UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
| [X] | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| For the fiscal year ended December 31, 2005 | |
| 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 1-5039 |
WEIS MARKETS, INC.
(Exact name of registrant as specified in its charter)
| PENNSYLVANIA (State or other jurisdiction of incorporation or organization) | 24-0755415 (I.R.S. Employer Identification No.) | |
| 1000 S. Second Street P. O. Box 471 Sunbury, Pennsylvania (Address of principal executive offices) | 17801-0471 (Zip Code) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class Common stock, no par value | Name of each exchange on which registered New York Stock Exchange | |
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [ ] No [X]
Indicate by check mark if the registrant is not required to file pursuant to Section 13 or Section 15(d) of the Act. Yes [ ] No [X]
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X]
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of "accelerated filer and large accelerated filer" in Rule 12b-2 of the Exchange Act.
Large accelerated filer [ ] Accelerated filer [X] Non-accelerated filer [ ]
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes [ ] No [X]
The aggregate market value of Common Stock held by non-affiliates of the Registrant is approximately $533,467,000 as of June 24, 2005, the last business day of the most recently completed second quarter.
Shares of common stock outstanding as of March 1, 2006 - 27,021,000.
DOCUMENTS INCORPORATED BY REFERENCE: Selected portions of the Weis Markets, Inc. definitive proxy statement dated March 3, 2006 are incorporated by reference in Part III of this Form 10-K.
Item 1. Business:
Weis Markets, Inc. is a Pennsylvania business founded by Harry and Sigmund Weis in 1912 and incorporated in 1924. The company is engaged principally in the retail sale of food in Pennsylvania and surrounding states. There was no material change in the nature of the company's business during fiscal 2005. The company's stock has been traded on the New York Stock Exchange since 1965 under the symbol "WMK." The Weis family currently owns approximately 64% of the outstanding shares. Robert F. Weis serves as Chairman of the Board of Directors, and Jonathan H. Weis, son of Robert F. Weis, serves as Vice Chairman and Secretary. Both are involved in the day-to-day operations of the business.
On May 7, 2001, the company repurchased approximately 14.5 million shares of its common stock from the family of the late Sigfried Weis for approximately $434.3 million in cash.
The company's retail food stores sell groceries, dairy products, frozen foods, meats, seafood, fresh produce, floral, prescriptions, deli/bakery products, prepared foods, fuel and general merchandise items, such as health and beauty care and household products. In addition, customer convenience is addressed at many locations by offering services such as third parties providing in-store banks, laundry services and take-out restaurants. The company advertises through various media, including circulars, newspapers, radio and television. Printed circulars are used extensively on a weekly basis to advertise featured items. The company utilizes a loyalty card program, "Weis Club Preferred Shopper," which provides shoppers with an opportunity to receive discounts, promotions and rewards. The company currently owns and operates 157 retail food stores and a chain of 31 SuperPetz, LLC pet supply stores. Since year-end, one retail food store and one pet supply store were closed.
The percentage of net sales contributed by each class of similar products for each of the previous five fiscal years was:
| Year | Grocery | Meat | Produce | Pharmacy | Pet Supply | Other |
| 2005 | 53.93 | 16.18 | 14.79 | 10.21 | 2.70 | 2.19 |
| 2004 | 53.91 | 16.19 | 14.58 | 10.45 | 2.98 | 1.89 |
| 2003 | 54.55 | 15.70 | 14.67 | 10.28 | 3.18 | 1.62 |
| 2002 | 55.39 | 15.29 | 14.73 | 9.83 | 3.28 | 1.48 |
| 2001 | 57.74 | 15.54 | 12.95 | 8.89 | 3.25 | 1.63 |
Retail food store locations by state and by trade name as of year-end are as follows:
| Mr. Z's | King's | Cressler's | Scot's | ||||
| State | Total | Weis Markets | Food Mart | Supermarkets | Marketplace | Lo-Cost | Save-A-Lot |
| Pennsylvania | 129 | 101 | 17 | 6 | 1 | 3 | 1 |
| Maryland | 23 | 23 | |||||
| New Jersey | 3 | 3 | |||||
| New York | 1 | 1 | |||||
| Virginia | 1 | 1 | |||||
| West Virginia | 1 | 1 | |||||
| Total | 158 | 130 | 17 | 6 | 1 | 3 | 1 |
Page 1 of 32 (Form 10-K)
Item 1. Business: (continued)
All trade names, except Scot's Lo-Cost and Save-A-Lot, operate as conventional supermarkets. Scot's Lo-Cost operates under a warehouse format, while Save-A-Lot's format caters to the price motivated consumer. The retail food stores range in size from 8,000 to 66,000 square feet, with an average size of approximately 46,000 square feet. The following summarizes the number of stores by size categories as of year-end:
| Square feet | Number of stores |
| 55,000 to 66,000 | 23 |
| 45,000 to 54,999 | 79 |
| 35,000 to 44,999 | 34 |
| 25,000 to 34,999 | 14 |
| Under 25,000 | 8 |
| Total | 158 |
The following schedule shows the changes in the number of retail food stores, total square footage and store additions/remodels as of year-end:
| 2005 | 2004 | 2003 | 2002 | 2001 | |||||||
| Beginning store count | 157 | 158 | 160 | 163 | 163 | ||||||
| New stores | 1 | 1 | --- | 1 | 2 | ||||||
| Relocations | 1 | 2 | 1 | 3 | --- | ||||||
| Closed stores | --- | (2 | ) | (2 | ) | (2 | ) | (2 | ) | ||
| Relocated stores | (1 | ) | (2 | ) | (1 | ) | (3 | ) | --- | ||
| Sold | --- | --- | --- | (2 | ) | --- | |||||
| Ending store count | 158 | 157 | 158 | 160 | 163 | ||||||
| Total square feet (000's), at year-end | 7,280 | 7,183 | 7,157 | 7,154 | 7,168 | ||||||
| Additions/major remodels | 3 | 2 | 4 | 5 | 6 | ||||||
The company supports the retail operations through a centrally located distribution facility, its own transportation fleet and four manufacturing facilities. The company is required to use a significant amount of working capital to provide for the necessary amount of inventory to meet demand for its products through efficient use of buying power and effective utilization of space in the warehouse facilities. The manufacturing facilities consist of a meat processing plant, an ice cream plant, an ice plant and a milk processing plant.
At year-end, SuperPetz, LLC operated 2 stores in Alabama, 1 store in Georgia, 1 store in Indiana, 1 store in Kentucky, 1 store in Maryland, 2 stores in Michigan, 6 stores in Ohio, 1 store in North Carolina, 8 stores in Pennsylvania, 5 stores in South Carolina, and 4 stores in Tennessee.
The business of the company is highly competitive. The number of competitors and the variety of competition experienced by the company's stores vary by market area. National, regional and local food chains, as well as independent food stores comprise the company's principal competition, although the company also faces substantial competition from convenience stores, membership warehouse clubs, specialty retailers, supercenters and large-scale drug and pharmaceutical chains. The company competes based on price, quality, location and service.
The company currently has approximately 18,600 full-time and part-time associates.
Page 2 of 32 (Form 10-K)
Item 1. Business: (continued)
The company maintains a web site at www.weismarkets.com. The company makes available, free of charge, on the "Corporate Info" section of its web site, its annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after the company electronically files such material or furnishes it to the U.S. Securities and Exchange Commission ("SEC").
Additionally, the company's annual reports and corporate governance materials, including governance guidelines; the charters of the Audit and Compensation Committees, as well as the Disclosure Committee Bylaws; and both the Code of Business Conduct and Ethics and the Code of Ethics for the CEO and CFO, may be found under the "Corporate Info" section of its web site. A copy of the foregoing corporate governance materials is available upon written request to the company's principal executive offices.
In addition to risks and uncertainties in the ordinary course of business common to all businesses, important factors are listed below specific to the company and its industry, which could materially impact its future performance.
Competition: The retail food industry is intensely price competitive, and the competition the company encounters may have a negative impact on product retail prices. The financial results may be adversely impacted by a competitive environment that could cause the company to reduce retail prices without a reduction in its product cost to maintain market share; thus reducing sales and gross profit margins.
Trade Area: The company's stores are concentrated in central and northeast Pennsylvania, central Maryland and suburban Baltimore regions. Changes in economic and social conditions in the company's operating regions, including the rate of inflation, population demographics and employment and job growth, affect customer shopping habits. These changes may negatively impact sales and earnings. In addition, employment conditions specifically may affect the company's ability to hire and train qualified associates. Business disruptions due to weather and catastrophic events historically have been few. The company's geographic regions could receive an extreme variance in the amount of annual snowfall that may materially affect sales and expense results.
Execution of Expansion Plans: In 2006, the company expects to invest $90.6 million for capital expenditures, which includes all store, distribution and manufacturing projects and equipment purchases. The company is planning to build six superstores, including four replacement units and will continue to invest in its existing store base with fifteen additions and seventeen remodels. Circumstances outside the company's control could negatively impact these anticipated capital investments. The company cannot determine with certainty whether its new stores will be successful. The failure to expand by successfully opening new stores as planned, or the failure of a significant number of these stores to perform as planned, could have a material adverse effect on the company's business and results of its operations.
Operating Costs: Associate expenses attribute to the majority of its operating costs and therefore, the company's financial performance is greatly influenced by increasing wage and benefit costs, a competitive labor market and the risk of unionized labor disruptions of its non-union workforce. The company's profit is particularly sensitive to the cost of oil. Oil prices directly affect the company's product transportation costs, as well as its utility and petroleum-based supply costs. The company is extremely concerned about the continuing rise in interchange fees for accepting credit card payments at the point of sale.
Self-Insurance Exposure: The company is self-insured for a majority of its workers' compensation, general liability, vehicle accident and associate medical benefit claims. The company is liable for associate health claims up to a lifetime aggregate of $1,000,000 per member and for workers' compensation claims up to $2,000,000 per claim. Property and casualty insurance coverage is maintained with outside carriers at deductible or retention levels ranging from $250,000 to $2,000,000. Although the company has minimized its exposure on individual claims, the company, for the benefit of cost savings, has accepted the risk of an unusual amount of independent multiple material claims arising and having a significant impact on earnings.
Taxes: The company's future effective tax rate may increase from current rates due to changes in laws and the status of pending items with various taxing authorities.
Page 3 of 32 (Form 10-K)
Item 1b. Unresolved Staff Comments:
There are no unresolved staff comments.
The company currently owns and operates 82 of its retail food stores, and leases and operates 75 stores under operating leases that expire at various dates through 2024. SuperPetz leases all 31 of its retail store locations. The company owns all trade fixtures and equipment in its stores and several parcels of vacant land, which are available as locations for possible future stores or other expansion.
The company owns and operates one distribution center in Milton, Pennsylvania of approximately 1,110,000 square feet, and one in Northumberland, Pennsylvania totaling approximately 76,000 square feet. The company also owns one warehouse complex in Sunbury, Pennsylvania totaling approximately 564,000 square feet of which 290,000 is sublet. The company operates an ice cream plant, meat processing plant, ice plant and milk processing plant in the remaining 274,000 square feet at its Sunbury location.
