Item 1. Description of Business
General Development of Business
Pierre Foods, Inc. (the “Company” or “Pierre Foods”) is a producer and marketer of fully-cooked branded and private label protein and bakery products and microwaveable sandwiches for the foodservice market. The Company’s predecessor was founded as a North Carolina corporation in 1966 to own and operate restaurants. The Company’s food processing business was originally developed to support its restaurants, but grew independently to become its principal business. In recognition of this fact, in May 1998, the Company, then known as “WSMP, Inc.,” changed its name to “Fresh Foods, Inc.” In June 1998, the Company consummated the purchase of substantially all of the business in Cincinnati, Ohio, and a portion of the business in Caryville, Tennessee (collectively, “Pierre Cincinnati”), conducted by the Pierre Foods Division of Hudson Foods, Inc. (“Hudson”), a subsidiary of Tyson Foods, Inc. (“Tyson”). Pierre Cincinnati was a value-added food processor selling principally to the foodservice and packaged foods markets. In September 1998, the Company implemented a tax-exempt reorganization of its corporate structure. The reorganization established Fresh Foods, Inc. as a holding company, consolidated 32 subsidiaries into 12 subsidiaries and separated the Company’s food processing and restaurant businesses. In July 1999, the Company sold its ham curing business, and in October 1999, the Company disposed of its restaurant segment. The Company now operates solely in the food processing business, its sole segment. In December 1999, the Company implemented another tax-exempt reorganization of its corporate structure to further streamline its operations into one subsidiary. In July 2000, the Company, then known as “Fresh Foods, Inc.,” changed its name to “Pierre Foods, Inc.”
In this document, unless the context otherwise requires, the term “Company” refers to Pierre Foods, Inc. and its current and former subsidiaries. The Company’s fiscal year ended March 2, 2002 is referred to as “fiscal 2002,” its fiscal year ended March 1, 2003 is referred to as “fiscal 2003,” and its fiscal year ended March 6, 2004 is referred to as “fiscal 2004.”
Narrative Description of the Business
The Company produces a wide variety of fully-cooked beef, chicken and pork products, hand-held convenience sandwiches and value-added bakery products. The Company’s product line consists of over 800 stock keeping units (“SKUs”). At its Cincinnati facility, the Company produces specialty beef, chicken and pork products that are typically custom-developed to meet specific customer requirements. The Company also offers proprietary product development, special ingredients and recipes as well as custom packaging and marketing programs to its customers. The Company’s bakery and sandwich assembly plant is located at the Company’s Claremont, North Carolina facility. The Company’s primary markets and distribution channels include national restaurant chains, primary and secondary schools, vending, convenience stores, warehouse clubs and other niche foodservice and packaged foods markets.
The following table sets forth the Company’s net revenue and percent of revenue contributed during the past three fiscal years by its various product channels and classes:
Significant Customer
Sales to Carl Karcher Enterprises Inc (“CKE”) accounted for approximately 24% and 11%, of our net sales in fiscal 2004 and 2003, respectively. No other customer accounted for 10% or more of net sales during fiscal years 2004, 2003 and 2002.
Sales and Marketing
The Company’s team of sales and marketing professionals has significant experience in the Company’s markets for fully-cooked protein and bakery products and microwaveable sandwiches. The sales, marketing and new product development functions are organized predominantly by distribution channel. In addition to its direct sales force, the Company utilizes a nationwide network of over 80 independent food brokers, all of whom are compensated primarily by payment of sales commissions.
The Company’s marketing strategy includes distributor and consumer promotions, trade promotions, advertising and participation in trade shows and exhibitions. The Company participates in numerous conferences and is a member of 18 national industry organizations. Company representatives serve on the boards of a number of industry organizations, including the American Meat Institute, the American School Food Service Association, the American Commodity Distribution Association, the National Food Service Management Institute Governing Board and the National Association of Convenience Stores.
Raw Materials
The primary materials used in the Company’s food processing operations include boneless chicken, beef and pork, flour, yeast, seasonings, breading, soy proteins, and packaging supplies. Meat proteins are generally purchased under seven day payment terms, except for the Company’s largest beef supplier, who requires payment at the time the product is shipped. Historically, raw material costs have remained stable and any price increases have generally been passed on to the customer. During fiscal 2004, the Company experienced a significant increase in the price of beef. The Company managed the increase in beef prices by passing on cost increases to customers and by improving the formulation of beef products. The Company does not hedge in the futures markets.
The Company purchases all of its raw materials from outside sources. The Company does not depend on a single source for any significant item except for, as requested by a customer, the utilization of a single source raw material supplier for production specific to that customer. The single source supplier allows for consistent supply and competitive pricing for the Company. Furthermore, the Company believes that its sources of supply for raw materials are adequate for its present needs and does not anticipate any difficulty in acquiring such materials in the future.
Trademarks and Licensing
The Company markets food products under a variety of brand names, including Pierre and DesignTM, Pierre Pizza ParlorTM, Pierre Main Street DinerTM, Pierre SelectTM, Fast Bites®, Fast Choice®, Rib-B-Q®, Hot ‘n Ready®, Big AZ®, Chop House®, Deli Breaks™ and Mom ‘n’ Pop’s® brand. The Company regards its trademarks and service marks as having significant value in marketing its food products. Pursuant to licenses acquired, the Company began producing and marketing microwaveable sandwiches under the Checkers, Krystal, Rally’s, Tony Roma’s and Nathan’s Famous brand names through its existing distribution channels. The term of each such license is subject to renewal and satisfaction of sales volume requirements. The Company has national rights to distribute products under the Rally’s, Krystal and Checkers name to vending machines, as well as distribution rights for Tony Roma’s and Nathan’s Famous products.
Seasonality
Except for sales to school districts, which represent approximately 19% of the Company’s total sales and which decline significantly during summer, late November and December, there is no seasonal variation in the Company’s sales.
Competition
The food production business is highly competitive and is often affected by changes in tastes and eating habits of the public, economic conditions affecting spending habits and other demographic factors. In sales of meat products, the Company faces strong price competition from a variety of large meat processing concerns, including Tyson, ConAgra, Zartic, Inc. and Advance Food Company, and from smaller local and regional operations. In sales of biscuit and yeast roll products, the Company competes with a number of large bakeries in various parts of the country. The sandwich industry is extremely fragmented, with few large direct competitors but low barriers to entry and indirect competition in the form of numerous other products. The Company’s competitors in the sandwich industry include Market Fare Foods, Bridgford Foods Corp., Jimmy Dean Foods and E.A. Sween.
Research and Development
The Company employs nine food technologists in the product and process development department. Ongoing food production research and development activities include development of new products, improvement of existing products and refinement of food production processes. These activities resulted in the launch of approximately 150 new SKUs in fiscal 2004. Over 36.1% of fiscal 2004 food processing sales were related to products developed in the last two years, based on the Company’s definition of a new product. In fiscal 2004, 2003 and 2002, the Company spent approximately $886,000, $649,000 and $373,000, respectively, on product development programs.
Government Regulation
The food production industry is subject to extensive federal, state and local government regulation. The Company’s food processing facilities and food products are subject to frequent inspection by the United States Department of Agriculture (“USDA”), Food and Drug Administration (“FDA”) and other government authorities. In July 1996, the USDA issued strict new policies against contamination by food-borne pathogens and established the Hazard Analysis and Critical Control Points (“HACCP”) system. The Company is in compliance with all FDA or USDA regulations, including HACCP standards.
The Company’s operations are governed by laws and regulations relating to workplace safety and worker health that, among other things, establish noise standards and regulate the use of hazardous chemicals in the workplace. The Company also is subject to numerous federal, state and local environmental laws. Under applicable environmental laws, the Company may be responsible for remediation of environmental conditions and may be subject to associated liabilities relating to its facilities and the land on which its facilities are or had been situated, regardless of whether the Company leases or owns the facilities or land in question and regardless of whether such environmental conditions were created by the Company or by a prior owner or tenant. The Company does not believe that compliance with environmental laws will have a substantial material effect upon the capital expenditures, earnings or competitive position of the Company and its subsidiaries.
The Company’s operations are subject to licensing and regulation by a number of state and local governmental authorities, which include health, safety, sanitation, building and fire agencies. Operating costs are affected by increases in costs of providing health care benefits, the minimum hourly wage, unemployment tax rates, sales taxes and other similar matters over which the Company may have no control. The Company is subject to laws governing relationships with employees, including minimum wage requirements, overtime, working conditions and citizenship requirements.
Employees
As of March 6, 2004, the Company employed approximately 1,700 persons. The Company has experienced no work stoppage attributed to labor disputes and considers its employee relations to be good.
Item 2.
Item 2. Properties
Principal Offices. The Company’s main office is located in a facility it owns in Cincinnati, Ohio. The Company also leases 6,000 square feet of executive office space in Hickory, North Carolina from an affiliated party for $116,000 per year at terms no less favorable than those which could be obtained from an unaffiliated third party. The Company also owns and uses a 23,000 square foot building in Claremont, North Carolina for additional office space.
Food Processing Plants. The Company produces its fully-cooked meat products, packaged sandwiches and specialty bread products at facilities it owns in Cincinnati, Ohio and Claremont, North Carolina. The Cincinnati facility occupies buildings totaling approximately 225,000 square feet, following a 25,000 square foot building expansion during fiscal 2003. The Claremont facility occupies buildings totaling approximately 150,000 square feet.
The Company believes that its facilities are generally in good condition and that they are suitable for their current uses. The Company nevertheless engages periodically in construction and other capital improvement projects as the Company believes are necessary to expand and improve the efficiency of its facilities.
Item 3.
Item 3. Legal Proceedings
Pierre Foods and its subsidiaries are parties in various lawsuits arising in the ordinary course of business. In the opinion of management, any ultimate liability with respect to these matters will not have a material adverse effect on the Company’s financial condition, results of operations or cash flows.
Item 4.
Item 4. Submission of Matters to a Vote of Security Holders
No matter was submitted to a vote of security holders during the fourth quarter of fiscal 2004.
PART II
Item 5.
