UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30,September 29, 2002
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ______________ to _______________
Commission file number: 1-2207
------
TRIARC COMPANIES, INC.
----------------------
(Exact name of registrant as specified in its charter)
Delaware 38-0471180
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
280 Park Avenue, New York, New York 10017
----------------------------------- -----
(Address of principal executive offices) (Zip Code)
(212) 451-3000
--------------
(Registrant's telephone number, including area code)
----------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
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) NoYes ( ) No
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act).
(X) Yes ( ) No
There were 20,507,13120,347,939 shares of the registrant's Class A Common Stock
outstanding as of the close of business on JulyOctober 31, 2002.
- --------------------------------------------------------------------------------
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements.
TRIARC COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
December 30, June 30,September 29,
2001 (A) 2002
-------- ----
(In Thousands)
(Unaudited)
ASSETS
Current assets:
Cash and cash equivalents.........................................................$ 506,461 $ 447,193444,238
Short-term investments............................................................ 153,401 185,916190,869
Receivables....................................................................... 14,969 16,43313,696
Deferred income tax benefit....................................................... 11,495 12,08612,057
Prepaid expenses.................................................................. 3,435 3,4041,920
---------- ----------
Total current assets........................................................... 689,761 665,032662,780
Restricted cash equivalents............................................................ 32,506 32,48532,484
Investments............................................................................ 42,074 39,62137,755
Properties............................................................................. 60,989 57,91956,558
Goodwill .............................................................................. 17,922 17,922
Other intangible assets................................................................ 5,472 5,2535,080
Deferred costs and other assets........................................................ 19,685 20,84418,708
---------- ----------
$ 868,409 $ 839,076831,287
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt.................................................$ 24,768 $ 25,53825,925
Accounts payable.................................................................. 2,941 6,2573,800
Accrued expenses.................................................................. 73,453 59,27764,759
Net current liabilities relating to discontinued operations....................... 31,962 32,40432,319
---------- ----------
Total current liabilities...................................................... 133,124 123,476126,803
Long-term debt......................................................................... 288,955 276,225269,710
Deferred compensation payable to related parties....................................... 24,356 24,98324,837
Deferred income taxes.................................................................. 69,606 67,62166,629
Deferred income, other liabilities and minority interests in a consolidated subsidiary. 19,971 19,61119,447
Stockholders' equity:
Common stock...................................................................... 2,955 2,955
Additional paid-in capital........................................................ 129,608 131,077131,549
Retained earnings................................................................. 359,652 351,095348,540
Common stock held in treasury..................................................... (160,639) (157,653)(158,907)
Accumulated other comprehensive income (deficit).................................. 821 (314)(276)
---------- ----------
Total stockholders' equity..................................................... 332,397 327,160323,861
---------- ----------
$ 868,409 $ 839,076831,287
========== ==========
(A) Derived from the audited consolidated financial statements as of December
30, 2001.
See accompanying notes to condensed consolidated financial statements.
TRIARC COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
Three Months Ended SixNine Months Ended
------------------------ ------------------------
July 1, June--------------------------- ----------------------------
September 30, July 1, JuneSeptember 29, September 30, September 29,
2001 2002 2001 2002
---- ---- ---- ----
(In Thousands Except Per Share Amounts)
(Unaudited)
Revenues, investment income (loss) and other income
(expense):
Royalties and franchise and related fees................$ 23,03024,042 $ 24,83725,671 $ 43,88967,931 $ 47,21872,889
Investment income (loss), net........................... 8,066 (4,915) 23,323 1,1475,906 (441) 29,229 706
Other income (expense), net............................. 8,529 (1,008) 9,090 (1,578)320 427 9,501 (1,019)
--------- --------- -------- ---------
Total revenues, investment income (loss) and
other income (expense)............................. 39,625 18,914 76,302 46,78730,268 25,657 106,661 72,576
--------- --------- -------- ---------
Costs and expenses:
General and administrative.............................. 24,300 19,331 37,034 38,83721,141 20,150 58,175 58,987
Depreciation and amortization, excluding amortization
of deferred financing costs.......................... 1,411 1,674 3,165 3,2551,554 1,605 4,719 4,860
Interest expense........................................ 9,815 6,803 16,363 13,1637,122 6,839 23,485 20,002
Insurance expense related to long-term debt............. 1,199 1,130 2,440 2,3051,184 1,109 3,624 3,414
Costs of proposed business acquisitions not consummated. 481 2,100 572 2,232
--------- --------- -------- ---------
Total costs and expenses............................. 36,725 28,938 59,002 57,56031,482 31,803 90,575 89,495
--------- --------- -------- ---------
Income (loss) from continuing operations
before income taxes and minority interests ... 2,900 (10,024) 17,300 (10,773)(1,214) (6,146) 16,086 (16,919)
Benefit from (provision for) income taxes................... (1,940) 1,267 (8,132) 970(554) 2,582 (8,686) 3,552
Minority interests in loss of a consolidated subsidiary..... -- 1,2461,009 -- 1,2462,255
--------- --------- -------- ---------
Income (loss) from continuing operations......... 960 (7,511) 9,168 (8,557)(1,768) (2,555) 7,400 (11,112)
Discontinued operations:
Gain on disposal, net of income taxes................... 38,517-- -- 38,517 --
--------- --------- -------- ---------
Net income (loss)................................$ 39,477(1,768) $ (7,511)(2,555) $ 47,68545,917 $ (8,557)(11,112)
========= ========= ======== =========
Basic income (loss) per share:
Continuing operations............................$ .04(.08) $ (.37)(.12) $ .41.34 $ (.42)(.54)
Discontinued operations.......................... 1.73 -- 1.73-- 1.75 --
--------- --------- -------- ---------
Net income (loss)................................$ 1.77(.08) $ (.37)(.12) $ 2.142.09 $ (.42)(.54)
========= ========= ======== =========
Diluted income (loss) per share:
Continuing operations............................$ .04(.08) $ (.37)(.12) $ .39.32 $ (.42)(.54)
Discontinued operations.......................... 1.64 -- 1.64-- 1.66 --
--------- --------- -------- ---------
Net income (loss)................................$ 1.68(.08) $ (.37)(.12) $ 2.031.98 $ (.42)(.54)
========= ========= ======== =========
See accompanying notes to condensed consolidated financial statements.
TRIARC COMPANIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
Six
Nine Months Ended
------------------------------
July 1, June----------------------------------
September 30, September 29,
2001 2002
---- ----
(In Thousands)
(Unaudited)
Cash flows from continuing operating activities:
Net income (loss)....................................................................$ 47,68545,917 $ (8,557)(11,112)
Adjustments to reconcile net income (loss) to net cash used inprovided by continuing
operating activities:
Operating investment adjustments, net (see below)............................... (5,677) 5,767(5,412) 7,954
Depreciation and amortization of properties..................................... 1,882 2,8343,058 4,203
Amortization of goodwill ....................................................... 421632 --
Amortization of other intangible assets and certain other items................. 862 4211,029 657
Amortization of deferred financing costs and original issue discount............ 1,071 9641,570 1,432
Collection (recognition) of litigation settlement receivable.................... (3,333) 1,667
Equity in losses of investees, net.............................................. 111 705201 487
Deferred compensation provision ................................................ 1,030 6271,089 481
Deferred income tax benefit..................................................... (1,986) (1,985)(2,978) (2,977)
Minority interests in loss of a consolidated subsidiary......................... -- (1,246)(2,255)
Income from discontinued operations............................................. (38,517) --
Other, net...................................................................... 169 475795 1,420
Changes in operating assets and liabilities:
Decrease (increase) in receivables...................................................... 285 164receivables........................................... (371) 1,138
Decrease (increase) in prepaid expenses...................................... (1,505) 31(1,214) 1,515
Decrease in accounts payable and accrued expenses............................ (9,442) (9,400)(1,369) (4,266)
---------- ----------
Net cash used inprovided by continuing operating activities.......................... (6,944) (7,533)activities...................... 1,097 344
---------- ----------
Cash flows from continuing investing activities:
Investment activities, net (see below)............................................... 8,163 (42,397)7,860 (45,791)
Purchase of fractional interest in corporate aircraft................................ -- (1,200)
Capital expenditures and, in 2001, deposit for purchase of corporate aircraft........ (3,379) (23)expenditures................................................................. (25,158) (30)
Other................................................................................ (128) (78)(6) (400)
---------- ----------
Net cash provided by (used in)used in continuing investing activities............ 4,656 (43,698)activities.......................... (17,304) (47,421)
---------- ----------
Cash flows from continuing financing activities:
Proceeds from long-term debt......................................................... 22,590 --
Repayments of long-term debt......................................................... (7,966) (11,962)
Proceeds from stock option exercises................................................. 2,959 3,273(12,335) (18,090)
Repurchases of common stock for treasury............................................. (3,703)(49,576) (3,147)
Proceeds from stock option exercises................................................. 4,785 5,439
Release of restricted cash equivalents collateralizing long-term debt................ 1,068 295
Deferred financing costs............................................................. (625) --
Other................................................................................ 250 210
---------- ----------
Net cash used in continuing financing activities.......................... (8,460) (8,479)(34,093) (15,503)
---------- ----------
Net cash used in continuing operations.................................................. (10,748) (59,710)(50,300) (62,580)
Net cash provided by (used in) discontinued operations.................................. (182,522) 442(182,765) 357
---------- ----------
Net decrease in cash and cash equivalents............................................... (193,270) (59,268)(233,065) (62,223)
Cash and cash equivalents at beginning of period........................................ 596,135 506,461
---------- ----------
Cash and cash equivalents at end of period..............................................$ 402,865363,070 $ 447,193444,238
========== ==========
Details of cash flows related to investments:
Operating investment adjustments, net:
Proceeds from sales of trading securities..........................................$ 49,51555,992 $ 25,53137,122
Cost of trading securities purchased............................................... (46,334) (25,601)(52,097) (38,853)
Net recognized (gains) losses from trading securities...................................... 550 5,163
Netsecurities and short positions in
securities...................................................................... (417) 612
Other net recognized (gains) losses, including other than temporary losses,
in other
than trading securities and short positions in securities and equity in investment limited partnerships.................................................. (4,245) 427partnerships................................... (2,121) 8,619
Net amortization of premium (accretion of discount) on debt securities............. (5,163) 247(6,769) 454
---------- ----------
$ (5,677)(5,412) $ 5,7677,954
========== ==========
Investing investment activities, net:
Proceeds from sales and maturities of available-for-sale securities and other
investments......................................................................investments.................................................................... $ 100,120106,943 $ 37,00847,836
Cost of available-for-sale securities and other investments purchased.............. (88,400) (81,667)(95,027) (98,035)
Proceeds of securities sold short.................................................. 12,984 18,84217,481 31,254
Payments to cover short positions in securities.................................... (16,541) (16,580)(21,537) (26,846)
---------- ----------
$ 8,1637,860 $ (42,397)(45,791)
========== ==========
See accompanying notes to condensed consolidated financial statements.
TRIARC COMPANIES, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
June 30,September 29, 2002
(Unaudited)
(1) Basis of Presentation
The accompanying unaudited condensed consolidated financial statements of
Triarc Companies, Inc. ("Triarc" and, together with its subsidiaries, the
"Company") have been prepared in accordance with Rule 10-01 of Regulation S-X
promulgated by the Securities and Exchange Commission and, therefore, do not
include all information and footnotes necessary for a fair presentation of
financial position, results of operations and cash flows in conformity with
accounting principles generally accepted in the United States of America. In the
opinion of the Company, however, the accompanying condensed consolidated
financial statements contain all adjustments, consisting of normal recurring
adjustments and, in 2001, the adjustment to the gain on disposal of discontinued
operations (see Note 4)5), necessary to present fairly the Company's financial
position as of December 30, 2001 and June 30,September 29, 2002, its results of
operations for the three and six-monthnine-month periods ended July 1,September 30, 2001 and
June 30,September 29, 2002 and its cash flows for the six-monthnine-month periods ended July 1,September
30, 2001 and June 30,September 29, 2002 (see below). This information should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the fiscal year ended
December 30, 2001 (the "Form 10-K").
The Company reports on a fiscal year basis consisting of 52 or 53 weeks
ending on the Sunday closest to December 31. The Company's first halfnine-month
period of fiscal 2001 commenced on January 1, 2001 and ended on July 1,September 30,
2001, with its secondthird quarter of 2001 commencing on AprilJuly 2, 2001. The Company's
first halfnine-month period of fiscal 2002 commenced on December 31, 2001 and ended
on June 30,September 29, 2002, with its secondthird quarter of 2002 commencing on AprilJuly 1,
2002. The periods from AprilJuly 2, 2001 to July 1,September 30, 2001 and January 1, 2001 to
July 1,September 30, 2001 are referred to herein as the three-month and six-monthnine-month
periods ended July 1,September 30, 2001, respectively. The periods from AprilJuly 1, 2002 to
June 30,September 29, 2002 and December 31, 2001 to June 30,September 29, 2002 are referred to
herein as the three-month and six-monthnine-month periods ended June 30,September 29, 2002,
respectively. Each quarter contained 13 weeks and each halfnine-month period
contained 2639 weeks.
Certain amounts included in the accompanying prior periods' condensed
consolidated statements of operations and statement of cash flows have been
reclassified to conform with the current periods' presentation.
(2) Significant Accounting Policies Update
Effective December 31, 2001, the Company adopted Statement of Financial
Accounting Standards ("SFAS") No. 142 ("SFAS 142"), "Goodwill and Other
Intangible Assets," and SFAS No. 144 ("SFAS 144"), "Accounting for the
Impairment or Disposal of Long-Lived Assets," issued by the Financial Accounting
Standards Board.
Under SFAS 142, costs in excess of net assets of acquired companies
("Goodwill"), relating to the Company's restaurant franchising operations and
aggregating $17,922,000 as of December 30, 2001 and June 30,September 29, 2002, are no
longer amortized effective December 31, 2001. SFAS 142 requires that Goodwill be
tested for impairment at least annually by applying a fair value-based test. The
Company has determined that there was no impairment of Goodwill upon adoption of
SFAS 142. Further, the Company has determined that all of its other intangible
assets, principally trademarks, have finite useful lives and, accordingly, will
continue to be amortized.
The following sets forth information on other intangible assets subject to
amortization (in thousands):
June 30,September 29, 2002
---------------------------------------------------------------------
Accumulated
Cost Amortization Net
---- ------------ ---
Trademarks..................................................................$ 7,776 $ 2,7812,919 $ 4,9954,857
Computer software and distribution rights................................... 414 156 258191 223
-------- -------- -----------------
$ 8,190 $ 2,9373,110 $ 5,2535,080
======== ======== ========
Aggregate amortization expense:
Actual:
Three months ended June 30,September 29, 2002..........$ 193
Six173
Nine months ended June 30, 2002............ 347September 29, 2002........... 520
Estimate for fiscal year:
2002......................................2002...........................................$ 689
2003......................................2003........................................... 677
2004......................................2004........................................... 558
2005......................................2005........................................... 558
2006......................................2006........................................... 558
The following is a reconciliation of reported net income (loss) and income
(loss) per share adjusted on a pro forma basis for the reversal of Goodwill
amortization, net of tax, as though SFAS 142 had been in effect as of January 1,
2001 (in thousands except per share amounts):
Three Months Ended July 1,September 30, 2001 SixNine Months Ended July 1,September 30, 2001
----------------------------------- ------------------------------------------------------------------------ ------------------------------------
As Reported Adjustment Pro Forma As Reported Adjustment Pro Forma
----------- ---------- --------- ----------- ---------- ---------
Net income.....................income (loss)..............$ 39,477(1,768) $ 207208 $ 39,684(1,560) $ 47,68545,917 $ 415623 $ 48,10046,540
Net income (loss) per share:
Basic....................... 1.77(.08) .01 1.78 2.14 .02 2.16
Diluted..................... 1.68(.07) 2.09 .03 2.12
Diluted ................... (.08) .01 1.69 2.03 .02 2.05(.07) 1.98 .03 2.01
Under SFAS 144, the Company continues to review certain long-lived assets
other than Goodwill for impairment whenever events or changes in circumstances
indicate that the carrying amount of an asset may not be recoverable. If such
review indicates an asset may not be recoverable, an impairment loss is
recognized for the excess of the carrying amount over the fair value of an asset
to be held and used or over the fair value less cost to sell of an asset to be
disposed. The Company has determined that for the sixnine months ended June 30,September
29, 2002 noneall of its long-lived assets that required testing for impairment.impairment were
recoverable and did not require the recognition of any associated impairment
loss. Accordingly, the adoption of SFAS 144 had no effect on the Company's
consolidated financial position or results of operations for the three and
six-monthnine-month periods ended June
30,September 29, 2002.
(3) Pending Proposed Acquisition
The Company has submitted a proposal to acquire the second largest
franchisee of Arby's restaurants, Sybra, Inc. and its affiliate, Sybra of
Connecticut, Inc. (collectively, "Sybra"), which are subsidiaries of I.C.H.
Corporation ("ICH"). Sybra owns and operates 239 Arby's restaurants. ICH and
Sybra had filed for protection under chapter 11 of the United States Bankruptcy
Code on February 5, 2002 in order to restructure their financial obligations.
