previous swap contract for a new swap contract fixing the rate on 50%
of the principal balance under the Loan Agreement, as amended by the Amendment
at an annual interest rate of 8.2%. The unpaid balance on the Amended Note as of
December 31, 2009 was $5,625,000. Interest paid on this Note was $408,735 in
2009, $569,523 in 2008 and $598,211 in 2007. The Note's principal amortization
is as follows: $1.5 million in 2010, $1.5 million in 2011, $1.5 million in 2012
and $1.125 million in 2013. The Company's obligations under the loan are secured
by the grant of a security interest in its personal property and certain
restrictions apply such as a prohibition on the payment of dividends, all as
defined in the Loan Agreement. The (gain) loss difference between interest from
the swap contract compared to interest expense on the term loan was ($14,537),
$62,698 and $128,559 for the years ended December 31, 2007, 2008 and 2009,
respectively.
The Amendment to the Loan Agreement in February 2008 was not considered
substantive under ASC Debt topic and Modifications and Extinguishments subtopic.
In August 2005, the Company borrowed $9 million for the purpose of implementing
a settlement with SummitBridge National Investments, LLC. That term loan
required principal payments of $125,000 per month plus monthly interest payments
equal to LIBOR + 4%. The Loan Agreement also required the Company to maintain
certain financial ratios during the term of the loan. At the time of the
modification in February 2008, the loan had a remaining principal balance $5.375
million and the Company borrowed an additional $3.0 million to the same term
loan for general corporate purposes. The terms of the loan, as amended,
continued the same $125,000 per month principal payments, however, the interest
rate was modified to LIBOR + 3.75% to reflect the reduced leverage ratio of the
Company. The extension of the maturity date from August 31, 2011 to August 31,
2013 was to reflect the number of months necessary to maintain the same $125,000
per month principal amortization and financial ratios. The Company accounted for
the transaction by increasing its cash and note payable accounts by $3.0
million.
Note 4: Royalties and Fees
Approximately $1,221,500, $353,500 and $203,450 are included in the 2007, 2008
and 2009, respectively, royalties and fees in the Consolidated Statement of
Operations for initial franchise fees. In addition, the Consolidated Statement
of Operations reflects approximately $1,537,700, $104,825 and none in 2007, 2008
and 2009, respectively, of royalties and fees for the sale of area development
agreements. Also included in royalties and fees were approximately $891,300,
$397,200 and $38,509 in 2007, 2008 and 2009, respectively, for equipment
commissions. Most of the cost for the services required to be performed by the
Company are incurred prior to the franchise fee income being recorded which is
based on contractual liability for the franchisee. For the most part, the
Company's ongoing royalty income is paid electronically by the Company
initiating a draft on the franchisee's account by electronic withdrawal. As
such, the Company has no material amount of past due royalties.
33
In conjunction with the development of Noble Roman's Pizza and Tuscano's Italian
Style Subs, the Company has devised its own recipes for many of the ingredients
that go into the making of its products ("Proprietary Products"). The Company
contracts with various manufacturers to manufacture its Proprietary Products in
accordance with the Company's recipes and formulas and to sell those products to
authorized distributors at a contract price which includes an allowance for use
of the Company's recipes. The manufacturing contracts also require the
manufacturers to remit those allowances to the Company on a periodic basis,
usually monthly. The Company recognizes those allowances in revenue as earned
based on sales reports from the distributors.
There were 829 franchised outlets in operation on December 31, 2008 and 834 on
December 31, 2009. During that twelve-month period there were 96 new franchised
outlets opened and 91 franchised outlets left the system, 35 of which reached
the end of their franchise agreement term and 56 of which ceased operation for
other reasons.
Note 5: Contingent Liabilities for Leased Facilities
The Company formerly leased its restaurant facilities under non-cancelable lease
agreements which generally had initial terms ranging from five to 20 years with
extended renewal terms. All of these leases have been terminated or assigned to
franchisees who operate them pursuant to a Noble Roman's, Inc. Franchise
Agreement. The assignment passes all liability for future lease payments to the
assignees, however, the Company remains contingently liable on a portion of the
leases to the landlords in the event of default by the assignees. The leases
generally required the Company or its assignees to pay all real estate taxes,
insurance and maintenance costs. At December 31, 2009, contingent obligations
under non-cancelable operating leases for 2010, 2011, 2012, 2013, 2014 and after
2014 were approximately $87,963, $88,863, $89,763, $90,663, $91,563 and $96,018,
respectively.