Item 5. Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
On July 26, 2002, PF Management, Inc. (“PF Management”) closed its management buyout of the Company. This going-private transaction resulted in the Company becoming a wholly-owned subsidiary of PF Management; accordingly, there is no public trading market for the Company’s common stock. The Company had 5,781,480 shares of common stock issued and outstanding and 2,500,000 shares of preferred stock authorized, none of which were outstanding, immediately before the closing. After the closing, the Company amended and restated its Articles of Incorporation to authorize the issuance of up to 100,000 shares of Class A common stock as the only authorized class of capital stock of the Company. All 100,000 shares of authorized common stock were issued to PF Management in connection with the management buyout. All per share amounts have been retroactively restated in the accompanying Consolidated Financial Statements and Notes to Consolidated Financial Statements for all periods presented to reflect the transaction. See Item 12, “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”
The Company did not declare a cash dividend during fiscal 2004 or fiscal 2003. The Company’s debt instruments restrict its ability to pay dividends. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Liquidity and Capital Resources” and the Company’s consolidated financial statements and supplementary data. Regardless of the scope of such restrictions, the Company’s policy is to reinvest any earnings rather than pay dividends.
No securities of the Company were sold by the Company during fiscal 2004.
Item 6.
Item 6. Selected Financial Data
The following selected historical financial information has been derived from audited consolidated financial statements of the Company. Such financial information should be read in conjunction with the consolidated financial statements of the Company, the notes thereto and the other financial information contained elsewhere herein. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the Company’s consolidated financial statements and supplementary data.
Item 7.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Certain statements made in this document are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements involve risks and uncertainties that may cause actual results to differ materially from expected results. These risks and uncertainties include: substantial leverage and insufficient cash flow from operations; restrictions imposed by the Company’s debt instruments; management control; restriction of payment of dividends; competitive considerations; government regulation; general risks of the food industry; adverse changes in food costs and availability of supplies; dependence on key personnel; potential labor disruptions and other factors, risks and uncertainties identified in Exhibit 99.1 to our Annual Report on Form 10-K filed with the SEC on March 9, 2004. This list of risks and uncertainties is not exhaustive. Also, new risk factors emerge over time. Investors should not place undue reliance on the predictive value of forward-looking statements.
Results of Operations
Each quarter of the fiscal year contains 13 weeks except for the infrequent fiscal years with 53 weeks. The results for fiscal 2004 contain 53 weeks. The results for fiscal 2003 and 2002 contain 52 weeks.
Results for fiscal 2004, 2003 and 2002 are shown below:
Fiscal 2004 Compared to Fiscal 2003
Revenues, net. Net revenues increased by $82.2 million, or 29.7%. The increase in net revenues was primarily due to the substantial development of national business with an existing customer, increased retail business with an existing customer, short term co-packing operations and an increase in sales of existing product lines. Of all core customer channels, which include restaurants, schools, vending and convenience stores, the restaurant channel had the greatest increase in demand.
Cost of goods sold. Cost of goods sold increased by $70.1 million, or 38.1%. As a percentage of revenues, cost of goods sold increased from 66.6% to 70.9%. This increase primarily was due to a change in product mix to lower margin products and increased raw material prices (particularly beef prices), offset by allocating fixed costs over increased production as a result of the Cincinnati plant expansion.. In fiscal 2004, beef, pork and chicken prices increased approximately 13%, 32% and 2%, respectively, compared to fiscal 2003.
Selling, general and administrative. Selling, general and administrative expenses increased by $8.7 million, or 12.1%, primarily due to an increase in distribution expense on higher product volumes and increased marketing costs. As a percentage of revenues, selling, general and administrative expenses decreased from 25.8% to 22.3%.
Depreciation and amortization. Depreciation and amortization increased by $0.5 million, or 11.6%, primarily due to the Cincinnati plant expansion. As a percentage of net operating revenues, depreciation and amortization decreased from 1.5% to 1.3%.
Interest expense and other income, net. The primary component of interest expense and other income, net for fiscal 2004 and fiscal 2003 was interest expense. Interest expense consists primarily of interest on fixed and variable rate long-term debt, in addition to expense incurred due to the early extinguishment of the Company’s $50 million revolving credit loan in fiscal 2004. Net other expense increased by $3.2 million or 23.2% in fiscal 2004 due to increased borrowings under the revolving credit facility and due to the write-off of loan commitment fees and a prepayment penalty associated with the change in credit facilities and early extinguishment of that credit facility, both of which were charged to interest expense (see -- “Liquidity and Capital Resources” below).
Income tax provision. The effective tax rate for fiscal 2004 was 47.6% compared to 38.7% for fiscal 2003. The increase in the effective tax rate is primarily due to an increase in state tax expense of 3.4% and a decrease in the benefit realized from Columbia Hill Aviation.
Fiscal 2003 Compared to Fiscal 2002
Revenues, net. Net revenues increased by $33.1 million, or 13.6%. The increase in net revenues was primarily due to the substantial development of new customers, to the introduction of a new sandwich line within the foodservice distribution channel and to increased revenues in existing product lines. Of all core customer channels, which include restaurants, schools, vending and convenience stores, the restaurant channel had the greatest increase in demand.
Cost of goods sold. Cost of goods sold increased by $23.3 million, or 14.5%. As a percentage of revenues, cost of goods sold increased from 66.1% to 66.6%. This increase primarily was due to a change in product mix to lower margin products and unfavorable insurance and utilities expense, offset by a decrease in the prices of beef, pork and chicken, the Company’s primary raw materials. In fiscal 2003, beef, pork and chicken prices decreased approximately 9%, 34% and 6%, respectively, compared to fiscal 2002. The cost of labor for fiscal 2003 was consistent with fiscal 2002.
Selling, general and administrative. Selling, general and administrative expenses increased by $9.0 million, or 14.3%, primarily due to an increase in overhead costs to support the increased sales volume. As a percentage of revenues, selling, general and administrative expenses increased from 25.6% to 25.8%.
Depreciation and amortization. Depreciation and amortization decreased by $2.3 million, or 35.9%, primarily due to the adoption of Statement of Financial Accounting Standards (“SFAS”) No. 142 (“SFAS 142”) in fiscal 2003, which discontinued amortization of goodwill and intangibles with indefinite lives, offset by depreciation related to an increase in capital expenditures due to a significant plant expansion. As a percentage of net operating revenues, depreciation and amortization decreased from 2.6% to 1.5%.
Interest expense and other income, net. The primary component of interest expense and other income, net for fiscal 2003 and fiscal 2002 was interest expense, which consists primarily of interest on fixed and variable rate long-term debt. Net other expense increased by $0.9 million, or 7.3%. This increase primarily was due to a change in the credit facility and increased borrowings under that facility (see -- “Liquidity and Capital Resources” below).
Income tax provision. The effective tax rate for fiscal 2003 was 38.7% compared to 99.9% for fiscal 2002. The decrease in the effective tax rate is primarily due to the limitation on the deductibility of executive compensation in fiscal 2002, combined with the effects of permanent differences in fiscal 2002.
Critical Accounting Policies and Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires the appropriate application of certain accounting policies, many of which require the Company to make estimates and assumptions about future events and their impact on amounts reported in the financial statements and related notes. Since future events and the impact of those events cannot be determined with certainty, the actual results will inevitably differ from the Company’s estimates. Such differences could be material to the financial statements.
The Company believes its application of accounting policies, and the estimates inherently required therein, are reasonable. These accounting policies and estimates are constantly reevaluated, and adjustments are made when facts and circumstances dictate a change. Historically, the Company’s application of accounting policies has been appropriate, and actual results have not differed materially from those determined using necessary estimates.
The following critical accounting policies affect the Company’s more significant judgments and estimates used in the preparation of its financial statements.
Revenue Recognition. Revenue from sales of food processing products is recorded at the time title transfers. Standard shipping terms are FOB destination, therefore title passes at the time the product is delivered to the customer. Revenue is recognized as the net amount to be received after deductions for estimated discounts, product returns and other allowances. These estimates are based on historical trends and expected future payments (see also Promotions below).
Goodwill and Other Intangible Assets. During fiscal 2002 and prior years, Goodwill and other intangible assets were being amortized using the straight line method over a 30 year period. The carrying value of goodwill and other intangible assets was evaluated periodically as events and circumstances indicate a possible inability to recover its carrying amount. Amortization expense recognized for the fiscal year ended March 2, 2002 was $2.7 million.
In June 2001, the Financial Accounting Standards Board (“FASB”) issued SFAS 142, “Goodwill and Other Intangible Assets,” which was effective for the fiscal year beginning March 3, 2002. SFAS 142 requires, among other things, the discontinuance of goodwill amortization. In addition, the standard includes provisions for the reclassification of certain existing recognized intangibles as goodwill, reassessment of the useful lives of existing recognized intangibles, reclassification of certain intangibles out of previously reported goodwill and the identification of reporting units for purposes of assessing potential future impairments of goodwill. Upon the Company’s adoption of SFAS 142 on March 3, 2002, the Company ceased amortizing goodwill and indefinite-lived intangibles. Also effective March 3, 2002, the Company reclassified assembled workforce to goodwill.
As prescribed under SFAS 142, the Company tested goodwill for impairment during fiscal 2003 using a two-step process. The first step of the goodwill impairment test is used to identify potential impairment by comparing the fair value of the entity with its net asset value (or carrying amount), including goodwill. If the fair value of the entity exceeds its net asset value, goodwill of the entity is considered not impaired and the second step of the goodwill impairment test is not needed. If the net asset value of the entity exceeds the fair market value, the second step of the goodwill impairment test is performed to measure the amount of impairment loss, if any. The second step of the goodwill impairment test compares the implied fair value of the entity’s goodwill with the carrying amount of that goodwill. If the carrying amount of the entity’s goodwill exceeds the implied fair value of that goodwill, an impairment loss is recognized in an amount equal to that excess. Subsequent to recognizing an impairment loss, the adjusted carrying amount of the intangible asset shall be its new accounting basis. Reversal of a previously recognized impairment loss is prohibited.