Item 3. Legal Proceedings:
Neither the company nor any subsidiary is presently a party to, nor is any of their property subject to, any pending legal proceedings, other than routine litigation incidental to the business.
Item 4. Submission of Matters to a Vote of Security Holders:
There were no matters submitted to a vote of security holders during the fourth quarter of 2005.
Page 4 of 32 (Form 10-K)
Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities:
The company's stock is traded on the New York Stock Exchange (ticker symbol WMK). The approximate number of shareholders, including individual participants in security position listings, on December 31, 2005 as provided by the company's transfer agent was 5,551. High and low stock prices and dividends paid per share for the last two fiscal years were:
| 2005 | 2004 | |||||
| Stock Price | Dividend | Stock Price | Dividend | |||
| Quarter | High | Low | Per Share | High | Low | Per Share |
| First | $39.15 | $36.12 | $.28 | $37.09 | $31.50 | $.28 |
| Second | 38.95 | 36.34 | .28 | 35.60 | 32.80 | .28 |
| Third | 41.68 | 37.14 | .28 | 36.05 | 31.01 | 1.28 |
| Fourth | 44.15 | 36.80 | .28 | 39.90 | 33.42 | .28 |
Item 6. Selected Financial Data:
The following selected historical financial information has been derived from the company's audited consolidated financial statements. This information should be read in connection with the company's Consolidated Financial Statements and the Notes thereto, as well as "Management's Discussion and Analysis of Financial Condition and Results of Operations," included in Item 7.
Five Year Review of Operations
| 53 Weeks | 52 Weeks | 52 Weeks | 52 Weeks | 52 Weeks | ||||||
| (dollars in thousands, except shares, per share amounts and store information) | Ended | Ended | Ended | Ended | Ended | |||||
| Dec. 31, 2005 | Dec. 25, 2004 | Dec. 27, 2003 | Dec. 28, 2002 | Dec. 29, 2001 | ||||||
| Net sales | $ | 2,222,598 | $ | 2,097,712 | $ | 2,042,499 | $ | 1,999,364 | $ | 1,971,665 |
| Costs and expenses | 2,143,037 | 2,025,527 | 1,971,878 | 1,919,957 | 1,908,725 | |||||
| Income from operations | 79,561 | 72,185 | 70,621 | 79,407 | 62,940 | |||||
| Investment and other income | 19,745 | 15,418 | 17,583 | 15,279 | 18,907 | |||||
| Income before provision for income taxes | 99,306 | 87,603 | 88,204 | 94,686 | 81,847 | |||||
| Provision for income taxes | 35,885 | 30,412 | 33,628 | 35,537 | 31,792 | |||||
| Net income | 63,421 | 57,191 | 54,576 | 59,149 | 50,055 | |||||
| Retained earnings, beginning of year | 702,714 | 702,961 | 678,294 | 648,522 | 1,069,986 | |||||
| 766,135 | 760,152 | 732,870 | 707,671 | 1,120,041 | ||||||
| Stock purchase and cancellation | --- | --- | --- | --- | 434,317 | |||||
| Cash dividends | 30,270 | 57,438 | 29,909 | 29,377 | 37,202 | |||||
| Retained earnings, end of year | $ | 735,865 | $ | 702,714 | $ | 702,961 | $ | 678,294 | $ | 648,522 |
| Weighted-average shares outstanding, diluted | 27,033,789 | �� | 27,098,276 | 27,186,277 | 27,202,435 | 32,298,696 | ||||
| Cash dividends per share | $ | 1.12 | $ | 2.12 | $ | 1.10 | $ | 1.08 | $ | 1.08 |
| Basic and diluted earnings per share | $ | 2.35 | $ | 2.11 | $ | 2.01 | $ | 2.17 | $ | 1.55 |
| Working capital | $ | 163,669 | $ | 137,872 | $ | 162,305 | $ | 114,937 | $ | 102,331 |
| Total assets | $ | 788,487 | $ | 748,482 | $ | 744,315 | $ | 716,699 | $ | 704,185 |
| Long-term obligations | $ | --- | $ | --- | $ | --- | $ | --- | $ | 25,000 |
| Shareholders' equity | $ | 603,857 | $ | 571,700 | $ | 575,448 | $ | 552,432 | $ | 525,364 |
| Number of grocery stores | 158 | 157 | 158 | 160 | 163 | |||||
| Number of pet supply stores | 32 | 33 | 33 | 33 | 33 |
Page 5 of 32 (Form 10-K)
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations:
Company Overview
Weis Markets, Inc. was founded in Sunbury, Pennsylvania in 1912. Today it is ranked in the top 50 food and drug retailers in the United States in terms of revenues generated. At the end of fiscal 2005, the company was operating 158 retail food stores and 32 pet supply stores in Pennsylvania and surrounding states. Company revenues, income and cash flows are generated in the retail food stores from the sale of a wide variety of consumer products including groceries, dairy products, frozen foods, meats, seafood, fresh produce, floral, prescriptions, deli/bakery products, prepared foods, fuel, general merchandise, health and beauty care and household products. The pet supply stores offer a broader assortment of pet supply products compared to the company's retail food stores. The company supports its retail operations through a centrally located distribution facility, transportation fleet, four manufacturing facilities and its administrative offices.
The following analysis should be read in conjunction with Financial Statements included in the 2005 Quarterly Reports on Form 10-Q and the 2004 Annual Report on Form 10-K filed with the U. S. Securities and Exchange Commission, as well as the cautionary statement captioned "Forward-Looking Statements" immediately following this analysis.
Results of Operations
Total company sales in the 53-week year ending December 31, 2005 of $2.223 billion, increased $124.9 million or 6.0% compared to sales of $2.098 billion generated in fiscal 2004, a 52-week year. Excluding the one additional week in the current year, comparable store sales increased 4.0% compared to 2004. Sales in 2004 increased 2.7%, or $55.2 million, compared to 2003, also a 52-week year. Comparable store sales in 2004 increased 3.0% compared to 2003.
When calculating the percentage change in comparable store sales, the company defines a new store to be comparable the week following one full year of operation. Relocated stores and stores with expanded square footage are included in comparable sales since these units are located in existing markets and are open during construction. When a store is closed, sales generated from that unit in the prior year are subtracted from total company sales starting the same week of closure in the prior year and continuing from that point forward.
The sales increases in the years presented were driven by growth in store square footage, customer count, sales per customer transaction and inflation. The favorable sales results were heavily impacted by a continuing strong performance from the store perishable departments in all three years. The company generated similar percentage increases from its non-perishable or center store sales in 2005 as it did with perishable department sales. Although the company experienced some product cost inflation in 2005, management does not feel it can accurately measure the full impact of product inflation and deflation on retail pricing due to changes in the types of merchandise sold between periods, shifts in customer buying patterns and the fluctuation of competitive factors.
Gross profit dollars generated from sales in 2005 increased $37.0 million, or 6.7%, to $586.5 million compared to 2004, which increased $12.9 million compared to 2003. Gross profit as a percentage of sales remained consistent at 26.4%, 26.2% and 26.3% in 2005, 2004 and 2003, respectively.
Cost of sales consists of direct product costs (net of discounts and allowances), warehouse costs, transportation costs and manufacturing facility costs. In the past several years, many vendors have converted promotional incentives to reimbursements based upon sales movement data recorded at the point of sale rather than for cases purchased. Management expects this to be a continuing trend that will have no impact on the company's overall gross profit results.
The company continues to implement operational initiatives to reduce inventory shrink losses in its retail facilities and will begin installation of a new exception reporting and performance management application in the first quarter of 2006 to further improve company gross profit results.
Page 6 of 32 (Form 10-K)
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations: (continued)
Results of Operations (continued)
The company continues to self distribute from its 1.1 million square foot distribution center located in Milton, Pennsylvania. In 2004, the company made a capital investment into ergonomic warehouse racks, improved lighting, and a hands-free voice directed order selection solution in its distribution center. As a result of this investment, the company substantially improved safety conditions, order selection accuracy and associate productivity in 2005. This investment also resulted in better in-stock conditions at store level. In 2005, the company made several transportation improvements reducing the number of store loads by approximately 5.0%, partially negating the impact of increased fuel costs which surged 26.5% compared to 2004. The company also completed the roll out of several other technology initiatives at its distribution center to improve inventory control and labor efficiencies in 2005 including a new tractor and trailer yard management system. In addition, the company completed the installation of on-board computer systems in its trucks, which improves fuel economy, provides real time fleet visibility, monitors engine maintenance requirements and produces driver logs.
Management is unaware of any other events or trends that may materially impact its sales or product costs that would cause a material change to the overall financial operation of the company.
Operating, general and administrative expenses in 2005 increased $29.6 million to $506.9 million, but have remained consistent as a percentage of sales at 22.8% in 2005, 2004 and 2003. Labor and benefit costs, which helped to generate higher sales volume in 2005, accounted for $18.6 million of the total increase in expenses. Utilities increased $3.3 million or 9.5% in 2005 and store supply costs increased $2.2 million or 13.0%, partially due to rising costs for petroleum based products. Interchange fees for accepting credit and debit cards increased $1.5 million or 17.3% in 2005. Depreciation and amortization increased $3.8 million or 8.1% primarily due to higher 2004 capital expenditures and the use of an accelerated depreciation method for both book and tax purposes.
In 2005, the company's investment income increased $1.8 million or 110.8%, to $3.4 million. The company realized a long-term gain of $422,000 on the sale of equities from its investment portfolio during the year. Company funds grew in 2005 as capital expenditures were lower than expected, thus increasing the amount available to be invested in a higher yielding market. In 2004, the company's investment income of $1.6 million increased $397,000, or 32.5%, compared to 2003.
The company's other income is primarily generated from rental income, coupon-handling fees, store service commissions, cardboard salvage, gain or loss on the disposition of fixed assets and interest expense. Other income of $16.3 million, or .7% of sales, increased $2.5 million, or 18.4%, compared to 2004. Other income in 2004 decreased $2.6 million or 15.7%, compared to 2003. In 2004, the company realized a pre-tax loss of $1.4 million on the disposal of fixed assets.
The company's combined federal and state effective income tax rate was 36.1% in 2005, 34.7% in 2004 and 38.1% in 2003. During 2003, the Internal Revenue Service completed its routine audit of the company's federal income tax returns for the years 1997 through 2001, and the resulting settlement did not have a material impact on 2003 income tax expense. The company's effective tax rate decreased from 2003 to 2004 due to a change in estimate related to the final settlement of certain income tax audits during 2004, resulting in a $2.5 million increase in net income.
Net income in 2005 was $63.4 million or 2.9% of sales compared to $57.2 million or 2.7% of sales in 2004 and $54.6 million or 2.7% of sales in 2003. Basic and diluted earnings per share of $2.35 in 2005 compared to $2.11 in 2004 and $2.01 in 2003.