The Company has future obligations under current operating leases of $831,611 as
follows: due in less than one year $226,646, due in one to three years $287,724,
due in three to five years $280,813 and due in more than five years $36,428.
Note 6: Income Taxes
The Company had a deferred tax asset, as a result of prior operating losses, of
$12,853,137 at December 31, 2008 and $11,754,094 at December 31, 2009, which
expires between the years 2012 and 2028. In 2007, 2008 and 2009, the Company
used deferred benefits to offset its tax expense of $1,268,489, $733,180 and
$1,099,044, respectively, and tax benefits from loss on discontinued operations
of $2,508,433 in 2008. The Company reduced its valuation allowance in 2007 by
$2,074,253 and in 2008 by $120,975 and reflected that reduction in the
discontinued operations. As a result of the tax credits, the Company did not pay
any income taxes in 2007, 2008 and 2009. There are no material differences
between reported income tax expense or benefit and the income tax expense or
benefit that would result from applying the Federal and state statutory tax
rates.
34
Note 7: Common Stock
During 2007, certain warrant holders exercised their warrants to purchase
130,975 shares of common stock and various employees exercised stock options for
130,750 shares of common stock. In addition, certain warrant holders with
warrants for the purchase of 2,000,000 shares exercised, pursuant to the
cashless exercise provision of the warrants, those warrants and received
1,783,119 shares of common stock.
During 2008, certain warrant holders exercised their warrants to purchase 10,000
shares of common stock and an employee exercised its option to purchase 15,000
shares of common stock.
At December 31, 2009 the Company had outstanding warrants to purchase common
stock as follows:
# Common Shares Represented Exercise Price Warrant Expiration Date
1,000,000 $ .93 6/30/2011
50,000 .95 9/26/2010
600,000 .93 1/24/2011
The Company has an incentive stock option plan for key employees and officers.
The options are generally exercisable three years after the date of grant and
expire ten years after the date of grant. The option prices are the fair market
value of the stock at the date of grant. At December 31, 2009, the Company had
the following employee stock options outstanding:
# Common Shares
Represented Exercise Price
750 $1.46
20,000 1.45
40,000 .55
46,000 .83
20,000 1.10
58,500 2.30
445,000 .36
As of December 31, 2009, options for 185,250 shares were exercisable.
During 2005, the Company issued Series B Preferred Stock with a liquidation
value of $2,040,000 which was convertible, after December 31, 2006, at the
option of the holder to common stock at a conversion price of $2.25 per share.
During 2007, the holders of $1,215,000 in liquidation value of the Series B
Preferred Stock converted those shares to 539,994 shares of common stock. On
December 31, 2008 and December 31, 2009, the Company had issued and outstanding
Series B Preferred Stock with a liquidation value of $825,000, which provides
for cumulative dividends of 8% per annum through December 31, 2009 and
thereafter at a rate of 12% per annum on the liquidation value. The Company, at
its option, may now redeem the Series B Preferred Stock at the liquidation
value.
The Company adopted utilitized the modified prospective method of adoption,
which does not require restatement of prior periods. Under the modified
prospective method, the Company is required to record compensation expense for
all awards granted after the date of adoption and for the unvested portion of
previously granted awards that remain outstanding at the date of adoption, net
of an estimate of expected forfeitures. Compensation expense is based on the
estimated fair values of stock options determined on the date of grant and is
recognized over the related vesting period, net of an estimate of expected
forfeitures.