The Company has filed a proposed chapter 11 plan of reorganization for ICH/Sybra
which, as amended most recently on October 23, 2002, provides for the Company's
purchase of Sybra in exchange for $8,000,000 to be paid to ICH's general
unsecured creditors and the Company's agreement to pay certain other amounts
(the "Obligations") which, based on estimates prepared by ICH/Sybra, are not
expected to be substantial. In addition, the Company will invest $14,500,000,
less the amount necessary to fund the Obligations, in Sybra, which amount will
be used to pay Sybra's unsecured creditors and to fund working capital
requirements. Furthermore, the Company will make available to, or obtain for,
Sybra a $5,000,000 financing facility for each of three years following the
acquisition (up to $15,000,000 in the aggregate) to fund any operating
shortfalls of Sybra. Sybra will remain exclusively liable for its long-term debt
and capital lease obligations which aggregated approximately $104,000,000 as of
December 31, 2001, the most recent date for which this information is available.
ICH/Sybra filed its own chapter 11 plan of reorganization which, as amended most
recently on October 17, 2002, proposes the acquisition of Sybra by an affiliate
of RTM, Inc., the largest franchisee of Arby's restaurants. The bankruptcy court
presiding over the ICH/Sybra chapter 11 cases set a hearing for November 25,
2002 to consider approval of the competing chapter 11 plans. At this time, it is
not possible to determine the outcome of the hearing and, as a result, the
Company's efforts to acquire Sybra.
(4) Comprehensive Income (Loss)
The following is a summary of the components of comprehensive income
(loss), net of income taxes (in thousands):
Three Months Ended SixNine Months Ended
------------------------ -------------------------
July 1, June--------------------------- ---------------------------
September 30, July 1, JuneSeptember 29, September 30, September 29,
2001 2002 2001 2002
---- ---- ---- ----
Net income (loss)...............................................................................$ 39,477(1,768) $ (7,511)(2,555) $ 47,68545,917 $ (8,557)(11,112)
Net change in unrealized holding gains or losses on
available-for-sale securities (see below).............. 663 1,875 (765) (1,109)............. (2,600) 47 (3,365) (1,062)
Net change in currency translation adjustment............ 21 (29) 32 (26)adjustment........... (28) (9) 4 (35)
---------- --------- -------- --------- ------------------- ----------
Comprehensive income (loss)...........................................................$ 40,161(4,396) $ (5,665)(2,517) $ 46,95242,556 $ (9,692)(12,209)
========== ========= ======== ========= =================== ==========
The following is a summary of the components of the net change in the
unrealized holding gains or losses on available-for-sale securities included in
other comprehensive income (loss) (in thousands):
Three Months Ended SixNine Months Ended
------------------------ -------------------------
July 1, June----------------------------- ----------------------------
September 30, July 1, JuneSeptember 29, September 30, September 29,
2001 2002 2001 2002
---- ---- ---- ----
Net change in unrealized appreciation or depreciation
of available-for-sale securities during the period.....period....$ 1,095(3,975) $ (86)(336) $ 462(3,488) $ (422)(336)
(Less) plus reclassification of prior period net
(appreciation) depreciation included in net income
or loss......................................... (78) 3,014 (1,367)loss............................................... (36) 422 (1,428) (1,334)
---------- --------- -------- --------- ---------
1,017 2,928 (905) (1,756)---------- ----------
(4,011) 86 (4,916) (1,670)
Change in equity in unrealized gain on a retained
interest...............................................interest.............................................. -- (21)(11) (245) 5746
Income tax (provision) benefit........................... (354) (1,032) 385 590benefit.......................... 1,411 (28) 1,796 562
---------- --------- -------- --------- ------------------- ----------
$ 663(2,600) $ 1,87547 $ (765)(3,365) $ (1,109)(1,062)
========== ========= ======== ========= =================== ==========
(4)(5) Discontinued Operations
In 2000 the Company sold (the "Snapple Beverage Sale") the stock of the
companies comprising its former premium beverage and soft drink concentrate
business segments (the "Beverage Operations") to affiliates of Cadbury Schweppes
plc ("Cadbury"). Further, prior to 2001 the Company sold the stock or the
principal assets of the companies comprising the former utility and municipal
services and refrigeration business segments (the "SEPSCO Operations") of
SEPSCO, LLC, a subsidiary of the Company. The Beverage Operations and the SEPSCO
Operations have been accounted for as discontinued operations since their
respective dates of sale.
The consideration paid to the Company in the Snapple Beverage Sale
consisted of (1) cash, which is subject to further post-closing adjustment as
described below and (2) the assumption by Cadbury of debt and related accrued
interest. The Snapple Beverage Sale agreement provides for a post-closing
adjustment, the amount of which is in dispute. Cadbury has stated that it
currently believes that it is entitled to receive from the Company a
post-closing adjustment of $27,605,000$23,189,000 and the Company, on the other hand, has
stated that it currently believes that it is entitled to receive from Cadbury a
post-closing adjustment of $5,586,000,$773,000, in each case plus interest at 7.19% from
October 25, 2000. The Company is in arbitration with Cadbury to determine the
amount of the post-closing adjustment. The Company expects the arbitration
process to be completed in the fourthfirst quarter of 2002.2003.
Net current liabilities relating to discontinued operations consisted of
the following (in thousands):
December 30, June 30,September 29,
2001 2002
---- ----
Accrued expenses, including accrued income taxes, of the Beverage
Operations.................................................................$ 29,067 $ 29,57629,504
Net liabilities of SEPSCO Operations (net of assets held for sale of $234)... 2,895 2,8282,815
----------- -----------
$ 31,962 $ 32,40432,319
=========== ===========
(5)(6) Income (Loss) Per Share
Basic income (loss) per share for the three-month and six-month periods
ended July 1, 2001 and June 30, 2002 has been computed by dividing net income or
loss by the weighted average number of common shares outstanding of 22,299,000,
22,278,000, 20,486,00021,206,000
and 20,454,000,20,507,000 for the three-month periods ended September 30, 2001 and
September 29, 2002, respectively, and 21,921,000 and 20,471,000 for the
nine-month periods ended September 30, 2001 and September 29, 2002,
respectively. Diluted loss per share for the three and six-monththree-month periods ended JuneSeptember
30, 2001 and September 29, 2002 and the nine-month period ended September 29,
2002 is the same as the basic loss per share since the Company reported a net loss
from continuing operations and, therefore, the effect of all potentially
dilutive securities on the net loss from continuing operations would have been
antidilutive. Diluted income per share for the three and six-month periodsnine-month period ended July 1,September
30, 2001 has been computed by dividing the income by an aggregate 23,504,000
and 23,519,00023,150,000
shares respectively, which include the 1,205,000 and 1,241,0001,229,000 potential common share effect respectively, of dilutive
stock options computed using the treasury stock method. The shares for diluted
income per share for the three and six-month periodsnine-month period ended July 1,September 30, 2001 exclude any
effect of (1) a written call option on the Company's common stock in conjunction
with the assumption of the Company's zero coupon convertible debentures by
Cadbury and (2) a forward purchase obligation for common stock whereby the
Company repurchased 1,999,207 shares of its former class B common stock on
August 10, 2001, since the effect of each of these on income from continuing
operations per share in that period would have been antidilutive.
(6)(7) Transactions with Related Parties
The Company leased a helicopter until April 4, 2002 from a subsidiary of
Triangle Aircraft Services Corporation ("TASCO"), a company owned by the
Chairman and Chief Executive Officer and the President and Chief Operating
Officer of the Company (the "Executives") under a dry lease which was scheduled
to expire in September 2002. Annual rent for the helicopter was $382,000 from
October 1, 2000 through September 30, 2001, and increased to $392,000 as of
October 1, 2001 as a result of an annual cost of living adjustment. In
connection with the dry lease, the Company had rent expense of $191,000$286,000 and
$98,000 included in "General and administrative" in the accompanying condensed
consolidated statements of operations for the six-monthnine-month periods ended July 1,September
30, 2001 and June 30,September 29, 2002, respectively. The Company terminated its lease
effective April 1, 2002 and, in consideration for $150,000, was released from
all of its remaining obligations under the lease, including a then remaining
rental obligation of $196,000. The Company recorded the $150,000 of consideration paid was charged to
"General and administrative" during the
three-month period ended June 30, 2002 when the lease was terminated.terminated and it is
included in "General and administrative" for the nine-month period ended
September 29, 2002.
Effective March 1, 2001 the Company received a $5,000,000 interest-bearing
note (the "Executives' Note") from the Executives as part of a settlement of a
class action lawsuit receivable in three equal installments due March 31, 2001,
2002 and 2003. The Company recorded the $5,000,000 during the three-month period
ended April 1,20011, 2001 as a reduction of compensation expense included in "General
and administrative" in the accompanying condensed consolidated statement of
operations for the six-monthnine-month period ended July 1,September 30, 2001, since the
settlement effectively represented an adjustment of prior period compensation
expense. The Executives' Note bore interest initially at 6% per annum and, in
accordance with its terms, was adjusted on April 2, 2001 to 4.92% per annum and
was again adjusted on April 1, 2002 to 1.75%. The Company recorded interest
income on the Executives' Note of $66,000$107,000 and $48,000$56,000 for the six-monthnine-month
periods ended July 1,September 30, 2001 and June 30,September 29, 2002, respectively. In March
of 2001 and March 2002 the Company collected the first and second installments
aggregating $3,333,000 on the Executives' Note. The Company also collected
related interest of $25,000 and $163,000 during the six-monthnine-month periods ended
July 1,September 30, 2001 and June 30,September 29, 2002, respectively. The remaining balance
of the Executives' Note of $1,667,000 is included in "Receivables" in the
accompanying condensed consolidated balance sheet as of June 30,September 29, 2002.
Triarc recorded incentive compensation of $22,500,000 during 2000 to the
Executives which was invested in two deferred compensation trusts (the "Deferred
Compensation Trusts") for their benefit on January 23, 2001. The increase in the
fair value of the investments in the Deferred Compensation Trusts for the
six-monthnine-month periods ended July 1,September 30, 2001 and June 30,September 29, 2002 resulted in
deferred compensation expense of $1,030,000$1,089,000 and $627,000,$481,000, respectively, included
in "General and administrative." For the three-month period ended July 1, 2001 the
increase in fair value resulted in deferred compensation expense of $877,000.
For the three-month period ended June 30, 2002 the decrease in fair value
resulted in a reversal of expense of $297,000. Under accounting principles generally accepted
in the United States of America, the Company recognized investment income of
$171,000 on the investments in the Deferred Compensation Trusts during the
six-monthnine-month period ended July 1,September 30, 2001 but was not able to recognize any
investment income on the increase in value of the investments in the Deferred
Compensation Trusts during the six-monthnine-month period ended June 30,September 29, 2002. This
disparity between compensation expense and investment income recognized will
reverse in future periods as either (1) the investments in the Deferred
Compensation Trusts are sold and previously unrealized gains are recognized
without any offsetting increase in compensation expense or (2) the fair values
of the investments in the Deferred Compensation Trusts decrease resulting in the
recognition of a reduction of deferred compensation expense without any
offsetting losses recognized in investment income. The related obligation is
reported as "Deferred compensation payable to related parties" and the
investments in the Deferred Compensation Trusts are reported in "Investments" in
the accompanying condensed consolidated balance sheets.
As disclosed in more detail in the related party footnote (Note 24)Note 24 ("Note 24") to the consolidated
financial statements contained in the Form 10-K regarding related party
transactions, the Company has provided a number of its management officers and
employees, including its executive officers, the opportunity to co-invest with
the Company in certain investments and made related loans to management. The
Company did not enter into any new co-investments or make any co-investment
loans to management officers or employees during the six-monthnine-month period ended
June 30,September 29, 2002 and management has notified the Company's board of directors
that the Company does not intend to make any further co-investment loans.
Moreover, under recently enacted Federal legislation, the Company is not
permitted to make any new loans to its executive officers. During March 2002 the Company collected the remaining $216,000 of
recourse notes and $18,000 of related accrued interest owed by management in
connection with their co-investment in 280 KPE Holdings, LLC ("280 KPE") and
also collected $45,000 of notes in connection with another co-investment. During
the year ended
December 30, 2001, the Company wrote off $219,000 of non-recourse notes and
$14,000 of related accrued interest owed by management in connection with their
investment in 280 KPE Holdings, LLC ("280 KPE") due to the worthlessness of the
underlying investments held by 280 KPE. Such non-recourse notes were forgiven
during March 2002. During the nine months ended September 29, 2002, the Company
collected the remaining $216,000 of recourse notes and $18,000 of related
accrued interest owed by management in connection with their co-investment in
280 KPE. During that period the Company also collected $90,000 of notes and
$3,000 of related accrued interest in connection with co-investments in EBT
Holding Company LLC and $50,000 of notes and $2,000 of related accrued interest
in connection with a co-investment in 280 BT Holdings LLC ("280 BT"). In
addition, in September 2002, a former officer of the Company surrendered 1.5% of
his 2.5% co-investment interest in 280 BT to the Company in settlement of a
$50,000 non-recourse loan made to him in connection with that co-investment and
$2,000 of related accrued interest, resulting in an increase in the Company's
ownership percentage to 57.4% from 55.9%. Such settlement resulted in a pretax
gain to the Company of $48,000 consisting of a reduction of the minority
interests in 280 BT of $100,000 as a result of the Company now owning the 1.5%
surrendered interest less the $52,000 charge for the extinguishment of the
$50,000 non-recourse note plus related accrued interest. This gain is before the
recognition of additional losses deemed to be other than temporary in
investments owned by 280 BT during the three-month period ended September 29,
2002. The reduction of the minority interests was included as a credit to
"Minority interests in loss of a consolidated subsidiary" and the charge for the
extinguishment of the note was included in "General and administrative" in the
accompanying condensed consolidated statements of operations for the three and
nine-month periods ended September 29, 2002. Under thisthe Company's co-investment
policy, as of June 30,September 29, 2002 the Company had in total $2,492,000$2,347,000 principal
amount of co-investment notes receivable from management, of which $1,246,000$1,174,000
were non-recourse. These notes are included in "Deferred costs and other assets"
in the accompanying condensed consolidated balance sheets.
Also as disclosed in the related party footnote (Note 24) to the
consolidated financial statements contained in the Form 10-K,Note 24, the Company has an investment in Scientia
Health Group Limited ("Scientia") through its 55.9%current 57.4% ownership of 280 BT
Holdings LLC ("280 BT")(see previous paragraph). One of the Executives has been
designated to serve on Scientia's board of directors. In July 2002, the executive chairman of the board of
Scientia resigned and in AugustOctober 2002 was
indictedpled guilty to certain charges in an
indictment by a Federal grand jury. The Company is monitoring the effect if any,
this
resignation and indictment willguilty plea has had and may continue to have on the value, as
disclosed below, of the Company's investment. 280 BT invested $5,000,000 in
Scientia in November 2001, of which $2,500,000 was originally invested by the
Company. Management originally invested $2,475,000 under the Company's
co-investment policy; such amount includes co-investment loans by the Company to
a number of members of management aggregating $1,650,000which as of June 30,September 29, 2002 aggregate
$1,550,000 outstanding, of which $825,000$775,000 are non-recourse. These notes are
included in the total $2,492,000$2,347,000 aggregate principal amount of co-investment
notes receivable as of June 30,September 29, 2002 referred to in the paragraph above.
The Company accounts for 280 BT as a consolidated subsidiary and includes 280
BT's total investment in Scientia in "Investments" in the accompanying condensed
consolidated balance sheets and also reports related minority interests in
"Deferred income, other liabilities and minority interests in a consolidated
subsidiary." As of June 30,September 29, 2002, the carrying value of the investment in
Scientia was the gross amount of $4,552,000, representing$2,419,000, effectively reduced by minority
interests of $1,031,000. The gross carrying value represents the original cost
less anadjustments aggregating $2,581,000 for unrealized losslosses in an investmentinvestments
made by Scientia that waswere deemed to be other than temporary, effectively
reduced by minority interests of $2,007,000.$1,107,000. One of the Executives serves on
Scientia's board of directors.
As of December 30, 2001, the Company owned 8.4% and certain of its present
and former officers, including entities controlled by them, owned 19.3% of the
common stock of Encore Capital Group, Inc. ("Encore"), which was formerly MCM
Capital Group, Inc. During the six-monthnine-month period ended June 30,September 29, 2002,
certain existing stockholders of Encore made an aggregate $5,000,000 investment
in newly-issued convertible preferred stock of Encore, of which the Company
invested $873,000 and some of those present and former officers referred to
above invested $1,627,000. The Company's investment in the common stock of
Encore is accounted for in accordance with the equity method while the
investment in the preferred stock of Encore is accounted for in accordance with
the cost method. The Company had $744,000 of cumulative unrecorded equity in
losses of Encore as of December 30, 2001 since the Company had previously
reduced its investment in Encore to zero. The Company recognized the $744,000 in
connection with its $873,000 additional investment during the three-month period
ended March 31, 2002 as a charge to "Other income (expense), net" in the
accompanying condensed consolidated statement of operations for the six-monthnine-month
period ended June 30,September 29, 2002. The Company also recognized $48,000$266,000 of its
equity in earnings of Encore during the six-monthnine-month period ended June 30,September 29,
2002. Concurrently with the $5,000,000 investment, a financial institution which
holds senior notes of Encore forgave obligations thereunder aggregating
$5,323,000. Encore recorded an increase in its additional paid-in capital of
$4,665,000 for the forgiveness of this debt during its first quarter of 2002,
representing the $5,323,000 less $658,000 of related unamortized debt discount
and deferred loan costs. The Company recorded its equity of $393,000 in such
amount as an increase in "Additional paid-in capital" during the six-monthnine-month
period ended June 30,September 29, 2002.
