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Filed by Real Mex Restaurants, Inc.
pursuant to Rule 424(b)(3) under the Securities Act of 1933
Commission File No.: 333-162930
ANNUAL REPORT ON FORM 10-K
On March 19, 2010, Real Mex Restaurants, Inc. filed with the Securities and Exchange Commission its Annual Report on Form 10-K for the year ended December 27, 2009, which is reproduced below as Appendix A to this filing.
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The consent of Grant Thornton LLP, the independent registered public accounting firm of Real Mex Restaurants, Inc., is attached below as Appendix B to this filing.
In connection with the offering (the “Offering”) of $13,000,000 aggregate principal amount of 14% senior secured notes of Real Mex Restaurants, Inc. (the “Company”) by certain selling security holders, the Company has filed with the Securities and Exchange Commission (“SEC”) a registration statement (the “Registration Statement”) on Form S-1 (No. 333-162930), as amended, which was declared effective on December 1, 2009. A prospectus, dated December 2, 2009 (the “Prospectus”), covering the Offering was filed with the SEC on December 2, 2009. ANY POTENTIAL INVESTORS IN THE NOTES OF THE COMPANY ARE URGED TO READ THE PROSPECTUS AND THIS PROSPECTUS SUPPLEMENT CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE OFFERING.
This Prospectus Supplement and the Prospectus are required to be delivered by the selling security holders of the above-referenced notes or by their transferees, pledges, donees or their successors in connection with the offer and sale of the above-referenced notes.
The information contained herein, including the information attached hereto, supplements and supersedes, in part, the information contained in the Prospectus. This Prospectus Supplement should be read in conjunction with the Prospectus, and is qualified by reference to the Prospectus except to the extent that the information in this Prospectus Supplement supersedes the information contained in the Prospectus.
You may obtain a copy of the Registration Statement, the Prospectus and this Prospectus Supplement, as well as other filings containing information about the Company, without charge, at the SEC’s Internet site (http://www.sec.gov). Copies of the Registration Statement, the Prospectus and this Prospectus Supplement can also be obtained, without charge, from the Company’s corporate website atwww.realmexrestaurants.com, or by directing a request to the Company, Attention: Investor Relations, 5660 Katella Avenue, Suite 100, Cypress, California 90630.
In addition to the documents described above, the Company files annual, quarterly and current reports, proxy statements and other information with the SEC, which are available at the SEC’s website atwww.sec.gov or at the Company’s website atwww.realmexrestaurants.com.
THIS FILING IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SECURITIES, NOR SHALL THERE BE ANY SALE OF SECURITIES IN ANY JURISDICTION IN WHICH SUCH SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF SUCH JURISDICTION.
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Appendix A
SECURITIES AND EXCHANGE COMMISSION
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
DELAWARE | 13-4012902 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
5660 Katella Avenue, Suite 100, Cypress, CA | 90630 | |
(Address of principal executive offices) | (Zip Code) |
Large Accelerated Filero | Accelerated Filero | Non-Accelerated Filerþ | Smaller Reporting Companyo |
None
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Cash and cash equivalents | $ | 1,417 | ||
Trade and other accounts receivable | 12,100 | |||
Inventories | 12,938 | |||
Other current assets | 5,692 | |||
Property and equipment | 113,154 | |||
Other assets | 41,841 | |||
Trademark and other intangibles | 68,900 | |||
Goodwill | 43,178 | |||
Total assets acquired | 299,220 | |||
Accounts payable and accrued liabilities | 60,614 | |||
Long-term debt | 166,028 | |||
Deferred tax liability | 31,549 | |||
Other liabilities | 13,854 | |||
Total liabilities assumed | 272,045 | |||
Net assets acquired | $ | 27,175 | ||
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• | minimum wage; | ||
• | paid leaves of absence; | ||
• | provision to employees of mandatory health insurance; | ||
• | tax reporting; and | ||
• | revisions in the tax payment requirements for employees who receive gratuities. |
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• | govern activities or operations that may have adverse environmental effects, such as discharges to air and water, as well as handling and disposal practices for solid and hazardous wastes; and |
• | impose liability for the costs of cleaning up, and damage resulting from, sites of past spills, disposals or other releases of hazardous materials. |
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• | it may be more difficult for us to satisfy our financial obligations, including with respect to the notes; | ||
• | our ability to obtain additional financing for working capital, capital expenditures, acquisitions or general corporate purposes may be impaired; | ||
• | we must use a substantial portion of our cash flow from operations to pay interest on the notes and our other indebtedness as well as to fund excess cash flow offers on the notes, which will reduce the funds available to use for operations and other purposes; | ||
• | all of the indebtedness outstanding under our senior secured credit facility will have a prior ranking claim on substantially all of our assets, and all of the indebtedness outstanding under our other secured debt (like equipment financing) will have a prior ranking claim on the underlying assets; | ||
• | our ability to fund a change of control offer may be limited; | ||
• | our ability to borrow additional funds may be limited; | ||
• | our high level of indebtedness could place us at a competitive disadvantage compared to those of our competitors that may have proportionately less debt; | ||
• | our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate may be limited; | ||
• | we may be restricted from making strategic acquisitions or exploiting other business opportunities; and | ||
• | our high level of indebtedness makes us more vulnerable to economic downturns and adverse developments in our business. |
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• | their earnings; | ||
• | covenants contained in agreements to which we or our subsidiaries are or may become subject, including our senior secured and unsecured credit facilities and the notes; | ||
• | business and tax considerations; and | ||
• | applicable law, including laws regarding the payment of dividends and distributions. |
• | incur additional indebtedness; | ||
• | repay indebtedness (including the notes) prior to stated maturities; | ||
• | pay dividends on, redeem or repurchase our stock or make other distributions; | ||
• | make acquisitions or investments; | ||
• | create or incur liens; | ||
• | transfer or sell certain assets or merge or consolidate with or into other companies; | ||
• | enter into certain transactions with affiliates; | ||
• | sell stock in our subsidiaries; | ||
• | restrict dividends, distributions or other payments from our subsidiaries; and | ||
• | otherwise conduct necessary corporate activities. |
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• | any agreement or contract the terms of which prohibit, or would be breached by, the grant of a security interest therein to secure the notes, if (i) the prohibition is legally enforceable and (ii) after using commercially reasonable efforts, we have been unable to amend the agreement or contract to remove the offending terms; | ||
• | money and letters of credit rights that are not supporting obligations; | ||
• | any deposit accounts that have been pledged to secure priority lien obligations, if, after using commercially reasonable efforts, we have been unable to obtain perfected liens on those accounts; | ||
• | any foreign intellectual property or automobiles, vehicles or the like in which a security interest cannot be perfected by the filing of a Uniform Commercial Code financing statement; | ||
• | any other assets in which a security interest cannot be perfected by the filing of a Uniform Commercial Code financing statement, so long as the aggregate fair market value of those assets is not more than $1.0 million at any time; | ||
• | any leased real property; | ||
• | the voting stock of any foreign subsidiary in excess of 65% of the outstanding voting stock of that foreign subsidiary; and | ||
• | while any priority lien obligations remain outstanding, any other assets that have not been pledged to secure priority lien obligations, so long as the aggregate fair market value of those assets is not more than $500,000 at any time. |
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• | incurred the indebtedness or granted the security interests with the intent of hindering, delaying or defrauding present or future creditors; | ||
• | received less than reasonably equivalent value or fair consideration for incurring the indebtedness or granting the security interests; | ||
• | were insolvent or rendered insolvent by reason of the incurrence of the indebtedness or the grant of the security interests; | ||
• | were left with inadequate capital to carry on business; or | ||
• | intended to incur, or did incur, or believed or reasonably should have believed that we or our restricted subsidiaries would incur, debts beyond our or our restricted subsidiaries’ ability to repay as they matured or became due, |
• | subordinate the notes, the guarantees or the security interests to our or our guarantors’ presently existing or future indebtedness or any liens securing such indebtedness; | ||
• | void the issuance of the notes, the guarantees or the security interests; or | ||