Liquidity and Capital Resources
Net cash provided by operating activities was $104.3 million in 2005 compared with $118.2 million in 2004 and $106.1 million in 2003. Working capital increased 18.7% in 2005, decreased 15.1% in 2004, and increased 41.2% in 2003. The considerable decline in working capital in 2004 was primarily due to a special one dollar per share dividend paid to shareholders in September of 2004. Inventory increased $14.3 million in 2005 compared to 2004 and declined $8.5 million in 2004 compared to 2003 primarily due to where the fiscal year-end date fell. In 2004, the fiscal year ended on December 25th after the major holiday selling period. In 2005, the fiscal year ended on December 31st as the company replenished for an upcoming sales program.
Page 7 of 32 (Form 10-K)
Table of Contents
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations: (continued)
Liquidity and Capital Resources (continued)
Net cash used in investing activities was $62.4 million in 2005 compared to $72.1 million in 2004, and $30.6 million in 2003. These funds were used primarily for the purchases of new securities and property and equipment. Property and equipment purchases during fiscal 2005 totaled $55.5 million compared to $82.8 million in 2004 and $35.9 million in 2003. As a percentage of sales, capital expenditures were 2.5%, 3.9% and 1.8% in 2005, 2004 and 2003, respectively.
The company's capital expansion program includes the construction of new superstores, the expansion and remodeling of existing units, the acquisition of sites for future expansion, new technology purchases and the continued upgrade of the company's processing and distribution facilities. Company management estimates that its current development plans will require an investment of approximately $90.6 million in 2006.
Net cash used in financing activities during 2005 was $30.8 million compared to $61.3 million in 2004 and $31.9 million in 2003. In 2002, the company established a three-year unsecured revolving credit agreement for $100 million to provide funds for general corporate purposes including working capital and letters of credit. As of October 18, 2005, the company allowed the Revolving Credit Agreement to expire and outstanding letters of credit under the agreement were refinanced. At December 31, 2005, the company had outstanding letters of credit of $25.9 million.
Total cash dividend payments on common stock, on a per share basis, amounted to $1.12 in 2005 compared to $2.12 in 2004 and $1.10 in 2003. On September 3, 2004, the company paid a special one dollar per share dividend totaling $27.1 million to its shareholders. Treasury stock purchases amounted to $715,000 in 2005, compared to $4.0 million in 2004 and $2.0 million in 2003. The Board of Directors 2004 resolution authorizing the repurchase of up to one million shares of the company's common stock has a remaining balance of 888,624 shares.
The company has no other commitment of capital resources as of December 31, 2005, other than the lease commitments on its store facilities under operating leases that expire at various dates through 2024. The company anticipates funding its working capital requirements and its $90.6 million capital expansion program through internally generated cash flows from operations.
The company's earnings and cash flows are subject to fluctuations due to changes in interest rates as they relate to available-for-sale securities and any future long-term debt borrowings. The company's marketable securities currently consist of Pennsylvania tax-free state and municipal bonds, equity securities and other short-term investments. Certain other short-term investments are classified as cash equivalents on the Consolidated Balance Sheets.
By their nature, these financial instruments inherently expose the holders to market risk. The extent of the company's interest rate and other market risk is not quantifiable or predictable with precision due to the variability of future interest rates and other changes in market conditions. However, the company believes that its exposure in this area is not material.
Under its current policies, the company invests primarily in high-grade marketable securities and does not use interest rate derivative instruments to manage exposure to interest rate fluctuations. Historically, the company's principal investment strategy of obtaining marketable debt securities with maturity dates between one and five years helps to minimize market risk and to maintain a balance between risk and return. The equity securities owned by the company consist primarily of stock held in large capitalized companies trading on public security exchange markets. The company's management continually monitors the risk associated with its marketable securities. A quantitative tabular presentation of risk exposure is located in Item 7a.
Contractual Obligations
The following table represents scheduled maturities of the company's long-term contractual obligations as of December 31, 2005.
| Payments due by period | ||||||||||
| Less than | More than | |||||||||
| (dollars in thousands) | Total | 1 year | 1-3 years | 3-5 years | 5 years | |||||
| Operating leases | $ | 229,570 | $ | 27,700 | $ | 51,537 | $ | 42,544 | $ | 107,789 |
| Total | $ | 229,570 | $ | 27,700 | $ | 51,537 | $ | 42,544 | $ | 107,789 |
Page 8 of 32 (Form 10-K)
WEIS MARKETS, INC.
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations: (continued)
Critical Accounting Estimates
The company has chosen accounting policies that it believes are appropriate to accurately and fairly report its operating results and financial position, and the company applies those accounting policies in a consistent manner. The Significant Accounting Policies are summarized in Note 1 to the Consolidated Financial Statements.
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires that the company makes estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses. These estimates and assumptions are based on historical and other factors believed to be reasonable under the circumstances. The company evaluates these estimates and assumptions on an ongoing basis and may retain outside consultants, lawyers and actuaries to assist in its evaluation. The company believes the following accounting policies are the most critical because they involve the most significant judgments and estimates used in preparation of its consolidated financial statements.
Vendor Allowances
Vendor rebates, credits and promotional allowances that relate to the company's buying and merchandising activities, including lump-sum payments associated with long-term contracts, are recorded as a reduction of cost of sales as they are earned, in accordance with its underlying agreement. Off-invoice and bill-back allowances are used to reduce direct product costs upon the receipt of goods. Volume incentive discounts are realized as a reduction of cost of sales at the time it is deemed probable and reasonably estimable that the incentive target will be reached. Promotional allowance funds for specific vendor-sponsored programs are recognized as a reduction of cost of sales as the program occurs and the funds are earned per the agreement. Cash discounts for prompt payment of invoices are realized in cost of sales as invoices are paid. Warehouse and back-haul allowances provided by suppliers for distributing their product through our distribution system are recorded in cost of sales as the required performance is completed. Warehouse rack and slotting allowances are recorded in cost of sales when new items are initially set up in the company's distribution system, which is when the related expenses are incurred and performance under the agreement is complete. Swell allowances for damaged goods are realized in cost of sales as provided by the supplier, helping to offset product shrink losses also recorded in cost of sales.
Store Closing Costs
The company provides for closed store liabilities relating to the estimated post-closing lease liabilities and related other exit costs associated with the store closing commitments. The closed store liabilities are usually paid over the lease terms associated with the closed stores having remaining terms ranging from one to five years. At December 31, 2005, closed store lease liabilities totaled $1.6 million. The company estimates the lease liabilities, net of sublease income, using the undiscounted rent payments of closed stores. Other exit costs include estimated real estate taxes, common area maintenance, insurance and utility costs to be incurred after the store closes over the remaining lease term. Store closings are generally completed within one year after the decision to close. Adjustments to closed store liabilities and other exit costs primarily relate to changes in subtenants and actual exit costs differing from original estimates. Adjustments are made for changes in estimates in the period in which changes become known. Any excess store closing liability remaining upon settlement of the obligation is reversed to income in the period that such settlement is determined. Inventory write-downs, if any, in connection with store closings, are classified in cost of sales. Costs to transfer inventory and equipment from closed stores are expensed as incurred. Store closing liabilities are reviewed quarterly to ensure that any accrued amount that is no longer needed for its originally intended purpose is reversed to income in the proper period.
Self-Insurance
The company is self-insured for a majority of its workers' compensation, general liability, vehicle accident and associate medical benefit claims. The self-insurance liability for most of the workers' compensation claims is determined based on historical data and an estimate of claims incurred but not reported. The other self-insurance liabilities are determined actuarially, based on claims filed and an estimate of claims incurred but not yet reported. The company is liable for associate health claims up to a lifetime aggregate of $1,000,000 per member and for workers compensation claims up to $2,000,000 per claim. Property and casualty insurance coverage is maintained with outside carriers at deductible or retention levels ranging from $250,000 to $2,000,000. Significant assumptions used in the development of the actuarial estimates include reliance on our historical claims data including average monthly claims and average lag time between incurrence and reporting of the claim.
Page 9 of 32 (Form 10-K)
WEIS MARKETS, INC.
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations: (continued)
Forward-Looking Statements
In addition to historical information, this Annual Report may contain forward-looking statements. Any forward-looking statements contained herein are subject to certain risks and uncertainties that could cause actual results to differ materially from those projected. For example, risks and uncertainties can arise with changes in: general economic conditions, including their impact on capital expenditures; business conditions in the retail industry; the regulatory environment; rapidly changing technology and competitive factors, including increased competition with regional and national retailers; and price pressures. Readers are cautioned not to place undue reliance on forward-looking statements, which reflect management's analysis only as of the date hereof. The company undertakes no obligation to publicly revise or update these forward-looking statements to reflect events or circumstances that arise after the date hereof. Readers should carefully review the risk factors described in other documents the company files periodically with the Securities and Exchange Commission.
Certifications
As required under Section 303A.12(a) of the New York Stock Exchange Listed Company Manual, the company submitted a Chief Executive Officer Certification to the New York Stock Exchange with no qualifications on April 15, 2005. The company filed with the Securities and Exchange Commission the Chief Executive Officer and Chief Financial Officer certifications as required under Section 302 of the Sarbanes-Oxley Act in the prior years as an Exhibit to Form 10-K.
Item 7a. Quantitative and Qualitative Disclosures about Market Risk:
| (dollars in thousands) | Expected Maturity Dates | Fair Value | ||||||||||||||
| December 31, 2005 | 2006 | 2007 | 2008 | 2009 | 2010 | Thereafter | Total | Dec. 31, 2005 | ||||||||
| Rate sensitive assets: | ||||||||||||||||
| Fixed interest rate securities | $ | 5,000 | $ | --- | $ | 1,200 | $ | 2,020 | $ | 4,680 | $ | --- | $ | 12,900 | $ | 13,311 |
| Average interest rate | 3.00 | % | --- | 2.97 | % | 3.19 | % | 3.31 | % | --- | 3.14 | % | ||||
| (dollars in thousands) | Expected Maturity Dates | Fair Value | ||||||||||||||
| December 25, 2004 | 2005 | 2006 | 2007 | 2008 | 2009 | Thereafter | Total | Dec. 25, 2004 | ||||||||
| Rate sensitive assets: | ||||||||||||||||
| Fixed interest rate securities | $ | 5,000 | $ | --- | $ | --- | $ | --- | $ | --- | $ | --- | $ | 5,000 | $ | 5,008 |
| Average interest rate | 1.56 | % | --- | --- | --- | --- | --- | 1.56 | % | |||||||
Other Relevant Market Risks
The company's equity securities at December 31, 2005 had a cost basis of $2,514,000 and a fair value of $9,899,000. The dividend yield realized on these equity investments was 6.92% in 2005. The company's equity securities at December 25, 2004 had a cost basis of $3,091,000 and a fair value of $11,204,000. The dividend yield realized on these equity investments was 5.00% in 2004. Market risk, as it relates to equities owned by the company, is discussed within the "Liquidity and Capital Resources" section of "Management's Discussion and Analysis of Financial Condition and Results of Operations" contained within this report.