The Company continues to have additional related party transactions of the
same nature and general magnitude as those described in Note 24 to the
consolidated financial statements contained in the Form 10-K.
(7)(8) Legal and Environmental Matters
In 2001, a vacant property owned by Adams Packing Association, Inc.
("Adams"), a non-operating subsidiary of the Company, was listed by the United
States Environmental Protection Agency on the Comprehensive Environmental
Response, Compensation and Liability Information System ("CERCLIS") list of
known or suspected contaminated sites. The CERCLIS listing appears to have been
based on an allegation that a former tenant of Adams conducted drum recycling
operations at the site from some time prior to 1971 until the late 1970s. The
business operations of Adams were sold in December 1992. In October 2001, an
environmental consultant engaged by the Florida Department of Environmental
Protection (the "FDEP") conducted a preliminary investigation of the site,
including soil and groundwater sampling. A final report by the environmental
consultant received in April 2002 identified contamination of the soil and
groundwater at the site and indicated that the environmental consultant believed
that further unspecified action is warranted at the site. Adams has engaged anits
own environmental consultant that, is currently conductingunder the supervision of the FDEP, has
conducted a further investigation of the site pursuant to an agreement with the FDEP. The investigation by Adams'
environmental consultant isthat was intended to determinedevelop
additional information on the extent and nature of the soil and groundwater
contamination and the appropriate remediation for that contamination. This investigation is currently at an early stage andAdams'
environmental consultant has submitted to the nature
and extentFDEP a summary of the results of
this investigation with a proposal for remediation and monitoring of the
identified contamination. The FDEP has responded by requesting certain
additional investigative and remedial work. Adams currently intends to negotiate
a work plan that will ultimately be required cannot be
determined with exact certainty. However, basedis acceptable to the FDEP and is not materially more costly
than Adams' original proposal which is estimated to cost approximately
$1,000,000. Based on athe preliminary cost estimate developed by the environmental consultantand Adams' intent to
negotiate a work plan that does not materially exceed that estimate, and after
taking into consideration various legal defenses available to the Company,
including Adams, Adams has provided for its estimate of its liability for this
matter, which is includedincluding related legal and consulting fees. Such provision was made
primarily during the three-month period ended June 30, 2002 principally as a
reduction of gain on sale of businesses in "Other income (expense), net" in the
aggregate reservesaccompanying condensed consolidated statement of operations for all legal and environmental matters set forth below.the nine-month
period ended September 29, 2002 since the provision represents an adjustment to
the previously recorded gain on the sale of Adams.
As disclosed more fully in the Form 10-K, on March 23, 1999 a stockholder
filed a complaint against the Company and the Executives on behalf of persons
who held Triarc class A common stock which, as amended, allegesalleged that the
Company's tender offer statement filed with the Securities and Exchange
Commission, pursuant to which the Company repurchased 3,805,015 shares of its
class A common stock for $18.25 per share, was materially false and misleading.
On October 17, 2002 this action was dismissed by the court presiding over this
matter. The Company and the Executives have moved for summary judgment dismissing the
action and the plaintiffstockholder has moveduntil November 25, 2002 to certifyfile a class. The court is scheduled to
hear argument on the motions on August 26, 2002.notice of appeal.
In addition to the environmental matter and stockholder lawsuit described
above, the Company is involved in other litigation and claims incidental to its
business. Triarc and its subsidiaries have reserves for all of itstheir legal and
environmental matters aggregating $3,000,000$2,800,000 as of June 30,September 29, 2002. Although
the outcome of such matters cannot be predicted with certainty and some of these
matters may be disposed of unfavorably to the Company, based on currently
available information, including legal defenses available to Triarc and/or its
subsidiaries, and given the aforementioned reserves, the Company does not
believe that the outcome of its legal and environmental matters will have a
material adverse effect on its consolidated financial position or results of
operations.
(8) Subsequent Events
On July 17, 2002, the Company submitted a revised bid to acquire Sybra,
Inc. and its affiliate, Sybra of Connecticut, Inc. (collectively, "Sybra"),
subsidiaries of I.C.H. Corporation ("ICH"). Previously on May 1, 2002, the
Company announced that it had submitted its original bid to acquire Sybra. Sybra
and ICH filed for protection under chapter 11 of the United States Bankruptcy
Code on February 5, 2002 in order to restructure their financial obligations.
Sybra owns and operates 239 Arby's restaurants and is the second largest
franchisee of Arby's restaurants. Under the revised bid, the Company offered to
make a $14,500,000 investment in Sybra on terms to be agreed upon. In addition,
the Company offered to make approximately $3,500,000 available to be paid to
ICH's creditors. That bid expired unaccepted on July 26, 2002. On July 29, 2002,
Sybra notified the Company of its intention to proceed with a plan of
reorganization pursuant to which Sybra would be acquired by an entity controlled
by the Company's largest franchisee and Sybra's incumbent senior management. On
August 1, 2002, the Company filed a motion with the bankruptcy court seeking to
terminate the exclusive right of Sybra/ICH to propose a reorganization plan and
seeking the right to propose a competing plan of reorganization pursuant to
which Sybra would be acquired by the Company. On August 7, 2002, the Company
agreed with the official committee of unsecured creditors of ICH and Sybra that
any plan of reorganization offered by the Company or any further offer by the
Company to acquire Sybra would provide that the Company would make not less than
$4,500,000 available to be paid to ICH's non-insider general unsecured
creditors. Oral arguments on the Company's motion were heard on August 8, 2002,
at which time the court terminated ICH's and Sybra's exclusive right to file a
plan of reorganization. The court also set a deadline of September 13, 2002 for
the competing bidders to file their proposed plans and scheduled hearings on
October 7, 2002 to determine the adequacy of the disclosure statements for those
plans and November 12, 2002 to determine which of the competing plans is to be
approved. At this time, it is not possible to determine the outcome of the
Company's efforts to acquire Sybra.
TRIARC COMPANIES, INC. AND SUBSIDIARIES
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Introduction
This "Management's Discussion and Analysis of Financial Condition and
Results of Operations" of Triarc Companies, Inc., which we refer to as Triarc,
and its subsidiaries should be read in conjunction with the accompanying
condensed consolidated financial statements and "Item 7. Management's Discussion
and Analysis of Financial Condition and Results of Operations" in our Annual
Report on Form 10-K for the fiscal year ended December 30, 2001. Item 7 of our
Form 10-K describes the recent trends affecting our restaurant franchising
business and our critical accounting policies and estimates.
Certain statements we make under this Item 2 constitute "forward-looking
statements" under the Private Securities Litigation Reform Act of 1995. See
"Special Note Regarding Forward-Looking Statements and Projections" in "Part II
- - Other Information" preceding "Item 1."
As discussed in more detail below under "Liquidity and Capital Resources -
Acquisitions and Investments," we have submitted a proposal to acquire the
second largest franchisee of Arby's restaurants. The forward-looking statements
we make in this Item 2 exclude any effects that this proposed acquisition, if
consummated, would have on our post-acquisition results of operations and cash
flows.
We report on a fiscal year consisting of 52 or 53 weeks ending on the
Sunday closest to December 31. Our first halfnine-month period of fiscal 2001
commenced on January 1, 2001 and ended on July 1,September 30, 2001, with our secondthird
quarter of 2001 commencing on AprilJuly 2, 2001. Our first halfnine-month period of
fiscal 2002 commenced on December 31, 2001 and ended on June 30,September 29, 2002, with
our secondthird quarter of 2002 commencing on AprilJuly 1, 2002. When we refer to the
"six"three months ended July 1,September 30, 2001," or the "2001 first half,third quarter," and the
"three"nine months ended July 1,September 30, 2001," or the "2001
second quarter,"first nine months of 2001," we
mean the periods from July 2, 2001 to September 30, 2001 and January 1, 2001 to
July 1, 2001 and
April 2, 2001 to July 1,September 30, 2001, respectively. When we refer to the "six"three months ended
June 30,September 29, 2002," or the "2002 first half,third quarter," and the "three"nine months ended
June
30,September 29, 2002," or the "2002 second quarter,"first nine months of 2002," we mean the periods
from July 1, 2002 to September 29, 2002 and December 31, 2001 to June 30, 2002 and April 1, 2002 to June 30,September 29,
2002, respectively. Each halfquarter contained 2613 weeks and each quarternine-month period
contained 1339 weeks.
Certain amounts presented in this "Management's Discussion and Analysis of
Financial Condition and Results of Operations" for the three and six-monthnine-month
periods ended July 1,September 30, 2001 have been reclassified to conform with the
current periods' presentation.
Results of Operations
Set forth below is a table that summarizes and compares our results of
operations for (1) the sixthree months ended July 1,September 30, 2001 and June 30,September 29,
2002 and (2) the threenine months ended July 1,September 30, 2001 and June 30,September 29, 2002,
and provides the amount and percent of the change between those respective
periods. We consider certain percentage changes between periods to be not
measurable or not meaningful, and we refer to these as "n/m." The percentages
used in the following discussion have been rounded to the nearest whole
percentage.
Six Months Ended
Three Months Ended ------------------Nine Months Ended
--------------------------- Change --------------------------------------------- Change
July 1, JuneSeptember 30, ----------------- July 1, JuneSeptember 29, --------------- September 30, ------------------September 29, -----------------
2001 2002 Amount Percent 2001 2002 Amount Percent
---- ---- ------ ------- ---- ---- ------ -------
(In Millions Except Percents)
Revenues, investment income (loss) and
other income (expense):
Royalties and franchise and related
fees ...........................................$ 43.924.1 $ 47.225.7 $ 3.3 81.6 7 % $ 23.068.0 $ 24.872.9 $ 1.8 84.9 7 %
Investment income (loss), net .................... 23.3 1.1 (22.2) (95)........... 5.9 (0.4) (6.3) (107)% 8.1 (4.9) (13.0) (161)29.2 0.7 (28.5) (98)%
Other income (expense), net ..................... 9.1 (1.5) (10.6) (117)............ 0.3 0.4 0.1 33 % 8.59.5 (1.0) (9.5) (112)(10.5) (111)%
------ ------- ------------- ------- ------- ------
Total revenues, investment income
(loss) and other income (expense) ...................... 76.3 46.8 (29.5) (39).. 30.3 25.7 (4.6) (15)% 39.6 18.9 (20.7) (52)106.7 72.6 (34.1) (32)%
------ ------- ------------- ------- ------- ------
Costs and expenses:
General and administrative ....................... 37.0 38.8 1.8 5 .............. 21.2 20.2 (1.0) (5)% 24.3 19.3 (5.0) (20)58.2 59.0 0.8 1 %
Depreciation and amortization,
excluding amortization of deferred
financing costs ....... 3.2 3.3....................... 1.5 1.6 0.1 3 % 1.4 1.7 0.3 194.7 4.9 0.2 3 %
Interest expense ................................. 16.4 13.2 (3.2) (20)........................ 7.1 6.8 (0.3) (4)% 9.8 6.8 (3.0) (31)23.5 20.0 (3.5) (15)%
Insurance expense related to long-term
debt ...... 2.4 2.3 (0.1) (6)%debt................................... 1.2 1.1 (0.1) (6)% 3.6 3.4 (0.2) (6)%
Costs of proposed business acquisitions
not consummated........................ 0.5 2.1 1.6 n/m 0.6 2.2 1.6 n/m
------ ------- ------- ------- ------- ------
Total costs and expenses ....................... 59.0 57.6 (1.4) (2)............ 31.5 31.8 0.3 1 % 36.7 28.9 (7.8) (21)90.6 89.5 (1.1) (1)%
------ ------- ------- ------- ------- ------
Income (loss) from continuing
operations before income taxes
and minority interests.. 17.3 (10.8) (28.1)interests........... (1.2) (6.1) (4.9) n/m 2.9 (10.0) (12.9)16.1 (16.9) (33.0) n/m
Benefit from (provision for) income taxes ........... (8.1) 1.0 9.1.. (0.6) 2.5 3.1 n/m (1.9) 1.3 3.2(8.7) 3.5 12.2 n/m
Minority interests in loss of a
consolidated subsidiary.........................................subsidiary................... -- 1.2 1.21.0 1.0 n/m -- 1.2 1.22.3 2.3 n/m
------ ------- ------- ------- ------- ------
Income (loss) from continuing
operations...... 9.2 (8.6) (17.8)operations....................... (1.8) (2.6) (0.8) n/m 1.0 (7.5) (8.5)7.4 (11.1) (18.5) n/m
Discontinued operations.............................. 38.5operations..................... -- (38.5)-- -- n/m 38.5 -- (38.5) n/m
------ ------- ------- ------- ------- ------
Net income (loss).................................................$ 47.7(1.8) $ (8.6) $(56.3)(2.6) $ (0.8) n/m $ 39.545.9 $ (7.5) $(47.0)(11.1) $(57.0) n/m
====== ======= ============= ======= ======= ======
SixThree Months Ended June 30,September 29, 2002 Compared with SixThree Months Ended
July 1,September 30, 2001
Royalties and Franchise and Related Fees
Our royalties and franchise and related fees, which are generated entirely
from our restaurant franchising business, increased $3.3$1.6 million, or 8%7%, to
$47.2$25.7 million for the sixthree months ended June 30,September 29, 2002 from $43.9$24.1 million
for the sixthree months ended July 1,September 30, 2001 reflecting a $3.8$1.5 million, or 9%7%,
increase in royalties partially offset byand a $0.5$0.1 million, or 32%11%, decreaseincrease in franchise and
related fees. The increase in royalties consisted of (1) a $1.9$0.9 million
improvement due to an under 5% increase in same-store sales of franchised
restaurants and (2) a $0.6 million improvement resulting from the royalties from
the 114 restaurants opened since July 1,September 30, 2001, with generally higher than
average sales volumes, replacing the royalties from the 8473 generally
underperforming restaurants closed since July 1, 2001 and
(2) a $1.9 million improvement due to a 3.9%September 30, 2001. The increase in same-store sales of
franchised restaurants. The decrease in
franchise and related fees was principally due to lowera decrease in franchise fees primarily as a result offee
credits earned by franchisees opening 17 fewer restaurantsunder our remodeling incentive program in the 2002
first halfthird quarter compared with the 2001 first
half and, to a lesser extent, a decrease in fees from franchisees for training
and for transferring franchise agreements.third quarter. We currently anticipate a
continued combined increase in royalties and franchise and related fees for the
2002 second halffourth quarter compared with the 2001 second half,fourth quarter but at a much lower
rate than the 8%7% increase experienced during the 2002 first half.third quarter due to
anticipated lower forfeited deposits and a currently anticipated modest to no
increase in same-store sales of franchised restaurants reflecting our current
estimate of a weak beginning of the 2002 fourth quarter. Forfeited deposits in
the 2001 fourth quarter of 2001 reflected the termination of a significant number of
commitments to open new franchised restaurants by one of our franchisees and we
do not expect terminations to recur at the same level in the 2002 second half.fourth
quarter.
Our royalties and franchise fees have no associated cost of sales.
Investment Income (Loss), Net
The following table summarizes and compares the major components of
investment income (loss), net:
Three Months Ended
-----------------------------
September 30, September 29,
2001 2002 Change
---- ---- ------
(In Millions)
Interest income................................................$ 6.6 $ 2.8 $ (3.8)
Other than temporary unrealized losses......................... (1.0) (2.9) (1.9)
Recognized net gains (losses) ................................. 0.3 (0.5) (0.8)
Equity in losses of investment limited partnerships
and similar investment entities.............................. (0.4) (0.2) 0.2
Distributions, including dividends............................. 0.5 0.5 --
Investment management and performance fees..................... (0.1) (0.1) --
-------- --------- --------
$ 5.9 $ (0.4) $ (6.3)
======== ========= ========
The decrease in the interest income is principally due to lower average
interest rates on our cash equivalents and interest-bearing short-term
investments. Average rates on our interest-bearing investments declined from
above 4% in the 2001 third quarter to below 2% in the 2002 third quarter
principally due to the general decline in the money market and short-term
interest rate environment. We currently have significant investments in cash
equivalents and we anticipate interest income will continue to be significantly
lower in the 2002 fourth quarter compared with the 2001 fourth quarter, assuming
interest rates as of September 29, 2002 do not increase significantly. Our
provision for unrealized losses on our available-for-sale and other cost basis
investments deemed to be other than temporary resulted from declines in the
underlying economics of specific marketable equity securities and other
investments and/or volatility in capital markets. Our recognized net gains
(losses) and other than temporary unrealized losses are dependent upon market
fluctuations in the value of our investments in available-for-sale securities
and cost basis investments and/or the timing of the sales of those investments.
Accordingly, our recognized net gains (losses) and our other than temporary
unrealized losses presented in the above table may not recur in future periods.