• | take other actions detrimental to holders of the notes, including avoiding any payment by us pursuant to the notes or by the guarantors pursuant to the guarantees and requiring the return of any such payment to a fund for the benefit of our or our guarantors’ unpaid creditors. |
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• | the sum of its debts, including contingent liabilities, was greater than the fair salable value of all its assets; | ||
• | the present fair salable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts and liabilities, including contingent liabilities, as they become absolute and mature; or | ||
• | it could not (or believed that it could not, or intended not to) pay its debts as they become due. |
• | what standard a court would apply in order to determine whether we or our guarantors were insolvent as of the date we or our guarantors issued the notes or the guarantees or granted the security interests, as applicable, or that regardless of the method of valuation, a court would determine that we or our guarantors were insolvent on that date; or | ||
• | whether a court would not determine that the notes, the guarantees or the security interests constituted fraudulent transfers on another ground. |
• | our operating performance and financial condition; | ||
• | prevailing interest rates; | ||
• | the interest of securities dealers in making a market for them; and | ||
• | the market for similar securities. |
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Concepts | ||||||||||||||||||||||||
State | El Torito(1) | Chevys | Acapulco | Franchised | Other(2) | Total | ||||||||||||||||||
California | 75 | 46 | 31 | 1 | 2 | 155 | ||||||||||||||||||
Missouri | — | — | — | 8 | 4 | 12 | ||||||||||||||||||
Illinois | — | 1 | — | 4 | 1 | 6 | ||||||||||||||||||
New Jersey | — | 2 | — | 3 | — | 5 | ||||||||||||||||||
Oregon | 1 | 3 | 1 | — | — | 5 | ||||||||||||||||||
Florida | 1 | 2 | — | 1 | — | 4 | ||||||||||||||||||
Maryland | — | 2 | — | 2 | — | 4 | ||||||||||||||||||
New York | 1 | 2 | — | 1 | — | 4 | ||||||||||||||||||
Virginia | — | 3 | — | 1 | — | 4 | ||||||||||||||||||
Arizona | 2 | 2 | — | — | — | 4 | ||||||||||||||||||
Washington | — | 1 | — | 1 | 1 | 3 | ||||||||||||||||||
Louisiana | — | — | — | 2 | — | 2 | ||||||||||||||||||
Nevada | — | 2 | — | — | — | 2 | ||||||||||||||||||
Indiana | 1 | — | — | — | — | 1 | ||||||||||||||||||
Minnesota | — | — | — | 1 | — | 1 | ||||||||||||||||||
South Dakota | — | — | — | 1 | — | 1 | ||||||||||||||||||
Total domestic | 81 | 66 | 32 | 26 | 8 | 213 | ||||||||||||||||||
Japan | — | — | — | 6 | — | 6 | ||||||||||||||||||
Turkey | — | — | — | 2 | — | 2 | ||||||||||||||||||
Total including International | 81 | 66 | 32 | 34 | 8 | 221 | ||||||||||||||||||
(1) | Includes El Torito Grill and Sinigual restaurants. | |
(2) | Includes Las Brisas, Who ·Song&Larry’s, El Paso Cantina and Casa Gallardo restaurants. |
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Successor | Predecessor | |||||||||||||||||||||||||||
Fiscal | November 14, | December 31, | Fiscal | August 21, | December 26, | Fiscal | ||||||||||||||||||||||
Year | 2008 to | 2007 to | Year | 2006 to | 2005 to | Year | ||||||||||||||||||||||
Ended | December 28, | November 13, | Ended | December 31, | August 20, | Ended | ||||||||||||||||||||||
2009 | 2008 | 2008 | 2007 | 2006 | 2006 | 2005(4) | ||||||||||||||||||||||
(in thousands) | ||||||||||||||||||||||||||||
Statement of Operations Data: | ||||||||||||||||||||||||||||
Restaurant revenues | $ | 456,699 | $ | 52,448 | $ | 456,587 | $ | 523,352 | $ | 179,630 | $ | 351,591 | $ | 510,013 | ||||||||||||||
Other revenue | 41,302 | 4,571 | 37,110 | 38,164 | 11,094 | 18,358 | 20,532 | |||||||||||||||||||||
Total revenues | 500,597 | 57,316 | 496,429 | 565,191 | 192,098 | 372,552 | 534,296 | |||||||||||||||||||||
Cost of sales | 121,451 | 14,255 | 123,878 | 140,824 | 46,883 | 87,388 | 127,126 | |||||||||||||||||||||
Labor | 185,455 | 21,210 | 178,962 | 199,843 | 67,729 | 125,748 | 186,390 | |||||||||||||||||||||
Direct operating and occupancy expense | 136,395 | 14,886 | 133,351 | 148,307 | 51,127 | 94,422 | 140,648 | |||||||||||||||||||||
Total operating costs | 443,301 | 50,351 | 436,191 | 488,974 | 165,739 | 307,558 | 454,164 | |||||||||||||||||||||
General and administrative expenses | 25,323 | 3,234 | 26,493 | 31,901 | 11,414 | 18,893 | 28,346 | |||||||||||||||||||||
Depreciation and amortization | 31,230 | 3,750 | 21,724 | 23,961 | 10,323 | 12,230 | 18,498 | |||||||||||||||||||||
Impairment of goodwill and intangible assets | 16,294 | — | 163,196 | 10,000 | — | — | — | |||||||||||||||||||||
Gain on extinguishment of debt | (10,875 | ) | — | — | — | — | — | — | ||||||||||||||||||||
Operating (loss) income | (9,384 | ) | (19 | ) | (158,668 | ) | 6,854 | 3,379 | 18,150 | 31,433 | ||||||||||||||||||
Interest expense | 45,870 | 4,108 | 16,407 | 19,326 | 10,481 | 16,005 | 22,973 | |||||||||||||||||||||
(Loss) income before income tax provision | (55,005 | ) | (4,103 | ) | (173,061 | ) | (10,802 | ) | (8,238 | ) | 2,787 | 8,677 | ||||||||||||||||
Net (loss) income | (49,598 | ) | (4,103 | ) | (173,113 | ) | (23,546 | ) | (5,047 | ) | 1,480 | 13,386 | ||||||||||||||||
Redeemable preferred stock accretion | — | — | — | — | — | (10,126 | ) | (14,583 | ) | |||||||||||||||||||
Net loss attributable to common stockholders(1) | $ | (49,598 | ) | $ | (4,103 | ) | $ | (173,113 | ) | $ | (23,546 | ) | $ | (5,047 | ) | $ | (8,646 | ) | $ | (1,197 | ) | |||||||
Balance Sheet Data: | ||||||||||||||||||||||||||||
Cash and cash equivalents | 3,317 | 2,099 | 2,323 | 2,710 | 14,871 | |||||||||||||||||||||||
Property and equipment, net | 84,524 | 110,505 | 96,179 | 90,802 | 82,592 | |||||||||||||||||||||||
Total assets | 252,361 | 298,328 | 434,455 | 447,135 | 310,889 | |||||||||||||||||||||||
Total debt(2) | 147,114 | 161,813 | 186,187 | 183,905 | 182,031 | |||||||||||||||||||||||
Total stockholder’s equity | 2,320 | 23,044 | 163,113 | 184,077 | 50,584 | |||||||||||||||||||||||
Other Financial Data: | ||||||||||||||||||||||||||||
Capital expenditures | $ | 6,773 | $ | 24,068 | $ | 34,404 | $ | 26,380 | $ | 23,408 | ||||||||||||||||||
Ratio of earnings to fixed charges(3) | — | — | — | — | 1.2 | x |
(1) | Net loss attributable to common stockholders includes the effect of the accretion of the liquidation preference on the redeemable preferred stock which reduces net income or increases net loss attributable to common stockholders for the relevant periods through August 20, 2006. | |
(2) | Total debt includes long-term debt, obligations under capital leases and unamortized debt premium/discount. | |
(3) | For purposes of calculating the ratio of earnings to fixed charges, earnings consist of net income before income taxes plus fixed charges. Fixed charges consist of interest expense on all indebtedness, plus one-third of rental expense (the portion deemed representative of the interest factor). For periods with a net loss before income taxes, this calculation is not performed since the ratio is not meaningful. | |
(4) | Includes the results of Chevys since January 12, 2005, the date of acquisition. |
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Successor | Predecessor | |||||||||||||||
Fiscal | November 14, | December 31, | Fiscal | |||||||||||||
Year | 2008 to | 2007 to | Year | |||||||||||||
Ended | December 28, | November 13, | Ended | |||||||||||||
2009 | 2008 | 2008 | 2007 | |||||||||||||
Total revenues | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | ||||||||
Cost of sales | 24.3 | 24.9 | 25.0 | 24.9 | ||||||||||||
Labor | 37.0 | 37.0 | 36.0 | 35.4 | ||||||||||||
Direct operating and occupancy expense | 27.2 | 26.0 | 26.9 | 26.2 | ||||||||||||
Total operating costs | 88.6 | 87.8 | 87.9 | 86.5 | ||||||||||||
General and administrative expense | 5.1 | 5.6 | 5.3 | 5.6 | ||||||||||||
Depreciation and amortization | 6.2 | 6.5 | 4.4 | 4.2 | ||||||||||||
Impairment of goodwill and intangible assets | 3.3 | — | 32.9 | 1.8 | ||||||||||||
Operating (loss) income | (1.9 | ) | — | (32.0 | ) | 1.2 | ||||||||||
Interest expense | 9.2 | 7.2 | 3.3 | 3.4 | ||||||||||||
Loss before income tax provision | (11.0 | ) | (7.2 | ) | (34.9 | ) | (1.9 | ) | ||||||||
Net loss | (9.9 | ) | (7.2 | ) | (34.9 | ) | (4.2 | ) |
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Less than | More than 5 | |||||||||||||||||||
Total | 1 Year | 1-3 Years | 3-5 Years | Years | ||||||||||||||||
($ in thousands) | ||||||||||||||||||||
Contractual Obligations | ||||||||||||||||||||
Long Term Debt Obligations(1) | $ | 157,071 | $ | 657 | $ | 182 | $ | 156,192 | $ | 40 | ||||||||||
Capital Lease Obligations | 1,533 | 496 | 589 | 171 | 277 | |||||||||||||||
Operating Lease Obligations(2) | 260,740 | 41,641 | 72,225 | 54,250 | 92,624 | |||||||||||||||
Purchase Obligations | 52,267 | 38,462 | 5,522 | 5,522 | 2,761 | |||||||||||||||
Total | $ | 471,611 | $ | 81,256 | $ | 78,518 | $ | 216,135 | $ | 95,702 | ||||||||||
(1) | Includes our notes, senior unsecured credit facility, senior secured revolving credit facility, mortgage and an obligation to a vendor. We have not included any scheduled interest payments in this table. See “Debt and Other Obligations” for a discussion of terms for each significant component of long term debt. | |
(2) | In addition to the base rent, many of our leases contain percentage rent clauses, which obligate us to pay additional rents based on a percentage of sales, when sales levels exceed a contractually defined base. We recorded such additional rent expenses of $1,538 in Successor 2009, $198 in Successor 2008, $1,926 in Predecessor 2008 and $2,164 in Predecessor 2007. Operating Lease Obligations do not reflect potential renewals or replacements of expiring leases. |
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Real Mex Restaurants, Inc.