During fiscal 2003, upon adoption of SFAS 142, the Company utilized a valuation technique based on market values of publicly-traded equity, as adjusted, plus publicly-owned subordinated notes, which were determined in conjunction with the management buyout in fiscal 2003 (See Note 1 - Basis of Presentation, Acquisition and Discontinued Operations for discussion on Management Buyout). The Company’s analysis showed that the carrying value of the goodwill exceeded its fair value, requiring the Company to determine the implied fair value of its goodwill. Upon completion of that analysis, management determined that the entire net carrying value of its goodwill was impaired. The carrying amount, $29.0 million, net of the related effect on income taxes, $10.4 million, was written-off by the Company and reported as the Cumulative Effect of an Accounting Change, net of income taxes in the statement of operations. See Note 2 -Summary of Significant Accounting Policies for further discussion.
Economic Useful Life of Intangible Assets. The Company reviews the economic useful life of its intangible assets annually. The determination of the economic useful life of an intangible asset requires a significant amount of judgment and entails significant subjectivity and uncertainty.
Promotions. Promotional expenses associated with rebates, marketing promotions and special pricing arrangements are recorded as a reduction of revenues or selling expense at the time the sale is recorded. Certain of these expenses are estimated based on historical trends and expected future payments to be made under these programs. The Company believes the estimates recorded in the financial statements are reasonable estimates of the Company’s liability under the programs.
Going Concern Assumption. Significant assumptions underlie the belief that the Company anticipates that its fiscal 2005 cash requirements for working capital and debt service will be met through a combination of funds provided by operations and borrowings under its $40 million credit facility, including, among other things, that there will be no material adverse developments in the business, liquidity or significant capital requirements of the Company.
New Accounting Pronouncements. In June 2001, the FASB issued Statement of Financial Accounting Standards No. 143 (“SFAS 143”), “Accounting for Asset Retirement Obligations,” was adopted by the Company beginning March 2, 2003. SFAS 143 addresses financial accounting and reporting for obligations associated with the retirement of tangible long-lived assets and the associated asset retirement cost. The adoption of SFAS 143 did not have a material impact on the Company’s financial position and results of operations.
In December 2002, the FASB issued Statement of Financial Accounting Standards No. 148 (“SFAS 148”) - “Accounting for Stock-Based Compensation - Transition and Disclosure.” This statement amends Statement of Financial Accounting Standards 123, “Accounting for Stock-Based Compensation” to provide alternative methods of transition for an entity that changes to the fair value based method of accounting for stock-based employee compensation and changes the disclosure requirements. This statement was effective for financial statements for fiscal years ending after December 15, 2002. The Company adopted SFAS No. 148 effective March 1, 2003. During fiscal 2003, effective with the management buyout discussed in Note 1, all stock option plans were terminated and all outstanding options were cancelled, however, the necessary disclosure requirements of SFAS 148 are presented in Note 2 of the Notes to Consolidated Financial Statements.
In April 2003, the FASB issued Statement of Financial Accounting Standards No. 149 (“SFAS 149”), - “Amendment of Statement 133 on Derivative Instruments and Hedging Activities.” The statement amends and clarifies accounting for derivative instruments, including certain derivative instruments embedded in other contracts, and hedging activities under Statement of Financial Accounting Standards No. 133. SFAS 149 is effective for all contracts entered into or modified after June 30, 2003. This Statement did not have an impact on the Company’s financial statements.
In May 2003, the FASB issued Statement of Financial Accounting Standards No. 150 (“SFAS 150”), -“Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity.” This statement requires certain freestanding financial instruments to be reported as liabilities by their issuers. The provisions of SFAS 150, which also include a number of new disclosure requirements, are effective for instruments entered into or modified after May 31, 2003 and pre-existing instruments as of the beginning of the first interim period that commences after June 15, 2003. This statement did not have an impact on the Company’s financial statements.
In November 2002, the FASB issued FASB Interpretation No. (“FIN”) 45, “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others” (“FIN 45”), which expands the disclosures a guarantor is required to provide in its annual and interim financial statements regarding its obligations for certain guarantees. Disclosures are required to be included in financial statements issued after December 15, 2002 (see Note 7). FIN 45 also requires the guarantor to recognize a liability for the fair value of an obligation assumed for guarantees issued or modified after December 31, 2002. The adoption of FIN 45 did not have a material impact on the Company’s financial position and results of operations.
In December 2003, the FASB issued FIN 46R, “Consolidation of Variable Interest Entities” (“FIN 46R”), which replaces the same titled FIN 46 that was issued in January 2003. FIN 46R addresses how to identify variable interest entities and the criteria that require a company to consolidate such entities in its financial statements. FIN 46R is effective for the first reporting period that ends after March 15, 2004. The Company does not believe that the adoption of FIN 46R will have a material impact on its financial position and results of operations.
Liquidity and Capital Resources
Net cash provided by operating activities was $3.3 million for fiscal 2004, compared to net cash provided by operating activities of $0.04 million and $9.9 million for fiscal 2003 and fiscal 2002, respectively. The increase in net cash provided by operating activities from fiscal 2003 to fiscal 2004 was primarily due to the increase in net income of $18.3 million. The primary components of net cash provided by operating activities for fiscal 2004 were: (1) a decrease in deferred income taxes of $1.3 million; (2) an increase in trade accounts payable and other accrued liabilities of $2.4 million; and (3) the write-off of deferred loan origination fees of $1.2 million; offset by (4) an increase in inventories of $6.4 million and (5) an increase in receivables of $2.0 million. The decrease in net cash provided by operating activities from fiscal 2002 to fiscal 2003 was primarily due to the decrease in net income of $16.8 million resulting from the loss associated with the cumulative effect of accounting change in fiscal 2003. The primary components of net cash provided by operating activities for fiscal 2003 were: (1) an increase in inventories of $8.7 million; (2) an increase in accounts receivable of $2.2 million and (3) an increase in refundable income taxes, prepaid expenses and other assets of $1.7 million; offset by (4) an increase in trade accounts payable and other accrued liabilities of $4.9 million.
Net cash used in investing activities was $9.8 million for fiscal 2004. The primary components were routine capital expenditures and a significant plant expansion totaling $10.0 million. Net cash used in investing activities was $16.1 million for fiscal 2003. The primary component was routine capital expenditures and a significant plant expansion totaling $16.2 million. Net cash used in investing was $7.3 million for fiscal 2002. The primary components were for routine capital expenditures totaling $6.0 million.
Net cash provided by financing activities was $6.4 million for fiscal 2004. The primary components were (1) borrowings under the new revolving credit facility of $13.3 million and (2) borrowings under the equipment term loan subline and the real estate term loan subline of $5.0 million each, offset by (3) repayment of revolving credit agreement with former lender of $15.1 million; (4) principal payments on long-term debt of $0.8 million and (5) loan origination fees of $0.7 million. Net cash provided by financing activities was $11.8 million for fiscal 2003. The primary components were (1) borrowing under the revolving credit facility of $15.1 million; offset by (2) loan origination fees of $1.6 million incurred in fiscal 2003 that did not occur in fiscal 2002; (3) special purpose entity distributions of $1.4 incurred in fiscal 2003 that did not occur in fiscal 2002 and (4) principal payments on long-term debt of $0.3 million. Net cash provided by financing activities was $0.2 million for fiscal 2002, due to the capital contribution to the special purpose leasing entity (see Aircraft Operating Lease Agreement below), offset by principal payments on the Company’s capital leases and principal payments related to the obligation of the special purpose leasing entity.
Effective August 13, 2003, the Company terminated its five-year variable-rate $50 million revolving credit facility. Existing debt issuance costs related to the Company’s former $50 million facility in the amount of $1.2 million were written off and charged to interest expense in conjunction with the termination of this facility. A prepayment penalty in the amount of $1.0 million was paid to the former lender and charged to interest expense, also in conjunction with the termination of this facility. Also effective August 13, 2003, the Company obtained a three-year variable-rate $40 million revolving credit facility from a new lender, which includes a $5 million real estate term loan subline, a $5 million equipment term loan subline and a $7.5 million letter of credit subfacility. Funds available under this new facility are available for working capital requirements, permitted investments and general corporate purposes. Borrowings under the new facility bear interest at floating rates based upon the interest rate option selected from time to time by the Company and are secured by a first-priority security interest in substantially all of the Company’s assets. The interest rate for borrowings under the new revolving credit facility at March 6, 2004 was 5% (prime plus 1%). Borrowings under the new facility are due the earlier of ninety days prior to the redemption of the Company’s Senior Notes due 2006 (“the Notes”) or August 13, 2006. Repayment is also required in the amount of the proceeds from the sale of any collateral. The interest rate for the new real estate term loan subline and the equipment term loan subline is 5.25% (prime plus 1.25%). In addition, the Company is required to satisfy certain financial covenants regarding cash flow and capital expenditures.
As of March 6, 2004, the Company had $0.2 million in cash and cash equivalents on hand, had outstanding borrowings under its revolving credit facility of $13.3 million and borrowing availability of approximately $12.9 million. Also, as of March 6, 2004, the Company had borrowings under the real estate subline and the equipment subline of $4.7 million and $4.6 million, respectively. As of March 1, 2003, the Company had $0.3 million in cash and cash equivalents on hand, had outstanding borrowings under the former credit facility of $15.1 million and had approximately $4.6 million of additional borrowing availability.
Fiscal 2004 net cash provided by operating activities was sufficient to provide necessary working capital and to service existing debt. These cash requirements were satisfied through a combination of funds provided by cash on hand at the end of fiscal 2003, net cash provided by operating activities during fiscal 2004, and borrowings under both the former credit facility and the new credit facility. The Company anticipates that its fiscal 2005 cash requirements for working capital and debt service will be met through a combination of funds provided by operations and borrowings under the new credit facility.
The Company has budgeted approximately $9.9 million for capital expenditures in fiscal 2005. These expenditures are primarily designated for routine food processing capital improvement projects and other miscellaneous expenditures. The Company believes that funds from operations and funds from its credit facility, as well as the Company’s ability to enter into capital or operating leases, will be adequate to finance these capital expenditures.
If the Company continues its historical revenue growth trend as expected, then the Company will be required to raise and invest additional capital for additional plant expansion projects to provide operating capacity to satisfy increased demand. The Company believes that future cash requirements for these plant expansion projects would need to be met through other long-term financing sources, such as an increase in borrowing availability under the Company’s credit facility, the issuance of industrial revenue bonds or equity investment. The incurrence of additional long-term debt is governed and restricted by the Company’s existing debt instruments. Furthermore, there can be no assurance that additional long-term financing will be available on advantageous terms (or any terms) when needed by the Company.