As of September 29, 2002, we had pretax unrealized holding gains and losses
on available-for-sale marketable securities of $1.2 million and $1.3 million,
respectively, included in accumulated other comprehensive deficit. Should either
(1) we decide to sell any of these investments or (2) any of the unrealized
losses continue such that we believe they have become other than temporary, we
would recognize the gains or losses on the related investments at that time. In
addition, through 280 BT Holdings LLC, a 57.4%-owned consolidated subsidiary, we
hold a $2.4 million cost basis investment, before related minority interests of
$1.0 million, in Scientia Health Group Limited, an entity which we refer to as
Scientia, whose executive chairman of the board resigned in July 2002 and pled
guilty in October 2002 to certain charges in an indictment by a Federal grand
jury. The $2.4 million investment represents original cost less adjustments for
unrealized losses in investments made by Scientia that were deemed to be other
than temporary, including $2.2 million during the 2002 third quarter. Such
amounts have been effectively reduced by minority interests of $1.0 million and
$0.9 million, respectively. We are monitoring the effect this resignation and
guilty plea has had and may continue to have on the value of our investment,
which could possibly result in the recognition of an additional other than
temporary loss in future periods. In addition, as of September 29, 2002 we have
$0.8 million of non-recourse notes receivable from management officers and
employees relating to a portion of their investments in 280 BT Holdings. If the
value of 280 BT Holding's investments should further decline and, accordingly,
we recognize additional other than temporary losses, we could also recognize
losses relating to the non-recourse notes receivable in "General and
administrative" expenses.
Other Income, Net
The following table summarizes and compares the major components of other
income, net:
Three Months Ended
-----------------------------
September 30, September 29,
2001 2002 Change
---- ---- ------
(In Millions)
Equity in earnings (losses) of investees, other than investment
limited partnerships and similar investment entities.........$ (0.1) $ 0.2 $ 0.3
Reduction in the fair value of the liability for a written
call option on our stock..................................... 0.3 -- (0.3)
Other interest income.......................................... 0.1 0.1 --
Other.......................................................... -- 0.1 0.1
-------- --------- --------
$ 0.3 $ 0.4 $ 0.1
======== ========= ========
Other income, net was relatively unchanged. The $0.3 million improvement in
equity in earnings (losses) of investees, other than investment limited
partnerships and similar investment entities, is principally due to the
recognition of equity in earnings of Encore Capital Group, Inc. (formerly MCM
Capital Group, Inc.), an 8.4% common equity investee of ours which we refer to
as Encore, during the 2002 third quarter. No such equity in earnings or losses
of Encore were recorded in the 2001 third quarter because of our having
previously reduced our investment in Encore to zero. The written call option on
our stock effectively arose upon the assumption of our zero coupon convertible
debentures by the purchaser of our former beverage businesses which remain
convertible into our class A common stock. The purchaser of our former beverage
businesses is required to take all actions reasonably necessary to call these
debentures for redemption in February 2003.
General and Administrative
Our general and administrative expenses decreased $1.0 million, or 5%,
principally due to (1) a $1.8 million decrease in incentive compensation costs,
(2) a $0.5 million decrease in the provision for uncollectible non-recourse
notes receivable from management officers and employees in accordance with their
terms relating to entities in which we and our officers and employees
co-invested and (3) a $0.4 million decrease in expenses, excluding related
depreciation and amortization, resulting from the termination in December 2001
of fractional interests in two airplanes under timeshare agreements. The $1.8
million decrease in incentive compensation is principally due to the effect in
the 2001 third quarter, which did not recur in the 2002 third quarter, under our
executive bonus plan from the positive impact on our capitalization from the
sale of our former beverage businesses. These decreases were partially offset by
(1) a $1.0 million increase in advertising expense related to an Arby's national
cable television advertising campaign and (2) a $0.8 million increase in
charitable contributions.
Depreciation and Amortization, Excluding Amortization of Deferred Financing
Costs
Our depreciation and amortization, excluding amortization of deferred
financing costs, increased $0.1 million, or 3%, reflecting a $0.3 million
increase attributable to the full quarter effect on depreciation in the 2002
third quarter of an airplane that was placed in service in September 2001. This
increase was substantially offset by $0.2 million of goodwill amortization in
the 2001 third quarter which ceased effective December 31, 2001 in accordance
with Statement of Financial Accounting Standards No. 142, "Goodwill and Other
Intangible Assets." The end of goodwill amortization under Statement 142 will
positively impact the 2002 fourth quarter by $0.2 million. The termination of
the aircraft timeshare agreements in December 2001 disclosed above under
"General and administrative" did not have any effect on the change in
depreciation and amortization since all remaining amortization had been recorded
in the 2001 first quarter.
Interest Expense
Interest expense decreased $0.3 million, or 4%, to $6.8 million for the
three months ended September 29, 2002 from $7.1 million for the three months
ended September 30, 2001 principally due to lower outstanding balances of our
7.44% insured non-recourse securitization notes, which we refer to as the
Securitization Notes, since the end of the 2001 third quarter.
Costs of Proposed Business Acquisitions Not Consummated
The $2.1 million of costs of a proposed business acquisition not
consummated in the 2002 third quarter were for a business acquisition proposal
we submitted in July 2002 which was not accepted. The $0.5 million of costs in
the 2001 third quarter were for other less significant proposed business
acquisitions not consummated.
Loss From Continuing Operations Before Income Taxes and Minority Interests
Our loss from continuing operations before income taxes and minority
interests increased $4.9 million to $6.1 million for the three months ended
September 29, 2002 from $1.2 million for the three months ended September 30,
2001 due to the effect of the variances explained in the captions above.
Income Taxes
The benefit from income taxes represented an effective rate of 42% for the
three months ended September 29, 2002. This 42% effective rate reflects the
catch-up effect of a year-to-date increase in the estimated full-year 2002
effective tax benefit rate from 9% to 21% since we now estimate a higher
full-year pretax loss, which reduces the effect of nondeductible expenses on our
estimated effective tax rate. The higher projected loss is principally a result
of (1) the $2.9 million of other than temporary unrealized losses on investments
recognized in the 2002 third quarter and (2) the $2.1 million of costs expensed
in the 2002 third quarter in connection with a business acquisition proposal we
submitted in July 2002 which was not accepted, both as previously explained. For
the three months ended September 30, 2001 we had a provision for income taxes
despite a pretax loss from continuing operations principally as a result of the
catch-up effect of a year-to-date increase in the estimated full-year 2001
effective tax rate from 47% to 54% reflecting a decrease in then estimated
full-year pretax income from continuing operations.
Minority Interests in Loss of a Consolidated Subsidiary
The minority interests in loss of a consolidated subsidiary of $1.0 million
for the three months ended September 29, 2002 reflect provisions for unrealized
losses by 280 BT Holdings on its cost basis investments deemed to be other than
temporary.
Nine Months Ended September 29, 2002 Compared with Nine Months Ended
September 30, 2001
Royalties and Franchise and Related Fees
Our royalties and franchise and related fees, which are generated entirely
from our restaurant franchising business, increased $4.9 million, or 7%, to
$72.9 million for the nine months ended September 29, 2002 from $68.0 million
for the nine months ended September 30, 2001 reflecting a $5.4 million, or 8%,
increase in royalties partially offset by a $0.5 million, or 20%, decrease in
franchise and related fees. The increase in royalties consisted of (1) a $3.0
million improvement due to a 4% increase in same-store sales of franchised
restaurants and (2) a $2.4 million improvement resulting from the royalties from
the 114 restaurants opened since September 30, 2001, with generally higher than
average sales volumes, replacing the royalties from the 73 generally
underperforming restaurants closed since September 30, 2001. The decrease in
franchise and related fees was principally due to lower franchise fees primarily
as a result of franchisees opening 17 fewer restaurants in the first nine months
of 2002 compared with the first nine months of 2001. We currently anticipate a
continued combined increase in royalties and franchise and related fees for the
2002 fourth quarter compared with the 2001 fourth quarter, but at a much lower
rate than the 7% increase experienced during the first nine months of 2002, as
previously explained in more detail in the comparison of the three-month
periods.
Our royalties and franchise fees have no associated cost of sales.
Investment Income, Net
The following table summarizes and compares the major components of
investment income, net:
SixNine Months Ended
----------------
July 1, June-----------------------------
September 30, September 29,
2001 2002 Change
---- ---- ------
(In Millions)
Interest income...........................................income................................................$ 19.326.0 $ 5.78.5 $ (13.6)(17.5)
Other than temporary unrealized losses.................... (0.4) (8.1) (7.7)losses......................... (1.4) (11.0) (9.6)
Recognized net gains...................................... 4.1 2.4 (1.7)gains........................................... 4.4 1.9 (2.5)
Distributions, including dividends........................ 0.8 1.2dividends............................. 1.3 1.7 0.4
Investment management and performance fees..................... (0.7) (0.3) 0.4
Equity in the earningslosses of investment limited partnerships
and similar investment entities.......... -- 0.1 0.1
Investment management and performance fees................ (0.5) (0.2)entities.............................. (0.4) (0.1) 0.3
-------- --------------- --------
$ 23.329.2 $ 1.10.7 $ (22.2)(28.5)
======== =============== ========
Investment income, net decreased $22.2 million, principally due to (1) a
$13.6 million decrease in interest income on cash equivalents and short-term
investments, (2) a $7.7 million increase in the provision for unrealized losses
deemed to be other than temporary (before $1.2 million of minority interests in
this provision) and (3) a $1.7 million decrease in recognized net gains,
realized or unrealized as applicable, on our investments.
The decrease in interest income is due to lower average interest rates and,
to a lesser extent, lower average amounts of cash equivalents and
interest-bearing short-term investments during the 2002 first halfnine months of 2002
compared with the 2001 first half.nine months of 2001. Average rates on our
interest-bearing investments declined from approximately 5% in the first nine months of 2001
first half to approximatelyabove 2% in the 2002 first halfnine months of 2002 principally due to the general
decline in the money market and short-term interest rate environment. The
weighted average monthly balanceamount of our interest-bearing investments declined principally due to
our payment in mid-March 2001 of $239.3 million of estimated income taxes
related to the October 2000 sale of our former beverage businesses. We currently
have significant investments in cash
equivalents and we anticipate interest income will continue to be significantly lower in the 2002
second halffourth quarter compared with the 2001 second halffourth quarter, assuming interest rates as
of June 30,September 29, 2002 do not increase significantly. Our provision for
unrealized losses on our available-for-sale and other cost basis investments
deemed to be other than temporary resulted from declines in the underlying
economics of specific marketable equity securities and other investments and/or
volatility in capital markets. Our recognized net gains and other than temporary
unrealized losses are dependent upon market fluctuations in the value of our
investments in available-for-sale securities and cost basis investments and/or
the timing of the sales of those investments. Accordingly, our recognized net
gains and our other than temporary unrealized losses presented in the above table may not recur in future periods,
as previously explained in more detail in the comparison of the three-month
periods.
As of June 30,September 29, 2002, we had pretax unrealized holding gains and losses
on available-for-sale marketable securities of $0.9$1.2 million and $1.3 million,
respectively, included in accumulated other comprehensive deficit which we presently believe are not other than
temporary. However, shoulddeficit. Should either
(1) we decide to sell any of these investments or (2) any of the unrealized
losses continue such that we believe they have become other than temporary, we
would recognize the gains or losses on the related investments at that time. In
addition, through a 55.9%-owned consolidated
subsidiary,as explained in more detail in the comparison of the three-month
periods, we hold a $4.6$2.4 million cost basis investment, before related minority
interests of $2.0$1.0 million, in a company whose executive chairmanScientia for which recognition of an additional
other than temporary loss could possibly be required in future periods. Also as
explained in more detail in the comparison of the board resigned in July 2002 and was indicted by a Federal grand jury in August
2002. We are monitoring the effect, if any, that this resignation and indictment
will have on the value of our investment, which could possibly result inthree-month periods, the
recognition of an additional other than temporary loss by 280 BT Holdings could
result in future periods.losses relating to the non-recourse notes from management officers and
employees of up to a maximum of $0.8 million in "General and administrative"
expenses.
Other Income (Expense), Net
The following table summarizes and compares the major components of other
income (expense), net:
SixNine Months Ended
----------------
July 1, June-----------------------------
September 30, September 29,
2001 2002 Change
---- ---- ------
(In Millions)
Interest income related to sale of beverage businesses...businesses.........$ 8.3 $ -- $ (8.3)
Reduction of gain related to business previously sold....sold.......... -- (1.2) (1.2)
Reduction in the fair value of the liability for a written
call option on our stock..................................... 0.8 -- (0.8)
Equity in losses of investees, other than investment
limited partnerships and similar investment entities... (0.1) (0.7) (0.6)
Reduction in the fair value of a written call option on
our stock.............................................. 0.5 --entities......... (0.2) (0.5) (0.3)
Other interest income.................................... 0.1income.......................................... 0.4 0.3 (0.1)
Other.......................................................... 0.2 0.1
Other.................................................... 0.30.4 0.2
(0.1)
------- ------ -------------- --------- --------
$ 9.19.5 $ (1.5) $(10.6)
======= ====== ======(1.0) $ (10.5)
======== ========= ========
Other income (expense), net decreased $10.6$10.5 million principally due to $8.3
million of interest income recorded in the 2001 second quarter which did not
recur in the 2002 first halfnine months of 2002 related to our election in June 2001 to
treat certain portions of the sale of our former beverage businesses as an asset
sale for income tax purposes, as explained in more detail below under
"Discontinued Operations." The $1.2 million reduction of gain related to a
business previously sold results from a charge for estimated environmental
clean-up and related costs. The $0.6written call option on our stock was previously
explained in the comparison of the three-month periods. The $0.3 million
increase in equity in losses of investees was principally due to the recognition
in the 2002 first quarter of $0.7 million of our previously unrecorded equity in
losses of Encore Capital Group, Inc.
(formerly MCM Capital Group, Inc.), an 8.4% common equity investee of ours which
we refer to as Encore, upon our investment of $0.9 million in newly-issued convertible
preferred stock of Encore.Encore partially offset by $0.2 million in equity in earnings
of Encore subsequent to the 2002 first quarter. The $0.7 million of cumulative
equity in losses of Encore had not been recorded previously as a result of our
having previously reduced our investment in Encore to zero. The written call option on our class A
common stock effectively arose upon the assumption of our zero coupon
convertible debentures by the purchaser of our former beverage businesses.
Although the debentures were assumed by the purchaser, they remain convertible
into our class A common stock and the reduction in the fair value of the
liability for the conversion option during the periods presented was recognized
in other income.
We incurred an estimated $1.8 million to $2.0 million of costs in
connection with our submission in July 2002 of a business acquisition proposal.
However, our proposal was not accepted. Accordingly, we will record a charge to
operations for these costs in the 2002 third quarter.
General and Administrative
Our general and administrative expenses increased $1.8$0.8 million, or 5%1%,
to
$38.8 million for the six months ended June 30, 2002 from $37.0 million for the
six months ended July 1, 2001. Thisprincipally reflecting (1) an increase principally reflects aof $5.0 million due to a reduction in
compensation expense in the 2001 first quarter which did not recur
in the 2002 first half, related to a note that we
received in the 2001 first quarter from our Chairman and Chief Executive Officer
and President and Chief Operating Officer, whom we refer to as the Executives,
in partial settlement of a class action shareholder lawsuit which asserted
claims relating to certain compensation awards to the Executives. ThisExecutives, (2) an
increase was partially offset by (1)
a $3.0of $1.0 million decrease in incentive compensationadvertising expenses related to an Arby's national
cable television advertising campaign, (3) an increase of $1.0 million in
insurance costs principally reflecting higher rates and (2) a $0.4(4) an increase of $0.9
million decrease in deferred compensation expense.charitable contributions. The $5.0 million gain from the settlement
of the class action shareholder lawsuit discussed above was included as a reduction of general
and administrative expenses in the 2001 first quarternine months of 2001 since the gain
effectively represented an adjustment of prior period compensation expense.
The $3.0These increases were partially offset by (1) a $4.8 million decrease in
incentive compensation iscosts, (2) a $0.9 million decrease in expenses, excluding
depreciation and amortization, due to the termination in December 2001 of
fractional interests in two airplanes under timeshare agreements, (3) a $0.6
million decrease in deferred compensation expense and (4) a $0.5 million
decrease in provision for uncollectible non-recourse notes receivable from
management officers and employees relating to entities in which we and our
officers and employees co-invested. The $4.8 million decrease in incentive
compensation was principally due to the non-recurring effecthigher compensation in the first nine months
of 2001, which did not recur in the first halfnine months of 2002, under our
executive bonus plan fromreflecting the positive impact on our capitalization from
the sale of our former beverage businesses. Deferred compensation expense of
$0.6$0.5 million for the sixnine months ended June 30,September 29, 2002 and $1.0$1.1 million for
the sixnine months ended July 1,September 30, 2001 represents the increase in the fair
value of investments in two deferred compensation trusts, which we refer to as
the Trusts, for the benefit of the Executives as explained in more detail below
under "Income (Loss) From Continuing Operations Before Income Taxes and Minority
Interests."