March 19, 2010
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(In Thousands, Except For Share Data)
December 27, | December 28, | |||||||
2009 | 2008 | |||||||
Assets | ||||||||
Current assets: | ||||||||
Cash and cash equivalents | $ | 3,317 | $ | 2,099 | ||||
Trade receivables, net | 9,491 | 9,102 | ||||||
Other receivables | 603 | 873 | ||||||
Inventories, net | 10,834 | 13,563 | ||||||
Prepaid expenses | 3,206 | 7,253 | ||||||
Other current assets | 359 | 1,848 | ||||||
Current portion of favorable lease asset, net | 5,418 | 5,902 | ||||||
Total current assets | 33,228 | 40,640 | ||||||
Property and equipment, net | 84,524 | 110,505 | ||||||
Goodwill, net | 43,812 | 43,200 | ||||||
Trademarks and other intangible assets | 55,700 | 68,900 | ||||||
Deferred charges | 7,108 | 1,404 | ||||||
Favorable lease asset, less current portion, net | 19,599 | 25,382 | ||||||
Other assets | 8,390 | 8,297 | ||||||
Total assets | $ | 252,361 | $ | 298,328 | ||||
Liabilities and stockholder’s equity | ||||||||
Current liabilities: | ||||||||
Accounts payable | $ | 16,785 | $ | 23,198 | ||||
Accrued self-insurance reserves | 14,790 | 15,619 | ||||||
Accrued compensation and benefits | 12,923 | 16,216 | ||||||
Accrued interest | 9,759 | 3,444 | ||||||
Other accrued liabilities | 11,966 | 11,982 | ||||||
Current portion of long-term debt | 657 | 8,313 | ||||||
Current portion of capital lease obligations | 402 | 453 | ||||||
Total current liabilities | 67,282 | 79,225 | ||||||
Long-term debt, less current portion | 145,271 | 152,105 | ||||||
Capital lease obligations, less current portion | 784 | 942 | ||||||
Deferred tax liabilities | 26,059 | 31,549 | ||||||
Unfavorable lease liability, less current portion, net | 6,415 | 8,445 | ||||||
Other liabilities | 4,230 | 3,018 | ||||||
Total liabilities | 250,041 | 275,284 | ||||||
Commitments and contingencies | — | — | ||||||
Stockholder’s equity: | ||||||||
Common stock, $.001 par value, 1,000 shares authorized, issued and outstanding at December 27, 2009 and December 28, 2008 | — | — | ||||||
Additional paid-in capital | 56,021 | 27,147 | ||||||
Accumulated deficit | (53,701 | ) | (4,103 | ) | ||||
Total stockholder’s equity | 2,320 | 23,044 | ||||||
Total liabilities and stockholder’s equity | $ | 252,361 | $ | 298,328 | ||||
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(In Thousands)
Successor | Predecessor | |||||||||||||||
Fiscal | November 14, | December 31, | Fiscal | |||||||||||||
Year Ended | 2008 to | 2007 to | Year Ended | |||||||||||||
December 27, | December 28, | November 13, | December 30, | |||||||||||||
2009 | 2008 | 2008 | 2007 | |||||||||||||
Revenues: | ||||||||||||||||
Restaurant revenues | $ | 456,699 | $ | 52,448 | $ | 456,587 | $ | 523,352 | ||||||||
Other revenues | 41,302 | 4,571 | 37,110 | 38,164 | ||||||||||||
Franchise revenues | 2,596 | 297 | 2,732 | 3,675 | ||||||||||||
Total revenues | 500,597 | 57,316 | 496,429 | 565,191 | ||||||||||||
Costs and expenses: | ||||||||||||||||
Cost of sales | 121,451 | 14,255 | 123,878 | 140,824 | ||||||||||||
Labor | 185,455 | 21,210 | 178,962 | 199,843 | ||||||||||||
Direct operating and occupancy expense | 136,395 | 14,886 | 133,351 | 148,307 | ||||||||||||
General and administrative expense | 25,323 | 3,234 | 26,493 | 31,901 | ||||||||||||
Depreciation and amortization | 31,230 | 3,750 | 21,724 | 23,961 | ||||||||||||
Pre-opening costs | — | — | 2,342 | 2,139 | ||||||||||||
Impairment of goodwill and intangible assets | 16,294 | — | 163,196 | 10,000 | ||||||||||||
Impairment of property and equipment | 4,708 | — | 5,151 | 1,362 | ||||||||||||
Gain on extinguishment of debt | (10,875 | ) | — | — | — | |||||||||||
Operating (loss) income | (9,384 | ) | (19 | ) | (158,668 | ) | 6,854 | |||||||||
Other income (expense): | ||||||||||||||||
Interest expense | (45,870 | ) | (4,108 | ) | (16,407 | ) | (19,326 | ) | ||||||||
Other income, net | 249 | 24 | 2,014 | 1,670 | ||||||||||||
Total other expense, net | (45,621 | ) | (4,084 | ) | (14,393 | ) | (17,656 | ) | ||||||||
Loss before income tax provision | (55,005 | ) | (4,103 | ) | (173,061 | ) | (10,802 | ) | ||||||||
Income tax (benefit) provision | (5,407 | ) | — | 52 | 12,744 | |||||||||||
Net loss | $ | (49,598 | ) | $ | (4,103 | ) | $ | (173,113 | ) | $ | (23,546 | ) | ||||
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(In Thousands, Except For Share Data)
Predecessor | ||||||||||||||||||||
Additional | ||||||||||||||||||||
Common Stock | Paid-in | Accumulated | ||||||||||||||||||
Shares | Amount | Capital | Deficit | Total | ||||||||||||||||
Balance at December 31, 2006 | 1,000 | $ | — | $ | 199,124 | $ | (15,047 | ) | $ | 184,077 | ||||||||||
Contribution from parent | — | — | 1,743 | — | 1,743 | |||||||||||||||
Stock-based compensation | — | — | 839 | — | 839 | |||||||||||||||
Net loss | — | — | — | (23,546 | ) | (23,546 | ) | |||||||||||||
Balance at December 30, 2007 | 1,000 | — | 201,706 | (38,593 | ) | 163,113 | ||||||||||||||
Contribution from parent | — | — | 5,554 | — | 5,554 | |||||||||||||||
Stock-based compensation | — | — | 406 | — | 406 | |||||||||||||||
Net loss | — | — | — | (173,113 | ) | (173,113 | ) | |||||||||||||
Balance at November 13, 2008 | 1,000 | $ | — | $ | 207,666 | $ | (211,706 | ) | $ | (4,040 | ) | |||||||||
Successor | ||||||||||||||||||||
Additional | ||||||||||||||||||||
Common Stock | Paid-in | Accumulated | ||||||||||||||||||
Shares | Amount | Capital | Deficit | Total | ||||||||||||||||
Recapitalization of the Company, November 14, 2008 | 1,000 | $ | — | $ | 27,175 | $ | — | $ | 27,175 | |||||||||||
Stock-based compensation | — | — | (28 | ) | (28 | ) | ||||||||||||||
Net loss | — | — | — | (4,103 | ) | (4,103 | ) | |||||||||||||
Balance at December 28, 2008 | 1,000 | — | 27,147 | (4,103 | ) | 23,044 | ||||||||||||||
Contribution from parent | — | — | 28,614 | — | 28,614 | |||||||||||||||
Stock-based compensation | — | — | 260 | — | 260 | |||||||||||||||
Net loss | — | — | — | (49,598 | ) | (49,598 | ) | |||||||||||||
Balance at December 27, 2009 | 1,000 | $ | — | $ | 56,021 | $ | (53,701 | ) | $ | 2,320 | ||||||||||
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(In Thousands)
Successor | Predecessor | |||||||||||||||
Fiscal Year | November 14, | December 31, | Fiscal Year | |||||||||||||
Ended | 2008 to | 2007 to | Ended | |||||||||||||
December 27, | December 28, | November 13, | December 30, | |||||||||||||
2009 | 2008 | 2008 | 2007 | |||||||||||||
Operating activities | ||||||||||||||||
Net loss | $ | (49,598 | ) | $ | (4,103 | ) | $ | (173,113 | ) | $ | (23,546 | ) | ||||
Adjustments to reconcile net loss to net cash provided by operating activities: | ||||||||||||||||
Depreciation | 27,619 | 3,334 | 19,780 | 22,254 | ||||||||||||
Amortization of: | ||||||||||||||||
Favorable lease asset and unfavorable lease liability, net | 3,611 | 416 | 1,944 | 1,707 | ||||||||||||
Debt discount/(premium) | 20,273 | 1,535 | (1,050 | ) | (1,563 | ) | ||||||||||
Deferred financing costs | 2,626 | 169 | 1,571 | 1,828 | ||||||||||||
Impairment of goodwill and intangible assets | 16,294 | — | 163,196 | 10,000 | ||||||||||||
Impairment of property and equipment | 4,708 | — | 5,151 | 1,362 | ||||||||||||
Loss (gain) on disposal of property and equipment | 196 | — | (402 | ) | (877 | ) | ||||||||||
Gain on lease termination | — | — | (600 | ) | — | |||||||||||
Gain on extinguishment of debt | (10,875 | ) | — | — | — | |||||||||||
Stock-based compensation expense | 260 | (28 | ) | 406 | 839 | |||||||||||