The Company anticipates continued sales growth in key market areas. As noted above, however, this growth will require future capital expansion projects to increase existing plant capacity in order to satisfy increased demand. Sales growth, improved operating performance and expanded plant capacity - none of which is assured - will be necessary for the Company to continue to service existing debt.
Aircraft Operating Lease Agreement. The Company leases an aircraft from Columbia Hill Aviation, LLC (“Columbia Hill Aviation”), owned 100% by PF Management. Columbia Hill Aviation is not a subsidiary of the Company; however, the Company considers Columbia Hill Aviation a non-independent special purpose entity. Accordingly, Columbia Hill Aviation’s financial condition, results of operations and cash flows have been included in the Company’s consolidated financial statements. Under the terms of the operating lease with Columbia Hill Aviation, and the financing agreements between Columbia Hill Aviation and its creditor, the Company does not maintain the legal rights of ownership to the aircraft, nor does Columbia Hill Aviation’s creditor maintain any legal recourse to the Company. On March 8, 2004 the Company took title to the aircraft. See also “Restructuring of
Senior Notes” below concerning the Company’s assumption, subsequent to March 6, 2004, of the airplane lease previously held by Columbia Hill Aviation.
Logistics Agreement. Effective March 3, 2002, the Company entered into a one-year logistics agreement with PF Distribution, LLC (“PF Distribution”), owned 100% by PF Management. The agreement was amended on March 2, 2003 to provide for a continuous term. Under the agreement, PF Distribution served as the exclusive logistics agent for the Company, and provided all warehousing, fulfillment and transportation services to the Company. The cost of PF Distribution’s services was based on flat rates per pound, which were calculated based on weight and volume characteristics of products, inventory pounds maintained and inventory pounds shipped. Rates were determined based on historical costs and industry standards. In fiscal 2004, distribution expense recorded in selling, general and administrative expense was approximately $31.1 million, of which approximately $30.1 million had been paid to PF Distribution as of March 6, 2004. In fiscal 2003, distribution expense recorded in selling, general and administrative expense was approximately $21.5 million, of which approximately $21.3 million had been paid to PF Distribution as of March 1, 2003. See also “Restructuring of Senior Notes” below concerning the termination, subsequent to March 6, 2004, of the logistics agreement with PF Distribution.
Restructuring of Senior Notes. On March 8, 2004, following a consent solicitation in which consents of holders of $112.4 million in aggregate principal amount of the Company’s outstanding Notes, representing 97.74% of the outstanding Notes, consented to a Fourth Supplemental Indenture between the Company and U.S. Bank National Association, as trustee (the “Trustee”), the Company entered into the Fourth Supplemental Indenture with the Trustee. Among other things, the Fourth Supplemental Indenture increased the annual interest rate on the Notes from 10.75% to 12.25% through March 31, 2005 and 13.25% thereafter; required the payment of a cash consent fee equal to 3% of the principal amount of Notes held by each consenting noteholder; granted to the noteholders liens on the assets of the Company and its subsidiaries, such liens being junior to the senior liens securing the Company’s current credit facility, granted to noteholders a repurchase right allowing all of the noteholders to require the Company to repurchase their Notes at par plus accrued interest on March 31, 2005, provided for the payment of a portion of certain cash flow of the Company (referred to as “excess cash”) to reduce the principal amount of Notes outstanding at the end of the Company’s fiscal years; added restrictive covenants limiting the compensation payable to certain senior executives of the Company and limiting future related party transactions; required the termination of all related party transactions, except for certain specifically-permitted transactions (see Item 13, “Certain Relationships and Related Transaction”); provided for the assumption by the Company of approximately $15.4 million of subordinated debt of PF Management; required the Company to comply with certain corporate governance standards, including appointing an independent director acceptable to the Company and the noteholders to its board and hiring an independent auditor to monitor the Company’s compliance with the Indenture; and waived any and all defaults of the Indenture existing as of March 8, 2004.
The restrictive covenants limiting compensation payable to certain senior executives of the Company contain provisions for bonuses based on the profitability of the Company and cash payments made on the Notes which could significantly increase the limitation.
Concurrently with the execution of the Fourth Supplemental Indenture the Company took title to an aircraft transferred from a related party subject to existing purchase money debt; forgave the $993,247 related party note receivable from its principal shareholders; cancelled the balances owed by the Company to certain related parties; and assumed the operating leases of PF Distribution in connection with the Fourth Supplemental Indenture. Minimum lease payments on the former PF Distribution operating leases will be $3.0 million during fiscal year 2005, $2.9 million during fiscal year 2006 and $0.5 million during fiscal year 2007.
As noted above, the Company assumed $15.4 million of subordinated debt of PF Management in connection with the Fourth Supplemental Indenture. Principal payments on the former PF Management debt will be $4.8 million during fiscal year 2005, $3.6 million during fiscal year 2006 and $7.0 million during fiscal year 2007. The interest rates on the former PF Management debt range from 4.4% to 25%.
Other Events. On May 11, 2004, the shareholders of PF Management, the sole shareholder of the Company, agreed to sell their shares of stock in PF Management to an affiliate of Madison Dearborn Capital Partners (“MDCP”). The sale is scheduled to close on or around June 30, 2004, subject to the satisfaction or waiver of conditions typical of leveraged buyout transactions, including (among others) these:
• The buyer’s receipt of, and reasonable satisfaction with, consents of certain of the Company’s customers and suppliers and the acquiescence of federal antitrust authorities;
• The absence at the closing of a material adverse change in the assets, liabilities, business, operations, results or condition of the Company and PF Management since November 29, 2003;
• The buyer’s receipt of, and reasonable satisfaction with, audited financial statements of the Company for the fiscal year ended March 6, 2004 and of PF Management for the same fiscal year and the two immediately preceding fiscal years;
• The buyer’s receipt of tenders of not less than a majority of the aggregate principal amount of the Company’s 10-3/4% senior notes due 2006; and
• The buyer’s receipt of financing necessary to consummate the transaction.
The Company’s President and Chief Executive Officer, Norbert E. Woodhams, and its Senior Vice President of Sales and Marketing, Robert C. Naylor, have signed amended employment agreements committing them to continue working for the Company after the sale. The stated term of employment for each executive is one year, but each agreement will renew automatically and continuously year-to-year unless terminated. Messrs. Woodhams and Naylor are both expected to make significant equity investments in the Company under its new owner.
MDCP has received and has accepted commitment letters from Wachovia Bank, N.A. and Bank of America, N.A., and certain of their affiliates, committing to provide debt financing for this transaction. The debt financing commitments are subject to conditions typical of LBO financing, such as:
• The receipt of all consents and approvals necessary or, in the reasonable opinion of the banks, desirable in connection with the transaction;
• The absence at the closing of a material adverse effect on the business of the Company since March 1, 2003; and
• Completion of MDCP’s purchase of the Company, and the remainder of the transaction, consistent with the terms and conditions of the definitive documentation.
There is no assurance that any or all of the conditions to the banks’ obligations to finance this transaction will be satisfied or waived or that any or all of the other conditions to the buyer’s and shareholders’ obligations to close the transaction will be satisfied or waived or that the transaction will close in accordance with the agreed-upon terms (or at all).
Commercial Commitments, Contingencies and Contractual Obligations
The Company provided a secured letter of credit in the amount of $3.5 million in both fiscal 2004 and fiscal 2003 and $1.5 million in fiscal 2002 to its insurance carrier for the underwriting of certain performance bonds. This letter of credit expires in fiscal 2005. The Company also provides secured letters of credit to its insurance carriers for outstanding and potential worker’s compensation and general liability claims. Letters of credit for these claims totaled $75,000 in both fiscal 2004 and fiscal 2003 and $225,000 in fiscal 2002. In addition, the Company provides secured letters of credit to a limited number of suppliers. Letters of credit for suppliers totaled $250,000 in both fiscal 2004 and fiscal 2003 and $500,000 in fiscal 2002.
The Company is involved in various legal proceedings. Management believes, based on the advice of legal counsel, that the outcome of such proceedings will not have a materially adverse effect on the Company’s financial position or future results of operations and cash flows.
See Notes 14 and 17 to the Consolidated Financial Statements for a further discussion of commitments, contingencies and contractual obligations.
Inflation
The Company believes that inflation has not had a material impact on its results of operations for fiscal 2004, fiscal 2003 or fiscal 2002. The Company does not expect inflation to have a material impact on its results of operations for fiscal 2005.
Item 7A.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
The Company is exposed to market risk stemming from changes in interest rates, foreign exchange rates and commodity prices. Changes in these factors could cause fluctuations in the Company’s financial condition, results of operations and cash flows. The Company owned no derivative financial instruments or nonderivative financial instruments held for trading purposes at March 6, 2004, March 1, 2003 or March 2, 2002. Certain of the Company’s outstanding nonderivative financial instruments at March 6, 2004 are subject to interest rate risk, but not subject to foreign currency or commodity price risk. There was no significant change in market risk from fiscal 2003 to fiscal 2004.
Interest Rate Risk
The Company manages potential loss on long-term debt from changing interest rates by maintaining a combination of fixed and variable rate financial instruments in amounts and with maturities that management considers appropriate. The risks associated with long-term debt at March 6, 2004 have not changed materially since March 1, 2003. Of the long-term debt outstanding at March 6, 2004, the $115.0 million of Notes and the borrowings under the real estate term loan subline and the equipment term loan subline of $4.7 million and $4.6 million, respectively, accrued interest at a fixed rate, while the $13.3 million of outstanding borrowings under the revolving credit facility and the $5.6 million obligation of Columbia Hill Aviation accrued interest at variable rates. A rise in prevailing interest rates could have adverse effects on the Company’s financial condition and results of operations. A 25 basis point increase in the reference rates for the Company’s average variable rate debt outstanding during fiscal 2004 would have decreased the Company’s income for that period by approximately $66,000.
The following table summarizes the Company’s market risks associated with long-term debt outstanding at March 6, 2004. The table presents principal cash outflows and related interest rates by maturity date.