Page 10 of 32 (Form 10-K)
Item 8. Financial Statements and Supplementary Data:
| WEIS MARKETS, INC. |
| CONSOLIDATED BALANCE SHEETS |
| (dollars in thousands) |
| December 31, 2005 and December 25, 2004 |
| 2005 | 2004 | |||||
| Assets | ||||||
| Current: | ||||||
| Cash and cash equivalents | $ | 69,300 | $ | 58,234 | ||
| Marketable securities | 23,210 | 16,212 | ||||
| Accounts receivable, net | 38,376 | 36,058 | ||||
| Inventories | 179,382 | 165,044 | ||||
| Prepaid expenses | 6,076 | 4,970 | ||||
| Income taxes recoverable | --- | 1,729 | ||||
| Deferred income taxes | 4,359 | 3,003 | ||||
| Total current assets | 320,703 | 285,250 | ||||
| Property and equipment, net | 446,517 | 441,074 | ||||
| Goodwill | 15,731 | 15,731 | ||||
| Intangible and other assets, net | 5,536 | 6,427 | ||||
| $ | 788,487 | $ | 748,482 | |||
| Liabilities | ||||||
| Current: | ||||||
| Accounts payable | $ | 100,895 | $ | 95,743 | ||
| Accrued expenses | 20,079 | 20,637 | ||||
| Accrued self-insurance | 21,553 | 20,172 | ||||
| Payable to employee benefit plans | 12,487 | 10,826 | ||||
| Income taxes payable | 2,020 | --- | ||||
| Total current liabilities | 157,034 | 147,378 | ||||
| Deferred income taxes | 27,596 | 29,404 | ||||
| Shareholders' Equity | ||||||
| Common stock, no par value, 100,800,000 shares authorized, | ||||||
| 33,002,357 and 32,997,157 shares issued, respectively | 8,371 | 8,199 | ||||
| Retained earnings | 735,865 | 702,714 | ||||
| Accumulated other comprehensive income | 4,296 | 4,747 | ||||
| 748,532 | 715,660 | |||||
| Treasury stock at cost, 5,982,461 and 5,964,330 shares, respectively | (144,675 | ) | (143,960 | ) | ||
| Total shareholders' equity | 603,857 | 571,700 | ||||
| $ | 788,487 | $ | 748,482 | |||
| See accompanying notes to consolidated financial statements. | ||||||
Page 11 of 32 (Form 10-K)
| WEIS MARKETS, INC. |
| CONSOLIDATED STATEMENTS OF INCOME |
| (dollars in thousands, except shares and per share amounts) |
| For the Fiscal Years Ended December 31, 2005, |
| December 25, 2004 and December 27, 2003 | 2005 | 2004 | 2003 | |||
| (53 Weeks) | (52 Weeks) | (52 Weeks) | ||||
| Net sales | $ | 2,222,598 | $ | 2,097,712 | $ | 2,042,499 |
| Cost of sales, including warehousing and distribution expenses | 1,636,137 | 1,548,210 | 1,505,926 | |||
| Gross profit on sales | 586,461 | 549,502 | 536,573 | |||
| Operating, general and administrative expenses | 506,900 | 477,317 | 465,952 | |||
| Income from operations | 79,561 | 72,185 | 70,621 | |||
| Investment income | 3,408 | 1,617 | 1,220 | |||
| Other income, net | 16,337 | 13,801 | 16,363 | |||
| Income before provision for income taxes | 99,306 | 87,603 | 88,204 | |||
| Provision for income taxes | 35,885 | 30,412 | 33,628 | |||
| Net income | $ | 63,421 | $ | 57,191 | $ | 54,576 |
| Weighted-average shares outstanding, basic | 27,026,748 | 27,098,000 | 27,186,277 | |||
| Weighted-average shares outstanding, diluted | 27,033,789 | 27,098,276 | 27,186,277 | |||
| Cash dividends per share | $ | 1.12 | $ | 2.12 | $ | 1.10 |
| Basic and diluted earnings per share | $ | 2.35 | $ | 2.11 | $ | 2.01 |
| See accompanying notes to consolidated financial statements. | ||||||
Page 12 of 32 (Form 10-K)
| WEIS MARKETS, INC. |
| CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY |
| (dollars in thousands, except shares) |
| For the Fiscal Years Ended December 31, 2005, |
| December 25, 2004 and December 27, 2003 | Accumulated | |||||||||||||
| Other | Total | |||||||||||||
| Common Stock | Retained | Comprehensive | Treasury Stock | Shareholders' | ||||||||||
| Shares | Amount | Earnings | Income | Shares | Amount | Equity | ||||||||
| Balance at December 28, 2002 | 32,986,337 | $ | 7,882 | $ | 678,294 | $ | 4,145 | 5,792,800 | $ | (137,889 | ) $ | 552,432 | ||
| Net income | --- | --- | 54,576 | --- | --- | --- | 54,576 | |||||||
| Other comprehensive income, net of reclassification adjustments and tax | --- | --- | --- | 283 | --- | --- | 283 | |||||||
| Comprehensive income | 54,859 | |||||||||||||
| Shares issued for options | 3,170 | 89 | --- | --- | --- | --- | 89 | |||||||
| Treasury stock purchased | --- | --- | --- | --- | 56,789 | (2,023 | ) | (2,023 | ) | |||||
| Dividends paid | --- | --- | (29,909 | ) | --- | --- | --- | (29,909 | ) | |||||
| Balance at December 27, 2003 | 32,989,507 | 7,971 | 702,961 | 4,428 | 5,849,589 | (139,912 | ) | 575,448 | ||||||
| Net income | --- | --- | 57,191 | --- | --- | --- | 57,191 | |||||||
| Other comprehensive income, net of reclassification adjustments and tax | --- | --- | --- | 319 | --- | --- | 319 | |||||||
| Comprehensive income | 57,510 | |||||||||||||
| Shares issued for options | 7,650 | 228 | --- | --- | --- | --- | 228 | |||||||
| Treasury stock purchased | --- | --- | --- | --- | 114,741 | (4,048 | ) | (4,048 | ) | |||||
| Dividends paid | --- | --- | (57,438 | ) | --- | --- | --- | (57,438 | ) | |||||
| Balance at December 25, 2004 | 32,997,157 | 8,199 | 702,714 | 4,747 | 5,964,330 | (143,960 | ) | 571,700 | ||||||
| Net income | --- | --- | 63,421 | --- | --- | --- | 63,421 | |||||||
| Other comprehensive income, net of reclassification adjustments and tax | --- | --- | --- | (451 | ) | --- | --- | (451 | ) | |||||
| Comprehensive income | 62,970 | |||||||||||||
| Shares issued for options | 5,200 | 172 | --- | --- | --- | --- | 172 | |||||||
| Treasury stock purchased | --- | --- | --- | --- | 18,131 | (715 | ) | (715 | ) | |||||
| Dividends paid | --- | --- | (30,270 | ) | --- | --- | --- | (30,270 | ) | |||||
| Balance at December 31, 2005 | 33,002,357 | $ | 8,371 | $ | 735,865 | $ | 4,296 | 5,982,461 | $ | (144,675 | ) $ | 603,857 | ||
| See accompanying notes to consolidated financial statements. | ||||||||||||||
Page 13 of 32 (Form 10-K)
| WEIS MARKETS, INC. |
| CONSOLIDATED STATEMENTS OF CASH FLOWS |
| (dollars in thousands) |
| For the Fiscal Years Ended December 31, 2005, |
| December 25, 2004 and December 27, 2003 | 2005 | 2004 | 2003 | ||||
| (53 Weeks) | (52 Weeks) | (52 Weeks) | |||||
| Cash flows from operating activities: | |||||||
| Net income | $ | 63,421 | $ | 57,191 | $ | 54,576 | |
| Adjustments to reconcile net income to | |||||||
| net cash provided by operating activities: | |||||||
| Depreciation | 43,875 | 40,614 | 40,196 | ||||
| Amortization | 6,231 | 5,721 | 6,299 | ||||
| Loss on disposition of fixed assets | 519 | 1,438 | 122 | ||||
| Gain on sale of marketable securities | (422 | ) | (52 | ) | --- | ||
| Changes in operating assets and liabilities: | |||||||
| Inventories | (14,338 | ) | 8,508 | 9,280 | |||
| Accounts receivable and prepaid expenses | (3,424 | ) | (2,930 | ) | (3,930 | ) | |
| Income taxes recoverable | 1,729 | (1,729 | ) | --- | |||
| Accounts payable and other liabilities | 7,636 | 4,648 | 42 | ||||
| Income taxes payable | 2,020 | (1,955 | ) | (4,157 | ) | ||
| Deferred income taxes | (2,845 | ) | 6,786 | 3,721 | |||
| Other | (98 | ) | 6 | --- | |||
| Net cash provided by operating activities | 104,304 | 118,246 | 106,149 | ||||
| Cash flows from investing activities: | |||||||
| Purchase of property and equipment | (55,468 | ) | (82,766 | ) | (35,928 | ) | |
| Proceeds from the sale of property and equipment | 291 | 9,086 | 4,271 | ||||
| Purchase of marketable securities | (8,248 | ) | (24,850 | ) | --- | ||
| Proceeds from maturities of marketable securities | --- | 26,350 | 1,023 | ||||
| Proceeds from sale of marketable securities | 1,000 | 86 | --- | ||||
| Net cash used in investing activities | (62,425 | ) | (72,094 | ) | (30,634 | ) | |
| Cash flows from financing activities: | |||||||
| Payment of deferred financing fees | --- | --- | (25 | ) | |||
| Proceeds from issuance of common stock | 172 | 228 | 89 | ||||
| Dividends paid | (30,270 | ) | (57,438 | ) | (29,909 | ) | |
| Purchase of treasury stock | (715 | ) | (4,048 | ) | (2,023 | ) | |
| Net cash used in financing activities | (30,813 | ) | (61,258 | ) | (31,868 | ) | |
| Net increase (decrease) in cash and cash equivalents | 11,066 | (15,106 | ) | 43,647 | |||
| Cash and cash equivalents at beginning of year | 58,234 | 73,340 | 29,693 | ||||
| Cash and cash equivalents at end of year | $ | 69,300 | $ | 58,234 | $ | 73,340 |
| See accompanying notes to consolidated financial statements. |
Page 14 of 32 (Form 10-K)
Notes to Consolidated Financial Statements
Note 1 Summary of Significant Accounting Policies
The following is a summary of the significant accounting policies utilized in preparing the company's consolidated financial statements:
(a) Description of Business
Weis Markets, Inc. is a Pennsylvania business corporation formed in 1924. The company is engaged principally in the retail sale of food in Pennsylvania and surrounding states. There was no material change in the nature of the company's business during fiscal 2005.
(b) Definition of Fiscal Year
The company's fiscal year ends on the last Saturday in December. Fiscal 2005, 2004 and 2003 were comprised of 53 weeks, 52 weeks and 52 weeks, respectively.
(c) Principles of Consolidation
The consolidated financial statements include the accounts of the company and its subsidiaries. All significant intercompany accounts and transactions have been eliminated in consolidation.
(d) Use of Estimates
Management of the company has made a number of estimates and assumptions relating to the reporting of assets and liabilities and the disclosure of contingent assets and liabilities to prepare these consolidated financial statements in conformity with accounting principles generally accepted in the United States of America. Actual results could differ from those estimates.