Non-cash consulting expense | 950 | — | — | — | ||||||||||||
Deferred income taxes | (5,423 | ) | — | — | 12,731 | |||||||||||
Other | — | — | — | 231 | ||||||||||||
Changes in operating assets and liabilities: | ||||||||||||||||
Trade and other receivables | (119 | ) | 2,125 | 654 | (2,578 | ) | ||||||||||
Inventories | 2,729 | (625 | ) | (889 | ) | (1,484 | ) | |||||||||
Prepaid expenses and other current assets | 5,536 | (3,409 | ) | 4,638 | (201 | ) | ||||||||||
Related party receivable/payable | — | — | (66 | ) | 6,096 | |||||||||||
Deferred charges | — | — | 35 | (148 | ) | |||||||||||
Other assets | (330 | ) | 6 | 66 | 73 | |||||||||||
Accounts payable and accrued liabilities | (2,750 | ) | 7,342 | (7,551 | ) | (6,519 | ) | |||||||||
Other liabilities | 1,211 | 424 | 3,959 | 5,225 | ||||||||||||
Net cash provided by operating activities | 16,918 | 7,186 | 17,729 | 25,430 | ||||||||||||
Investing activities | ||||||||||||||||
Purchases of property and equipment | (6,773 | ) | (736 | ) | (23,332 | ) | (34,404 | ) | ||||||||
Exchange transaction costs | (542 | ) | (20 | ) | (1,153 | ) | — | |||||||||
Sale of Fuzio trademark | — | — | — | 1,200 | ||||||||||||
Proceeds from lease termination | — | — | 600 | — | ||||||||||||
Net proceeds from disposal of property and equipment | 66 | — | 302 | 4,789 | ||||||||||||
Net cash used in investing activities | (7,249 | ) | (756 | ) | (23,583 | ) | (28,415 | ) | ||||||||
Financing activities | ||||||||||||||||
Net (payment) borrowing under revolving credit facility | (7,600 | ) | (5,900 | ) | 2,500 | 3,050 | ||||||||||
Borrowings under long-term debt agreements | 114,799 | 466 | 1,375 | 981 | ||||||||||||
Payments on long-term debt agreements and capital lease obligations | (107,269 | ) | (314 | ) | (1,449 | ) | (577 | ) | ||||||||
Payment of financing costs | (8,460 | ) | — | (500 | ) | (856 | ) | |||||||||
Capital contributions from Parent | 79 | — | 3,022 | — | ||||||||||||
Net cash (used in) provided by financing activities | (8,451 | ) | (5,748 | ) | 4,948 | 2,598 | ||||||||||
Net increase (decrease) in cash and cash equivalents | 1,218 | 682 | (906 | ) | (387 | ) | ||||||||||
Cash and cash equivalents at beginning of period | 2,099 | 1,417 | 2,323 | 2,710 | ||||||||||||
Cash and cash equivalents at end of period | $ | 3,317 | $ | 2,099 | $ | 1,417 | $ | 2,323 | ||||||||
Supplemental disclosure of cash flow information | ||||||||||||||||
Interest paid | $ | 15,683 | $ | 873 | $ | 16,910 | $ | 19,722 | ||||||||
Income taxes paid | $ | 16 | $ | — | $ | 52 | $ | 38 | ||||||||
Supplemental disclosure of noncash investing and financing activities | ||||||||||||||||
In-kind interest on senior unsecured credit facility added to principal | $ | 974 | $ | — | $ | — | $ | — | ||||||||
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December 27, 2009
(In Thousands, Except For Share Data)
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Cash and cash equivalents | $ | 1,417 | ||
Trade and other accounts receivable | 12,100 | |||
Inventories | 12,938 | |||
Other current assets | 5,692 | |||
Property and equipment | 113,154 | |||
Other assets | 41,841 | |||
Trademarks and other intangible assets | 68,900 | |||
Goodwill | 43,178 | |||
Total assets acquired | 299,220 | |||
Accounts payable and accrued liabilities | 60,616 | |||
Long-term debt | 166,026 | |||
Deferred tax liability | 31,549 | |||
Other liabilities | 13,854 | |||
Total liabilities assumed | 272,045 | |||
Net assets acquired | $ | 27,175 | ||
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December 27, | December 28, | |||||||
2009 | 2008 | |||||||
Trademarks | $ | 46,800 | $ | 55,900 | ||||
Franchise agreements | 8,900 | 13,000 | ||||||
$ | 55,700 | $ | 68,900 | |||||
2010 | 2011 | 2012 | 2013 | |||||||||||||
Deferred financing costs | $ | 2,449 | $ | 2,449 | $ | 2,190 | $ | 20 |
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2010 | 2011 | 2012 | 2013 | 2014 | Thereafter | |||||||||||||||||||
Favorable lease asset | $ | 5,418 | $ | 4,780 | $ | 4,344 | $ | 3,687 | $ | 2,889 | $ | 3,899 | ||||||||||||
Unfavorable lease liability | (2,024 | ) | (1,516 | ) | (1,264 | ) | (860 | ) | (662 | ) | (2,113 | ) | ||||||||||||
Net amortization expense | $ | 3,394 | $ | 3,264 | $ | 3,080 | $ | 2,827 | $ | 2,227 | $ | 1,786 | ||||||||||||
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December 27, | December 28, | |||||||
2009 | 2008 | |||||||
Land and land improvements | $ | 1,530 | $ | 1,530 | ||||
Buildings and improvements | 379 | 939 | ||||||
Furniture, fixtures and equipment | 46,340 | 43,789 | ||||||
Leasehold improvements and leasehold rights | 78,727 | 79,193 | ||||||
Property and equipment, total | 126,975 | 125,451 | ||||||
Less accumulated depreciation and amortization | (42,451 | ) | (14,946 | ) | ||||
Property and equipment, net | $ | 84,524 | $ | 110,505 | ||||
December 27, | December 28, | |||||||
2009 | 2008 | |||||||
Trade accounts payable | $ | 14,241 | $ | 20,329 | ||||
Gift cards and gift certificates | 2,544 | 2,869 | ||||||
$ | 16,785 | $ | 23,198 | |||||
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December 27, | December 28, | |||||||
2009 | 2008 | |||||||
Rent and occupancy expenses | $ | 1,210 | $ | 1,500 | ||||
Sales taxes | 4,028 | 3,960 | ||||||
Other | 6,728 | 6,522 | ||||||
$ | 11,966 | $ | 11,982 | |||||
December 27, | December 28, | |||||||
2009 | 2008 | |||||||
Senior Secured Notes due 2010 | $ | — | $ | 105,000 | ||||
Senior Secured Notes due 2013 | 130,000 | — | ||||||
Senior Secured Notes unamortized debt discount | (11,143 | ) | (18,415 | ) | ||||
Senior Secured Revolving Credit Facility | — | 7,600 | ||||||
Senior Unsecured Credit Facility — Related Party | 25,974 | 65,000 | ||||||
Mortgage | 519 | 591 | ||||||
Other | 578 | 642 | ||||||
145,928 | 160,418 | |||||||
Less current portion | (657 | ) | (8,313 | ) | ||||
$ | 145,271 | $ | 152,105 | |||||
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December 27, | December 28, | |||
2009 | 2008 | |||
Senior Secured Notes due 2010 | — | 10.25% | ||
Senior Secured Notes due 2013 | 14.00% | — | ||
Senior Secured Revolving Credit Facilities | 7.42 to 9.25% | 7.11 to 7.94% | ||
Senior Unsecured Credit Facility | 16.50% | 12.50% | ||
Mortgage | 9.28% | 9.28% | ||
Other | 3.20 to 4.70% | 3.98 to 4.70% |
Unamortized | ||||||||||||
Debt | ||||||||||||
Principal | Discount | Total | ||||||||||
2010 | $ | 657 | $ | (3,714 | ) | $ | (3,057 | ) | ||||
2011 | 87 | (3,714 | ) | (3,627 | ) | |||||||
2012 | 95 | (3,715 | ) | (3,620 | ) | |||||||
2013 | 156,078 | — | 156,078 | |||||||||
2014 | 114 | — | 114 | |||||||||
Thereafter | 40 | — | 40 | |||||||||
$ | 157,071 | $ | (11,143 | ) | $ | 145,928 | ||||||
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Weighted | ||||||||
Average | ||||||||
Shares | Exercise Price | |||||||
Outstanding at December 30, 2007 — Predecessor | 799 | $ | 8,150 | |||||
Granted | — | — | ||||||
Exercised | — | — | ||||||
Forfeited/expired | (169 | ) | 8,150 | |||||
Outstanding at November 13, 2008 — Predecessor | 630 | $ | 8,150 | |||||
Granted | — | — | ||||||
Exercised | — | — | ||||||
Forfeited/expired | (300 | ) | 8,150 | |||||
Outstanding at December 28, 2008 — Successor | 330 | 8,150 | ||||||
Granted | — | — | ||||||
Exercised | — | — | ||||||
Forfeited/expired | — | — | ||||||
Outstanding at December 27, 2009 — Successor | 330 | $ | 8,150 | |||||
Vested and expected to vest at December 27, 2009 | 322 | $ | 8,150 | |||||
Exercisable at December 27, 2009 | 197 | $ | 8,150 |
Successor | Predecessor | |||||||||||||||