35
The Company estimates the fair value of its option awards on the date of grant
using the Black-Scholes option pricing model. The risk-free interest rate is
based on external data while all other assumptions are determined based on the
Company's historical experience with stock options. No options were granted in
2007 or 2009. The following assumptions were used for grants in 2008:
Expected volatility 30%
Expected dividend yield None
Expected term (in years) 5
Risk-free interest rate 3.56%
The following table sets forth the number of options outstanding as of December
31, 2007, 2008 and 2009 and the number of options granted, exercised or
forfeited during the years ended December 31, 2007, December 31, 2008 and
December 31, 2009:
--------------------------------------------------------------------------------
Balance of employee stock options outstanding as of 12/31/2006 351,500
--------------------------------------------------------------------------------
Stock options granted during the year ended 12/31/07 0
--------------------------------------------------------------------------------
Stock options exercised during the year ended 12/31/07 (130,750)
--------------------------------------------------------------------------------
Stock options forfeited during the year ended 12/31/07 (20,500)
--------------------------------------------------------------------------------
Balance of employee stock options outstanding as of 12/31/07 200,250
--------------------------------------------------------------------------------
Stock options granted during the year ended 12/31/08 485,000
--------------------------------------------------------------------------------
Stock options exercised during the year ended 12/31/08 (15,000)
--------------------------------------------------------------------------------
Stock options forfeited during the year ended 12/31/08 (20,000)
--------------------------------------------------------------------------------
Balance of employee stock options outstanding as of 12/31/08 650,250
--------------------------------------------------------------------------------
Stock options granted during the year ended 12/31/09 0
--------------------------------------------------------------------------------
Stock options exercised during the year ended 12/31/09 0
--------------------------------------------------------------------------------
Stock options forfeited during the year ended 12/31/09 (20,000)
--------------------------------------------------------------------------------
Balance of employee stock options outstanding as of 12/31/09 630,250
--------------------------------------------------------------------------------
36
The following table sets forth the number of non-vested options outstanding as
of December 31, 2007, 2008 and 2009, and the number of stock options granted,
vested and forfeited during the years ended December 31, 2007, December 31, 2008
and December 31, 2009.
------------------------------------------------------------------------------------
Balance of employee non-vested stock options outstanding as of 12/31/2006 160,000
------------------------------------------------------------------------------------
Stock options granted during the year ended 12/31/07 0
------------------------------------------------------------------------------------
Stock options vested during the year ended 12/31/07 (61,000)
------------------------------------------------------------------------------------
Stock options forfeited during the year ended 12/31/07 (20,500)
------------------------------------------------------------------------------------
Balance of employee non-vested stock options outstanding as of 12/31/07 78,500
------------------------------------------------------------------------------------
Stock options granted during the year ended 12/31/08 485,000
------------------------------------------------------------------------------------
Stock options vested during the year ended 12/31/08 0
------------------------------------------------------------------------------------
Stock options forfeited during the year ended 12/31/08 (20,000)
------------------------------------------------------------------------------------
Balance of employee non-vested stock options outstanding as of 12/31/08 543,500
------------------------------------------------------------------------------------
Stock options granted during the year ended 12/31/09 0
------------------------------------------------------------------------------------
Stock options vested during the year ended 12/31/09 (78,500)
------------------------------------------------------------------------------------
Stock options forfeited during the year ended 12/31/09 (20,000)
------------------------------------------------------------------------------------
Balance of employee non-vested stock options outstanding as of 12/31/09 445,000
------------------------------------------------------------------------------------
There were no employee stock options granted, exercised or expired during 2009,
however, an option for 20,000 shares was forfeited during 2009 with an exercise
price of $.36 per share. At December 31, 2009, the weighted average grant date
fair value of non-vested options was $.36 per share and the weighted average
grant date fair value of vested options was $1.33 per share. The weighted
average grant date fair value of employee stock options granted during 2007 was
zero, during 2008 was $.36 per share and during 2009 was zero. Total
compensation cost recognized for share-based payment arrangements was $26,631
with a tax benefit of $9,054 in 2007, $52,682 with a tax benefit of $17,911 in
2008, and $50,910 with a tax benefit of $20,165 in 2009. As of December 31,
2009, total compensation cost related to non-vested options was $43,837, which
will be recognized as compensation cost over the next 15 months. No cash was
used to settle equity instruments under share-based payment arrangements.
Note 8: Statement of Financial Accounting Standards
The Company does not believe that the recently issued Statement of Financial
Accounting Standards will have any material impact on the Company's Statement of
Operations or its Balance Sheet.