(e) Reclassifications
Certain amounts in the 2003 consolidated statement of cash flows were reclassified upon the filing of the 2004 Annual Report on Form 10-K. Specifically, the company changed the classification of certain investments at December 27, 2003 in the amount of $69.9 million. These investments were originally reported as marketable securities rather than as cash and cash equivalents consistent with the company's policy for classifying such investments as described in Note 1(f). The effect of this reclassification did not change reported amounts of current assets or total assets, but affected the amounts originally reported as cash flows used in investing activities and cash and cash equivalents in the 2003 consolidated statement of cash flows.
The following summarizes the changes to originally reported subtotals in the 2003 consolidated statements of cash flows:
| Originally Reported | Currently Reported | |||
| 2003 | 2003 | |||
| Net cash provided by operating activities | $ 105,873 | $ 106,149 | ||
| Net cash used in investing activities | (74,507) | (30,634) | ||
| Net cash used in financing activities | (31,843) | (31,868) | ||
| Net increase (decrease) in cash and cash equivalents | (477) | 43,647 | ||
| Cash and cash equivalents at beginning of year | 3,929 | 29,693 | ||
| Cash and cash equivalents at end of year | $ 3,452 | $ 73,340 |
(f) Cash and Cash Equivalents
The company considers investments with an original maturity of three months or less to be cash equivalents. Investment amounts classified as cash equivalents as of December 31, 2005 and December 25, 2004 totaled $64.7 million and $54.4 million, respectively.
Page 15 of 32 (Form 10-K)
Note 1 Summary of Significant Accounting Policies (continued)
(g) Marketable Securities
Marketable securities consist of Pennsylvania tax-free state and municipal bonds and equity securities. By policy, the company invests primarily in high-grade marketable securities. The company classifies all of its marketable securities as available-for-sale.
Available-for-sale securities are recorded at fair value as determined by quoted market price based on national markets. Unrealized holding gains and losses, net of the related tax effect, are excluded from earnings and are reported as a separate component of shareholders' equity until realized. A decline in the fair value below cost that is deemed other than temporary results in a charge to earnings and the establishment of a new cost basis for the security. Dividend and interest income is recognized when earned. Realized gains and losses are included in earnings and are derived using the specific identification method for determining the cost of securities.
(h) Accounts Receivable
Accounts receivable are stated net of an allowance for uncollectible accounts of $1.2 million and $1.7 million as of December 31, 2005 and December 25, 2004, respectively. The reserve balance relates to amounts due from pharmacy third party providers and customer returned checks. The company maintains an allowance for the amount of receivables deemed to be uncollectible and calculates this amount based upon historical collection activity adjusted for current conditions. Customer electronic payments accepted at the point of sale are classified as accounts receivable until collected.
(i) Inventories
Inventories are valued at the lower of cost or market, using both the last-in, first-out (LIFO) and average cost methods. The company evaluates inventory shortages throughout the year based on actual physical counts in its facilities. Allowances for inventory shortages are recorded based on the results of these counts and to provide for estimated shortages from the last physical count to the financial statement date. See additional disclosures regarding inventories in Note 3.
(j) Property and Equipment
Property and equipment are recorded at cost. Depreciation is provided on the cost of buildings and improvements and equipment principally using accelerated methods. Leasehold improvements are amortized using the straight line method over the terms of the leases or the useful lives of the assets, whichever is shorter.
Maintenance and repairs are expensed and renewals and betterments are capitalized. When assets are retired or otherwise disposed of, the assets and accumulated depreciation are removed from the respective accounts and any profit or loss on the disposition is credited or charged to "Other income."
(k) Goodwill and Intangible Assets
The company follows Financial Accounting Standards Board ("FASB") Statement of Financial Accounting Standards No. 142, "Goodwill and Other Intangible Assets" ("SFAS 142"), which establishes that intangible assets with an indefinite useful life shall not be amortized until their useful life is determined to be no longer indefinite and should be tested for impairment annually or more frequently if events or changes in circumstances indicate that the asset might be impaired. SFAS 142 states that goodwill should not be amortized but tested for impairment for each reporting unit, on an annual basis and between annual tests in certain circumstances. Intangible assets with a definite useful life are generally amortized over periods ranging from 15 to 20 years. As of December 31, 2005, the company has no intangible assets, other than goodwill, with indefinite lives.
(l) Impairment of Long-Lived Assets
In accordance with FASB Statement of Financial Accounting Standards No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets" ("SFAS 144"), the company periodically evaluates the period of depreciation or amortization for long-lived assets to determine whether current circumstances warrant revised estimates of useful lives. The company reviews its property and equipment for impairment whenever events or changes in circumstances indicate the carrying value of an asset may not be recoverable. Recoverability is measured by a comparison of the carrying amount to the net undiscounted cash flows expected to be generated by the asset. An impairment loss would be recorded for the excess of net book value over the fair value of the asset impaired. The fair value is estimated based on expected discounted future cash flows.
With respect to owned property and equipment associated with closed stores, the value of the property and equipment is adjusted to reflect recoverable values based on the company's prior history of disposing of similar assets and current economic conditions.
Page 16 of 32 (Form 10-K)
Note 1 Summary of Significant Accounting Policies (continued)
(l) Impairment of Long-Lived Assets (continued)
The results of impairment tests are subject to management's estimates and assumptions of projected cash flows and operating results. The company believes that, based on current conditions, materially different reported results are not likely to result from long-lived asset impairments. However, a change in assumptions or market conditions could result in a change in estimated future cash flows and the likelihood of materially different reported results.
(m) Store Closing Costs
In accordance with FASB Statement of Financial Accounting Standards No. 146, "Accounting for Costs Associated with Exit or Disposal Activities" ("SFAS 146"), the company provides for closed store liabilities relating to the estimated post-closing lease liabilities and related other exit costs associated with the store closing commitments. The closed store liabilities are usually paid over the lease terms associated with the closed stores having remaining terms ranging from one to five years. At December 31, 2005, closed store lease liabilities totaled $1.6 million. The company estimates the lease liabilities, net of sublease income, using the undiscounted rent payments of closed stores.
(n) Self-Insurance
The company is self-insured for a majority of its workers' compensation, general liability, vehicle accident and associate medical benefit claims. Self-insurance costs are accrued based upon the aggregate of the liability for reported claims and an estimated liability for claims incurred but not reported. The company is liable for associate health claims up to a lifetime aggregate of $1,000,000 per member and for workers' compensation claims up to $2,000,000 per claim. Property and casualty insurance coverage is maintained with outside carriers at deductible or retention levels ranging from $250,000 to $2,000,000.
(o) Stock Option Plan
As of December 31, 2004, no awards may be granted under the company's 1995 Stock Option Plan. The last options granted under the Plan in 2002 will expire in 2012. The pro forma impact of adopting FASB Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS 123") as amended by FASB Statement of Financial Accounting Standards No. 148, "Accounting for Stock-Based Compensation - Transition and Disclosure," is immaterial. See additional disclosures regarding remaining outstanding options in Note 7.
(p) Income Taxes
Under the asset and liability method of FASB Statement of Financial Accounting Standards No. 109, "Accounting for Income Taxes" ("SFAS 109"), deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
(q) Earnings Per Share
Earnings per share are based on the weighted-average number of common shares outstanding. Diluted earnings per share are based on the weighted-average number of common shares outstanding, plus the incremental shares that would have been outstanding upon the assumed exercise of all dilutive stock options, subject to antidilution limitations. Basic and diluted earnings per share are the same amounts for each period presented. For 2004 and 2003, options to purchase 32,850 and 41,111, respectively, at per share exercised prices ranging from $35.56 to $37.94, were not included in the computation of diluted earnings per share because their inclusion under the treasury stock method would have been antidilutive.
(r) Revenue Recognition
Revenue from the sale of products to the company's customers is recognized at the point of sale. Discounts provided to customers at the point of sale through the Weis Club Preferred Shopper loyalty program are recognized as a reduction in sales as products are sold. Periodically, the company will run a point based sales incentive program that rewards customers with future sales discounts. The company makes reasonable and reliable estimates of the amount of future discounts based upon historical experience and its customer data tracking software. Sales are reduced by these estimates over the life of the program. Discounts to customers at the point of sale provided by vendors, usually in the form of paper coupons, are not recognized as a reduction in sales provided the discounts are redeemable at any retailer that accepts those discounts. The company does not recognize revenue when it sells gift cards, but rather revenue is recognized at the time of customer redemption for products. Return activity is immaterial to revenues.
Page 17 of 32 (Form 10-K)
Note 1 Summary of Significant Accounting Policies (continued)
(s) Cost of Sales, Including Warehousing and Distribution Expenses
"Cost of sales, including warehousing and distribution expenses" consists of direct product costs (net of discounts and allowances), warehouse costs, transportation costs and manufacturing facility costs.
(t) Vendor Allowances
Vendor rebates, credits and promotional allowances that relate to the company's buying and merchandising activities, including lump-sum payments associated with long-term contracts, are recorded as a reduction of cost of sales as they are earned, in accordance with its underlying agreement. Off-invoice and bill-back allowances are used to reduce direct product costs upon the receipt of goods. Volume incentive discounts are realized as a reduction of cost of sales at the time it is deemed probable and reasonably estimable that the incentive target will be reached. Promotional allowance funds for specific vendor-sponsored programs are recognized as a reduction of cost of sales as the program occurs and the funds are earned per the agreement. Cash discounts for prompt payment of invoices are realized in cost of sales as invoices are paid. Warehouse and back-haul allowances provided by suppliers for distributing their product through our distribution system are recorded in cost of sales as the required performance is completed. Warehouse rack and slotting allowances are recorded in cost of sales when new items are initially set up in the company's distribution system, which is when the related expenses are incurred and performance under the agreement is complete. Swell allowances for damaged goods are realized in cost of sales as provided by the supplier, helping to offset product shrink losses also recorded in cost of sales.
Vendor allowances recorded as credits in cost of sales totaled $40.7 million in 2005, $42.9 million in 2004, and $44.1 million in 2003. Vendor paid cooperative advertising credits totaled $16.8 million in 2005, $17.5 million in 2004, and $16.6 million in 2003. These credits were netted against advertising costs within "Operating, general and administrative expenses." The company had accounts receivable due from vendors of $800,000 and $1.6 million for earned advertising credits and $3.9 million and $5.3 million for earned promotional discounts as of December 31, 2005 and December 25, 2004, respectively. The company had $1.8 million and $3.5 million in unearned revenue included in accrued liabilities for unearned vendor programs under long-term contracts for display and shelf space allocation as of December 31, 2005 and December 25, 2004, respectively.
(u) Operating, General and Administrative Expenses
Business operating costs including expenses generated from administration and purchasing functions, are recorded in "Operating, general and administrative expenses" on the Consolidated Statements of Income. Business operating costs include items such as wages, benefits, utilities, repairs and maintenance, advertising costs and credits, rent, insurance, equipment depreciation, leasehold amortization and costs for outside provided services.
(v) Advertising Costs
The company expenses advertising costs as incurred. The company recorded advertising expense, before vendor paid cooperative advertising credits, of $24.6 million in 2005, $23.9 million in 2004, and $25.3 million in 2003 in "Operating, general and administrative expenses."