December 27, | December 28, | November 13, | December 30, | |||||||||||||
2009 | 2008 | 2008 | 2007 | |||||||||||||
Current: | ||||||||||||||||
Federal | $ | — | $ | — | $ | 28 | $ | — | ||||||||
State | 16 | — | 24 | 58 | ||||||||||||
16 | — | 52 | 58 | |||||||||||||
Deferred: | ||||||||||||||||
Federal | (4,612 | ) | — | — | 10,621 | |||||||||||
State | (811 | ) | — | — | 2,065 | |||||||||||
(5,423 | ) | — | — | 12,686 | ||||||||||||
Total income tax (benefit) expense | $ | (5,407 | ) | $ | — | $ | 52 | $ | 12,744 | |||||||
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December 27, | December 28, | |||||||
2009 | 2008 | |||||||
Deferred tax assets: | ||||||||
Federal net operating loss carry-forwards | $ | 10,649 | $ | — | ||||
State net operating loss carry-forwards | 6,662 | — | ||||||
Goodwill and other intangibles | 20,262 | 24,808 | ||||||
Accrued expenses not currently deductible | 8,197 | 6,470 | ||||||
Tax credit carry-forwards | 900 | — | ||||||
Property and equipment basis difference | 9,227 | 7,144 | ||||||
Deferred rent | 867 | 72 | ||||||
Gift certificates and other deferred income | 1,055 | 537 | ||||||
Deferred compensation | 761 | 1,262 | ||||||
State taxes | 2,704 | 1,872 | ||||||
Other | 4,554 | 5,204 | ||||||
Total deferred tax assets | 65,838 | 47,369 | ||||||
Deferred tax liabilities: | ||||||||
Prepaid expenses | (535 | ) | (397 | ) | ||||
Trademarks and other indefinite lived intangibles | (26,059 | ) | (31,549 | ) | ||||
Lease amortization | (10,370 | ) | (12,732 | ) | ||||
Unamortized landlord allowance | (3,036 | ) | (3,097 | ) | ||||
Unamortized debt discount | — | (8,019 | ) | |||||
Total deferred tax liabilities | (40,000 | ) | (55,794 | ) | ||||
Valuation allowance | (51,897 | ) | (23,124 | ) | ||||
Net deferred tax liability | $ | (26,059 | ) | $ | (31,549 | ) | ||
Successor | Predecessor | |||||||||||
December 27, | December 28, | December 30, | ||||||||||
2009 | 2008 | 2007 | ||||||||||
Income tax at U.S. federal statutory tax rate | 34.0 | % | 34.0 | % | 34.0 | % | ||||||
State income tax, net of federal benefit | 0.9 | 0.0 | 4.7 | |||||||||
Valuation allowance | (23.3 | ) | (13.0 | ) | (123.0 | ) | ||||||
Non-deductible transaction costs | — | — | — | |||||||||
Impairment of goodwill and intangibles | (1.7 | ) | (92.1 | ) | — | |||||||
Purchase accounting adjustment | — | 71.2 | — | |||||||||
Permanent true-ups | — | — | (33.3 | ) | ||||||||
Other | (0.1 | ) | (0.1 | ) | (0.4 | ) | ||||||
Effective tax rate | 9.8 | % | 0.0 | % | (118.0 | )% | ||||||
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Level 1: | Quoted prices are available in active markets for identical assets or liabilities as of the reporting date. Active markets are those in which transactions for the asset or liability occur in sufficient frequency and volume to provide pricing information on an ongoing basis. Level 1 primarily consists of financial instruments such as exchange-traded derivatives, listed equities and U.S. government treasury securities. | |
Level 2: | Pricing inputs are other than quoted prices in active markets included in Level 1, which are either directly or indirectly observable as of the reporting date. Level 2 includes those financial instruments that are valued using models or other valuation methodologies. These models are primarily industry-standard models that consider various assumptions, including quoted forward prices for commodities, time value, volatility factors, and current market and contractual prices for the underlying instruments, as well as other relevant economic measures. Substantially all of these assumptions are observable in the marketplace throughout the full term of the instrument, can be derived from observable data or are supported by observable levels at which transactions are executed in the marketplace. Instruments in this category include non-exchange-traded derivatives such as over the counter forwards, options and repurchase agreements. | |
Level 3: | Pricing inputs include significant inputs that are generally less observable from objective sources. These inputs may be used with internally developed methodologies that result in management’s best estimate of fair value. At each balance sheet date, we perform an analysis of all applicable instruments and include in Level 3 all of those whose fair value is based on significant unobservable inputs. |
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Capital | Minimum | Net | ||||||||||||||
Lease | Lease | Sublease | Lease | |||||||||||||
Obligations | Commitments | Income | Commitments | |||||||||||||
2010 | $ | 496 | $ | 41,641 | $ | (505 | ) | $ | 41,632 | |||||||
2011 | 332 | 37,709 | (420 | ) | 37,621 | |||||||||||
2012 | 257 | 34,516 | (345 | ) | 34,428 | |||||||||||
2013 | 92 | 29,870 | (240 | ) | 29,722 | |||||||||||
2014 | 79 | 24,380 | (240 | ) | 24,219 | |||||||||||
Thereafter | 277 | 92,624 | (320 | ) | 92,581 | |||||||||||
Total minimum lease payments | 1,533 | $ | 260,740 | $ | (2,070 | ) | $ | 260,203 | ||||||||
Less: Amount representing interest | (347 | ) | ||||||||||||||
Present value of net minimum capital lease payments | 1,186 | |||||||||||||||
Less: Current maturities of capital lease obligations | (402 | ) | ||||||||||||||
Long-term capital lease obligations | $ | 784 | ||||||||||||||
Successor | Predecessor | |||||||||||||||
December 27, | December 28, | November 13, | December 30, | |||||||||||||
2009 | 2008 | 2008 | 2007 | |||||||||||||
Rental expense | $ | 47,946 | $ | 4,997 | $ | 41,935 | $ | 45,369 | ||||||||
Percentage rent expense above minimum rent (included in rental expense) | 1,538 | 198 | 1,926 | 2,164 | ||||||||||||
Net sublease income | 428 | 45 | 344 | 227 |
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Successor | Successor | Successor | Successor | |||||||||||||
13 weeks ended | 13 weeks ended | 13 weeks ended | 13 weeks ended | |||||||||||||
March 29, | June 28, | September 27, | December 27, | |||||||||||||
2009 | 2009 | 2009 | 2009 | |||||||||||||
Total revenues | $ | 128,493 | $ | 135,924 | $ | 124,211 | $ | 111,969 | ||||||||
Operating income (loss) | $ | 208 | $ | 4,643 | $ | (4,193 | ) | $ | (20,917 | ) | ||||||
Net loss | $ | (8,948 | ) | $ | (4,135 | ) | $ | (13,446 | )(1) | $ | (23,069 | )(2) |
Predecessor | Successor | |||||||||||||||||||
Predecessor | Predecessor | Predecessor | Period from | Period from | ||||||||||||||||
13 weeks ended | 13 weeks ended | 13 weeks ended | September 29, 2008 | November 14, 2008 | ||||||||||||||||
March 30, | June 29, | September 28, | to | to | ||||||||||||||||
2008 | 2008 | 2008 | November 13, 2008 | December 28, 2008 | ||||||||||||||||
Total revenues | $ | 137,577 | $ | 152,528 | $ | 137,461 | $ | 68,863 | $ | 57,316 | ||||||||||
Operating income (loss) | $ | 2,242 | $ | (27,728 | ) | $ | 1,931 | $ | (135,113 | ) | $ | (20 | ) | |||||||
Net loss | $ | (2,204 | ) | $ | (31,839 | )(3) | $ | (1,080 | ) | $ | (137,990 | )(4) | $ | (4,103 | ) |
(1) | Includes impairment of goodwill and other intangible assets of $2,728. | |
(2) | Includes impairment of goodwill and other intangible assets of $16,294. | |
(3) | Includes impairment of goodwill and other intangible assets of $34,000. | |
(4) | Includes impairment of goodwill and other intangible assets of $129,196. |
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Name | Age | Position | ||||
Richard E. Rivera | 63 | President, Chief Executive Officer and Chairman | ||||
Carlos Angulo | 48 | President, Real Mex Foods, Inc. | ||||