Foreign Exchange Rate Risk
The Company bills customers in foreign countries in US dollars, with the exception of sales to Canada. The Company does not believe the foreign exchange rate risk on Canadian sales is material. However, a significant decline in the value of currencies used in certain regions of the world as compared to the US dollar could adversely affect product sales in those regions because the Company’s products may be more expensive for those customers to pay for in their local currency. At March 6, 2004 and March 1, 2003, all trade receivables were denominated in US dollars.
Commodity Price Risk
Certain raw materials used in food processing products are exposed to commodity price changes. Increases in the prices of certain commodity products could result in higher overall production costs. The Company manages this risk through purchase orders, non-cancelable contracts and by passing on such cost increases to customers. The Company’s primary commodity price exposures relate to beef, pork, poultry, flour, soy and packaging materials used in food processing products. During fiscal 2004, the Company experienced a significant increase in the price of beef. The Company managed the increase in beef prices by passing on cost increases to customers and by improving the formulation of beef products. At March 6, 2004, the Company evaluated commodity pricing risks and determined it was not currently beneficial to use derivative financial instruments to hedge the Company’s current positions with respect to such pricing exposures.
Fair Value of Financial Instruments
The Company’s nonderivative financial instruments consist primarily of cash and cash equivalents, trade and note receivables, trade payables and long-term debt. The estimated fair values of the financial instruments have been determined by the Company using available market information and appropriate valuation techniques. Considerable judgment is required, however, to interpret market data to develop the estimates of fair value. Accordingly, the estimates presented are not necessarily indicative of the amounts that the Company could realize in a current market exchange. The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated fair value amounts. See further discussion at Note 12 to the Consolidated Financial Statements.
Item 8.
Item 8. Financial Statements and Supplementary Data
The information required by this Item is set forth on pages through.
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
The Company’s President and Chief Executive Officer and Chief Financial Officer have evaluated the effectiveness of the Company’s disclosure controls and procedures (as such term is defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) as of the end of the period covered by this report. Based upon that evaluation, the Company’s President and Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of the period covered by this report, the Company’s disclosure controls and procedures are designed to ensure that information relating to the Company (including its consolidated subsidiaries) that is required to be included in the Company’s reports filed or submitted under the Exchange Act is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure.
Changes in Internal Controls
There have been no significant changes in the Company’s internal controls or in other factors that could significantly affect internal controls during the Company’s most recent fiscal quarter (the Company’s fourth fiscal quarter in the case of this annual report).
PART III
Item 10.
Item 10. Directors and Executive Officers of the Registrant
DIRECTORS AND EXECUTIVE OFFICERS
JAMES C. RICHARDSON, JR., CHAIRMAN, age 54, has been a director since 1987, and became Chairman of the Board of Directors on December 16, 1999. From 1993 until becoming Chairman he had served as Chief Executive Officer of the Company. From 1996 until becoming Chairman, he had served as Vice Chairman. Mr. Richardson has served the Company as an executive officer since 1987, including Executive Vice President from 1989 to 1993 and President from 1993 to 1996.
DAVID R. CLARK, VICE CHAIRMAN, age 47, has been a director since 1996 and Vice Chairman since 1999. He joined the Company as its President and Chief Operating Officer in 1996 and held those positions until he became Vice Chairman. From 1994 to 1996, he served as Executive Vice President and Chief Operating Officer of Bank of Granite, located in Granite Falls, North Carolina.
BOBBY G. HOLMAN, DIRECTOR, age 68, has been a director since 1994. He served as the Company’s Chief Financial Officer and Treasurer from 1994 until his retirement in 1997. During fiscal 2003, Mr. Holman was a member of the Audit and Special Committees of the Board of Directors, until those committees were disbanded in September 2002.
WILLIAM R. McDONALD III, DIRECTOR, age 69, has been a director since 1991. From 1989 until his retirement in 1999, he was Branch Manager of American Pharmaceutical Services, a subsidiary of Mariner Post-Acute Network, or its predecessors. Mr. McDonald served as Mayor of the City of Hickory, North Carolina, an elective office he held from 1981 to December 2001. During fiscal 2003, he served on the Audit and Sensitive Transactions Committees of the Company’s Board of Directors, until those committees were disbanded in September 2002.
BRUCE E. MEISNER, DIRECTOR, age 54, was elected to the Board of Directors by the Board itself on February 3, 2000 to fill the unexpired term of L. Dent Miller, who had resigned from the Board concurrent with his retirement from the Company. Mr. Meisner is the proprietor of Bruce E. Meisner Appraisal Company in Hickory, North Carolina, a company providing real estate appraisal services. During fiscal 2003, Mr. Meisner served on the Audit, Executive Compensation and Special Committees, until those committees were disbanded in September 2002.
JOHN H. GRIGG, DIRECTOR, age 42, was elected to the Board of Directors on December 11, 2003 to fill the position of a new director following the expansion of the Board of Directors to six members. Mr. Grigg is the founder and President of LTA, LLC, a publishing and event business established in 2001. From 1989 to 2000, he served as Partner and Managing Director of Bowles Hollowell Conner & Co. and First Union Capital Markets, investment banking firms.
NORBERT E. WOODHAMS, PRESIDENT AND CHIEF EXECUTIVE OFFICER, age 58, became the Company’s President and Chief Executive Officer on December 16, 1999. Immediately prior to his election to those offices, Mr. Woodhams was President of Pierre Foods, LLC, the Company’s operating subsidiary, having served in that position since the Company’s acquisition of Pierre Cincinnati in June 1998. From 1994 to 1998, he served as President of Hudson Specialty Foods, a food processing division of Hudson. Upon the acquisition of Hudson by Tyson in January 1998, Mr. Woodhams became President of Pierre. Mr. Woodhams served as a director from 1998 to September 2002.
PAMELA M. WITTERS, CHIEF FINANCIAL OFFICER, TREASURER AND SECRETARY, age 47, became the Company’s Chief Financial Officer on December 16, 1999, and Senior Vice President on October 26, 2000. She served the Company as Vice President of Finance from 1998 to 1999. From 1994 to 1998, she worked with Deloitte & Touche LLP in Hickory, North Carolina.
ROBERT C. NAYLOR, SENIOR VICE PRESIDENT OF SALES, age 52, became the Company’s Senior Vice President of Sales on December 16, 1999. Immediately prior, he was Senior Vice President of Sales of Pierre Foods, LLC, the Company’s operating subsidiary, having served in that position since the Company’s acquisition of Pierre Cincinnati in June 1998. From 1978 to 1998, he served in various sales positions for Pierre Cincinnati, including Vice President of Sales.
Item 11.
Item 11. Executive Compensation
SUMMARY COMPENSATION TABLE
The following information relates to compensation paid by the Company to its Chief Executive Officer and each of the highly compensated Executive Officers (collectively, the “Named Executive Officers”).
(1) Represents the value of life insurance premiums. For all periods shown, company cars and certain other benefits are excluded, as such items did not exceed 10% of the individual’s annual salary and bonus.
(2) Represents matching contributions made by the Company to the Company’s 401(k) plan.
(3) For fiscal 2002, includes compensation by HERTH Management Inc. (“HERTH”) and subsequently PF Management through September 3, 2001, plus salary beginning September 3, 2001. The Company paid PF Management $967,500 in fiscal 2002, consisting of $325,000 under the management services agreement, $350,000 as a cancellation fee, and $150,000 as bonuses paid to Mr. Richardson. See Note 16 to the consolidated financial statements “Transactions with Related Parties.”
(4) For fiscal 2002, includes management performance bonuses of $600,000 paid directly to HERTH and management performance bonuses of $150,000 paid directly to PF Management.
(5) For fiscal 2002, excludes $100,000 paid by the Company and offset from amounts owing to HERTH. See Note 16 to the consolidated financial statements “Transactions with Related Parties.”
(6) Effective July 26, 2002, Ms. Witters received $12,500 in exchange for the cancellation of all outstanding options to purchase common stock that had been issued and were outstanding, including options not yet exercisable as of the date of cancellation.
(7) Effective July 26, 2002, Mr. Naylor cancelled all outstanding options to purchase common stock that had been issued and were outstanding, including options not yet exercisable as well as options exercisable as of the date of cancellation. No value was received in connection with the cancellation of the options due to the excess of the exercise price of the options over the market value of the common stock.
COMPENSATION OF DIRECTORS
During fiscal 2004, directors were paid $5,000 per board meeting attended except that directors who were employees of the Company received no payment for services as directors.
EMPLOYMENT CONTRACTS AND CHANGE IN CONTROL AGREEMENTS
On September 3, 2001, each of James C. Richardson, Jr., the Company’s Chairman, and David R. Clark, the Company’s Vice Chairman, executed an Employment Agreement with the Company for three years at an annual base salary of $1,000,800, which may be increased from time to time by the Board of Directors. The Company can also award bonuses to Mr. Richardson and Mr. Clark based upon other considerations. See “Executive Compensation.” Each of these employment agreements will be automatically extended for additional, successive one-year terms, unless the Company or the respective employee gives prior notice of termination. Should Mr. Richardson’s or Mr. Clark’s employment be terminated by the Company without cause, or by reason of death or disability, or should Mr. Richardson or Mr. Clark resign from employment for good reason, then the Company would be obligated to make a severance payment to him equal to the sum of his base salary as would be due in the aggregate for the remainder of the initial three-year term or the one-year renewal term then in effect, as the case may be, but which shall not be less than three months of his base salary then in effect.
As described under the heading “Restructuring of Senior Notes” in Item 7, the Company entered into a Fourth Supplemental Indenture on March 8, 2004. Among other things, the Fourth Supplemental Indenture limits the annual compensation payable to Messrs. Richardson and Clark, as well as the value of the benefits and perquisites provided to them. The Fourth Supplemental Indenture provides that annual bonuses may be paid to Messrs. Richardson and Clark in accordance with formulas set forth in the Fourth Supplemental Indenture.