(w) Rental Income
The company leases or subleases space to tenants in owned, vacated and open store facilities. Rental income is recorded when earned as a component of "Other income." All leases are operating leases, as disclosed in Note 5, and do not contain up front considerations.
Page 18 of 32 (Form 10-K)
Note 2 Marketable Securities
Marketable securities, as of December 31, 2005 and December 25, 2004, consisted of:
| Gross | Gross | |||||||
| Unrealized | Unrealized | |||||||
| (dollars in thousands) | Amortized | Holding | Holding | Fair | ||||
| December 31, 2005 | Cost | Gains | Losses | Value | ||||
| Available-for-sale: | ||||||||
| Pennsylvania state and municipal bonds | $ | 13,353 | $ | --- | $ | 42 | $ | 13,311 |
| Equity securities | 2,514 | 7,388 | 3 | 9,899 | ||||
| $ | 15,867 | $ | 7,388 | $ | 45 | $ | 23,210 |
| Gross | Gross | |||||||
| Unrealized | Unrealized | |||||||
| (dollars in thousands) | Amortized | Holding | Holding | Fair | ||||
| December 25, 2004 | Cost | Gains | Losses | Value | ||||
| Available-for-sale: | ||||||||
| Pennsylvania state and municipal bonds | $ | 5,008 | $ | --- | $ | --- | $ | 5,008 |
| Equity securities | 3,091 | 8,114 | 1 | 11,204 | ||||
| $ | 8,099 | $ | 8,114 | $ | 1 | $ | 16,212 |
Maturities of marketable securities classified as available-for-sale at December 31, 2005, were as follows:
| Amortized | Fair | |||
| (dollars in thousands) | Cost | Value | ||
| Available-for-sale: | ||||
| Due within one year | $ | 5,014 | $ | 5,014 |
| Due within one year through five years | 8,339 | 8,297 | ||
| Equity securities | 2,514 | 9,899 | ||
| $ | 15,867 | $ | 23,210 | |
| See additional disclosures regarding marketable securities in Notes 1(g) and 12. |
Note 3 Inventories
Merchandise inventories, as of December 31, 2005 and December 25, 2004, were valued as follows:
| (dollars in thousands) | 2005 | 2004 | ||
| LIFO | $ | 141,359 | $ | 130,077 |
| Average cost | 38,023 | 34,967 | ||
| $ | 179,382 | $ | 165,044 |
Management believes the use of the LIFO method for valuing certain inventories represents the most appropriate matching of costs and revenues in the company's circumstances. If all inventories were valued on the average cost method, which approximates current cost, total inventories would have been $43,134,000 and $41,786,000 higher than as reported on the above methods as of December 31, 2005 and December 25, 2004, respectively. During 2005, 2004 and 2003, the company had certain decrements in its LIFO pools, all of which had an insignificant impact on the cost of sales.
Page 19 of 32 (Form 10-K)
Note 4 Property and Equipment
Property and equipment, as of December 31, 2005 and December 25, 2004, consisted of:
| Useful Life | |||||
| (dollars in thousands) | (in years) | 2005 | 2004 | ||
| Land | $ | 68,181 | $ | 64,985 | |
| Buildings and improvements | 10-60 | 367,549 | 348,530 | ||
| Equipment | 3-12 | 555,377 | 536,670 | ||
| Leasehold improvements | 5-20 | 110,739 | 104,615 | ||
| Total, at cost | 1,101,846 | 1,054,800 | |||
| Less accumulated depreciation and amortization | 655,329 | 613,726 | |||
| $ | 446,517 | $ | 441,074 |
Note 5 Lease Commitments
At December 31, 2005, the company leased approximately 57% of its open store facilities under operating leases that expire at various dates through 2024. These leases generally provide for fixed annual rentals; however, several provide for minimum annual rentals plus contingent rentals as a percentage of annual sales and a number of leases require the company to pay for all or a portion of insurance, real estate taxes, water and sewer rentals, and repairs, the cost of which is charged to the related expense category rather than being accounted for as rent expense. Most of the leases contain multiple renewal options, under which the company may extend the lease terms from 5 to 20 years. Rents on operating leases, including agreements with step rents, are charged to expense on a straight-line basis over the minimum lease term. The company does not have any leases that include capital improvement funding or other lease concessions.
Rent expense and income on all leases consisted of:
| (dollars in thousands) | 2005 | 2004 | 2003 | ||||
| Minimum annual rentals | $ | 29,752 | $ | 29,233 | $ | 28,453 | |
| Contingent rentals | 303 | 266 | 262 | ||||
| Lease or sublease income | (7,820 | ) | (7,780 | ) | (8,053 | ) | |
| $ | 22,235 | $ | 21,719 | $ | 20,662 |
The following is a schedule by years of future minimum rental payments required under operating leases and total minimum sublease and lease rental income to be received that have initial or remaining noncancelable lease terms in excess of one year as of December 31, 2005.
| (dollars in thousands) | Leases | Subleases | |||
2006 | $ | 27,700 | $ | (4,823 | ) |
2007 | 26,331 | (4,509 | ) | ||
2008 | 25,206 | (3,424 | ) | ||
| 2009 | 23,209 | (2,413 | ) | ||
| 2010 | 19,335 | (1,781 | ) | ||
| Thereafter | 107,789 | (3,313 | ) | ||
| $ | 229,570 | $ | (20,263 | ) |
The company has $1,294,000 accrued as of December 31, 2005, for future minimum rental payments due on previously closed stores, reduced by the estimated sublease income to be received. The future minimum rental payments required under operating leases and estimated sublease income for these locations are included in the above schedule.
Page 20 of 32 (Form 10-K)
Note 6 Retirement Plans
The company has a contributory retirement savings plan (401(k)) covering substantially all full-time associates, a noncontributory profit-sharing plan covering eligible associates, a noncontributory employee stock bonus plan covering eligible associates and three supplemental retirement plans covering highly compensated employees of the company. An eligible associate as defined in the Weis Markets, Inc. Profit Sharing Plan and the Weis Markets, Inc. Employee Stock Bonus Plan includes certain salaried associates, store management and administrative support personnel. The company's policy is to fund 401(k), profit-sharing and stock bonus costs as accrued, but not supplemental retirement costs. Contributions to the 401(k) plan, the profit-sharing plan and the stock bonus plan are made at the sole discretion of the company.
Retirement plan costs:
| (dollars in thousands) | 2005 | 2004 | 2003 | ||||
| Retirement savings plan | $ | 988 | $ | 984 | $ | 992 | |
| Profit-sharing plan | 896 | 855 | 852 | ||||
| Employee stock bonus plan | 40 | 40 | 40 | ||||
| Deferred compensation plan | 516 | 452 | 443 | ||||
| Supplemental retirement plan | 777 | 572 | 186 | ||||
| Pharmacist deferred compensation plan | 8 | --- | --- | ||||
| $ | 3,225 | $ | 2,903 | $ | 2,513 |
The company maintains a non-qualified deferred compensation plan for the payment of specific amounts of annual retirement benefits to certain officers or their beneficiaries over an actuarially computed normal life expectancy. The benefits are determined through actuarial calculations dependent on the age of the recipient, using an assumed discount rate.
Change in the benefit obligation:
| (dollars in thousands) | 2005 | 2004 | |||
| Benefit obligation at beginning of year | $ | 6,019 | $ | 5,798 | |
| Interest cost | 434 | 435 | |||
| Benefit payments | (232 | ) | (231 | ) | |
| Actuarial gain | 82 | 17 | |||
| $ | 6,303 | $ | 6,019 | ||
| Weighted-average assumptions used to determine benefit obligations: | 2005 | 2004 | |||
| Discount rate | 7.50% | 7.50% | |||
Components of net periodic benefit cost:
| (dollars in thousands) | 2005 | 2004 | 2003 | ||||
| Interest cost | $ | 434 | $ | 435 | $ | 423 | |
| Amount of recognized gain | 150 | 214 | 263 |
Estimated future benefit payments:
| (dollars in thousands) | Benefits | ||||
2006 | $ | 232 | |||
2007 | 1,028 | ||||
2008 | 1,028 | ||||
| 2009 | 1,028 | ||||
| 2010 | 1,028 | ||||
| 2011 - 2015 | 5,138 |
Page 21 of 32 (Form 10-K)
Note 6 Retirement Plans (continued)
The company also maintains a non-qualified supplemental executive retirement plan and a non-qualified pharmacist deferred compensation plan for certain of its associates. These plans are designed to provide retirement benefits and salary deferral opportunities because of limitations imposed by the Internal Revenue Code and the Regulations implemented by the Internal Revenue Service. Participants in these plans are excluded from participation in the Profit Sharing and Employee Stock Bonus plans. The Board of Directors annually determines the amount of the allocation to the plans at its sole discretion. The allocation among the various plan participants is made in relationship to their compensation, years of service and job performance. Plan participants are 100% vested in their accounts after seven years of service with the company. Benefits are distributed among participants upon reaching the applicable retirement age. Substantial risk of benefit forfeiture does exist for participants in these plans. The present value of accumulated benefits amounted to $4,988,000 and $3,668,000 at December 31, 2005 and December 25, 2004, respectively.
The company has no other post-retirement benefit plans.
Note 7 Stock Option Plan
The company has an incentive stock option plan for officers and other key associates under which 188,580 shares of common stock are reserved for issuance at December 31, 2005. Under the terms of the plan, option prices are 100% of the "fair market value" of the shares on the date granted. Options previously granted are immediately exercisable and expire ten years after date of grant.
Changes during the three years ended December 31, 2005, in options outstanding under the plan were as follows:
| Weighted-Average | Shares | ||||
| Exercise Price | Under Option | ||||
| Balance, December 28, 2002 | $34.99 | 111,270 | |||
| Exercised | $27.99 | (3,170 | ) | ||
| Balance, December 27, 2003 | $35.20 | 108,100 | |||
| Exercised | $29.84 | (7,650 | ) | ||
| Expired | $26.50 | (700 | ) | ||
| Forfeited | $34.35 | (1,500 | ) | ||
| Balance, December 25, 2004 | $35.69 | 98,250 | |||
| Exercised | $33.11 | (5,200 | ) | ||
| Forfeited | $35.97 | (900 | ) | ||
| Balance, December 31, 2005 | $35.83 | 92,150 |
Exercise prices for options outstanding as of December 31, 2005 ranged from $31.50 to $37.94. The weighted-average remaining contractual life of those options is three years. As of December 31, 2005, all options are exercisable.
Page 22 of 32 (Form 10-K)
Note 8 Long-Term Debt
In October 2002, the company entered into a three-year unsecured Revolving Credit Agreement (the "Credit Agreement") in the amount of $100 million to provide funds for general corporate purposes including working capital and letters of credit. The Credit Agreement required the maintenance of affirmative and negative covenants, which among other things restricted stock purchases, capital expenditures, and asset dispositions. The covenants included the preservation of a minimum consolidated net worth and a fixed charge coverage ratio. Borrowings under the Credit Agreement were to bear interest at a Base-Rate Option or Euro-Rate Option at the discretion of the company. The Base-Rate was the greater of Prime Rate or 0.50% plus the Federal Funds Effective Rate. The Euro-Rate was based upon the London interbank market plus an Applicable Margin. The Applicable Margin equaled 0.625% plus a Usage Fee of 0.125% when borrowings exceeded 33% of the aggregate committed amounts, or 0.25% when borrowings exceeded 67% of the aggregate committed amounts, or 0% in all other cases. The company paid a commitment fee equal to 0.15% per annum on the unused portion of the Credit Agreement. On October 18, 2005, the company allowed the Credit Agreement to expire.