Roberto (Pepe) Lopez | 54 | Executive Chef and Senior Vice President, Research and Development | ||||
Raymond Garcia | 55 | Senior Vice President of Operations — El Torito & Acapulco | ||||
Nicholas Mayer | 47 | Senior Vice President of Operations — Chevys | ||||
Anatoly Bushler | 33 | Director*+ | ||||
Jeff Campbell | 65 | Director*+ | ||||
Evan Geller | 33 | Director*+ | ||||
Craig S. Miller | 60 | Director*+ | ||||
Anthony Polazzi | 34 | Director*+ | ||||
Douglas Tapley | 37 | Director*+ |
* | Member of our audit committee. | |
+ | Member of our compensation committee. |
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Jeff Campbell,
Evan Geller,
Craig S. Miller,
Anthony Polazzi and
Douglas Tapley
Change in | ||||||||||||||||||||||||||||||||||||
Pension Value | ||||||||||||||||||||||||||||||||||||
Non- | and | |||||||||||||||||||||||||||||||||||
Equity | Nonqualified | |||||||||||||||||||||||||||||||||||
Incentive | Deferred | All | ||||||||||||||||||||||||||||||||||
Name and | Stock | Option | Plan | Compensation | Other | |||||||||||||||||||||||||||||||
Principal Position | Year | Salary | Bonus | Awards | Awards(1) | Compensation(2) | Earnings(3) | Compensation(4) | Total | |||||||||||||||||||||||||||
($) | ($) | (#) | (#) | ($) | (#) | ($) | ($) | |||||||||||||||||||||||||||||
Richard E. Rivera | 2009 | 349,039 | 50,000 | — | — | — | — | 38,242 | (5) | 437,281 | ||||||||||||||||||||||||||
CEO, President and Chairman (6) | ||||||||||||||||||||||||||||||||||||
Steven Tanner | 2009 | 307,995 | 103,649 | — | — | — | — | 28,479 | 440,122 | |||||||||||||||||||||||||||
CFO (7) | 2008 | 296,587 | — | — | — | — | — | 26,111 | 322,698 | |||||||||||||||||||||||||||
2007 | 283,841 | 40,000 | — | 433,745 | — | — | 46,970 | 804,556 | ||||||||||||||||||||||||||||
Carlos Angulo | 2009 | 284,450 | — | — | — | — | — | 18,013 | 302,463 | |||||||||||||||||||||||||||
President, Real Mex | 2008 | 260,000 | — | — | — | — | — | 21,229 | 281,229 | |||||||||||||||||||||||||||
Foods, Inc. | 2007 | 244,600 | 40,000 | — | 433,745 | — | — | 39,225 | 757,570 | |||||||||||||||||||||||||||
Roberto (Pepe) Lopez | 2009 | 211,544 | — | — | — | — | — | 6,376 | 217,920 | |||||||||||||||||||||||||||
Executive Chef and | 2008 | 210,330 | — | — | — | — | — | 10,540 | 220,870 | |||||||||||||||||||||||||||
Senior Vice President, R&D | 2007 | 209,309 | 25,000 | — | 78,863 | — | — | 17,491 | 330,663 | |||||||||||||||||||||||||||
Raymond Garcia | 2009 | 206,183 | — | — | — | — | — | 5,807 | 211,990 | |||||||||||||||||||||||||||
Senior Vice President, | 2008 | 205,000 | — | — | — | — | — | 5,284 | 210,284 | |||||||||||||||||||||||||||
Operations — El Torito & Acapulco | 2007 | 201,963 | 28,000 | — | 110,408 | — | — | 14,095 | 354,466 |
(1) | Represents grant date fair value related to options granted to acquire shares of RM Restaurant Holding Corp., parent of the Company. These amounts do not reflect the amount of compensation actually received by the Named Executive Officer during the fiscal year. For a description of the assumptions used in calculating the grant date fair value of the equity awards, see our “Notes to Consolidated Financial Statements”. | |
(2) | The Company does not have a Non-Equity Incentive Plan. | |
(3) | The Company does not have a pension plan and does not pay above market or preferential earnings on deferred compensation plans. | |
(4) | All Other Compensation includes medical and dental reimbursements, automobile expenses, employer matching contribution of a nonqualified deferred compensation plan, relocation reimbursements and amounts paid in connection with the Agreement and Plan of Merger with our parent. | |
(5) | Amount for Mr. Rivera includes reimbursements related to his relocation in accordance with his employment agreement. | |
(6) | Mr. Rivera joined the Company as an executive officer in April 2009. | |
(7) | Mr. Tanner departed from his position as an executive officer of the Company on February 12, 2010. |
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Option/Warrant Awards | Stock Awards | |||||||||||||||||||||||||||||||||||
Equity | ||||||||||||||||||||||||||||||||||||
Incentive | ||||||||||||||||||||||||||||||||||||
Equity | Plan | |||||||||||||||||||||||||||||||||||
Incentive | Awards: | |||||||||||||||||||||||||||||||||||
Equity | Plan | Market or | ||||||||||||||||||||||||||||||||||
Incentive | Awards: | Payout | ||||||||||||||||||||||||||||||||||
Plan | Number of | Value of | ||||||||||||||||||||||||||||||||||
Awards | Unearned | Unearned | ||||||||||||||||||||||||||||||||||
Number of | Number of | Number of | Number of | Market | Shares | Shares | ||||||||||||||||||||||||||||||
Securities | Securities | Securities | Shares or | Value of | Units or | Units or | ||||||||||||||||||||||||||||||
Underlying | Underlying | Underlying | Units of | Shares or | Other | Other | ||||||||||||||||||||||||||||||
Unexercised | Unexercised | Unexercised | Option | Option | Stock That | Unit That | Rights That | Rights That | ||||||||||||||||||||||||||||
Options (#) | Options (#) | Unearned | Exercise | Expiration | Have Not | Have Not | Have Not | Have Not | ||||||||||||||||||||||||||||
Name | Exercisable | Unexercisable | Options (#) | Price | Date | Vested (#) | Vested | Vested (#) | Vested | |||||||||||||||||||||||||||
Richard E. Rivera | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||
Steven Tanner | 66 | 44 | — | $ | 8,150 | 8/16/2016 | — | — | — | — | ||||||||||||||||||||||||||
Carlos Angulo | 66 | 44 | — | $ | 8,150 | 8/16/2016 | — | — | — | — | ||||||||||||||||||||||||||
Roberto (Pepe) Lopez | 12 | 8 | — | $ | 8,150 | 8/16/2016 | — | — | — | — | ||||||||||||||||||||||||||
Raymond Garcia | 17 | 11 | — | $ | 8,150 | 8/16/2016 | — | — | — | — |
Aggregate | Aggregate | |||||||||||||||||||
Executive | Company | Aggregate | Withdrawals/ | Balance at | ||||||||||||||||
Contributions | Contributions | Earnings | Distributions | December 27, | ||||||||||||||||
Name | during 2009 | during 2009 | during 2009 | during 2009 | 2009 | |||||||||||||||
Richard E. Rivera | $ | — | $ | — | $ | — | $ | — | $ | — | ||||||||||
Steven Tanner | 24,699 | 6,716 | 18,281 | 376,879 | 38,297 | |||||||||||||||
Carlos Angulo | — | — | 3,099 | 115,525 | — | |||||||||||||||
Roberto (Pepe) Lopez | — | — | 523 | 65,996 | — | |||||||||||||||
Raymond Garcia | — | — | — | — | — |
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Equity Compensation Plan Information | ||||||||||||
Number of | ||||||||||||
Number of | securities remaining | |||||||||||
securities to be | available for future | |||||||||||
issued upon | Weighted-average | issuance under | ||||||||||
exercise of | exercise price of | equity compensation | ||||||||||
outstanding | outstanding | plans (excluding | ||||||||||
options, warrants | options, warrants | securities reflected | ||||||||||
and rights | and rights | in column (a)) | ||||||||||
Plan category | (a) | (b) | (c) | |||||||||
Equity compensation plans approved by security holders | 330 | $ | 8,150 | 670 | ||||||||
Equity compensation plans not approved by security holders | — | — | — | |||||||||
Total | 330 | $ | 8,150 | 670 | ||||||||
• | Each person (or group of affiliated persons) who is known by us to beneficially own 5% or more of Real Mex Restaurants, Inc.’s common and preferred stock; |
• | Each of our Named Executive Officers; |
• | Each of our Directors; and |
• | All of our Directors and executive officers as a group. |
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Stock of
Real Mex Restaurants, Inc.