In the case of Mr. Clark, the Employment Agreement dated as of September 3, 2001 replaced the Employment Agreement between the Company and Mr. Clark dated June 30, 1996, as amended February 23, 1998 (the “superseded agreement”). As amended, the superseded agreement provided for an annual base salary of $350,000 and an annual bonus based on the Company’s financial performance. Under the superseded agreement, $200,000 of Mr. Clark’s base salary was paid by HERTH and $150,000 of his base salary was paid by the Company. See “Certain Relationships and Related Party Transactions.”
On August 18, 1999, Norbert E. Woodhams, the Company’s President, Chief Executive Officer and Director, and the Company executed an Incentive Agreement, which provided for an annual salary of $250,000 and a periodic bonus under the Company’s executive bonus plan (the “Woodhams Incentive Agreement”). The Company also agreed to pay to Mr. Woodhams a “pay to stay bonus” in the amount of $800,000 (inclusive of a tax “gross up” amount) in the event that the Company enters into an agreement for the sale of the Company’s food processing operation or if Mr. Woodhams’ employment is terminated. Mr. Woodhams was also entitled to receive a transaction success bonus in the amount of $750,000 (inclusive of a tax “gross up” amount) and a severance payment of $532,099 (inclusive of a tax “gross up” amount) in the event that such sale is consummated or Mr. Woodhams’ employment is terminated. The Woodhams Incentive Agreement was amended on January 1, 2000 and December 31, 2001 to increase Mr. Woodhams annual salary to $300,000 and $350,000, respectively. The Woodhams Incentive Agreement was further amended (the “Third Amendment”) on May 11, 2004 to provide that, in the event of a change of control of the Company within six months following May 11, 2004, Mr. Woodhams will receive a bonus equal to 4% of the net proceeds received by the Company’s shareholder and other executives, after certain adjustments, reductions and deposits. Concurrently with the execution of the Third Amendment, Mr. Woodhams executed a Waiver of Payment under which he waived all rights to all other payments provided for in the Woodhams Incentive Agreement upon a change of control of the Company. Accordingly, the only payment Mr. Woodhams will receive upon a change of control is that set forth in the Third Amendment. The term of the Woodhams Incentive Agreement expires on June 8, 2004 and will be automatically extended from year to year unless the Company notifies Mr. Woodhams that it does not intend to extend the term.
On December 31, 2001, each of Pamela M. Witters, the Company’s Chief Financial Officer, and Robert C. Naylor, the Company’s Senior Vice President of Sales, executed an Employment Agreement with the Company for three years. Ms. Witters’ agreement provides for an annual base salary of $210,000, and Mr. Naylor’s agreement provides for an annual base salary of $220,000, each of which may be increased from time to time by the Board of Directors. The Company can also award bonuses to Ms. Witters and Mr. Naylor based upon other considerations. See “Executive Compensation.” Each of these employment agreements will be automatically extended for additional successive one-year terms, unless the Company or the respective employee gives prior notice of termination. Should Ms. Witters’ or Mr. Naylor’s employment be terminated by the Company without cause, or by reason of death or disability, or should Ms. Witters or Mr. Naylor resign from employment for good reason, then the Company would be obligated to make a severance payment to that employee equal to the sum of his or her base salary as would be due in the aggregate for the remainder of the initial three-year term or the one-year renewal term then in effect, as the case may be, but which shall not be less than three months of his or her base salary then in effect. In the event of a change in control of the Company, the employment agreements provided that Ms. Witters and Mr. Naylor would be entitled to receive (a) three times the amount of base salary paid or payable by the Company to that employee for services rendered during the most recently completed fiscal year, plus (b) three times the amount of aggregate cash bonus paid or payable by the Company to that employee for services rendered during the most recently completed fiscal year. On May 11, 2004, however, each of Ms. Witters and Mr. Naylor entered into amendments to their employment agreements (the “Amendments”). The Amendments provide that, in the event of a change of control of the Company within six months following May 11, 2004, each of Ms. Witters and Mr. Naylor will receive a bonus equal to 3% of the net proceeds received by the Company’s shareholder and other executives, after certain adjustments, reductions and deposits. Concurrently with the execution of the Third Amendment, each of Ms. Witters and Mr. Naylor executed a Waiver of Payment under which they waived all rights to all other payments provided for in their employment agreements upon a change of control of the Company. Accordingly, the only payments that Ms. Witters and Mr. Naylor will receive upon a change of control is that set forth in the Amendments.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
PRINCIPAL SHAREHOLDERS
The following table shows, as of April 30, 2004, except as otherwise indicated, the holdings of Pierre Foods common stock by (1) the sole entity or persons known to us to be the beneficial owner of more than five percent of the outstanding shares, and (2) by all directors and executive officers as a group.
(1) The actual number of shares outstanding at April 30, 2004 was 100,000.
(2) All of the shares owned by PF Management are also deemed to be beneficially owned by Messrs. Richardson, Clark, and Templeton, who are shareholders of PF Management.
(3) Consists of 100,000 shares deemed to be owned beneficially through PF Management
Item 13.
Item 13. Certain Relationships and Related Transactions
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
As described in “Liquidity and Capital Resources - Restructuring of Senior Notes” above, on March 8, 2004 the Company and the Trustee under the Company’s Indenture executed a Fourth Supplemental Indenture and, pursuant to the terms of the Fourth Supplemental Indenture, the Company terminated substantially all of its related party transactions. The following related party transactions are specifically permitted under the terms of the Fourth Supplemental Indenture:
• Columbia Hill Land Company, LLC, owned 50% by each of Messrs. Richardson and Clark, leases office space to the Company in Hickory, North Carolina, pursuant to a ten-year lease that commenced in September 1998. Rents paid under the lease were approximately $116,000 in fiscal 2004.
• As described above, on August 13, 2003, the Company obtained a three year variable rate $40 million revolving credit facility from Fleet Capital Corporation. Messrs. Richardson and Clark have provided guarantees of value and validity of the collateral securing this credit facility; they did not, however, guarantee payment of the facility, nor are they receiving guarantee fees (see further discussion in “Liquidity and Capital Resources”).
• On March 8, 2004 the Company took title to an aircraft that was transferred from Columbia Hill Aviation, LLC (“CHA”), owned 100% by PF Management, subject to existing purchase money debt. The aircraft was originally leased by the Company from CHA beginning in the fourth quarter of fiscal 2002. Effective March 1, 2002, the original lease was cancelled and replaced with a non-exclusive lease agreement. Pursuant to this new lease, the Company was obligated to make 16 quarterly lease payments of $471,500 each for the right to use the aircraft for up to 115 flight hours per quarter, based on availability. Under this lease agreement, CHA was responsible for all expenses incurred in the operation of the use of the aircraft, except that the Company provided its own flight crew. During fiscal 2004, the Company paid CHA approximately $2.6 million in lease payments. CHA was not a subsidiary of the Company; however, the Company considered CHA a non-independent special purpose leasing entity. Accordingly, CHA’s financial condition, results of operations and cash flows have been included in the Company’s consolidated financial statements included herein. Under the terms of the operating lease with CHA, and the financing agreements between CHA and its creditor, the Company did not maintain the legal rights of ownership to the aircraft, nor did CHA’s creditor maintain any legal recourse to the Company.
Any related party transactions described below that were in effect at March 6, 2004 were subsequently terminated as of March 8, 2004 pursuant to the terms of the Fourth Supplemental Indenture. As a result of the termination of these related party transactions, subsequent to March 8, 2004, the Company will perform the purchasing and distribution services internally. Other related party services will be outsourced as necessary at comparable cost.
Columbia Hill Management, Inc. (“Columbia Hill”), owned 50% by each of Messrs. Richardson and Clark, provided accounting, tax and administrative services to Pierre Foods, as well as professional services for the management of special projects. Fees paid for these services were approximately $203,000 in fiscal 2004.
During fiscal 2004, PF Management owed the Company as much as $993,247 pursuant to a promissory note payable on demand and bearing interest at the prime rate. PF Management is owned in part by Messrs. Richardson and Clark, who have unconditionally guaranteed repayment of the note. As of March 8, 2004, this note was forgiven and included in the debt assumed per the Fourth Supplemental Indenture.
Effective February 21, 2003, Messrs. Richardson and Clark sold their net assets in Compass Outfitters, LLC, a company that provides team-building opportunities for customers and employees of the Company, to the Company for a total of $270,983. In exchange for the net assets, the Company issued notes in the amount of $135,491 to each of Messrs. Richardson and Clark. The notes are five-year notes, bearing interest at 6% per annum, with interest and principal due at maturity.
PF Purchasing, LLC (“PFP”), owned 100% by PF Management, served as the exclusive purchasing agent for the Company, pursuant to a three-year agreement that commenced September 3, 2001. Under the agreement, PFP made an incentive payment of $100,000 per quarter to the Company in consideration of the opportunity to act as exclusive purchasing agent, and in exchange is entitled to receive all rebates or discounts receivable by Pierre Foods from suppliers and vendors for orders negotiated and placed by PFP. In fiscal 2004, net fees paid to PFP were approximately $2,122,000.
Effective March 3, 2002, the Company entered into a logistics agreement with PF Distribution, LLC (“PF Distribution”), owned 100% by PF Management. Under the agreement, PF Distribution served as the exclusive logistics agent for the Company, and provided all warehousing, fulfillment and transportation services to the Company. The cost of PF Distribution’s services was based on flat rates per pound, which were calculated based on weight and volume characteristics of products, inventory pounds maintained and inventory pounds shipped. Rates were determined based on historical costs and industry standards. In fiscal 2004, distribution expense recorded in selling, general and administrative expense was approximately $31,126,000 of which approximately $30,999,000 million had been paid to PF Distribution as of March 6, 2004.
Atlantic Cold Storage of Mocksville, LLC (“ACS”), owned one-third each by Messrs. Richardson and Clark, plans to construct and finance a public cold storage warehouse which would lease space to the Company as well as to others. The proposed agreement with the Company is for 10 years and a minimum of 4,000 pallet positions to be leased as of the first date the facility is operational. The Company also agreed to pay $250,000 for specialized construction costs. During fiscal 2001, the Company paid $250,000 to ACS for the specialized construction costs.
All material transactions with affiliates of the Company were reviewed by the entire Board of Directors, where they were approved by a majority of the independent directors. The directors obtained and relied upon investment banking “fairness” opinions when considering these transactions to the extent required by the indenture governing the senior notes.