Depreciation and Amortization, Excluding Amortization of Deferred Financing
Costs
Our depreciation and amortization, excluding amortization of deferred
financing costs, increased $0.1$0.2 million, or 3%, reflecting (1) $1.0 million
attributable to $3.3 million for the six
months ended June 30, 2002. This increase reflects (1) $0.8 millionfull period effect of depreciation in the first nine months
of 2002 first half which did not occur in the 2001 first half
related to the purchase ofon an airplane that was placed in Julyservice in September 2001 and (2) a
$0.2 million increase related to amortization of leasehold improvements
completed during the 2001 second quarter. These increases were substantially
offset by (1) $0.5 million of accelerated amortization in the 2001 first quarter
resulting from the then anticipated early termination of fractional interests in
aircraft which did
not recur in the 2002 first half and (2) $0.4$0.6 million of goodwill amortization in the first halfnine months
of 2001 which ceased effective December 31, 2001, both as previously explained
in accordance
with Statementmore detail in the comparison of Financial Accounting Standards No. 142, "Goodwill and Other
Intangible Assets." The end of goodwill amortization under Statement 142 will
positively impact the 2002 second half by $0.4 million.three-month periods.
Interest Expense
Interest expense decreased $3.2$3.5 million, or 20%15%, to $13.2$20.0 million for the
sixnine months ended June 30,September 29, 2002 from $16.4$23.5 million for the sixnine months
ended July
1,September 30, 2001. This decrease principally reflects (1) interest of
$3.1 million recorded in the 2001 first half on the estimated income tax
liability paid with the filing of our election in June 2001 to treat certain
portions of the sale of our former beverage businesses as an asset sale for
income tax purposes, as explained in
more detail below under "Discontinued Operations."Operations" and (2)
a $1.0 million decrease in interest expense due to lower outstanding balances of
the Securitization Notes. These decreases were partially offset by a $0.8
million increase in interest expense due to the full period effect of an
outstanding term loan and related interest rate swap agreement used to finance
the purchase of an airplane in July 2001.
Costs of Proposed Business Acquisitions Not Consummated
The $2.2 million of costs of proposed business acquisitions not consummated
in the first nine months of 2002 were primarily for a business acquisition
proposal we submitted in July 2002 which was not accepted. The $0.6 million of
costs in the first nine months of 2001 were for other less significant proposed
business acquisitions not consummated.
Income (Loss) From Continuing Operations Before Income Taxes and Minority
Interests
Our income (loss) from continuing operations before income taxes and
minority interests decreased $28.1$33.0 million to a loss of $10.8$16.9 million for the
sixnine months ended June 30,September 29, 2002 from income of $17.3$16.1 million for the sixnine
months ended July 1,September 30, 2001 due to the effect of the variances explained in
the captions above.
As disclosed above, we recognized $1.0$1.1 million in the first nine months of
2001 first half and $0.6$0.5 million in the 2002 first halfnine months of 2002 of deferred compensation
expense for the increase in the fair value of the investments in the Trusts.
Under accounting principles generally accepted in the United States of America,
we recognized investment income of $0.2 million on the investments in the Trusts
during the 2001 first half,nine months of 2001, but were unablenot permitted to recognize any
investment income on the investments in the Trusts during the 2002 first half.nine months
of 2002. This disparity between compensation expense and investment income
recognized will reverse in the future periods as either (1) the investments in
the Trusts are sold and previously unrealized gains are recognized without any
offsetting increase in compensation expense or (2) the fair values of the
investments in the Trusts decrease resulting in the recognition of a reduction
of deferred compensation expense without any offsetting losses recognized in
investment income.
Income Taxes
The benefit from and provision for income taxes represented effective rates
of 9%21% for the sixnine months ended June 30,September 29, 2002 and 47%54% for the sixnine months
ended July 1,September 30, 2001, respectively. The effective benefit rate in the 2002 first
halfnine months of 2002 is lower than the United States Federal statutory rate of
35% and the effective provision rate in the 2001 first halfnine months of 2001 was higher
than the 35% rate principally due to (1) the effect of non-deductible
compensation costs, (2) state income taxes of the consolidated entities which
file state tax returns on an individual company basis with a differing mix of
pretax income or loss and (3) the effect in 2001 of non-deductible amortization
of goodwill.
Minority Interests in Loss of a Consolidated Subsidiary
The minority interests in loss of a consolidated subsidiary of $1.2$2.3 million
for the sixnine months ended June 30,September 29, 2002 represent the 44.1% minority interests in
the net loss of 280 BT Holdings, LLC, a consolidated subsidiary. The losses of
280 BT Holdings were due toreflect provisions for unrealized
losses on its cost basis
investments deemed to be other than temporary, which did not occurby 280 BT Holdings as previously explained in more detail in the
2001
first half.comparison of the three-month periods.
Discontinued Operations
The income from discontinued operations of $38.5 million for the sixnine
months ended July 1,September 30, 2001 resulted entirely from adjustments to the
previously recognized estimated gain on disposal of our beverage businesses.
These net adjustments resulted from the realization of $200.0 million of
proceeds from the purchaser for our electing in June 2001 to treat certain
portions of the sale as an asset sale in lieu of a stock sale under the
provisions of Section 338(h)(10) of the United States Internal Revenue Code, net
of estimated income taxes, partially offset by additional accruals relating to
the sale.
Three Months Ended June 30, 2002 Compared with Three Months Ended July 1, 2001
Royalties and Franchise and Related Fees
Our royalties and franchise and related fees, which are generated entirely
from our restaurant franchising business, increased $1.8 million, or 8%, to
$24.8 million for the three months ended June 30, 2002 from $23.0 million for
the three months ended July 1, 2001 reflecting a $2.0 million, or 9%, increase
in royalties partially offset by a $0.2 million, or 24%, decrease in franchise
and related fees. The increase in royalties consisted of (1) a $1.0 million
improvement resulting from the royalties from the 114 restaurants opened since
July 1, 2001, with generally higher than average sales volumes, replacing the
royalties from the 84 underperforming restaurants closed since July 1, 2001 and
(2) a $1.0 million improvement due to a 3.9% increase in same-store sales of
franchised restaurants. The decrease in franchise and related fees was
principally due to lower franchise fees primarily as a result of franchisees
opening 14 fewer restaurants in the 2002 second quarter compared with the 2001
second quarter partially offset by an increase in early franchise renewal fees.
We currently anticipate a continued combined increase in royalties and franchise
and related fees for the 2002 second half compared with the 2001 second half but
at a lower rate than the 8% increase experienced during the 2002 second quarter,
as previously explained in more detail in the comparison of the six-month
periods.
Our royalties and franchise fees have no associated cost of sales.
Investment Income (Loss), Net
The following table summarizes and compares the major components of
investment income (loss), net:
Three Months Ended
------------------
July 1, June 30,
2001 2002 Change
---- ---- ------
(In Millions)
Other than temporary unrealized losses....................$ (0.4) $ (8.0) $ (7.6)
Interest income........................................... 7.4 2.8 (4.6)
Recognized net gains ..................................... 0.8 -- (0.8)
Equity in the earnings (losses) of investment limited
partnerships and similar investment entities.......... 0.1 (0.1) (0.2)
Distributions, including dividends........................ 0.4 0.5 0.1
Investment management and performance fees................ (0.2) (0.1) 0.1
-------- ------ ------
$ 8.1 $ (4.9) $(13.0)
======== ====== ======
Investment income (loss), net decreased $13.0 million principally due to
(1) a $7.6 million increase in the provision for unrealized losses deemed to be
other than temporary (before $1.2 million of minority interests in this
provision), (2) a $4.6 million decrease in interest income on cash equivalents
and short-term investments principally due to lower average interest rates and
(3) a $0.8 million decrease in recognized net gains, realized or unrealized as
applicable, on our investments. Average rates on our interest-bearing
investments declined from approximately 5% in the 2001 second quarter to
approximately 2% in the 2002 second quarter principally due to the general
decline in the money market and short-term interest rate environment. We
currently anticipate interest income will continue to be significantly lower for
the 2002 second half compared with the 2001 second half, as previously explained
in more detail in the comparison of the six-month periods. Our provision for
unrealized losses on our available-for-sale and other cost basis investments
deemed to be other than temporary resulted from declines in the underlying
economics of specific marketable equity securities and other investments and/or
volatility in capital markets. Our recognized net gains and our other than
temporary unrealized losses presented in the above table may not recur in future
periods, as previously explained in more detail in the comparison of the
six-month periods.
As of June 30, 2002, we had pretax unrealized holding losses on
available-for-sale marketable securities of $0.9 million included in accumulated
other comprehensive deficit which we presently believe are not other than
temporary. However, provisions for these unrealized losses may be required in
future periods, as previously explained in more detail in the comparison of the
six-month periods. In addition, as explained in more detail in the comparison of
the six-month periods, we hold a $4.6 million cost basis investment, before
related minority interests of $2.0 million, in a company whose executive
chairman of the board resigned in July 2002 and was indicted by a Federal grand
jury in August 2002 for which recognition of an other than temporary loss could
possibly be required in future periods.
Other Income (Expense), Net
The following table summarizes and compares the major components of other
income (expense), net:
Three Months Ended
------------------
July 1, June 30,
2001 2002 Change
---- ---- ------
(In Millions)
Interest income related to sale of beverage businesses.......$ 8.3 $ -- $ (8.3)
Reduction of gain related to business previously sold........ -- (1.2) (1.2)
Other interest income........................................ 0.2 0.1 (0.1)
Equity in losses of investees, other than investment
limited partnerships and similar investment entities....... (0.1) -- 0.1
Reduction in the fair value of a written call option on
our stock.................................................. 0.1 0.1 --
-------- ------ ------
$ 8.5 $ (1.0) $ (9.5)
======== ====== ======
Other income (expense), net decreased $9.5 million principally due to the
$8.3 million of interest income recorded in the 2001 second quarter which did
not recur in the 2002 second quarter related to our election to treat certain
portions of the sale of our former beverage businesses as an asset sale for
income tax purposes, as previously explained in more detail in the comparison of
the six-month periods.
As previously explained in more detail in the comparison of the six-month
periods, we will record a charge to operations in the 2002 third quarter for the
estimated $1.8 million to $2.0 million of costs of a proposed business
acquisition not consummated.
General and Administrative
Our general and administrative expenses decreased $5.0 million, or 20%, to
$19.3 million for the three months ended June 30, 2002 from $24.3 million for
the three months ended July 1, 2001. This decrease principally reflects (1) a
$3.1 million decrease in incentive compensation costs and (2) a $1.2 million
decrease in deferred compensation expense. The $3.1 million decrease in
incentive compensation is principally due to the non-recurring effect in the
2001 second quarter under our executive bonus plan from the positive impact on
our capitalization and the achievement of certain performance thresholds in the
2001 second quarter, both from the sale of our former beverage businesses. The
deferred compensation expense, which decreased $1.2 million to a reversal of
expense of $0.3 million for the three months ended June 30, 2002 from an expense
of $0.9 million for the three months ended July 1, 2001, represents the net
decrease in the fair value of investments in the Trusts as previously explained
in more detail under "Income (Loss) from Continuing Operations before Income
Taxes and Minority Interests" in the comparison of the six-month periods.
Depreciation and Amortization, Excluding Amortization of Deferred Financing
Costs
Our depreciation and amortization, excluding amortization of deferred
financing costs, increased $0.3 million, or 19%, to $1.7 million for the three
months ended June 30, 2002. This increase reflects $0.4 million of depreciation
in the 2002 second quarter which did not occur in the 2001 second quarter
related to the purchase of an airplane in July 2001 partially offset by $0.2
million of goodwill amortization in the 2001 second quarter which ceased
effective December 31, 2001 in accordance with Statement of Financial Accounting
Standards No. 142, "Goodwill and Other Intangible Assets." The end of goodwill
amortization under Statement 142 will positively impact each of the 2002 third
and fourth quarters by $0.2 million.
Interest Expense
Interest expense decreased $3.0 million, or 31%, to $6.8 million for the
three months ended June 30, 2002 from $9.8 million for the three months ended
July 1, 2001 principally due to interest of $3.1 million recorded in the 2001
second quarter on the estimated income tax liability resulting from our election
to treat certain portions of the sale of our former beverage businesses as an
asset sale for income tax purposes, as previously explained in more detail in
the comparison of the six-month periods.
Income (Loss) From Continuing Operations Before Income Taxes and Minority
Interests
Our income (loss) from continuing operations before income taxes and
minority interests decreased $12.9 million to a loss of $10.0 million for the
three months ended June 30, 2002 from income of $2.9 million for the three
months ended July 1, 2001 due to the effect of the variances explained in the
captions above.
Income Taxes
The benefit from and provision for income taxes represented effective rates
of 13% for the three months ended June 30, 2002 and 67% for the three months
ended July 1, 2001, respectively. The effective benefit rate in the 2002 second
quarter is lower than the United States Federal statutory rate of 35% and the
effective provision rate in the 2001 first half was higher than the 35% rate
principally due to the factors affecting the year-to-date effective rates
previously explained in more detail in the comparison of the six-month periods.
In addition, the 2001 second quarter effective rate reflects the catch-up effect
of a year-to-date increase in the then estimated full-year 2001 effective tax
provision rate from 43% to 47%. The 2002 effective rate reflects the catch-up
effect of the ability to determine the estimated full-year 2002 effective tax
benefit rate of 9% from an actual tax provision of 40% in connection with the
2002 first quarter pretax loss. The change for the 2002 quarter reflects the
fact that as of the end of the of the first quarter we projected a full year tax
provision despite a full year pretax loss whereas we now project a full year tax
benefit due to a higher projected full year pretax loss. The higher projected
loss is principally a result of the significant other than temporary unrealized
losses in investments recognized in the 2002 second quarter as previously
explained.
Minority Interests in Loss of a Consolidated Subsidiary
The minority interests in loss of a consolidated subsidiary was $1.2
million for the three months ended June 30, 2002 compared with none for the
three months ended July 1, 2001 as previously explained in more detail in the
comparison of the six-month periods.
Discontinued Operations
The income from discontinued operations of $38.5 million for the three
months ended July 1, 2001 resulted entirely from adjustments to the previously
recognized estimated gain on disposal of our beverage businesses, as previously
explained in more detail in the comparison of the six-month periods.
Liquidity And Capital Resources
Cash Flows from Continuing Operating Activities
Our consolidated operating activities from continuing operations usedprovided
cash and cash equivalents, which we refer to in this discussion as cash, of $7.5$0.3
million during the sixnine months ended June 30,September 29, 2002 reflecting (1) cash used by
changes in operating assets and liabilities of $9.2 million and (2)despite a net loss of
$8.6 million. These uses were partially offset by$11.1 million due to (1) net operating investment adjustments of $5.8$7.9 million,
(2) net non-cash charges of $2.8$3.4 million and (3) collection of a litigation
settlement receivable of $1.7 million.
Themillion, all partially offset by cash used by
changes in operating assets and liabilities of $9.2
million reflects a $9.4 million decrease in accounts payable and accrued
expenses principally due to the annual payment of previously accrued incentive
compensation.$1.6 million.
The net operating investment adjustments of $5.8$7.9 million consisted
principally of net recognized losses other than from trading securities and
short positions in securities. The non-cash charges of $2.8$3.4 million consisted
principally of depreciation and amortization less deferred income tax benefit
and minority interests in loss of a consolidated subsidiary. Despite the $7.5 million ofThe cash used by
changes in operating activitiesassets and liabilities of $1.6 million reflects a decrease
in accounts payable and accrued expenses of $4.2 million partially offset by
decreases in prepaid expenses of $1.5 million and receivables of $1.1 million.
The decrease in accounts payable and accrued expenses was principally due to the
2002annual payment of previously accrued incentive compensation substantially offset
by the accrual of incentive compensation costs for the first half, we continuenine months of
2002. The decrease in prepaid expenses was principally due to a reduction in
prepaid advertising costs related to our Arby's national cable television
advertising campaign. The decrease in receivables was principally due to the
collection of past due amounts from franchisees.
We expect continued positive cash flows from continuing operating
activities foroperations during the fullfourth
quarter of 2002, fiscal year, excluding the effect of any net purchases of trading securities
which represent the discretionary investment of excess cash.
Working Capital and Capitalization
Working capital, which equals current assets less current liabilities, was
$541.6$536.0 million at June 30,September 29, 2002, reflecting a current ratio, which equals
current assets divided by current liabilities, of 5.4:5.2:1. Working capital
decreased $15.0$20.6 million from $556.6 million at December 30, 2001 principally due
to the reclassification of $12.7$19.2 million of long-term debt to current.
Our total capitalization at June 30,September 29, 2002 was $628.9$619.5 million
consisting of stockholders' equity of $327.2$323.9 million and $301.7$295.6 million of
long-term debt, including current portion. Our total capitalization decreased
$17.2$26.6 million from $646.1 million at December 30, 2001 principally due to (1)
repayments of long-term debt of $12.0$18.1 million, (2) a net loss of $8.6$11.1 million,
(3) repurchases of $3.1 million of our common stock discussed below under
"Treasury Stock Purchases" and (3)(4) adjustments of $1.1 million in deriving
comprehensive loss from net loss, all partially offset by proceeds of $3.3$5.4
million from stock option exercises.
Securitization Notes
We have outstanding Securitization Notes with a remaining principal balance
of $264.5$259.7 million as of June 30,September 29, 2002 which are due no later than December
2020. However, based on current projections and assuming the adequacy of
available funds, as defined under the indenture for the Securitization Notes, we
currently estimate that we will repay $9.8$4.9 million during the second half of 2002 fourth
quarter with increasing annual payments to $37.4 million in 2011 in accordance
with a targeted principal payment schedule.