Common Stock | ||||||||
Shares | Percentage | |||||||
Greater than 5% Stockholder | ||||||||
RM Restaurant Holding Corp.(1) | 1,000 | 100.00 | ||||||
Named Executive Officers and Directors | ||||||||
Richard E. Rivera | — | — | ||||||
Steven Tanner | — | — | ||||||
Carlos Angulo | — | — | ||||||
Roberto (Pepe) Lopez | — | — | ||||||
Raymond Garcia | — | — | ||||||
Nicholas Mayer | — | — | ||||||
Anatoly Bushler | — | — | ||||||
Jeff Campbell | — | — | ||||||
Evan Geller | — | — | ||||||
Craig S. Miller | — | — | ||||||
Anthony Polazzi | — | — | ||||||
Douglas Tapley | — | — | ||||||
All executive officers and directors as a group (12 persons) | — | — |
(1) | RM Restaurant Holding Corp. is located at 5660 Katella Avenue, Cypress, California 90630. |
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Fiscal Year | Fiscal Year | |||||||
2009 | 2008 | |||||||
Audit Fees | $ | 679,200 | $ | 362,200 | ||||
Audit Related Fees | — | 27,000 | ||||||
Tax Fees | — | — | ||||||
All Other Fees | — | — | ||||||
Total Fees | $ | 679,200 | $ | 389,200 | ||||
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• | Consolidated Balance Sheets — December 27, 2009 and December 28, 2008 |
• | Consolidated Statements of Operations — Successor Fiscal Year Ended December 27, 2009, Successor Period November 14, 2008 to December 28, 2008, Predecessor Period December 31, 2007 to November 13, 2008, Predecessor Fiscal Year Ended December 30, 2007 |
• | Consolidated Statements of Stockholder’s Equity — Successor Fiscal Year Ended December 27, 2009, Successor Period November 14, 2008 to December 28, 2008, Predecessor Period December 31, 2007 to November 13, 2008, Predecessor Fiscal Year Ended December 30, 2007 |
• | Consolidated Statements of Cash Flows — Successor Fiscal Year Ended December 27, 2009, Successor Period November 14, 2008 to December 28, 2008, Predecessor Period December 31, 2007 to November 13, 2008, Predecessor Fiscal Year Ended December 30, 2007 |
• | Notes to Consolidated Financial Statements — December 27, 2009 and December 28, 2008 |
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EXHIBIT | ||||
NO. | DESCRIPTION | |||
3.1 | Third Amended and Restated Certificate of Incorporation of Real Mex Restaurants, Inc., dated November 13, 2008 (Filed with the Securities and Exchange Commission as Exhibit 3.1 to the Company’s Annual Report on Form 10-K (File No. 333-116310) on March 30, 2009 and incorporated by reference herewith) | |||
3.2 | Amended and Restated Bylaws of Real Mex Restaurants, Inc., dated November 13, 2008 (Filed with the Securities and Exchange Commission as Exhibit 3.2 to the Company’s Annual Report on Form 10-K (File No. 333-116310) on March 30, 2009 and incorporated by reference herewith) | |||
3.3 | Certificate of Incorporation of Acapulco Restaurants, Inc., dated May 21, 1985 (Filed with the Securities and Exchange Commission as Exhibit 3.3 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.4 | Bylaws of Acapulco Restaurants, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.4 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.5 | Certificate of Incorporation of El Torito Restaurants, Inc., dated November 24, 1986 (Filed with the Securities and Exchange Commission as Exhibit 3.25 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.6 | Bylaws of El Torito Restaurants, Inc., dated December 19, 1986 (Filed with the Securities and Exchange Commission as Exhibit 3.6 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.7 | Certificate of Incorporation of El Torito Franchising Company, dated August 16, 1996 (Filed with the Securities and Exchange Commission as Exhibit 3.7 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.8 | Bylaws of El Torito Franchising Company (Filed with the Securities and Exchange Commission as Exhibit 3.8 to Amendment No. 1 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on August 11, 2004 and incorporated by reference herewith) | |||
3.9 | Articles of Incorporation of Acapulco Restaurant of Ventura, Inc., filed May 8, 1986 (Filed with the Securities and Exchange Commission as Exhibit 3.9 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.10 | Bylaws of Acapulco Restaurant of Ventura, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.10 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.11 | Amendment to Bylaws of Acapulco Restaurant of Ventura, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.1 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.12 | Articles of Incorporation of Acapulco Restaurant of Westwood, Inc., filed April 25, 1994 (Filed with the Securities and Exchange Commission as Exhibit 3.11 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.13 | Bylaws of Acapulco Restaurant of Westwood, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.12 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.14 | Amendment to Bylaws of Acapulco Restaurant of Westwood, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.2 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.15 | Articles of Incorporation of Acapulco Restaurant of Downey, Inc., dated November 11, 1988 (Filed with the Securities and Exchange Commission as Exhibit 3.13 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.16 | Bylaws of Acapulco Restaurant of Downey, Inc., dated October 4, 1985 (Filed with the Securities and Exchange Commission as Exhibit 3.14 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) |
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EXHIBIT | ||||
NO. | DESCRIPTION | |||
3.17 | Amendment to Bylaws of Acapulco Restaurant of Downey, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.3 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.18 | Articles of Incorporation of Murray Pacific, dated January 12, 1981 (Filed with the Securities and Exchange Commission as Exhibit 3.15 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.19 | Bylaws of Murray Pacific, dated October 23, 1985 (Filed with the Securities and Exchange Commission as Exhibit 3.16 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.20 | Amendment to Bylaws of Murray Pacific, dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.4 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.21 | Articles of Incorporation of Acapulco Restaurant of Moreno Valley, Inc., dated July 23, 1999 (Filed with the Securities and Exchange Commission as Exhibit 3.19 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.22 | Bylaws of Acapulco Restaurant of Moreno Valley, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.20 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.23 | Amendment to Bylaws of Acapulco Restaurant of Moreno Valley, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.5 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.24 | Articles of Incorporation of El Paso Cantina, Inc., June 21, 1989 (Filed with the Securities and Exchange Commission as Exhibit 3.21 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.25 | Bylaws of El Paso Cantina, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.22 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.26 | Articles of Incorporation of Real Mex Foods, Inc., dated January 15, 2003 (Filed with the Securities and Exchange Commission as Exhibit 3.23 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.27 | Amendment to Articles of Incorporation of Real Mex Foods, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.6 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.28 | Bylaws of Real Mex Foods, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.24 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.29 | Amendment to Bylaws of Real Mex Foods, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.7 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.30 | Articles of Incorporation of TARV, Inc., dated November 24, 1986 (Filed with the Securities and Exchange Commission as Exhibit 3.8 to the Company’s Report on Form 10-Q (File No. 333-116310) on August 12, 2009, and incorporated by reference herewith) | |||
3.31 | Bylaws of TARV, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.26 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.32 | Amendment to Bylaws of TARV, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.9 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.33 | Articles of Incorporation of ALA Design, Inc., dated December 22, 1976 (Filed with the Securities and Exchange Commission as Exhibit 3.27 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) |
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EXHIBIT | ||||
NO. | DESCRIPTION | |||
3.34 | Amendment to Articles of Incorporation of ALA Design, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.10 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.35 | Bylaws of ALA Design, Inc. (Filed with the Securities and Exchange Commission as Exhibit 3.28 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.36 | Amendment to Bylaws of ALA Design, Inc., dated June 7, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.11 to the Company’s Annual Report on Form 10-Q (File No. 333-116310) on August 12, 2009 and incorporated by reference herewith) | |||
3.37 | Articles of Incorporation of Acapulco Mark Corp., dated October 3, 1996 (Filed with the Securities and Exchange Commission as Exhibit 3.29 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.38 | Bylaws of Acapulco Mark Corp. (Filed with the Securities and Exchange Commission as Exhibit 3.30 to the Company’s Registration Statement on Form S-4 (File No. 333-116310) on June 9, 2004 and incorporated by reference herewith) | |||
3.39 | Certificate of Incorporation of CKR Acquisition Corp., dated October 4, 2004 (Filed with the Securities and Exchange Commission as Exhibit 3.31 to the Company’s Annual Report on Form 10-K (File No. 333-116310) on March 24, 2005 and incorporated by reference herewith) | |||
3.40 | Bylaws of CKR Acquisition Corp. (Filed with the Securities and Exchange Commission as Exhibit 3.32 to the Company’s Annual Report on Form 10-K (File No. 333-116310) on March 24, 2005 and incorporated by reference herewith) | |||
3.41 | Articles of Formation of Chevys Restaurants, LLC, dated November 10, 2004 (formerly known as Chevys Acquisition Company LLC). (Filed with the Securities and Exchange Commission as Exhibit 3.33 to the Company’s Annual Report on Form 10-K (File No. 333-116310) on March 24, 2005 and incorporated by reference herewith) | |||
3.42 | Operating Agreement of Chevys Restaurants, LLC, dated November 15, 2004 (formerly known as Chevys Acquisition Company LLC). (Filed with the Securities and Exchange Commission as Exhibit 3.34 to the Company’s Annual Report on Form 10-K (File No. 333-116310) on March 24, 2005 and incorporated by reference herewith) | |||
3.43 | Amended and Restated Certificate of Incorporation of RM Restaurant Holding Corp. dated November 13, 2008. (Filed with the Securities and Exchange Commission as Exhibit 3.43 to the Company’s Registration Statement on Form S-4 (File No. 333-161605) on August 28, 2008 and incorporated by reference herewith) | |||
3.44 | Amended and Restated Bylaws of RM Restaurant Holding Corp. dated November 13, 2008 (Filed with the Securities and Exchange Commission as Exhibit 3.44 to the Company’s Registration Statement on Form S-4 (File No. 333-161605) on August 28, 2008 and incorporated by reference herewith) | |||
3.45 | Amendment to Amended and Restated Bylaws of RM Restaurant Holding Corp., dated November 13, 2008 (Filed with the Securities and Exchange Commission as Exhibit 3.45 to the Company’s Registration Statement on Form S-4 (File No. 333-161605) on August 28, 2008 and incorporated by reference herewith) | |||