Item 14.
Item 14. Principal Accountant Fees and Services
The following table presents fees billed for professional audit services rendered by Deloitte & Touche LLP for the audit of our annual financial statements for the years ended March 6, 2004, and March 1, 2003, and for other services rendered by Deloitte & Touche LLP during those periods:
(1) Audit fees consisted of audit work performed in the preparation of financial statements, as well as work generally only the independent auditor can reasonably be expected to provide, such as statutory audits.
(2) Audit related fees consisted principally of services provided for consultation on accounting standards.
(3) Tax fees include all tax services relating to tax compliance, tax planning and reporting.
(4) No other fees for professional services rendered to the Company during fiscal 2004 or fiscal 2003.
(5) The Board considered the impact on auditor’s independence in connection with non-audit services and concluded that there is no adverse effect on their independence.
Policy on Board of Directors Pre-Approval of Audit and Permissible Non-audit Services of Independent Auditors
Consistent with SEC policies regarding auditor independence, the Board of Directors has responsibility for appointing, setting compensation and overseeing the work of the independent auditor. In recognition of this responsibility, the Board of Directors has established a policy to pre-approve all audit and permissible non-audit services provided by the independent auditor.
PART IV
Item 15.
Item 15. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a)
1. Financial Statements
The Financial Statements listed in the accompanying Index on page are filed as a part of this Report.
2.
Financial Statement Schedules
Financial statement schedules have been omitted because they are not applicable or not required or because the required information is provided in the consolidated financial statements or notes thereto.
See Index to Exhibits below.
(b)
Reports On Form 8-K.
A current report on Form 8-K was filed on December 30, 2003 to provide information about the Company’s results of operations to holders of the Notes while the Company negotiated the terms of a restructuring of its Notes. Included in this filing were the unaudited balance sheets, statements of operations and statements of cash flows for the fiscal year ended March 1, 2003, as well as the first two quarters of the Company’s fiscal year 2004, which quarters ended May 31, 2003 and August 30, 2003.
A current report on Form 8-K was filed on January 28, 2004 to provide information about the Company’s results of operations to holders of the Notes while the Company negotiated the terms of a restructuring of its Notes. Included in this filing were the unaudited balance sheet, statement of operations and statement of cash flows for the third fiscal quarter of 2004 ended November 29, 2003.
A current report on Form 8-K was filed on January 30, 2004, announcing the Company had completed negotiations of a restructuring of its Notes and had distributed consent solicitation materials to holders of the Notes.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, Pierre Foods, Inc. has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of Pierre Foods, Inc., in the capacities and on the dates indicated.
INDEX TO EXHIBITS
The Company hereby agrees to provide to the Commission, upon request, copies of long-term debt instruments omitted from this report pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K under the Securities Act.
INDEPENDENT AUDITORS’ REPORT
To the Board of Directors and Shareholders of
Pierre Foods, Inc.
Cincinnati, Ohio
We have audited the accompanying consolidated balance sheets of Pierre Foods, Inc. and subsidiaries (the “Company”) as of March 6, 2004 and March 1, 2003, and the related consolidated statements of operations, shareholders’ equity, and cash flows for each of the three fiscal years in the period ended March 6, 2004. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of the Company at March 6, 2004 and March 1, 2003, and the results of its operations and its cash flows for each of the three fiscal years in the period ended March 6, 2004 in conformity with accounting principles generally accepted in the United States of America.
As discussed in Note 2 to the financial statements, effective March 3, 2002 the Company changed its method of accounting for goodwill.
DELOITTE & TOUCHE LLP
Cincinnati, Ohio
May 17, 2004
PIERRE FOODS, INC.
CONSOLIDATED BALANCE SHEETS
See accompanying notes to consolidated financial statements.
PIERRE FOODS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
See accompanying notes to consolidated financial statements.
PIERRE FOODS, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
See accompanying notes to consolidated financial statements.
PIERRE FOODS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
See accompanying notes to consolidated financial statements.
PIERRE FOODS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION AND ACQUISITION
Description of Business. Pierre Foods, Inc. (the “Company” or “Pierre Foods,” formerly known as “Fresh Foods, Inc.” or “Fresh Foods”) is a vertically integrated producer and marketer of fully-cooked branded and private label protein and bakery products and microwaveable sandwiches for the domestic foodservice market. The Company sells its products through various distribution channels under Pierre and DesignTM, Pierre Pizza ParlorTM, Pierre Main Street DinerTM, Pierre SelectTM, Fast Bites®, Fast Choice®, Rib-B-Q®, Hot ‘n Ready®, Big AZ®, Chop House®, Deli Breaks™ and Mom ‘n’ Pop’s® brand names.
Acquisition of Pierre Foods Division of Hudson Foods, Inc. On June 9, 1998, the Company purchased certain of the net operating assets of the Pierre Foods Division (“Pierre Cincinnati”) of Hudson Foods, Inc. (“Hudson”), a wholly owned subsidiary of Tyson Foods. The acquisition was accounted for using the purchase method of accounting. The purchase price, which totaled $119.3 million including capitalized transaction costs, was allocated to the net underlying assets based on their respective fair values. Excess purchase price over fair value of the underlying assets was allocated to goodwill, trade name and assembled work force and was being amortized on a straight-line basis over lives ranging from fifteen to thirty years until fiscal 2003, at which time, the Company adopted Statement of Financial Accounting Standards (“SFAS”) No. 142 (“SFAS 142”), which requires, among other things, the discontinuance of goodwill amortization (Note 2).
Management Buyout. On April 26, 2001, the Company signed a definitive exchange agreement documenting a management buyout proposal by PF Management. In July 2001, the Special Committee of the Board of Directors of the Company received a competing proposal from William E. Simon & Sons (“Simon”) and Triton Partners (“Triton”) in which Simon and Triton proposed to commence a tender offer to purchase the Company’s common stock for $2.50 per share, subject to certain conditions. The Special Committee was considering the Simon and Triton proposal in light of the exchange agreement and other factors when the Company was contacted in August 2001 by counsel to an Ad Hoc Committee of holders of the Company’s 10.75% Senior Notes due 2006 who stated that the members of the Ad Hoc Committee, collectively owning at least $90 million in aggregate principal amount of the Senior Notes, were interested in negotiating with the Company to restructure the Company’s debt and equity capital. The Special Committee and the Board of Directors decided that the Company should pursue these negotiations; however, when the Company and the Ad Hoc Committee were unable to agree on a mutually acceptable proposal, the Company terminated formal negotiations with the Ad Hoc Committee.
On December 13, 2001, Simon entered into an agreement with PF Management, guaranteed by the Company, whereby Simon agreed to assist PF Management in completing the management buyout and possible subsequent restructurings of PF Management and the Company. Commensurate with the signing of this agreement, Simon withdrew its offer made in July 2001 with Triton. Following the signing of this agreement, PF Management and the Company entered into an amendment of the definitive exchange agreement. The amendment, dated December 20, 2001, provided for an increase in the exchange price to be paid in the management buyout from $1.21 to $2.50 per share.
On June 25, 2002, a definitive proxy statement was filed with the Securities and Exchange Commission in connection with a special meeting of shareholders, at which the shareholders were asked to approve the Amended and Restated Agreement and Plan of Share Exchange dated as of December 20, 2001, and amended as of June 20, 2002.
On July 26, 2002, the Company’s shareholders approved the Amended and Restated Agreement and Plan of Share Exchange dated as of December 20, 2001, and amended as of June 20, 2002 and the management buyout of the Company was completed on July 26, 2002. This going-private transaction resulted in the Company becoming a wholly-owned subsidiary of PF Management; accordingly, there is no public market for the Company’s common stock. The Company had 5,781,480 shares issued and outstanding immediately before the closing and 2,500,000 shares of preferred stock authorized, none of which were outstanding. After the closing, the Company amended and restated its Articles of Incorporation to authorize the issuance of up to 100,000 shares of Class A common stock as the only authorized class of capital stock of the Company. All 100,000 shares of authorized common stock have been issued to PF Management. All per share amounts have been retroactively restated in the accompanying Consolidated Financial Statements and Notes to Consolidated Financial Statements for all periods presented to reflect the transaction.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation. The accompanying consolidated financial statements include Pierre Foods, Inc. and subsidiaries, as well as the accounts of the special purpose leasing entity (see Note 16). All intercompany transactions have been eliminated.
Fiscal Year. The Company reports the results of operations using a 52-53 week basis. Each quarter of the fiscal year contains 13 weeks except for the infrequent fiscal years with 53 weeks. Fiscal 2004 represents a 53 week period. Fiscal 2003 and fiscal 2002 represent 52 week periods.
The Company’s fiscal year ended March 6, 2004 is referred to herein as “fiscal 2004,” its fiscal year ended March 1, 2003 is referred to herein as “fiscal 2003,” and its fiscal year ended March 2, 2002 is referred to herein as “fiscal 2002.”
Cash and cash equivalents. The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.
Inventories. Inventories are stated at the lower of cost (first-in, first-out) or market.
Property, Plant and Equipment. Property, plant and equipment are stated at cost. Expenditures for maintenance and repairs which do not significantly extend the useful lives of assets are charged to operations whereas additions and betterments, including interest costs incurred during construction, which was not material for any year presented, are capitalized.
Depreciation of property, plant and equipment is provided over the estimated useful lives of the respective assets on the straight-line basis. Leasehold improvements are depreciated over the shorter of their estimated useful lives or the terms of the respective leases. Property under capital leases is amortized in accordance with the Company’s normal depreciation policy. Depreciation expense, along with amortization of intangible assets, is recorded as a separate line item in the consolidated statements of operations. Cost of goods sold and selling, general and administrative expenses exclude depreciation expense.
The Company evaluates the carrying values of long-lived assets for impairment by assessing recoverability based on forecasted operating cash flows on an undiscounted basis, and determined no impairment existed at March 6, 2004 or March 1, 2003.
Goodwill and Other Intangible Assets. During fiscal 2002 and prior years, Goodwill and other intangible assets were being amortized using the straight line method over a 30 year period. The carrying value of goodwill and other intangible assets was evaluated periodically as events and circumstances indicated a possible inability to recover its carrying amount. Amortization expense recognized for the fiscal year ended March 2, 2002 was $2,693,499.