Page 23 of 32 (Form 10-K)
Note 9 Income Taxes
The provision (benefit) for income taxes consists of:
| (dollars in thousands) | 2005 | 2004 | 2003 | ||||
| Current: | |||||||
| Federal | $ | 34,991 | $ | 21,322 | $ | 28,387 | |
| State | 3,739 | 2,304 | 1,520 | ||||
| Deferred: | |||||||
| Federal | (2,443 | ) | 6,727 | 3,141 | |||
| State | (402 | ) | 59 | 580 | |||
| $ | 35,885 | $ | 30,412 | $ | 33,628 |
The reconciliation of income taxes computed at the federal statutory rate (35% in 2005, 2004 and 2003) to the provision for income taxes is:
| (dollars in thousands) | 2005 | 2004 | 2003 | ||||
| Income taxes at federal statutory rate | $ | 34,757 | $ | 30,661 | $ | 30,871 | |
| State income taxes, net of federal income tax benefit | 2,169 | 1,536 | 1,366 | ||||
| Resolution and accrual of audit contingencies | (300 | ) | (1,590 | ) | 1,625 | ||
| Other | (741 | ) | (195 | ) | (234 | ) | |
| Provision for income taxes (effective tax rate 36.1%, 34.7% and 38.1%, respectively) | $ | 35,885 | $ | 30,412 | $ | 33,628 |
The company accrued for probable liabilities resulting from tax assessments by federal and state tax authorities in 2003. During 2003, the Internal Revenue Service completed its routine audit of the company's federal income tax returns for the years 1997 through 2001. Resolution was completed with respect to the various tax issues in the examination in 2004 and adjustments were made to certain previously filed tax returns.
Cash paid for income taxes was $34,995,000, $29,446,000 and $31,123,000 in 2005, 2004 and 2003, respectively.
The tax effects of temporary differences that give rise to deferred tax assets and deferred tax liabilities at December 31, 2005 and December 25, 2004, are:
| (dollars in thousands) | 2005 | 2004 | ||||
| Deferred tax assets: | ||||||
| Accounts receivable | $ | 221 | $ | 249 | ||
| Compensated absences | 487 | 521 | ||||
| Employee benefit plans | 11,360 | 8,741 | ||||
| General liability insurance | 1,325 | 1,750 | ||||
| Nondeductible accruals and other | 1,899 | 2,907 | ||||
| Total deferred tax assets | 15,292 | 14,168 | ||||
| Deferred tax liabilities: | ||||||
| Inventories | (7,886 | ) | (7,799 | ) | ||
| Unrealized gain on marketable securities | (3,047 | ) | (3,366 | ) | ||
| Depreciation | (27,596 | ) | (29,404 | ) | ||
| Total deferred tax liabilities | (38,529 | ) | (40,569 | ) | ||
| Net deferred tax liability | $ | (23,237 | ) | $ | (26,401 | ) |
| Current deferred asset - net | $ | 4,359 | $ | 3,003 | ||
| Noncurrent deferred liability - net | (27,596 | ) | (29,404 | ) | ||
| Net deferred tax liability | $ | (23,237 | ) | $ | (26,401 | ) |
Page 24 of 32 (Form 10-K)
Note 10 Comprehensive Income
| (dollars in thousands) | 2005 | 2004 | 2003 | ||||
| Net income | $ | 63,421 | $ | 57,191 | $ | 54,576 | |
| Other comprehensive income by component, net of tax: | |||||||
| Unrealized holding (losses) gains arising during period (Net of deferred taxes of $144, $248 and $201, respectively) | (204 | ) | 350 | 283 | |||
| Reclassification adjustment for gains included in net income (Net of deferred taxes of $175, $22 and $0, respectively) | (247 | ) | (31 | ) | --- | ||
| Other comprehensive income, net of tax | (451 | ) | 319 | 283 | |||
| Comprehensive income | $ | 62,970 | $ | 57,510 | $ | 54,859 |
Note 11 Summary of Quarterly Results (Unaudited)
Quarterly financial data for 2005 and 2004 are as follows:
| (dollars in thousands, | Thirteen Weeks Ended | Fourteen Weeks Ended | ||||||
| except per share amounts) | Mar. 26, 2005 | June 25, 2005 | Sep. 24, 2005 | Dec. 31, 2005 | ||||
| Net sales | $ | 549,712 | $ | 535,734 | $ | 535,251 | $ | 601,901 |
| Gross profit on sales | 145,107 | 143,331 | 142,521 | 155,502 | ||||
| Net income | 16,764 | 14,625 | 13,667 | 18,365 | ||||
| Basic and diluted earnings per share | .62 | .54 | .51 | .68 | ||||
| (dollars in thousands, | Thirteen Weeks Ended | |||||||
| except per share amounts) | Mar. 27, 2004 | June 26, 2004 | Sep. 25, 2004 | Dec. 25, 2004 | ||||
| Net sales | $ | 520,669 | $ | 521,374 | $ | 518,639 | $ | 537,030 |
| Gross profit on sales | 136,424 | 136,723 | 136,697 | 139,658 | ||||
| Net income | 16,235 | 13,644 | 12,214 | 15,098 | ||||
| Basic and diluted earnings per share | .60 | .50 | .45 | .56 | ||||
Note 12 Fair Value Information
The carrying amounts for cash, accounts receivable and accounts payable approximate fair value because of the short maturities of these instruments. The fair values of the company's marketable securities, as disclosed in Note 2, are based on quoted market prices.
Note 13 Contingencies
The company is involved in various legal actions arising out of the normal course of business. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the company's consolidated financial position, results of operations or liquidity.
Page 25 of 32 (Form 10-K)
Report of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders
Weis Markets, Inc.
Sunbury, Pennsylvania
We have audited the accompanying consolidated balance sheets of Weis Markets, Inc. as of December 31, 2005 and December 25, 2004, and the related consolidated statements of income, shareholders' equity, and cash flows for the fiscal years ended December 31, 2005 and December 25, 2004 (53 weeks and 52 weeks, respectively). We have also audited management's assessment, included in the accompanying Form 10-K, that Weis Markets, Inc. maintained effective internal control over financial reporting as of December 31, 2005, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Weis Markets, Inc.'s management is responsible for these financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express an opinion on these financial statements, an opinion on management's assessment, and an opinion on the effectiveness of the company's internal control over financial reporting based on our audits. The consolidated financial statements of Weis Markets, Inc. for the period ended December 27, 2003, were audited by other auditors whose report, dated January 27, 2004, expressed an unqualified opinion on those statements.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audit of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation.
Our audit of internal control included obtaining an understanding of internal control over financial reporting, evaluating management's assessment, testing and evaluating the design and operating effectiveness of internal control, and performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Weis Markets, Inc. as of December 31, 2005 and December 25, 2004, and the consolidated results of its operations and its cash flows for the fiscal years ended December 31, 2005 and December 25, 2004 (53 weeks and 52 weeks, respectively), in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, management's assessment that Weis Markets, Inc. maintained effective internal control over financial reporting as of December 31, 2005, is fairly stated, in all material respects, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Furthermore, in our opinion, Weis Markets, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2005, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
Our audits were conducted for the purpose of forming an opinion on the basic consolidated financial statements taken as a whole. Schedule II is presented for purposes of additional analysis and is not a required part of the basic consolidated financial statements. This schedule has been subjected to the auditing procedures applied in the audits of the basic consolidated financial statements and, in our opinion, is fairly stated in all material respects in relation to the basic consolidated financial statements taken as a whole.
Philadelphia, Pennsylvania /S/Grant Thornton LLP
February 10, 2006
Page 26 of 32 (Form 10-K)
Table of Contents
Report of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders
Weis Markets, Inc.
We have audited the consolidated balance sheet of Weis Markets, Inc. as of December 27, 2003 (not included herein), and the related consolidated statements of income, shareholders' equity and cash flows for the year then ended. Our audit also included the 2003 financial statement schedule listed in the Index at Item 15(a). These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and schedule based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company's internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Weis Markets, Inc. at December 27, 2003, and the consolidated results of its operations and its cash flows for the year then ended, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related 2003 financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.
/s/ Ernst & Young LLP
Baltimore, Maryland
January 27, 2004,
except for Note 1(e), as to which the date is
March 4, 2005
Page 27 of 32 (Form 10-K)
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure:
No additional disclosure is required regarding the company's change in independent accountants. Form 8-K filed on September 29, 2004 is incorporated herein by reference.
Item 9a. Controls and Procedures:
Management's Report on Disclosure Controls and Procedures
The Chief Executive Officer and the Chief Financial Officer of the company (its principal executive officer and principal financial officer, respectively) have concluded, based on their evaluation as of the close of the period covered by this Report, that the company's disclosure controls and procedures are effective to ensure that information required to be disclosed by the company in the reports filed or submitted by it under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms, and include controls and procedures designed to ensure that information required to be disclosed by the company in such reports is accumulated and communicated to the company's management, including the Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
Management's Report on Internal Control Over Financial Reporting
The management of the company is responsible for establishing and maintaining adequate internal control over financial reporting. The company's internal control system was designed to provide reasonable assurance to the company's management and board of directors regarding the preparation and fair presentation of published financial statements. In making its assessment of internal control over financial reporting, management used the criteria issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
With the participation of the Chief Executive Officer and the Chief Financial Officer, management concluded that the company's internal control over financial reporting was effective as of December 31, 2005.
Management's assessment of the effectiveness of the company's internal control over financial reporting as of December 31, 2005 has been audited by Grant Thornton LLP, an independent registered public accounting firm, as stated in their report which is included in Part II, Item 8, page 26 of this annual report on Form 10-K.
There were no changes in the company's internal control over financial reporting during the fiscal quarter ended December 31, 2005, that materially affected, or are reasonably likely to materially affect, the company's internal control over financial reporting.
There was no information required on Form 8-K during this quarter that was not reported.
Page 28 of 32 (Form 10-K)
Item 10. Directors and Executive Officers of the Registrant:
"Election of Directors" on pages 4 and 5 and "Audit Committee Financial Expert" on page 7 of the Weis Markets, Inc. definitive proxy statement dated March 3, 2006 is incorporated herein by reference.
Officers not listed on pages 4 and 5 in the Weis Markets, Inc. definitive proxy statement dated March 3, 2006:
Edward W. Rakoskie, Jr. The company has employed Mr. Rakoskie since 1962 in various operational positions. Mr. Rakoskie served as Vice President Store Operations from 1995 through 1997 and was promoted to Vice President of Operations in 1998.