Note 9: Loss from Discontinued Operations
There was no loss on discontinued operations in 2009, however, there was a loss
on discontinued operations of $3.8 million in 2008 and none in 2007 as the
losses from discontinued operations of $2.0 million in 2007 were offset by
decreasing the valuation allowance for its deferred tax credit. The Company has
elected to focus all of its efforts on non-traditional franchises. The loss on
discontinued operations was primarily the result of operating traditional
restaurants which had been acquired from struggling franchisees and later sold
to new franchisees. The Company, in December 2008, made the decision to
discontinue that business and charged off or dramatically lowered the carrying
value of all assets related to the traditional restaurants and accrued future
estimated expenses related thereto. The Company does not expect to generate
revenue or incur expenses from the sale of similar products or services to
customers of the disposed components. The disposed components were accounted for
as discontinued operations since the direct cash flows of the components have
been eliminated from the ongoing operations of the Company and the Company will
not have any continuing financial involvement in the disposed components.
37
Note 10: Contingencies
The Company, from time to time, is involved in various litigation relating to
claims arising out of its normal business operations.
The Company is a Defendant in a lawsuit styled Kari Heyser, Fred Eric Heyser and
Meck Enterprises, LLC, et al v. Noble Roman's, Inc. et al, filed in Superior
Court in Hamilton County, Indiana on June 19, 2008. The Plaintiffs are former
franchisees of the Company's traditional location venue. In addition to the
Company, the Defendants include certain of the Company's officers. Lenders to
certain of the Plaintiffs were also named as Defendants, but the Court dismissed
the claims against them. The Plaintiffs allege that the Defendants induced them
to purchase traditional franchises through fraudulent representations and
omissions of material facts regarding the franchises, and seek compensatory and
punitive damages. In the complaint, the Plaintiffs claimed damages in the
aggregate in the amount of $6.8 million and in some cases requested punitive
damages, court costs and/or prejudgment interest. Discovery is in progress, but
has not yet been completed. Defendants filed the First Request for Production of
Documents in February 2009 and certain Plaintiffs produced some documents
requested by the Company. However, many of the Plaintiffs produced no documents
and the Company, in July 2009, filed a Motion to Compel the production against
the Plaintiffs. In September 2009 the Judge entered a Stipulated Order on the
Motion to Compel stating that all Plaintiffs in this litigation were ordered to:
(1) fully and completely and without objection or evasion, file written
responses to the Company's Request by September 30, 2009 demonstrating what
documents and things exists which are responsive to the Request and (2) fully
and completely without objection or evasion, produce all documents and things
that are responsive to the Request by October 15, 2009. The Company believes
that the written responses submitted by the Plaintiffs do not comply with the
Order. Further, many of the Plaintiffs have not submitted any documents and most
of the others have not fully complied with the Order to Compel.
The Company filed a Counter-Claim for Damages against all of the Plaintiffs and
moved to obtain Preliminary and Permanent Injunctions against a majority of the
Plaintiffs to remedy the Plaintiffs' continuing breaches of the applicable
franchise agreements. The Company's Motion for Preliminary Injunction was
granted in October 2008. The Company has asserted that none of the preliminarily
enjoined Plaintiffs fully complied with the Court's Order and that several of
them only minimally complied. Accordingly, the Company filed a Motion to Require
Full Compliance and To Show Cause why they should not be held in contempt and
for attorney's fees as sanctions.
The Company filed a Motion to Revoke the Temporary Admission Pro Hac Vice of
David M. Duree, Plaintiffs' former counsel, for filing fraudulent affidavits
with the Court. The Court granted this motion in March 2009. In the same ruling
the Court: continued the Motion to Show Cause to allow parties time to conduct
discovery, including depositions on the preliminarily enjoined Plaintiffs, on
that issue; granted preliminary injunctions against Plaintiffs Gomes and
Villasenor; dismissed claims against CIT Small Business Lending Corporation and
PNC Bank with prejudice; and struck the fraudulent affidavits. New counsel for
Plaintiffs entered his appearance in the case on behalf of the Plaintiffs in May
2009.