The Securitization Notes were issued by our subsidiary Arby's Franchise
Trust, which we refer to as Arby's Trust. The indenture contains various
covenants which (1) require periodic financial reporting, (2) require meeting a
debt service coverage ratio test and (3) restrict, among other matters, (a) the
incurrence of indebtedness, (b) asset dispositions and (c) the payment of
distributions. Arby's Trust was in compliance with all of these covenants as of
June 30,September 29, 2002. As of June 30,September 29, 2002, the indenture restricted Arby's
Trust had $2.2 million available for
the payment offrom paying any distributions through its parent to Arby's which, in turn,
would be available to Arby's to pay management service fees or Federal income
tax-sharing payables to Triarc or, to the extent of any excess, make
distributions to Triarc through the parent of Arby's. On October 21, 2002, $2.5
million relating to the cash flows for the calendar month of September became
available for the payment of distributions by Arby's Franchise Trust.
Other Long-Term Debt
We have a secured bank term loan payable through 2008 with an outstanding
principal amount of $19.9$19.1 million as of June 30,September 29, 2002. We also have an
8.95% secured promissory note payable through 2006 with an outstanding principal
amount of $14.2$13.8 million as of June 30,September 29, 2002.
Our total scheduled long-term debt repayments during the remaining six
months of 2002 fourth
quarter are $12.4$6.2 million consisting principally of the $9.8$4.9 million expected to
be paid under the Securitization Notes, $1.6$0.8 million due on the secured bank
term loan and $0.9$0.4 million due on the 8.95% secured promissory note.
Guaranties and Commitments
Our wholly-owned subsidiary, National Propane Corporation, retains a less
than 1% special limited partner interest in our former propane business, now
known as AmeriGas Eagle Propane, L.P., which we refer to as AmeriGas Eagle.
National Propane Corporation, whose principal asset is a $30.0 million
intercompany note receivable from Triarc, agreed that while it remains a special
limited partner of AmeriGas Eagle, it would indemnify the owner of AmeriGas
Eagle for any payments the owner makes related to the owner's obligations under
certain of the debt of AmeriGas Eagle, aggregating approximately $138.0 million
as of June 30,September 29, 2002, if AmeriGas Eagle is unable to repay or refinance such
debt, but only after recourse by the owner to the assets of AmeriGas Eagle. We
believe it is unlikely that we will be called upon to make any payments under
this indemnity. In August 2001, AmeriGas Propane, L.P., which we refer to as
AmeriGas Propane, purchased all of the interests in AmeriGas Eagle other than
our special limited partner interest. Either National Propane Corporation or
AmeriGas Propane may require AmeriGas Eagle to repurchase the special limited
partner interest. However, we believe it is unlikely that either party would
require repurchase prior to 2009 as either AmeriGas Propane would owe us tax
indemnification payments if AmeriGas Propane required the repurchase or we would
accelerate payment of deferred taxes associated with our July 1999 sale of the
propane business if National Propane required the repurchase.
In 1997 Arby's sold all of its 355 then company-owned restaurants. The
purchaser of the restaurants assumed substantially all of the associated
operating and capitalized lease obligations (approximately $69.0$68.0 million as of
June 30,September 29, 2002, assuming the purchaser has made all scheduled payments
through that date under suchthese lease obligations), although Arby's remains
contingently liable if the purchaser does not make the required future lease
payments. In connection with such sale, Triarc guaranteed $54.7 million of
mortgage and equipment notes payable to FFCA Mortgage Corporation that were
assumed by the purchaser. Outstanding obligations under the mortgage and
equipment notes approximated $43.0 million as of June 30,September 29, 2002. Triarc is
also a guarantor of $0.5 million as of June 30,September 29, 2002 of mortgage and
equipment notes included in our long-term debt for which one of our subsidiaries
is co-obligor with the purchaser of the restaurants.
In January 2000 we guaranteedWe guarantee a $6.7 million portion of senior notes issued by Encore to a
major financial institution. During the 2002 first half,nine months of 2002, the
outstanding principal amount of these notes was reduced from $10.0 million to
$7.2 million as the lender forgave $2.8 million of principal and $2.5 million of
related accrued interest upon an investment by certain existing stockholders,
including us, of $5.0 million in newly-issued convertible preferred stock of
Encore. Our portion of the preferred stock investment was $0.9 million and
certain of our present and former officers, including entities controlled by
them, invested an aggregate of $1.6 million. Our guarantee will be reduced by
(1) any repayment of these senior notes, (2) any purchases of these senior notes
by us and (3) the amount of certain investment banking or financial advisory
services fees paid to the financial institution by us, Encore or another
significant stockholder of Encore or any of their affiliates. Some of our
present and former officers, including entities controlled by them, who
collectively owned 15.7% of Encore at the time of Encore's initial public
offering in July 1999 are not parties to this note guaranty and could indirectly
benefit from it.
In addition to the note guaranty, we and certain other stockholders of
Encore, including our present and former officers referred to above who had
invested in Encore prior to its initial public offering, on a joint and several
basis, have entered into guaranties and agreements to guarantee up to $15.0
million of revolving credit borrowings of a subsidiary of Encore. We would be
responsible for approximately $1.8 million assuming the full $15.0 million was
borrowed and all of the parties, besides us, to the guaranties of the revolving
credit borrowings and certain related agreements fully perform thereunder. We
are informed that asAs of
Junethe end of Encore's 2002 third quarter on September 30, 2002, Encore had $8.3$7.5
million of outstanding revolving credit borrowings. At June 30,September 29, 2002 we had
a $15.1$15.0 million interest-bearing deposit in a custodial account at the financial
institution providing the revolving credit facility. Under the guaranties of the
revolving credit borrowings, this deposit is subject to set off under certain
circumstances if the parties to these guaranties of the revolving credit
borrowings and related agreements fail to perform their obligations thereunder.
Encore has encountered cash flow and liquidity difficulties in the past.
However, Encore's capital was positively impacted by the debt forgiveness and
capital investment discussed above. Encore has also returned to profitability,
reporting net income available to common stockholders infor its 2002 first quarter,
representing Encore's most recent results publicly available at this time.nine-month period
ended September 30, 2002. While it is not currently possible to determine if
Encore may default on any of its obligations, we believe that it is possible,
but not probable, that we will be required to make payments under the note
guaranty and/or the bank guaranties.
Capital Expenditures
Cash capital expenditures amounted to less than $0.1 million during the
sixnine months ended June 30,September 29, 2002. We expect that cash capital expenditures
will approximate $0.2be less then $0.1 million for the remaining six monthsremainder of 2002 for which there were no
outstanding commitments as of June 30,September 29, 2002. In addition, during the first
nine months of 2002, second quarter, we purchased a fractional interest in the use of a
helicopter for $1.2 million in conjunction with the termination of a lease of a
helicopter.helicopter
lease.
Acquisitions and Investments
On July 17, 2002, weWe have submitted a revised bidproposal to acquire the second largest franchisee of
Arby's restaurants, Sybra, Inc. and its affiliate, Sybra of Connecticut, Inc.,
which are subsidiaries of I.C.H. Corporation which we collectively refer to as
Sybra. Previously on May 1, 2002, we announced that
weSybra owns and operates 239 Arby's restaurants. ICH and Sybra had submitted our original bid to acquire Sybra. Sybra and ICH filed
for protection under chapter 11 of the United States Bankruptcy Code on February
5, 2002 in order to restructure their financial obligations. We filed a proposed
chapter 11 plan of reorganization for ICH/Sybra ownswhich, as amended most recently
on October 23, 2002, provides for our purchase of Sybra in exchange for $8.0
million to be paid to ICH's general unsecured creditors and operates 239 Arby's restaurantsour agreement to pay
certain other amounts which, based on estimates prepared by ICH/Sybra, are not
expected to be substantial. In addition, we will invest $14.5 million, less the
amount necessary to fund the certain other amounts referred to above, in Sybra,
which amount will be used to pay Sybra's unsecured creditors and to fund working
capital requirements. Furthermore, we will make available to, or obtain for,
Sybra a $5.0 million financing facility for each of three years following the
acquisition (up to $15.0 million in the aggregate) to fund any operating
shortfalls of Sybra. Sybra will remain exclusively liable for its long-term debt
and capital lease obligations which aggregated approximately $104.0 million as
of December 31, 2001, the most recent date for which this information is
available. ICH/Sybra filed its own chapter 11 plan of reorganization which, as
amended most recently on October 17, 2002, proposes the secondacquisition of Sybra by
an affiliate of RTM, Inc., the largest franchisee of Arby's restaurants. Under the revised bid, we offered to make a $14.5 million
investment in Sybra on terms to be agreed upon. In addition, we offered to make
approximately $3.5 million available to be paid to ICH's creditors. That bid
expired unaccepted on July 26, 2002. On July 29, 2002, Sybra notified us of its
intention to proceed with a plan of reorganization pursuant to which Sybra would
be acquired by an entity controlled by our largest franchisee and Sybra's
incumbent senior management. On August 1, 2002, we filed a motion with theThe
bankruptcy court seeking to terminatepresiding over the exclusive right of Sybra/ICH to
propose a reorganization plan and seeking the right to propose a competing plan
of reorganization pursuant to which ICH/Sybra would be acquired by us. On August 7,
2002, we agreed with the official committee of unsecured creditors of ICH and
Sybra that any plan of reorganization offered by us or any further offer by us
to acquire Sybra would provide that we would make not less than $4.5 million
available to be paid to ICH's non-insider general unsecured creditors. Oral
arguments on our motion were heard on August 8, 2002, at which time the court
terminated ICH's and Sybra's exclusive right to file a plan of reorganization.
The court alsochapter 11 cases set a deadline of September 13, 2002hearing for
the competing bidders to
file their proposed plans and scheduled hearings on October 7,November 25, 2002 to determine
the adequacy of the disclosure statements for those plans and November 12, 2002
to determine whichconsider approval of the competing plans is to be approved.chapter 11 plans. At
this time, it is not possible to determine the outcome of the hearing and, as a
result, our efforts to acquire Sybra.
As of June 30,September 29, 2002, we have $658.2$658.4 million of cash, cash equivalents
and investments, including $39.6$37.8 million of investments classified as
non-current and net of $14.6$14.4 million of short-term investments sold with an
obligation for us to purchase included in "Accrued expenses" in our accompanying
condensed consolidated balance sheet. We also had $32.5 million of restricted
cash equivalents including $30.5 million held in a reserve account related to
the Securitization Notes. The non-current investments include $22.7 million of
investments in the Trusts designated to satisfy the deferred compensation
awarded in December 2000 which is payable to related parties. We continue to
evaluate strategic opportunities for the use of our significant cash and
investment position, including additional business acquisitions, repurchases of
Triarc common shares (see "Treasury Stock Purchases" below) and investments.
Income Taxes
We are not currently under examination by the Internal Revenue Service and
our Federal income tax returns have not been examined for years subsequent to
1993.
Treasury Stock Purchases
Our management is currently authorized, when and if market conditions
warrant, to repurchase up to $50.0 million of our class A common stock under a
stock repurchase program that, as extended, ends on January 18, 2003. Under this
program, we repurchased 149,000 shares for a total cost of $3.5 million during
our fiscal year 2001. We did not repurchase any shares during the 2002 first
half. However, we repurchased2001 and 125,000 shares for a total cost of $3.1 million in our
first nine months of 2002. Additionally, we repurchased 164,500 shares for a
total cost of $3.9 million during Julyour fiscal October month ended October 27,
2002. We cannot assure you that we will repurchase any additional shares under
the remaining $43.4$39.5 million authorized under this program.
Discontinued Operations
The agreement relating to the October 25, 2000 sale of our former beverage
businesses provides for a post-closing adjustment, the amount of which is in
dispute. The purchaser has stated that it currently believes that it is entitled
to receive from us a post-closing adjustment of $27.6$23.2 million and we, on the
other hand, have stated that we currently believe that we are entitled to
receive from the purchaser a post-closing adjustment of $5.6$0.8 million, in each
case plus interest at 7.19% from October 25, 2000. We are in arbitration with
the purchaser to determine the amount of the post-closing adjustment. We expect
the arbitration process to be completed in the fourthfirst quarter of 2002.2003.
Cash Requirements
As of June 30,September 29, 2002, our consolidated cash requirements for continuing
operations for the remaining six months of 2002 fourth quarter, exclusive of operating cash flow
requirements, consist principally of (1) the cost of business acquisitions, if
any, including the potential acquisition of Sybra, (2) scheduled debt principal
repayments aggregating $12.4$6.2 million and (3) a maximum of $46.5$43.4 million of
payments for repurchases of our class A common stock for treasury under our
current stock repurchase program, of which $3.1$3.9 million of repurchases were made
in July 2002 and (4) capital expenditures of approximately $0.2 million. Our
consolidated cash requirements relating to discontinued operations for the
second half of 2002 consist principally of the post-closing adjustment, if any,
of up to $27.6 million plus related accrued interest in connection with the sale
of our former beverage businesses.October 2002. We anticipate meeting all of these requirements through (1) an
aggregate $618.6$620.7 million of existing cash and cash equivalents and short-term
investments, net of $14.6$14.4 million of short-term investments sold with an
obligation for us to purchase, and (2) cash flows from continuing operating
activities.
Legal and Environmental Matters
In 2001, a vacant property owned by Adams Packing Association, Inc., a
non-operating subsidiary of ours, was listed by the United States Environmental
Protection Agency on the Comprehensive Environmental Response, Compensation and
Liability Information System, ("CERCLIS")which we refer to as CERCLIS, list of known or
suspected contaminated sites. The CERCLIS listing appears to have been based on
an allegation that a former tenant of Adams Packing conducted drum recycling
operations at the site from some time prior to 1971 until the late 1970s. The
business operations of Adams Packing were sold in December 1992. In October
2001, an environmental consultant engaged by the Florida Department of
Environmental Protection, which we refer to as the Florida DEP, conducted a
preliminary investigation of the site, including soil and groundwater sampling.
A final report by the environmental consultant received in April 2002 identified
contamination of the soil and groundwater at the site and indicated that the
environmental consultant believed that further unspecified action is warranted
at the site. Adams Packing has engaged anits own environmental consultant that,
is currently conductingunder the supervision of the Florida DEP, has conducted a further investigation
of the site pursuant to an agreement with the Florida Department of Environmental
Protection. The investigation by Adams Packing's environmental consultant isthat was intended to determinedevelop additional information on the extent
and nature of the soil and groundwater contamination and the appropriate
remediation for that contamination. This investigation is
currently at an early stage andAdams Packing's environmental consultant has
submitted to the nature and extentFlorida DEP a summary of the results of this investigation with
a proposal for remediation and monitoring of the identified contamination. The
Florida DEP has responded by requesting certain additional investigative and
remedial work. Adams Packing currently intends to negotiate a work plan that will ultimately be required cannot be determined with exact certainty. However,
basedis
acceptable to the Florida DEP and is not materially more costly than Adams
Packing's original proposal which is estimated to cost approximately $1.0
million. Based on athe preliminary cost estimate developed by the environmental consultantand Adams Packing's intent to
negotiate a work plan that does not materially exceed that estimate, and after
taking into consideration various legal defenses available to us, including
Adams Packing, Adams Packing has provided for its estimate of its liability for
this matter, which is included in the total reserves forincluding related legal and environmental matters set forth below.consulting fees.
As discussed more fully in our Form 10-K, on March 23, 1999 a stockholder
filed a complaint against us and the Executives on behalf of persons who held
our class A common stock which, as amended, alleges that our tender offer
statement filed with the Securities and Exchange Commission, pursuant to which
we repurchased 3.8 million shares of our class A common stock for $18.25 per
share, was materially false and misleading. We andOn October 17, 2002 this action was
dismissed by the Executives have moved for
summary judgment dismissing the action and the plaintiffcourt presiding over this matter. The stockholder has moveduntil
November 25, 2002 to certifyfile a class. The court is scheduled to hear argument on the motions on August 26,
2002.notice of appeal.
In addition to the environmental matter and stockholder lawsuit described
above, we are involved in other litigation and claims incidental to our
business. We and our subsidiaries have reserves for all of these legal and
environmental matters aggregating $3.0$2.8 million as of June 30,September 29, 2002.
Although the outcome of these matters cannot be predicted with certainty and
some of these matters may be disposed of unfavorably to us, based on currently
available information, including legal defenses available to Triarc and/or its
subsidiaries, and given the aforementioned reserves, we do not believe that the
outcome of these legal and environmental matters will have a material adverse
effect on our consolidated financial position or results of operations.
Seasonality
Our continuing operations are not significantly impacted by seasonality.
However, our restaurant franchising royalty revenues are somewhat higher in our
fourth quarter and somewhat lower in our
first quarter.
Recently Issued Accounting Pronouncements
In June 2001, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 143, "Accounting for Asset Retirement
Obligations." Statement 143 addresses financial accounting and reporting for
legal obligations associated with the retirement of tangible long-lived assets
and the associated asset retirement costs. Statement 143 requires that the
discounted fair value of an asset retirement obligation be recorded as a
liability in the period in which it is incurred or as soon thereafter as a
reasonable estimate of fair value can be made, with a corresponding increase to
the carrying amount of the long-lived asset. The capitalized cost is depreciated
over the useful life of the related asset. The provisions of Statement 143 are
effective starting with the first quarter of 2003. We do not believe that any of
our tangible long-lived assets presently have material associated retirement
obligations and, accordingly, we do not expect that the adoption of Statement
143 will have any immediate effect on our consolidated financial position or
results of operations.