4.1 | Indenture, dated as of July 7, 2009, among Real Mex Restaurants, Inc., the guarantors named therein and Wells Fargo Bank, National Association., as trustee. (Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) | |||
10.1 | Separation Agreement and General Release, dated December 19, 2008 by and between Real Mex Restaurants, Inc. and Frederick Wolfe (Filed with the Securities and Exchange Commission as Exhibit 10.2 to the Company’s Annual Report on Form 10-K (File No. 333-116310) on March 30, 2009 and incorporated by reference herewith) | |||
10.2 | Amended and Restated Executive Employment Agreement, dated February 28, 2008 by and between Real Mex Restaurants, Inc. and Frederick Wolfe. (Filed with the Securities and Exchange Commission as Exhibit 10.1 to the Company’s Report on Form 8-K (File No. 333-116310) on March 5, 2008 and incorporated by reference herewith) | |||
10.3 | Executive Employment Agreement, dated February 28, 2008 by and between Real Mex Restaurants, Inc. and Steven Tanner. (Filed with the Securities and Exchange Commission as Exhibit 10.2 to the Company’s Report on Form 8-K (File No. 333-116310) on March 5, 2008 and incorporated by reference herewith) |
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EXHIBIT | ||||
NO. | DESCRIPTION | |||
10.4 | Agreement and Plan of Merger, dated August 17, 2006 among Real Mex Restaurants, Inc., RM Restaurant Holding Corp. and RM Integrated, Inc (Filed with the Securities and Exchange Commission as Exhibit 10.1 to the Company’s Report on Form 8-K (File No. 333-116310) on August 23, 2006 and incorporated by reference herewith) | |||
10.5 | Second Amended and Restated Credit Agreement, dated July 7, 2009, by and among Real Mex Restaurants, Inc., RM Restaurant Holding Corp., the lenders party thereto and Credit Suisse, Cayman Islands Branch, as administrative agent, sole bookrunner and sole lead arranger (Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) | |||
10.6 | Amended and Restated Credit Agreement, dated January 29, 2007 (Filed with the Securities and Exchange Commission as Exhibit 10.2 to the Company’s Report on Form 8-K (File No. 333-116310) on February 2, 2007 and incorporated by reference herewith) | |||
10.7 | Amendment No. 1 to Second Amended and Restated Credit Agreement Credit Agreement, dated on or about August 2007 (Filed with the Securities and Exchange Commission as Exhibit 10.1 to the Company’s Report on Form 10-Q (File No. 333-116310) on August 12, 2009, and incorporated by reference herewith) | |||
10.8 | Amendment No. 2 to Second Amended and Restated Credit Agreement dated April 17, 2008. (Filed with the Securities and Exchange Commission as Exhibit 10.1 to the Company’s Report on Form 8-K dated April 23, 2008 and incorporated by reference herewith) | |||
10.9 | Limited Waiver, Consent and Amendment No. 3 to Second Amended and Restated Credit Agreement dated November 13, 2008 (Filed with the Securities and Exchange Commission as Exhibit 10.2 to the Company’s Report on Form 10-Q (File No. 333-116310) on November 13, 2008 and incorporated by reference herewith) | |||
10.10 | Amendment No. 4 to Second Amended and Restated Revolving Credit Agreement, dated July 7, 2009, by and among Real Mex Restaurants, Inc., the borrowers party thereto, the lenders party thereto and General Electric Capital Corporation, as agent and administrative agent (Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) | |||
10.11 | Executive Employment Agreement, dated May 27, 2009, by and between Real Mex Restaurants, Inc. and Richard E. Rivera. (Filed with the Securities and Exchange Commission as Exhibit 10.1 to the Company’s Report on Form 8-K (File No. 333-116310) on June 2, 2009 and incorporated by reference herewith) | |||
10.12 | Registration Rights Agreement, dated July 7, 2009, by and among Real Mex Restaurants, Inc., the guarantors party thereto and Jefferies & Company, Inc. (Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) | |||
10.13 | Security Agreement, dated July 7, 2009, by Real Mex Restaurants, Inc. and the other grantors party thereto in favor of Wells Fargo Bank, National Association, as collateral agent (Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) | |||
10.14 | Stock Pledge Agreement, dated July 7, 2009, by Real Mex Restaurants, Inc. and the other grantors party thereto in favor of Wells Fargo Bank, National Association, as collateral agent(Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) | |||
10.15 | Membership Interest Pledge Agreement, dated July 7, 2009, by CKR Acquisition Corp. in favor of Wells Fargo Bank, National Association, as collateral agent (Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) | |||
10.16 | Trademark Collateral Security and Pledge Agreement, dated July 7, 2009, Real Mex Restaurants, Inc. and the other assignors party thereto in favor of Wells Fargo Bank, National Association, as collateral agent (Filed with the Securities and Exchange Commission as Exhibit 4.2 to the Company’s Report on Form 8-K (File No. 333-116310) on July 8, 2009 and incorporated by reference herewith) |
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EXHIBIT | ||||
NO. | DESCRIPTION | |||
10.17 | Credit Agreement, dated July 7, 2009, by and among RM Restaurant Holding Corp., the lenders named therein and Wilmington Trust FSB, as administrative agent (Filed with the Securities and Exchange Commission as Exhibit 10.17) to the Company’s Registration Statement on Form S-4 (File No. 333-161605 ) on August 28, 2008 and incorporated by reference herewith) | |||
10.18 | 2006 Stock Option Plan of RM Restaurant Holding Corp. (Filed with the Securities and Exchange Commission as Exhibit 10.18 to the Company’s Registration Statement on Form S-4 (File No. 333-161605 ) on August 28, 2008 and incorporated by reference herewith) | |||
12.1 | Computation of Ratio of Earnings to Fixed Charges. (Filed herewith) | |||
14.1 | Code of Ethics adopted by the Company on February 7, 2007 (Filed with the Securities and Exchange Commission as Exhibit 14.1 to the Company’s Annual Report on Form 10-K on March 20, 2007 and incorporated by reference herewith) | |||
21.1 | Subsidiaries of the Company and the Additional Registrants. (Filed herewith) | |||
31.1 | Certification pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934 of the Principal Executive and Principal Financial Officer. (Filed herewith) | |||
32.1 | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, of the Principal Executive and Principal Financial Officer. (Filed herewith) |
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REAL MEX RESTAURANTS, INC. | ||||
By: | /s/ Richard E. Rivera | |||
Richard E. Rivera | ||||
Date: March 19, 2010 | Chief Executive Officer |
Signature | Title | Date | ||
/s/ Richard E. Rivera | Chief Executive Officer and Chairman (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer) | March 19, 2010 | ||
/s/ Anatoly Bushler | Director | March 19, 2010 | ||
Anatoly Bushler | ||||
/s/ Jeff Campbell | Director | March 19, 2010 | ||
Jeff Campbell | ||||
/s/ Evan Geller | Director | March 19, 2010 | ||
Evan Geller | ||||
/s/ Craig S. Miller | Director | March 19, 2010 | ||
Craig S. Miller | ||||
/s/ Anthony Polazzi | Director | March 19, 2010 | ||
Anthony Polazzi | ||||
/s/ Douglas Tapley | Director | March 19, 2010 | ||
Douglas Tapley |
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EXHIBIT | ||||
NO. | DESCRIPTION | |||
12.1 | Computation of Ratio of Earnings to Fixed Charges. (Filed herewith) | |||
21.1 | Subsidiaries of the Company and the Additional Registrants. (Filed herewith) | |||
31.1 | Certification pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934 of the Principal Executive and Principal Financial Officer. (Filed herewith) | |||
32.1 | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, of the Principal Executive and Principal Financial Officer. (Filed herewith) |
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2009 | 2008 | 2007 | 2006 | 2005 | ||||||||||||||||
Fixed Charges: | ||||||||||||||||||||
Interest expensed & capitalized | $ | 45,870 | $ | 20,515 | $ | 19,326 | $ | 26,486 | $ | 22,973 | ||||||||||
Amortized premiums, discounts, & capitalized expenses related to indebtedness | — | — | — | — | — | |||||||||||||||
Estimate of interest within rental expense | 14,024 | 13,635 | 13,175 | 12,757 | 12,173 | |||||||||||||||
Preference security dividend requirements | — | — | — | — | — | |||||||||||||||
Total Fixed Charges | $ | 59,894 | $ | 34,150 | $ | 32,501 | $ | 39,243 | $ | 35,146 | ||||||||||
Earnings: | ||||||||||||||||||||
Pretax (loss) income | $ | (55,005 | ) | $ | (177,164 | ) | $ | (10,802 | ) | $ | (5,451 | ) | $ | 8,677 | ||||||
Fixed Charges | 59,894 | 34,150 | 32,501 | 39,243 | 35,146 | |||||||||||||||
Amortization of capitalized interest | — | — | — | — | — | |||||||||||||||
Distributed income of equity investees | — | — | — | — | — | |||||||||||||||
Co. share of pre-tax losses of equity investees for which charges arriving from guarantees are included in fixed charges | — | — | — | — | — | |||||||||||||||
Subtotal | 4,889 | (143,014 | ) | 21,699 | 33,792 | 43,823 | ||||||||||||||
Interest capitalized | — | — | — | — | — | |||||||||||||||
Preference security dividend requirements of consolidated subsidiaries | — | — | — | — | — | |||||||||||||||
Minority interest in pre-tax income of minority subsidiaries that have not incurred fixed charges | — | — | — | — | — | |||||||||||||||
Total | $ | 4,889 | $ | (143,014 | ) | $ | 21,699 | $ | 33,792 | $ | 43,823 | |||||||||
Ratio(1): | — | — | — | — | 1.2 |
(1) | For purposes of calculating the ratio of earnings to fixed charges, this calculation is not performed for periods with a net loss before income taxes, since the ratio is not meaningful. |
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Entity | State of Incorporation | |
Acapulco Restaurants, Inc. | Delaware | |
El Torito Restaurants, Inc. | Delaware | |
El Torito Franchising Company | Delaware | |
El Paso Cantina, Inc. | California | |
Murray Pacific | California | |
TARV, Inc. | California | |
ALA Design, Inc. | California | |
Acapulco Restaurant of Westwood, Inc. | California | |
Acapulco Restaurant of Moreno Valley, Inc. | California | |
Acapulco Restaurant of Ventura, Inc. | California | |
Acapulco Restaurant of Downey, Inc. | California | |
Acapulco Mark Corp. | Delaware | |
Real Mex Foods, Inc. | California | |
CKR Acquisition Corp. | Delaware | |
Chevys Restaurants, LLC | Delaware |
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/s/ Richard E. Rivera | ||
Richard E. Rivera Principal Executive Officer and Principal Financial Officer |
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/s/ Richard E. Rivera | ||
Richard E. Rivera Principal Executive Officer and Principal Financial Officer |
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Appendix B
Consent of Independent Registered Public Accounting Firm
We have issued our report dated March 19, 2010, with respect to the consolidated financial statements of Real Mex Restaurants, Inc. included in the Annual Report of Real Mex Restaurants, Inc. on Form 10-K for the year ended December 27, 2009. We hereby consent to the incorporation by reference of said report in the Registration Statement of Real Mex Restaurants, Inc. on Form S-1 (File No. 333-162930, effective December 1, 2009).
/s/ GRANT THORNTON LLP
Irvine, California
March 19, 2010
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