The Company also filed a Motion for Partial Summary Judgment as to several
claims in the Complaint, which the Judge granted on September 22, 2009. On
October 8, 2009 Plaintiffs filed a Motion to Correct Error, Reconsider And
Vacate Order; Request For Clarification; Alternatively, Motion For Certification
38
Of Appeal Of Interlocutory Order And For Stay Of Proceeding Pending Appeal. On
January 12, 2010, the Court denied Plaintiffs' Motion and, in the same Order the
Court denied Plaintiffs' Motion for Certification of Appeal of Interlocutory
Order and for Stay of Proceedings Pending Appeal. Further, the Court denied
Plaintiffs' request to amend their Complaint. In a January 15, 2010 Telephonic
Status Conference regarding scheduling and other matters between the Judge,
Plaintiffs' counsel and Defendants' counsel, the Plaintiffs' counsel orally
requested that the Court reconsider its January 12, 2010 rulings described above
concerning whether constructive fraud can be plead. Counsel for the Plaintiffs
further requested that if the Court does not grant leave to amend the Complaint
he would request the Court to certify such Order for an Interlocutory Appeal. In
a February 2, 2010 ruling, the Court reaffirmed the Order of January 12, 2010
denying Plaintiffs' Motion to Correct Error, Reconsider And Vacate Order;
Request For Clarification; Alternatively, Motion For Certification Of Appeal Of
Interlocutory Order And For Stay Of Proceeding Pending Appeal. Furthermore, the
Order of February 2, 2010 stated the following: "Finally, the Court does now
find that there is no just reason for delay and the Court does now expressly
enter Final Judgment as to the issues of whether or not the Plaintiffs included
in the Amended Complaint the theory of constructive fraud and that the
Plaintiffs may not have leave to file an Amended Complaint to include such
theory." On February 11, 2010, counsel for the Plaintiffs filed a Notice of
Appeal with the Indiana Court of Appeals. Defendants' Counsel is preparing a
motion to dismiss the appeal based on lack of jurisdiction.
On December 2, 2009, Plaintiffs filed a Motion for Extensions, Sanctions and
Other Relief claiming, in part, that the Defendants' claim against Plaintiffs'
counsel in Small Claims Court for reimbursement of fees and other expenses was
improper. In the Order of January 12, 2010, the Court granted Plaintiffs'
Request for Extensions, denied Plaintiffs' Request for Sanctions and Other
Relief, and ruled that Defendants' claim in Small Claims Court against
Plaintiffs' counsel was appropriate.
To date, 11 of the 14 Plaintiff groups have been deposed. The Company continues
to attempt to schedule the remaining Plaintiffs for depositions. On September
29, 2009, Defendants filed a Motion to Reopen Plaintiff Dunn's deposition and
require him to come to Indianapolis and resume his deposition at the Plaintiff's
expense claiming that Plaintiffs' counsel wrongly interrupted a proper line of
questioning and prematurely ended the deposition. In the Court's Order of
January 12, 2010, Defendants' Motion was granted and Dunn was ordered to come to
Indianapolis to continue his deposition and further ordered that any privilege
regarding Mr. Dunn's communications with his son, an attorney, concerning his
son's review, recommendations and opinions about Noble Roman's franchise
documents has been waived and no further objection may be offered regarding
those topics. The continuation of Dunn's deposition was held on March 11, 2010.
On October 16, 2009, Defendants filed a motion to require Plaintiff Heyser to
travel to Indianapolis for her deposition as a result of her deposition, which
had been previously agreed to, being canceled at her request and agreeing,
through counsel, to come to Indianapolis at a later date for the deposition.
Many days later Plaintiffs' counsel denied that agreement even though it had
been confirmed by email. In the Order of January 12, 2010, Defendants' Motion to
Compel Plaintiff Kari Heyser to attend a deposition in Indianapolis was granted.
Ms. Heyser's deposition was taken in Indianapolis on March 8, 2010. Plaintiffs
Villasenors were scheduled for deposition in El Centro, California on January
20, 2010, however, even though Defendants' Counsel was present in El Centro for
the deposition, the Villasenors did not appear for deposition. As a result, by
agreement of counsels, those depositions are to be taken in Indianapolis,
Indiana and are in the process of being rescheduled in March 2010. Plaintiffs'
counsel has been unable to obtain a schedule for depositions of Plaintiffs
Morris and Plaintiffs Soltero and filed a motion with the court to withdraw
representation of those Plaintiffs.
39
The Defendants were scheduled for depositions by Plaintiffs' counsel during the
week of November 9, 2009, however, Plaintiffs' counsel canceled those
depositions. Defendants had been rescheduled for depositions during the week of
March 15, 2010, however, on March 12, 2010, Plaintiffs' counsel canceled those
scheduled depositions.