In April 2002, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 145, "Rescission of FASB Statements No. 4,
44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections."
Statement 145 most significantly rescinds Statement 4, "Reporting Gains and
Losses from Extinguishment of Debt," which required that gains and losses from
extinguishment of debt that were included in the determination of net income be
aggregated and, if material, classified as an extraordinary item, net of related
tax effect. Under Statement 145, any gains and losses from extinguishment of
debt will be classified as extraordinary items only if they meet the criteria in
Accounting Principles Board Opinion No. 30, "Reporting the Results of Operations
- - Reporting the Effects of Disposal of a Segment of a Business, and
Extraordinary, Unusual and Infrequently Occurring Events and Transactions."
Those criteria specify that extraordinary items must be both unusual in their
nature and infrequent in their occurrence. The provisions of Statement 145 with
respect to the rescission of Statement 4 must be adopted no later than our
fiscal year beginning December 30, 2002 with early adoption encouraged and
require that prior periods presented be reclassified accordingly. Upon adoption
of Statement 145, we expect that any future period charges relating to the early
extinguishment of debt will not meet the criteria of extraordinary items under
Opinion 30 and, therefore, will be reported as a component of costs and expenses
on a pretax basis with any applicable income tax benefit included in our
provision for or benefit from income taxes. This change in classification would
not have any impact on our reported net income or loss. We reported an
extraordinary charge of $20.7 million, net of tax benefit of $12.3 million, for
the year ended December 31, 2000. We currently do not plan to early adopt this
statement; however should we decide to early adopt, we would be required to
reclassify the extraordinary charge for the 2000 fiscal year in our Form 10-K
for the year endedending December 29, 2002 in accordance with the provisions of
Statement 145.
In June 2002, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 146, "Accounting for Costs Associated with
Exit or Disposal Activities." Statement 146 replaces the previous accounting
guidance provided by Issue No. 94-3, "Liability Recognition for Certain Employee
Termination Benefits and Other Costs to Exit an Activity (including Certain
Costs Incurred in a Restructuring)," of the Emerging Issues Task Force of the
Financial Accounting Standards Board. Under Statement 146, costs associated with
exit or disposal activities will be recognized when they are incurred rather
than at the date of a commitment to an exit or disposal plan under Issue 94-3.
Examples of costs covered by Statement 146 include contract termination costs,
including leases, and certain employee severance costs that are associated with
a restructuring, discontinued operation, plant closing, or other exit or
disposal activity. Statement 146 is to be applied prospectively to exit or
disposal activities initiated after December 31, 2002. Since we do not presently
have any exit or disposal plans, Statement 146 was only
recently issued and we have not yet evaluated the potential impact it will have
on us. However, since it is to be applied prospectively to activities initiated
after December 31, 2002, it will not have any immediate
effect on our consolidated financial position or results of operations.
Item 3. Quantitative and Qualitative Disclosures about Market Risk
This "Quantitative and Qualitative Disclosures about Market Risk" should be
read in conjunction with "Item 7A. Quantitative and Qualitative Disclosures
about Market Risk" in our annual report on Form 10-K for the fiscal year ended
December 30, 2001. Item 7A of our Form 10-K describes in more detail our
objectives in managing our "Interest Rate Risk" with respect to long-term debt
and our "Foreign Currency Risk," both as referred to below.
Certain statements we make under this Item 3 constitute "forward-looking
statements" under the Private Securities Litigation Reform Act of 1995. See
"Special Note Regarding Forward-Looking Statements and Projections" in "Part II
- - Other Information" preceding "Item 1."
We are exposed to the impact of interest rate changes, changes in the
market value of our investments and, to a lesser extent, foreign currency
fluctuations.
Policies and procedures - In the normal course of business, we employ
established policies and procedures to manage our exposure to changes in
interest rates, changes in the market value of our investments and fluctuations
in the value of foreign currencies using financial instruments we deem
appropriate.
Interest Rate Risk
Our objective in managing our exposure to interest rate changes is to limit
the impact of interest rate changes on earnings and cash flows. We generally use
interest rate caps or interest rate swap agreements on a portion of our
variable-rate debt to limit our exposure to the effects of increases in
short-term interest rates on earnings and cash flows. We did not enter into any
new interest rate caps or swaps during the 2002 first half.nine months of 2002. As of
June 30,September 29, 2002, our long-term debt, including current portion, aggregated
$301.7$295.6 million and consisted of $281.8$276.5 million of fixed-rate debt and $19.9$19.1
million of a variable-rate bank loan. The fair market value of our fixed-rate
debt will increase if interest rates decrease. In addition to our fixed-rate and
variable-rate debt, our investment portfolio includes debt securities that are
subject to interest rate risk with maturities which range from less than one
year to nearly thirty years. The fair market value of all of our investments in
debt securities will decline if interest rates increase.
Equity Market Risk
Our objective in managing our exposure to changes in the market value of
our investments is to balance the risk of the impact of such changes on earnings
and cash flows with our expectations for long-term investment returns. Our
primary exposure to equity price risk relates to our investments in equity
securities, equity derivatives, securities sold with an obligation for us to
purchase and investment limited partnerships and similar investment entities. We
have established policies and procedures governing the type and relative
magnitude of investments we may make. We have a management investment committee
whose duty it is to supervisewhich generally supervises the investment of funds not currently required for
the Company's operations and the Company's Board of Directors establishes
certain investment policies to be followed bywith respect to the management investment committee.of
such funds.
Foreign Currency Risk
We had no significant changes in our management of, or our exposure to,
foreign currency fluctuations during the 2002 first half.nine months of 2002.
Overall Market Risk
We balance our exposure to overall market risk by investing a portion of
our portfolio in cash and cash equivalents with relatively stable and
risk-minimized returns. We periodically interview and select asset managers to
avail ourselves of higher, but more risk-inherent, returns from the investment
strategies of these managers. We also seek to identify alternative investment
strategies that may earn higher returns with attendant increased risk profiles
for a portion of our investment portfolio. As a result of the relatively low
levels of interest rates currently available on risk-minimized investments, weWe continue to evaluate whether to
adjust our asset allocations to increase the portion of our investments which
offer the opportunity for higher, but more risk-inherent, returns and lower the
portion of our risk-minimized investments. We periodically review the returns
from each of our investments and may maintain, liquidate or increase selected
investments based on this review and our assessment of potential future returns.
We maintain investment portfolio holdings of various issuers, types and
maturities. As of June 30,September 29, 2002 such investments consisted of the following
(in thousands):
Cash equivalents included in "Cash and cash equivalents" on the
accompanying condensed consolidated balance sheet...........sheet...............$ 440,552440,593
Short-term investments........................................... 185,916
---------investments............................................ 190,869
----------
Total cash equivalents and short-term investments........... 626,468investments............ 631,462
Restricted cash equivalents...................................... 32,485equivalents....................................... 32,484
Non-current investments.......................................... 39,621
---------investments........................................... 37,755
----------
$ 698,574
=========701,701
==========
Our cash equivalents are short-term, highly liquid investments with
maturities of three months or less when acquired and consisted of money market
mutual funds, interest-bearing brokerage and bank accounts with a stable value
and commercial paper of high credit quality. Our short-term investments included
$79.7 million of United States government and government agency debt securities
with maturities ranging from nine months to two years when acquired. This $79.7
million together with our cash equivalents are highly liquid investments and
combined constitute over 83%82% of our total cash equivalents and short-term
investments shown above.
At June 30,September 29, 2002 our investments are classified in the following
general types or categories (in thousands):
Carrying Value
Fair Value or -------------------------------------------
Type Cost Equity Amount Percentage
---- ---- ------ ------ ----------
Cash equivalents..................................equivalents.................................$ 440,552440,593 $ 440,552440,593 $ 440,552 63 %440,593 63%
Restricted cash equivalents....................... 32,485 32,485 32,485equivalents...................... 32,484 32,484 32,484 5
Securities accounted for as:
Trading securities.............................. 24,370 19,928 19,928securities............................. 24,798 18,786 18,786 3
Available-for-sale securities................... 146,094 145,854 145,854 21securities.................. 152,412 152,260 152,260 22
Non-current investments held in deferred
compensation trusts accounted for at cost.......cost...... 22,671 24,98324,836 22,671 3
Other current and non-current investments in
investment limited partnerships and similar
investment entities accounted for at:
Cost......................................... 22,507 34,233 22,507Cost........................................ 22,444 34,585 22,444 3
Equity.......................................Equity...................................... 2,975 3,437 3,437 13,250 3,250 --
Other non-current investments accounted for at:
Cost......................................... 10,269 10,740 10,269Cost........................................ 8,136 8,611 8,136 1
Equity.......................................Equity...................................... 4,046 871 8711,077 1,077 --
--------- --------- ---------- ---------------- ---------- -----
Total cash equivalents and long investment
positions......................................positions.....................................$ 705,969710,559 $ 713,083716,482 $ 698,574 100 %
========= =========701,701 100%
========== ================ ========== =====
Securities sold with an obligation for us to
purchase accounted for as trading securities....securities...$ (17,294)(17,856) $ (14,574)(14,440) $ (14,574)(14,440) N/A
========= ========= ========== ================ ==========
Our marketable securities are classified and accounted for either as
"available-for-sale" or "trading" and are reported at fair market value with the
resulting net unrealized holding gains or losses, net of income taxes, reported
as a separate component of comprehensive income or loss bypassing net income or
included as a component of net income or loss, respectively. Investment limited
partnerships and similar investment entities and other non-current investments
in which we do not have significant influence over the investee are accounted
for at cost (see below). Realized gains and losses on investment limited
partnerships and similar investment entities and other non-current investments
recorded at cost are reported as investment income or loss in the period in
which the securities are sold. Investment limited partnerships and similar
investment entities and other non-current investments in which we have
significant influence over the investeeinvestees are accounted for in accordance with
the equity method of accounting under which our results of operations include
our share of the income or loss of each such investee.of the investees. We review all of our
investments in which we have unrealized losses for any unrealized losses deemed
to be other than temporary. We recognize an investment loss currently for any
suchresulting other than temporary loss with a permanent reduction in the cost basis
component of the investment. The cost of investments reflected in the table
above represents original cost less unrealized losses that were deemed to be
other than temporary.
Sensitivity Analysis
For purposes of this disclosure, market risk sensitive instruments are
divided into two categories: instruments entered into for trading purposes and
instruments entered into for purposes other than trading. Our measure of market
risk exposure represents an estimate of the potential change in fair value of
our financial instruments. Market risk exposure is presented for each class of
financial instruments held by us at June 30,September 29, 2002 for which an immediate
adverse market movement representscauses a potential material impact on our financial
position or results of operations. We believe that the rates of adverse market
movements described below represent the hypothetical loss to future earnings and
do not represent the maximum possible loss nor any expected actual loss, even
under adverse conditions, because actual adverse fluctuations would likely
differ. In addition, since our investment portfolio is subject to change based
on our portfolio management strategy as well as market conditions, these
estimates are not necessarily indicative of the actual results which may occur.
The following table reflects the estimated effects on the market value of
our financial instruments as of June 30,September 29, 2002 based upon assumed immediate
adverse effects as noted below (in thousands).
Trading Purposes:
Carrying Equity
Value Price Risk
----- ----------
Equity securities.........................................................securities............................................................$ 18,66718,109 $ (1,867)(1,811)
Debt securities........................................................... 1,261 (126)securities.............................................................. 677 (68)
Securities sold with an obligation to purchase............................ (14,574) 1,457purchase............................... (14,440) 1,444
The debt securities included in the trading portfolio are entirely
investments in convertible bonds which primarily trade on the conversion feature
of the securities rather than the stated interest rate and, as such, there is no
material interest rate risk since a change in interest rates of one percentage
point would not have a material impact on our consolidated financial position or
results of operations. The securities included in the trading portfolio
denominated in foreign currency total less than $1.0 million and, accordingly,
there is no significant foreign currency risk.
The sensitivity analysis of financial instruments held for trading purposes
assumes an instantaneous 10% decrease in the equity markets in which we are
invested from their levels at June 30,September 29, 2002 with all other variables held
constant. For purposes of this analysis, our debt securities, which are entirely
convertible bonds, were assumed to primarily trade based upon the conversion
feature of the securities and be perfectly correlated with the assumed equity
index.
Other Than Trading Purposes:
Carrying Interest Equity Foreign
Value Rate Risk Price Risk Currency Risk
----- --------- ---------- -------------
Cash equivalents..................................equivalents....................................$ 440,552440,593 $ (14) $ -- $ --
Restricted cash equivalents....................... 32,485equivalents......................... 32,484 -- -- --
Available-for-sale United States government
and government agency debt securities.......... 79,657 (797)securities............ 79,668 (598) -- --
Available-for-sale corporate debt securities...... 11,158 (37)securities........ 15,172 (62) -- --
Available-for-sale asset-backed securities........ 23,541 (2,119)securities.......... 24,971 (1,935) -- --
Available-for-sale equity securities.............. 23,429securities................ 24,180 -- (2,343)(2,418) --
Available-for-sale debt mutual fund............... 8,069 (161)fund................. 8,269 (165) -- --
Other investments................................. 59,755 (1,584) (2,967) (158)investments................................... 57,578 (1,566) (3,053) (155)
Long-term debt.................................... 301,763 (13,145)debt...................................... 295,635 (13,539) -- --
Interest rate swap agreement in a payable position........................................ 737 (423)position.. 1,262 (471) -- --
Written call option on common stock............... 5 -- (59) --
The sensitivity analysis of financial instruments held at June 30,September 29,
2002 for purposes of other than trading assumes an instantaneous change in
market interest rates of one percentage point and an instantaneous 10% decrease
in the equity markets in which we are invested, both with all other variables
held constant. For purposes of this analysis, our debt investments are assumed
to have average maturities as set forth below. Cash equivalents consisted of
$429.6 million of money market funds and interest-bearing brokerage and bank
accounts which are designed to maintain a stable value, and as a result are
assumed to have no interest rate risk, and $11.0 million of commercial paper
with maturities of three months or less when acquired which are assumed to have
an average maturity of 45 days. Restricted cash equivalents were invested in
money market funds and are assumed to have no interest rate risk since theythose
funds are designed to maintain a stable value. United States government and
government agency debt securities consist of several securities with maturities
ranging from nine months to two years when acquired and are assumed to have an
average remaining maturity of one year.nine months. Corporate debt securities consisted
almost entirely of short-term commercial paper and are assumed to have an
average maturity of 120150 days. Asset-backed securities have expected maturities
ranging from slightly less than two years to thirty years when acquired and are assumed
to have an average remaining maturity of nineseven and three-quarters years. Our
debt mutual fund has underlying investments with an average duration of
approximately two years and, accordingly, is assumed to have an average maturity
of two years. The interest rate risk reflects, for each of these debt
investments, the impact on our results of operations. At the time these
securities mature and, assuming we reinvested in similar securities, the effect
of the interest rate risk of one percentage point above their levels at
June 30,September 29, 2002 would continue beyond the maturities assumed.
The interest rate risk presented with respect to our long-term debt relates
to only our fixed-rate debt and represents the potential impact the indicated
change has on the fair value of such debt and not on our financial position or
our results of operations. The fair value of our variable-rate debt approximates
the carrying value since the floating interest rate resets monthly. However, we
have an interest rate swap agreement but with an embedded written call option on
our variable-rate debt. As interest rates decrease, the fair market values of
the interest rate swap agreement and the written call option both decrease but
not necessarily by the same amount. The interest rate risk presented with
respect to the interest rate swap agreement represents the potential impact the
indicated change has on the net fair value of the swap agreement and embedded
written call option and on our financial position and results of operations.
For investments in investment limited partnerships and similar investment
entities accounted for at cost and other non-current investments which trade in
public markets included in "Other investments" in the table above, the
sensitivity analysis assumes (1) the investment mix for each such investment
between equity versus debt securities and securities denominated in United
States dollars versus foreign currencies generally was unchanged since December
30, 2001 since more current information was not available and (2) the decrease
in the equity markets and the change in foreign currency rates were other than
temporary. To the extent such entities invest in convertible bonds which
primarily trade on the conversion feature of the securities rather than the
stated interest rate, this analysis assumed equity price risk and no interest
rate risk. Further, this analysis assumed no market risk for other investments,
other than investment limited partnerships and similar investment entities and
other non-current investments which trade in public equity markets. TheThis
analysis also assumes an instantaneous 10% change in the foreign currency
exchange rates versus the United States dollar from their levels at June 30,September
29, 2002, with all other variables held constant.
We also have a written call option on our class A common stock which
effectively arose upon the assumption of our zero coupon convertible subordinated debentures
by the purchaser of our former beverage businesses.
Although the debentures were assumed by the purchaser, theybusinesses which remain convertible into
our class A common stock. The equity risk presented with respectpurchaser of our former beverage businesses is
required to take all actions reasonably necessary to call these debentures for
redemption in February 2003. The fair value of this written call option representsis
insignificant as of September 29, 2002 and the associated equity risk is also
insignificant with respect to the potential impact of an instantaneous 10%
increase in the price of our class A common stock on the fair value of the
written call option and on our financial position and results of operations.