The company has adopted a "Code of Business Conduct and Ethics" that applies to all of its directors, officers and employees. Separately, the company also adopted a "Code of Ethics for CEO and CFO" specific to its chief executive officer, chief financial officer, controller and any person performing similar functions. The company has made both documents available on its corporate governance website at http://weismarkets.com/governance_info.php.
Item 11. Executive Compensation:
"Committees of the Board and Meeting Attendance," "Compensation Committee Interlocks and Insider Participation," "Summary Compensation Table," "Aggregated Option/SAR Exercises in Last Fiscal Year and Fiscal Year-End Option/SAR Values," and "Board Compensation Committee Report on Executive Compensation," on pages 6 through 9 of the Weis Markets, Inc. definitive proxy statement dated March 3, 2006 are incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters:
"Outstanding Voting Securities and Voting Rights" on pages 3 and 4 of the Weis Markets, Inc. definitive proxy statement dated March 3, 2006 is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions:
Other Arrangements: Central Properties, Inc., a Pennsylvania corporation ("Central Properties"), owns the land under a company store and an adjacent parking lot in Lebanon, Pennsylvania. Central Properties leased these properties to the company for $82,080 in fiscal 2005. The stockholders of Central Properties include Michael M. Apfelbaum and certain of his family members, Jonathan H. Weis and Robert F. Weis, each of whom is a director of the company.
Item 14. Principal Accountant Fees and Services:
"Ratification Of Appointment Of Independent Registered Public Accounting Firm" on pages 10 and 11 of the Weis Markets, Inc. definitive proxy statement dated March 3, 2006 is incorporated herein by reference.
Page 29 of 32 (Form 10-K)
Item 15. Exhibits, Financial Statement Schedules:
(a)(1) The company's 2005 Consolidated Financial Statements and the Report of Independent Registered Public Accounting Firms are included in Item 8 of Part II.
(a)(2) Financial statement schedules required to be filed by Item 8 of this form, and by Item 15(c)(3) below:
Schedule II - Valuation and Qualifying Accounts, page 31 of this annual report on Form 10-K
All other schedules for which provision is made in the applicable accounting regulation of the Securities and Exchange Commission are not required under the related instructions or are inapplicable and therefore have been omitted.
(a)(3) A listing of exhibits filed or incorporated by reference is as follows:
| Exhibit No. | Exhibits |
| 3-A | Articles of Incorporation, filed as exhibit 4.1 in Form S-8 on September 13, 2002 and incorporated herein by reference. |
| 3-B | By-Laws, filed as exhibit under Part IV, Item 14(c) in the annual report on Form 10-K for the fiscal year ended December 29, 2001 and incorporated herein by reference. |
| 10-A | Profit Sharing Plan, filed as exhibit under Part IV, Item 15(c) in the annual report on Form 10-K for the fiscal year ended December 28, 2002 and incorporated herein by reference. |
| 10-B | Stock Bonus Plan, filed as exhibit under Part IV, Item 15(c) in the annual report on Form 10-K for the fiscal year ended December 28, 2002 and incorporated herein by reference. |
| 10-C | Company Appreciation Plan, filed as exhibit under Part IV, Item 14(c) in annual report on Form 10-K for the fiscal year ended December 29, 2001 and incorporated herein by reference. |
| 10-D | Stock Option Plan, filed on Form S-8 on September 13, 2002 and incorporated herein by reference. |
| 10-E | Supplemental Employee Retirement Plan, filed as exhibit under Part IV, Item 14(c) in annual report on Form 10-K for the fiscal year ended December 29, 2001 and incorporated herein by reference. |
| 10-F | Executive Employment Contract - CEO, filed as exhibit under Part IV, Item 14(c) in annual report on Form 10-K for the fiscal year ended December 29, 2001 and incorporated herein by reference. |
| 10-G | Executive Employment Contract - CFO, filed as exhibit under Part IV, Item 15(c) in the annual report on Form 10-K for the fiscal year ended December 28, 2002 and incorporated herein by reference. |
| 21 | Subsidiaries of the Registrant, filed with this annual report on Form 10-K |
| 23.1 | Consent of Grant Thornton LLP, filed with this annual report on Form 10-K |
| 23.2 | Consent of Ernst & Young LLP, filed with this annual report on Form 10-K |
31.1 | Rule 13a-14(a) Certification - CEO, filed with this annual report on Form 10-K |
31.2 | Rule 13a-14(a) Certification - CFO, filed with this annual report on Form 10-K |
32 | Certification Pursuant to 18 U.S.C. Section 1350, filed with this annual report on Form 10-K |
The company will provide a copy of any exhibit upon receipt of a written request for the particular exhibit or exhibits desired. All requests should be addressed to the company's principal executive offices.
(b) The company files as exhibits to this annual report on Form 10-K, those exhibits listed in Item 15(a)(3) above.
Page 30 of 32 (Form 10-K)
Table of Contents
Item 15(c)(3). Financial Statement Schedules
Schedule II - Valuation and Qualifying Accounts:
| (dollars in thousands) | ||||||||||
| COL. A | COL. B | COL. C | COL. D | COL. E | ||||||
| Additions | ||||||||||
| Balance at | Charged to | Charged to | Balance at | |||||||
| Beginning | Costs and | Accounts | Deductions | End of | ||||||
| Description | of Period | Expenses | Describe | Describe (1) | Period | |||||
| Year ended December 31, 2005: | ||||||||||
| Deducted from asset accounts: | ||||||||||
| Allowance for uncollectible accounts | $ | 1,693 | $ | 496 | $ | --- | $ | 960 | $ | 1,229 |
| Year ended December 25, 2004: | ||||||||||
| Deducted from asset accounts: | ||||||||||
| Allowance for uncollectible accounts | $ | 1,498 | $ | 1,576 | $ | --- | $ | 1,381 | $ | 1,693 |
| Year ended December 27, 2003: | ||||||||||
| Deducted from asset accounts: | ||||||||||
| Allowance for uncollectible accounts | $ | 1,878 | $ | 2,164 | $ | --- | $ | 2,544 | $ | 1,498 |
| (1) Deductions are uncollectible accounts written off, net of recoveries. | ||||||||||
Page 31 of 32 (Form 10-K)
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| WEIS MARKETS, INC. | |||
| (Registrant) | |||
| Date 03/03/2006 | /S/Norman S. Rich | ||
| Norman S. Rich | |||
| President / Chief Executive Officer | |||
| and Director |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| Date 03/03/2006 | /S/Robert F. Weis | ||
| Robert F. Weis | |||
| Chairman of the Board of Directors | |||
| Date 03/03/2006 | /S/Jonathan H. Weis | ||
| Jonathan H. Weis | |||
| Vice Chairman and Secretary | |||
| and Director | |||
| Date 03/03/2006 | /S/Norman S. Rich | ||
| Norman S. Rich | |||
| President / Chief Executive Officer | |||
| and Director | |||
| Date 03/03/2006 | /S/William R. Mills | ||
| William R. Mills | |||
| Senior Vice President and Treasurer / | |||
| Chief Financial Officer / Chief Accounting Officer | |||
| and Director | |||
| Date 03/03/2006 | /S/Richard E. Shulman | ||
| Richard E. Shulman | |||
| Director | |||
| Date 03/03/2006 | /S/Michael M. Apfelbaum | ||
| Michael M. Apfelbaum | |||
| Director | |||
| Date 03/03/2006 | /S/Steven C. Smith | ||
| Steven C. Smith | |||
| Director |
Page 32 of 32 (Form 10-K)
WEIS MARKETS, INC.
SUBSIDIARIES OF THE REGISTRANT
| State of Incorporation | Percent Owned by Registrant | ||
| Albany Public Markets, Inc. | New York | 100% | |
| Dutch Valley Food Company, Inc. | Pennsylvania | 100% | |
| King's Supermarkets, Inc. | Pennsylvania | 100% | |
| Martin's Farm Market, Inc. | Pennsylvania | 100% | |
| Shamrock Wholesale Distributors, Inc. | Pennsylvania | 100% | |
| SuperPetz, LLC | Pennsylvania | 100% | |
| Weis Transportation, Inc. | Pennsylvania | 100% | |
| WMK Financing, Inc. | Delaware | 100% | |
| The consolidated financial statements include the accounts of the company and its subsidiaries. | |||
EXHIBIT 23.1
WEIS MARKETS, INC.
Consent of Independent Registered Public Accounting Firm
We have issued our report dated February 10, 2006, accompanying the consolidated financial statements and schedules and management's assessment of the effectiveness of internal control over financial reporting included in the Annual Report of Weis Markets, Inc. on Form 10-K for the year ended December 31, 2005. We hereby consent to the incorporation by reference of said report in the Registration Statement of Weis Markets, Inc. on Form S-8 (File No. 333-99535, effective September 13, 2002).
Philadelphia, Pennsylvania /S/Grant Thornton LLP
February 10, 2006
EXHIBIT 23.2
WEIS MARKETS, INC.
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-99535) pertaining to the 1985 and 1995 Stock Option Plans of Weis Markets, Inc. of our report dated January 27, 2004, except for Note 1(e), as to which the date is March 4, 2005, with respect to the consolidated financial statements and schedule of Weis Markets, Inc. included in the Annual Report (Form 10-K) for the year ended December 31, 2005.
Baltimore, Maryland /s/ Ernst & Young LLP
February 10, 2006
EXHIBIT 31.1
WEIS MARKETS, INC.
I, Norman S. Rich, President/CEO of Weis Markets, Inc., certify that:
1. I have reviewed this annual report on Form 10-K of Weis Markets, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the periods covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial information included in this report,
fairly present in all material respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this report;
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: | ||
| a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; | ||
| b) | designed such internal controls over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the reparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| c) | evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
| d) | disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and | ||
| 5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): | ||
| a) | all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and | ||
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. | ||
Date: March 3, 2006 /S/ Norman S. Rich
Norman S. Rich
President/CEO
EXHIBIT 31.2
WEIS MARKETS, INC.
I, William R. Mills, Senior Vice President and Treasurer/CFO of Weis Markets, Inc., certify that:
1. I have reviewed this annual report on Form 10-K of Weis Markets, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the periods covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial information included in this report,
fairly present in all material respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this report;
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: | ||
| a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; | ||
| b) | designed such internal controls over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the reparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| c) | evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
| d) | disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and | ||
| 5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): | ||
| a) | all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and | ||
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. | ||
Date: March 3, 2006 /S/ William R. Mills
William R. Mills
Senior Vice President
and Treasurer/CFO
WEIS MARKETS, INC.
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report of Weis Markets, Inc. (the "company") on Form 10-K for the year ending December 31, 2005, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), we, Norman S. Rich, President / Chief Executive Officer, and William R. Mills, Senior Vice President and Treasurer / Chief Financial Officer, of the company, certify, pursuant to and for purposes of 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) to my knowledge the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the company.
/S/ Norman S. Rich
Norman S. Rich
President / CEO
03/03/2006
/S/ William R. Mills
William R. Mills
Senior Vice President and Treasurer / CFO
03/03/2006
A signed original of this written statement required by Section 906 has been provided to Weis Markets, Inc. and will be retained by Weis Markets, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.