Defendants filed Motions for Summary Judgment as to Plaintiff Brintle on
November 6, 2009 and Plaintiff Clark on November 25, 2009, as a result of their
testimony at depositions. The Defendants are in the process of preparing motions
for Summary Judgment against all of the other Plaintiffs whose depositions have
been taken. In the Judge's Order of February 2, 2010, the Judge set a deadline
of April 30, 2010 for filing of all remaining Motions for Summary Judgment, a
deadline of June 4, 2010 for Plaintiffs' Response to all of the Summary Judgment
Motions and a deadline of June 18, 2010 for Defendants' Reply to Responses.
Although there can be no assurance regarding the outcome of litigation, the
Company believes that it has strong and meritorious legal and factual defenses
to these claims and viable counter claims against the Plaintiffs and will
vigorously defend its interests in this case and to pursue the counter claims.
Other than as disclosed above, the Company is involved in no other material
litigation.
Note 11: Certain Relationships and Related Transactions
The following is a summary of transactions to which the Company and certain
officers and directors of the Company are a party or have a financial interest.
The Board of Directors of the Company has adopted a policy that all transactions
between the Company and its officers, directors, principal shareholders and
other affiliates must be approved by a majority of the Company's disinterested
directors, and be conducted on terms no less favorable to the Company than could
be obtained from unaffiliated third parties.
Douglas Coape-Arnold was paid $79,200 in consulting fees in 2007, $79,200 in
consulting fees in 2008 and $62,400 in consulting fees in 2009.
Note 12: Unaudited Quarterly Financial Information
Quarter Ended
-------------
2009 December 31 September 30 June 30 March 31
---- ----------- ------------ ------- --------
(in thousands, except per share data)
Total revenue $ 1,822 $ 1,934 $ 1,903 $ 1,891
Operating income 751 876 805 810
Income before income taxes 637 760 688 690
Net income 385 460 415 416
Net income per common share
Basic $ .02 $ .02 $ .02 $ .02
Diluted .02 .02 .02 .02
40
Quarter Ended
-------------
2008 December 31 September 30 June 30 March 31
---- ----------- ------------ ------- --------
(in thousands, except per share data)
Total revenue $ 2,058 $ 2,212 $ 2,422 $ 2,350
Operating income 758 612 761 641
Income from continuing operations
before income taxes 609 461 599 487
Net income from continuing operations 402 305 395 321
Loss from discontinued operations 3,824 -- -- --
Net income (loss) (3,422) 305 395 321
Net income from continuing operations
per common share
Basic $ .02 $ .02 $ .02 $ .02
Diluted .02 .02 .02 .02
Net income (loss) per common share
Basic (.18) .02 .02 .02
Diluted (.17) .02 .02 .02
41
[LETTERHEAD OF SOMERSET CPAs]
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of
---------------------------------------------
NOBLE ROMAN'S, INC. AND SUBSIDIARIES
Indianapolis, Indiana
We have audited the accompanying consolidated balance sheets of NOBLE ROMAN'S,
INC. AND SUBSIDIARIES, as of December 31, 2009 and 2008, and the related
consolidated statements of operations, changes in stockholders' equity and cash
flows for each of the three years in the period ended December 31, 2009. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audits to obtain reasonable assurance about whether the
financial statements are free of material misstatement. The Company is not
required to have, nor were we engaged to perform, an audit of its internal
control over financial reporting. Our audit included consideration of internal
control over financial reporting as a basis for designing audit procedures that
are appropriate in the circumstances, but not for the purpose of expressing an
opinion on the effectiveness of the Company's internal control over financial
reporting. Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the consolidated financial statements, assessing the accounting principles used
and significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of NOBLE ROMAN'S, INC.
AND SUBSIDIARIES, as of December 31, 2009 and 2008, and the results of its
operations and its cash flows for each of the three years in the period ended
December 31, 2009, in conformity with accounting principles generally accepted
in the United States of America.
/s/ Somerset CPAs, P.C.
Indianapolis, Indiana
March 16, 2010
42
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
Management's Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal
control over financial reporting, as defined in Exchange Act Rule 13a-15(f)
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Our
management, including Paul W. Mobley, the Company's Chief Executive Officer and
Chief Financial Officer, conducted an evaluation of the effectiveness of our
internal control over financial reporting as of December 31, 2009.