PartItem 4. Controls and Procedures
Our management, including our Chairman and Chief Executive Officer and our
Chief Financial Officer, evaluated the effectiveness of our disclosure controls
and procedures within 90 days prior to the filing date of this quarterly report.
Based upon that evaluation, our Chairman and Chief Executive Officer and Chief
Financial Officer concluded that our disclosure controls and procedures are
effective to ensure that information required to be included in the reports we
file or submit under the Securities Exchange Act of 1934 is recorded, processed,
summarized and reported as and when required. No significant changes were made
to our internal controls or in other factors that could significantly affect
these controls subsequent to the date of their evaluation.
PART II. Other InformationOTHER INFORMATION
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS AND PROJECTIONS
This Quarterly Report on Form 10-Q contains or incorporates by reference
certain statements that are not historical facts, including, most importantly,
information concerning possible or assumed future results of operations of
Triarc Companies, Inc. and its subsidiaries (collectively "Triarc" or the
"Company") and those statements preceded by, followed by, or that include the
words "may," "believes," "expects," "anticipates," or the negation thereof, or
similar expressions, that constitute "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995 (the "Reform
Act"). All statements which address operating performance, events or
developments that are expected or anticipated to occur in the future, including
statements relating to revenue growth, earnings per share growth or statements
expressing general optimism about future operating results, are forward-looking
statements within the meaning of the Reform Act. These forward-looking
statements are based on our current expectations, speak only as of the date of
this Form 10-Q and are susceptible to a number of risks, uncertainties and other
factors. Our actual results, performance and achievements may differ materially
from any future results, performance or achievements expressed or implied by
such forward-looking statements. For those statements, we claim the protection
of the safe-harbor for forward-looking statements contained in the Reform Act.
Many important factors could affect our future results and could cause those
results to differ materially from those expressed in the forward-looking
statements contained herein. Such factors include, but are not limited to, the
following:
o Competition, including pricing pressures, the potential impact
of competitors' new units on sales by franchisees and
consumers' perceptions of the relative quality, variety and
value of the food products offered;
o Success of operating initiatives;
o Development and operating costs;
o Advertising and promotional efforts;
o Brand awareness;
o The existence or absence of positive or adverse publicity;
o Market acceptance of new product offerings;
o New product and concept development by competitors;
o Changing trends in consumer tastes and preferences (including
changes resulting from health or safety concerns with respect
to the consumption of beef, french fries or other foods) and
in spending and demographic patterns;
o The business and financial viability of key franchisees;
o Availability, location and terms of sites for restaurant development
by franchisees;
o The ability of franchisees to open new restaurants in
accordance with their development commitments, including the
ability of franchisees to finance restaurant development;
o The ability to identify, attract and retain potential
franchisesfranchisees with sufficient experience and financial resources
to develop and operate
multiple Arby's restaurants;
o Changes in business strategy or development plans;
o Quality of the Company's and franchisees' management;
o Availability, terms and deployment of capital;
o Business abilities and judgment of the Company's and franchisees' personnel;
o Availability of qualified personnel to the Company and to franchisees;
o Labor and employee benefit costs;
o Availability and cost of raw materials, ingredients and
supplies and the potential impact on royalty revenues and
franchisees' restaurant level sales that could arise from
interruptions in the distribution of supplies of food and
other products to franchisees;
o General economic, business and political conditions in the countries
and territories in which franchisees operate;
o Changes in or failure to comply with, government regulations, including franchising laws,
accounting standards, environmental laws and taxation requirements;
o The costs, uncertainties and other effects of legal, environmental and
administrative proceedings;
o The impact of general economic conditions on consumer
spending, including a slower consumer economy, the effects of the events of
September 11, 2001 and the effects
of war or other terrorist activities;
o Adverse weather conditions; and
o Other risks and uncertainties referred to in Triarc's Annual
Report on Form 10-K for the fiscal year ended December 30,
2001 (see especially "Item 1. Business - Risk Factors" and
"Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations") and in our other current
and periodic filings with the Securities and Exchange
Commission, all of which are difficult or impossible to
predict accurately and many of which are beyond our control.
We will not undertake and specifically decline any obligation to publicly
release the result of any revisions which may be made to any forward-looking
statements to reflect events or circumstances after the date of such statements
or to reflect the occurrence of anticipated or unanticipated events. In
addition, it is our policy generally not to make any specific projections as to
future earnings, and we do not endorse any projections regarding future
performance that may be made by third parties.
Item 1. Legal Proceedings
As discussed in our Annual Report on Form 10-K for the fiscal year ended
December 30, 2001, (the "Form 10-K") and in our Quarterly Reports on Form 10-Q
for the quarterly periods ended March 31, 2002 and June 30, 2002, a vacant
property owned by our indirect subsidiary, Adams Packing Association, Inc., was
listed by the U.S. Environmental Protection Agency on the Comprehensive
Environmental Response, Compensation and Liability Information System
("CERCLIS") list of known or suspected contaminated sites. The CERCLIS listing
appears to have been based on an allegation that a former tenant of Adams
Packing conducted drum recycling operations at the site from some time prior to
1971 until the late 1970's. The business operations of Adams Packing were sold
in December 1992. In October
2001,Adams Packing has engaged an environmental consultant engaged bythat,
under the supervision of the Florida Department of Environmental Protection (the
"FDEP"), has conducted a preliminary investigation of
the site, including soil and groundwater sampling. Adams Packing has been orally
informed that a purpose of the preliminary investigation was to determine
whether the property should be included on the National Priorities List ("NPL")
created under the Comprehensive Environmental Response Compensation and
Liability Act ("CERCLA"). The NPL is a listing of sites where known and
threatened releases of hazardous substances have been identified and these
sites, on the basis of an evaluation of relative risk or danger to the public
health or the environment, have been assigned a numerical rating which exceeds a
threshold established for inclusion on the NPL. A final report by the
environmental consultant received in April 2002 identified contamination of the
soil and groundwater at the site and indicated that the environmental consultant
believed that further unspecified action is warranted at the site. Adams Packing
has engaged an environmental consultant that is currently conducting further investigation of the site pursuant to an agreement with the Florida Department
of Environmental Protection. The investigation by Adams Packing's environmental
consultant isthat was intended to
determinedevelop additional information on the extent and nature of the soil and
groundwater contamination and the appropriate remediation for that
contamination. This
investigation is currently at an early stage andAdams Packing's environmental consultant has submitted to the
nature and extentFDEP a summary of the results of this investigation with a proposal for
remediation and monitoring of the identified contamination. The FDEP has
responded by requesting certain additional investigative and remedial work.
Adams Packing currently intends to negotiate a work plan that will ultimately be required cannot be determined with exact
certainty. However, basedis acceptable to
the FDEP and is not materially more costly than Adams Packing's original
proposal. Based on a preliminary cost estimate of approximately $1.0 million,
developed by Adams Packing's environmental consultant with respect to its
proposal, Adams Packing's current intent to negotiate a work plan the cost of
which does not materially exceed that amount and Adams Packing's current reserve
levels, and after taking into consideration various legal defenses available to
us and/or Adams Packing, the cost of further investigation and remediation at
the site is not expected to have a material adverse effect on our consolidated
financial position or results of operations.
As discussed in our Form 10-K, on March 23, 1999, Norman Salsitz, a
stockholder of Triarc, filed a complaint against the Company, Nelson Peltz and
Peter May in the United States District Court for the Southern District of New
York. The Defendants have movedOn October 17, 2002, the Court entered orders granting the defendants'
motion for summary judgment and denying the Plaintiffplaintiff's motion for class
certification. The plaintiff has moveduntil November 25, 2002 to certifyfile a class. The Court is scheduled to hear argument on the motions on
August 26, 2002.
Item 4. Submissionnotice of
Matters to a Vote of Security Holders
On June 4, 2002, Triarc held its Annual Meeting of Stockholders. At the
Annual Meeting, Nelson Peltz, Peter W. May, Hugh L. Carey, Clive Chajet, Joseph
A. Levato, David E. Schwab II, Jeffrey S. Silverman, Raymond S. Troubh, and
Gerald Tsai, Jr. were elected to serve as Directors. At the Annual Meeting, the
stockholders also approved proposal 2, the 2002 Equity Participation Plan, and
proposal 3, ratifying the appointment of Deloitte & Touche LLP as Triarc's
independent certified public accountants.
The voting on the above matters is set forth below:
Nominee Votes For Votes Withheld
------- --------- --------------
Nelson Peltz 18,483,695 398,170
Peter W. May 18,484,695 397,170
Hugh L. Carey 18,484,675 397,190
Clive Chajet 18,485,515 396,350
Joseph A. Levato 18,410,129 471,736
David E. Schwab II 18,485,515 396,350
Jeffrey S. Silverman 18,485,388 396,477
Raymond S. Troubh 18,485,515 396,350
Gerald Tsai, Jr. 18,485,345 396,520
Proposal 2 - There were 8,859,250 votes for, 6,678,633 votes against, and
54,585 abstentions.
Proposal 3 - There were 18,463,138 votes for, 393,708 votes against, and
25,018 abstentions.appeal.
Item 5. Other Events
Proposed Acquisition of Sybra, Inc.
On July 17,As discussed in our Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 2002 and June 30, 2002, the Company submitted a revised bidis attempting to
acquire Sybra, Inc. and its affiliate, Sybra of Connecticut, Inc. (collectively,
"Sybra"), subsidiaries of I.C.H. Corporation ("ICH"). Previously on May 1, 2002, the
Company announced that it had submitted its original bid to acquire Sybra. Sybra and ICH filed for
protection under chapter 11 of the United States Bankruptcy Code on February 5,
2002 in order to restructure their financial obligations. Sybra owns and
operates 239 Arby's restaurants and is the second largest franchisee of
Arby'sArby's(R) restaurants. Under the revised bid, the Company offered to
make a $14,500,000 investment in Sybra on terms to be agreed upon. In addition,
the Company offered to make approximately $3,500,000 available to be paid to
ICH's creditors. That bid expired unaccepted on July 26, 2002. On July 29, 2002,
Sybra notified the Company of its intention to proceed with a plan of
reorganization pursuant to which Sybra would be acquired by an entity controlled
by the Company's largest franchisee and Sybra's incumbent senior management. On
August 1, 2002, the Company filed a motion with the bankruptcy court seeking to
terminate the exclusive right of Sybra/ICH to propose a reorganization plan and
seeking the right to propose a competing plan of reorganization pursuant to
which Sybra would be acquired by the Company. On August 7, 2002, the Company
agreed with the official committee of unsecured creditors of ICH and Sybra that
any plan of reorganization offered by the Company or any further offer by the
Company to acquire Sybra would provide that the Company would make not less than
$4,500,000 available to be paid to ICH's non-insider general unsecured
creditors. Oral arguments on the Company's motion were heard on August 8, 2002, at which time the Bankruptcy Court presiding over
the Sybra/ICH chapter 11 cases terminated ICH's and Sybra's exclusive right to
file a chapter 11 plan of reorganization.reorganization, specifically authorizing the Company
to file its own chapter 11 plan for ICH/Sybra, which would provide for the
Company's purchase of 100% of the equity of Sybra from ICH. The Bankruptcy Court also
set a deadline of September 13, 2002 for the competing biddersCompany and ICH/Sybra to file their
respective proposed chapter 11 plans and scheduled hearings ona hearing for October 7, 2002
to determine the adequacy of the disclosure statements for those plans. On
September 13, 2002, the Company filed its proposed chapter 11 plan for
ICH/Sybra, which plan was amended on October 17, 2002 and October 23, 2002. The
Company's amended chapter 11 plan provides for the Company's payment of $8.0
million in cash to ICH's general unsecured creditors and the Company's agreement
to pay certain other amounts to satisfy ICH's priority and administrative claim
obligations (the "Administrative/Priority Obligations", which amounts, based on
the estimates prepared by ICH/Sybra, are not expected to be substantial). In
addition, the Company will invest $14.5 million, less the amount necessary to
fund the Administrative/Priority Obligations, in Sybra, which amount will be
used to pay Sybra's unsecured creditors and to fund working capital needs.
Furthermore, the Company will make available to, or obtain for, Sybra a $5
million financing facility for each of three years following the acquisition (up
to $15 million in the aggregate) to fund any operating shortfalls of Sybra.
Sybra will remain exclusively liable for its long-term debt and capital lease
obligations (which aggregated approximately $104 million as of December 31,
2001). ICH/Sybra filed its own chapter 11 plan on September 13, 2002, which it
amended on October 4, 2002 and on October 17, 2002. On October 7, 2002, the
Bankruptcy Court determined that the disclosure statements for the competing
chapter 11 plans andwould be approved subject to certain disclosure modifications.
The Court then set a hearing for November 12,25, 2002 to determine whichconsider approval of the
competing plans ischapter 11 plans. Thus, the Company's proposed chapter 11 plan for
ICH/Sybra remains subject to be
approved.approval of the Bankruptcy Court and the creditors
of ICH/Sybra. At this time, it is not possible to determine with certainty the
outcome of our efforts to acquire Sybra.
Stock Repurchase Program
On January 18, 2001, our management was authorized, when and if market
conditions warrant, to purchase from time to time up to an aggregate of
$50,000,000 of our Class A Common Stock pursuant to a $50,000,000 stock
repurchase program that was initially scheduled to end on January 18, 2002. In
December 2001, the term of the stock repurchase program was extended until
January 18, 2003. As of August 10,During fiscal 2002, Triarc hadhas repurchased 274,000289,500 shares of
Class A Common Stock pursuant to the stock repurchase program, at an average
cost of approximately $24.21$24.14 per share (including commissions) for an aggregate
cost of approximately $7,000,000. As of November 11, 2002, Triarc had
repurchased a total of 438,500 shares of Class A Common Stock pursuant to the
stock repurchase program, at an average cost of approximately $23.89 per share
(including commissions), for an aggregate cost of approximately $6,630,000,
pursuant$10,473,700.
Sale of Beverage Business
As reported in our Form 10-K, on October 25, 2000, we completed the sale of
our beverage business by selling all the outstanding capital stock of Snapple
Beverage Group, Inc. and Royal Crown Company, Inc. to affiliates of Cadbury
Schweppes plc. The purchase and sale agreement for the stock repurchase program.transaction provided for
a post-closing adjustment, the amount of which is in dispute. Cadbury initially
stated that it believed that it was entitled to receive from us a post-closing
adjustment of approximately $27.6 million, and we initially stated, on the other
hand, that we believed that we were entitled to receive from Cadbury a
post-closing adjustment of approximately $5.6 million, in each case plus
interest from the closing date. An arbitrator was selected by Triarc and Cadbury
for the purpose of determining the amount of the post-closing adjustment. On
September 6, 2002 we filed a submission with the arbitrator in which we stated
that we believe that we are entitled to receive from Cadbury a post-closing
adjustment of approximately $0.8 million, plus interest from the closing date.
On October 21, 2002, Cadbury filed a submission with the arbitrator in which it
stated that it believes that it is entitled to receive from us a post-closing
adjustment of approximately $23.2 million, plus interest from the closing date.
We currently expect the post-closing adjustment process to be completed during
the first quarter of 2003.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.1 - By-laws of Triarc Companies, Inc. as currently in effect,
incorporated herein by reference to Exhibit 3.1 to Triarc's
Current Report on Form 8-K dated November 12, 2002 (SEC file no.
1-2207).
(b) Report on Form 8-K
The Registrant furnished a report on Form 8-K on August 13, 2002, which
included information under Item 9 of such form.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TRIARC COMPANIES, INC.
(Registrant)
Date: August 13,November 12, 2002 By: /S/ FRANCIS T. McCARRON
----------------------------MCCARRON
---------------------------------------
Francis T. McCarron
Senior Vice President and
Chief Financial Officer
(On behalf of the Company)
Date: November 12, 2002 By: /S/ FRED H. SCHAEFER
----------------------------------------------------------------
Fred H. Schaefer
Senior Vice President and
Chief Accounting Officer
(Principal accounting officer)Accounting Officer)
CERTIFICATION
I, Nelson Peltz, the Chairman and Chief Executive Officer of Triarc
Companies, Inc., certify that:
1. I have reviewed this quarterly report on Form 10-Q of Triarc Companies,
Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this quarterly
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this quarterly report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our evaluation
as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal controls
subsequent to the date of our most recent evaluation, including any corrective
actions with regard to significant deficiencies and material weaknesses.
Date: November 12, 2002 /S/ NELSON PELTZ
-------------------------------------
Nelson Peltz
Chairman and Chief Executive Officer
CERTIFICATION
I, Francis T. McCarron, the Senior Vice President and Chief Financial
Officer of Triarc Companies, Inc., certify that:
1. I have reviewed this quarterly report on Form 10-Q of Triarc Companies,
Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this quarterly
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this quarterly report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our evaluation
as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal controls
subsequent to the date of our most recent evaluation, including any corrective
actions with regard to significant deficiencies and material weaknesses.
Date: November 12, 2002 /S/ FRANCIS T. MCCARRON
-------------------------------------
Francis T. McCarron
Senior Vice President and
Chief Financial Officer
Exhibit Index
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Exhibit
No. Description Page No.
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3.1 - By-laws of Triarc Companies, Inc. as currently
in effect, incorporated herein by reference to
Exhibit 3.1 to Triarc?s Current Report on Form 8-K
dated November 12, 2002 (SEC file no. 1-2207).