Internal Control Over Financial Reporting is a process designed by, or under the
supervision of, the Company's principal executive and principal financial
officers, or persons performing similar functions, and effected by the Company's
Board of Directors, management, and other personnel, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with United States
generally accepted accounting principles ("GAAP") and includes those policies
and procedures that:
(1) Pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the
assets of the Company;
(2) Provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in accordance with
GAAP, and that receipts and expenditures of the Company are being made only
in accordance with authorizations of management and directors of the
Company; and
(3) Provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of the Company's assets
that could have a material effect on the financial statements.
Because of such limitations, there is a risk that material misstatements may not
be prevented or detected on a timely basis by internal control over financial
reporting. Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become inadequate because of
changes in conditions, or that the degree of compliance with the policies or
procedures may deteriorate.
The Public Company Accounting Oversight Board's Auditing Standard No. 5 defines
a material weakness as a deficiency, or a combination of deficiencies, in
internal control over financial reporting, such that there is a reasonable
possibility that a material misstatement of the company's annual or interim
financial statements will not be prevented or detected on a timely basis. A
deficiency in internal control over reporting exists when the design or
operation of a control does not allow management or employees, in the normal
course of performing their assigned functions, to prevent or detect
misstatements on a timely basis.
Based on his evaluation as of the end of the period covered by this report, Paul
W. Mobley, the Company's Chief Executive Officer and Chief Financial Officer,
has concluded that the Company's disclosure controls and procedures (as defined
43
in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as
amended) are effective. It was also concluded that the Company's internal
controls over financial reporting are effective.
There have been no changes in internal controls over financial reporting during
the period covered by this report that have materially affected, or are
reasonably likely to materially affect, the Company's internal control over
financial reporting.
This annual report does not include an attestation report of the Company's
registered public accounting firm regarding internal control over financial
reporting. Management's report was not subject to attestation by the Company's
registered public accounting firm pursuant to temporary rules of the Securities
and Exchange Commission that permit the Company to provide only management's
report in this annual report.
ITEM 9B. OTHER INFORMATION
None.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS OF THE REGISTRANT AND
CORPORATE GOVERNANCE
Information concerning this item is included under captions "Election of
Directors", "Section 16(a) Beneficial Ownership Reporting Compliance," and
"Corporate Governance" in our Proxy Statement for our 2010 Annual Meeting of
Shareholders (the "Proxy Statement") and is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
Information concerning this item is included under the caption "Executive
Compensation", "Director Compensation", "Compensation Committee Interlocks and
Insider Participation" and "Compensation Committee Report" in the 2010 Proxy
Statement and is incorporate herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Information concerning this item is included in Item 5 of this report under the
caption "Equity Compensation Plan Information" and under the caption "Security
Ownership of Certain Beneficial Owners and Management" in the 2010 Proxy
Statement and is incorporate herein by reference.
44
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND
DIRECTOR INDEPENDENCE
Information concerning this item is included under the caption "Corporate
Governance" in the 2010 Proxy Statement and is incorporated herein by reference.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
Information concerning this item is included under the caption
"Independent Auditors' Fees" in the 2010 Proxy Statement and is incorporated
herein by reference.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
The following consolidated financial statements of Noble
Roman's, Inc. and subsidiaries are included in Item 8: Page
----
Consolidated Balance Sheets - December 31, 2008 and 2009 25
Consolidated Statements of Operations - years ended December 31,
2007, 2008 and 2009 26
Consolidated Statements of Changes in Stockholders' Equity - years
ended December 31, 2007, 2008 and 2009 27
Consolidated Statements of Cash Flows - years ended December 31,
2007, 2008 and 2009 28
Notes to Consolidated Financial Statements 29
Report of Independent Registered Accounting Firm. -
Somerset CPAs, P.C. 42
Exhibits
Exhibit
Number Description
------ -----------
3.1 Amended Articles of Incorporation of the Registrant, filed
as an exhibit to the Registrant's Amendment No. 1 to the
Post Effective Amendment No. 2 to Registration Statement on
Form S-1 filed July 1, 1985 (SEC File No.2-84150), is
incorporated herein by reference.
3.2 Amended and Restated By-Laws of the Registrant, as
currently in effect, filed as an exhibit to the
Registrant's Form 8-K filed December 23, 2010, is
incorporated herein by reference.
3.3 Articles of Amendment of the Articles of Incorporation of
the Registrant effective February 18, 1992 filed as an
exhibit to the Registrant's Registration Statement on Form
SB-2 (SEC File No. 33-66850), ordered effective on October
26, 1993, is incorporated herein by reference.
45
3.4 Articles of Amendment of the Articles of Incorporation of
the Registrant effective May 11, 2000, filed as Annex A and
Annex B to the Registrant's Proxy Statement on Schedule 14A
filed March 28, 2000, is incorporated herein by reference.
3.5 Articles of Amendment of the Articles of Incorporation of
the Registrant effective April 16, 2001 filed as Exhibit
3.4 to Registrant's Annual Report on Form 10-K for the year
ended December 31, 2005, is incorporated herein by
reference.
3.6 Articles of Amendment of the Articles of Incorporation of
the Registrant effective August 23, 2005, filed as Exhibit
3.1 to the Registrant's current report on Form 8-K filed
August 29, 2005, is incorporated herein by reference.
4.1 Specimen Common Stock Certificates filed as an exhibit to
the Registrant's Registration Statement on Form S-18 filed
October 22, 1982 and ordered effective on December 14, 1982
(SEC File No. 2-79963C), is incorporated herein by
reference.
4.2 Form of Warrant Agreement filed as Exhibit 4.1 to the
Registrant's current report on Form 8-K filed August 29,
2005, is incorporated herein by reference.
10.1 Employment Agreement with Paul W. Mobley dated November 15,
1994 filed as Exhibit 10.1 to Registrant's Annual Report on
Form 10-K for the year ended December 31, 2005, is
incorporated herein by reference.
10.2 Employment Agreement with A. Scott Mobley dated November
15, 1994 filed as Exhibit 10.2 to Registrant's Annual
Report on Form 10-K for the year ended December 31, 2005,
is incorporated herein by reference.
10.3 1984 Stock Option Plan filed with the Registrant's Form S-8
filed November 29, 1994 (SEC File No. 33-86804), is
incorporated herein by reference.
10.4 Noble Roman's, Inc. Form of Stock Option Agreement filed
with the Registrant's Form S-8 filed November 29, 1994 (SEC
File No. 33-86804), is incorporated herein by reference.
10.5 Settlement Agreement with SummitBridge dated August 1,
2005, filed as Exhibit 99.2 to the Registrant's current
report on Form 8-K filed August 5, 2005, is incorporated
herein by reference.
10.6 Loan Agreement with Wells Fargo Bank, N.A. dated August 25,
2005 filed as Exhibit 10.1 to the Registrant's current
report on Form 8-K filed August 29, 2005, is incorporated
herein by reference.
10.7 First Amendment to Loan Agreement with Wells Fargo Bank,
N.A. dated February 4, 2008, filed as Exhibit 10.1 to the
Registrant's current report on Form 8-K filed February 8,
2008, is incorporated herein by reference.
10.8 Registration Rights Agreement dated August 1, 2005 between
the Company and SummitBridge National Investments filed as
an Exhibit to the Registrant's Form S-1 filed on April 19,
2006, is incorporated herein by reference.
21.1 Subsidiaries of the Registrant filed in the Registrant's
Registration Statement on Form SB-2 (SEC File No. 33-66850)
ordered effective on October 26, 1993, is incorporated
herein by reference.
31.1 C.E.O. and C.F.O. Certification under
Rule 13a-14(a)/15d-14(a)
32.1 C.E.O. and C.F.O. Certification under Section 1350
46
SIGNATURES
----------
In accordance with of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
NOBLE ROMAN'S, INC.
Date: March 16, 2010 By: /s/ Paul W. Mobley
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Paul W. Mobley, Chief Executive Officer and
Chief Financial Officer
In accordance with the Securities Exchange Act of 1934, this report has
been signed below by the following persons on behalf of the registrant and in
the capacities and on the dates indicated.
Date: March 16, 2010 /s/ Paul W. Mobley
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Paul W. Mobley
Chairman of the Board and Director
Date: March 16, 2010 /s/ A. Scott Mobley
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A. Scott Mobley
President and Director
Date: March 16, 2010 /s/ Douglas H. Coape-Arnold
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Douglas H. Coape-Arnold
Director
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