In June 2001, the Financial Accounting Standards Board (“FASB”) issued SFAS 142, “Goodwill and Other Intangible Assets,” which was effective for the fiscal year beginning March 3, 2002. SFAS 142 requires, among other things, the discontinuance of goodwill amortization. In addition, the standard includes provisions for the reclassification of certain existing recognized intangibles as goodwill, reassessment of the useful lives of existing recognized intangibles, reclassification of certain intangibles out of previously reported goodwill and the identification of reporting units for purposes of assessing potential future impairments of goodwill. Upon the Company’s adoption of SFAS 142 on March 3, 2002, the Company ceased amortizing goodwill and indefinite-lived intangibles. Also effective March 3, 2002, the Company reclassified the value assigned to its assembled workforce to goodwill.
In adopting SFAS 142, the Company considered valuations based discounted cash flow models and on market values of publicly-traded equity, as adjusted, plus publicly-owned subordinated notes, which were determined in conjunction with the Management Buyout in fiscal 2003 (See Note 1 - Basis of Presentation, Acquisition and Discontinued Operations for discussion on Management Buyout). The Company’s analysis determined that the entire carrying amount of the goodwill balance at March 3, 2002 was impaired. The carrying amount, $29,019,571 was written-off as the Cumulative Effect of an Accounting Change, net of income taxes of $10,415,037, in the statement of operations.
Prior to adopting SFAS 142, the Company had the following acquired intangible assets recorded as of March 2, 2002:
As required by SFAS 142, the results for fiscal 2002 have not been restated. The table below presents the effect on net income (loss) and income (loss) per share as if SFAS 142 had been in effect for fiscal 2002:
Economic Useful Life of Intangible Assets. The Company reviews the economic useful life of its intangible assets annually. The determination of the economic useful life of an intangible asset requires a significant amount of judgment and entails significant subjectivity and uncertainty.
Deferred Loan Origination Fees. Deferred loan origination fees associated with the Company’s revolving credit facility and long-term debt are amortized based on the term of the respective agreements. This amortization expense is included in interest expense.
Revenue Recognition. Revenue from sales of food processing products is recorded at the time title transfers. Standard shipping terms are FOB destination, therefore title passes at the time the product is delivered to the customer. Revenue is recognized as the net amount to be received after deductions for estimated discounts, product returns and other allowances.
Significant Customer. Sales to Carl Karcher Enterprises Inc (“CKE”) accounted for approximately 24% and 11%, of our net sales in fiscal 2004 and 2003, respectively. No other customer accounted for 10% or more of net sales during fiscal years 2004, 2003 and 2002.
Promotions. Promotional expenses associated with rebates, marketing promotions and special pricing arrangements are recorded as a reduction of revenues at the time the sale is recorded, in accordance with Emerging Issues Task Force Issue No. 01-9 “Accounting for Consideration Given by a Vendor to a Customer (Including a Reseller of a Vendor’s Products)”. Certain of these expenses are estimated based on expected future payments to be made under these programs. The Company believes the estimates recorded in the financial statements are reasonable estimates of the Company’s liability.
Advertising Costs. The Company expenses advertising costs as incurred. Advertising expense for fiscal 2004, fiscal 2003 and fiscal 2002 was $558,689, $652,927 and $810,367, respectively.
Research and Development. The Company expenses research and development costs as incurred. Research and development expense for fiscal 2004, fiscal 2003 and fiscal 2002 was $885,575, 648,774 and $372,797, respectively.
Distribution Expense. The Company expenses distribution costs as incurred. These costs include warehousing, fulfillment and freight costs, and are included in selling, general and administrative expense. Distribution expense included in operations for fiscal 2004, fiscal 2003 and fiscal 2002 was $31,126,379, $21,544,140 and $17,828,859, respectively (See Note 16).
Income Taxes. Income taxes are provided for temporary differences between the tax and financial accounting bases of assets and liabilities using the asset and liability method. The tax effects of such differences are reflected in the balance sheet at the enacted tax rate applicable to the years when such differences are scheduled to reverse. The effect on deferred taxes of a change in tax rates is recognized in the period that includes the enactment date.
Reclassifications. Financial statements for fiscal 2003 and fiscal 2002 have been reclassified, where applicable, to conform to the financial statement presentation used in fiscal 2004.
Use of Estimates. The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Significant accounting estimates include sales discounts and promotional allowances, inventory reserves, insurance reserves, and useful lives assigned to intangible assets. Actual results could differ from those estimates.
Going Concern Assumption. Significant assumptions underlie the belief that the Company anticipates that its fiscal 2005 cash requirements for working capital and debt service will be met through a combination of funds provided by operations and borrowings under its $40 million credit facility, including among other things, that there will be no material adverse developments in the business, liquidity or significant capital requirements of the Company.
New Accounting Pronouncements. In June 2001, the FASB issued Statement of Financial Accounting Standards No. 143 (“SFAS 143”), “Accounting for Asset Retirement Obligations,” was adopted by the Company beginning March 2, 2003. SFAS 143 addresses financial accounting and reporting for obligations associated with the retirement of tangible long-lived assets and the associated asset retirement cost. The adoption of SFAS 143 did not have a material impact on the Company’s financial position and results of operations.
In December 2002, the FASB issued Statement of Financial Accounting Standards No. 148 (“SFAS 148”) - “Accounting for Stock-Based Compensation - Transition and Disclosure.” This statement amends Statement of Financial Accounting Standards 123, “Accounting for Stock-Based Compensation” to provide alternative methods of transition for an entity that changes to the fair value based method of accounting for stock-based employee compensation and changes the disclosure requirements. This statement was effective for financial statements for fiscal years ending after December 15, 2002. The Company adopted SFAS No. 148 effective March 1, 2003. During fiscal 2003, effective with the management buyout discussed in Note 1, all stock option plans were terminated and all outstanding options were cancelled, however, the necessary disclosure requirements of SFAS 148 are presented in Note 2 of the Notes to Consolidated Financial Statements.
In April 2003, the FASB issued Statement of Financial Accounting Standards No. 149 (“SFAS 149”), - “Amendment of Statement 133 on Derivative Instruments and Hedging Activities.” The statement amends and clarifies accounting for derivative instruments, including certain derivative instruments embedded in other contracts, and hedging activities under Statement of Financial Accounting Standards No. 133. SFAS 149 is effective for all contracts entered into or modified after June 30, 2003. This Statement did not have an impact on the Company’s financial statements.
In May 2003, the FASB issued Statement of Financial Accounting Standards No. 150 (“SFAS 150”), -“Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity.” This statement requires certain freestanding financial instruments to be reported as liabilities by their issuers. The provisions of SFAS 150, which also include a number of new disclosure requirements, are effective for instruments entered into or modified after May 31, 2003 and pre-existing instruments as of the beginning of the first interim period that commences after June 15, 2003. This statement did not have an impact on the Company’s financial statements.
In November 2002, the FASB issued FASB Interpretation No. (“FIN”) 45, “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others” (“FIN 45”), which expands the disclosures a guarantor is required to provide in its annual and interim financial statements regarding its obligations for certain guarantees. Disclosures are required to be included in financial statements issued after December 15, 2002 (see Note 7). FIN 45 also requires the guarantor to recognize a liability for the fair value of an obligation assumed for guarantees issued or modified after December 31, 2002. The adoption of FIN 45 did not have a material impact on the Company’s financial position and results of operations.
In January 2003, the FASB issued FIN 46, “Consolidation of Variable Interest Entities” (“FIN 46”), which addresses how to identify variable interest entities and the criteria that require a company to consolidate such entities in its financial statements. As originally issued, FIN 46 was effective on February 1, 2003 for new transactions and on July 1, 2003 for existing transactions. In December 2003, the FASB deferred the effective date for transactions entered into prior to February 1, 2003, to the first reporting period that ends after March 15, 2004. The Company does not believe that the adoption of FIN 46 will have a material impact on its financial position and results of operations.
Stock Compensation. The Company accounts for its stock option plans using the intrinsic value based method. Had compensation for stock options granted been determined using the fair value based method, the Company’s net income (loss) and net income (loss) per common share amounts for fiscal 2004, 2003, and 2002 would approximate the following pro forma amounts:
3. ACCOUNTS AND NOTES RECEIVABLE
Accounts and notes receivable consist of the following:
See Note 16 regarding a $5,000,000 note receivable from a significant shareholder presented as a reduction of shareholders’ equity.
The following is a summary of activity in the allowance for doubtful receivables for the three years in the period ended March 6, 2004 :
4. INVENTORIES
A summary of inventories, by major classification, follows:
5. PROPERTY, PLANT AND EQUIPMENT
The major components of property, plant and equipment are as follows:
6. INTANGIBLE ASSETS
Intangible assets consist of the following:
The Company adopted SFAS 142, “Goodwill and Other Intangible Assets,“on March 3, 2002. Upon adoption, the Company ceased amortizing goodwill and indefinite-lived intangibles. The Company recorded no amortization expense in fiscal 2004 and fiscal 2003.
7. FINANCING ARRANGEMENTS
Long-term debt is comprised of the following:
The Senior Notes are unsecured obligations of the Company, subject to certain financial and non-financial covenants. At March 6, 2004, the Company believes it was in compliance with all covenants under the Senior Notes; but continued compliance will depend on future cash flows and net income, which are not assured (See also Note 17).
Effective August 13, 2003, the Company terminated its five-year variable-rate $50 million revolving credit facility. Also effective August 13, 2003, the Company obtained a three-year variable rate $40 million revolving credit facility from a new lender, which includes a $5 million real estate term loan subline, a $5 million equipment term loan subline and a $7.5 million letter of credit subfacility. Funds available under this new facility are available for working capital requirements, permitted investments and general corporate purposes. Borrowings under the new facility bear interest at floating rates based upon the interest rate option selected from time to time by the Company and are secured by a first-priority security interest in substantially all of the Company’s assets. The interest rate for borrowings under the new facility at March 6, 2004 was 5% (prime plus 1%). Borrowings under the new facility are due the earlier of ninety days prior to the redemption of the Senior Notes or August 13, 2006. Repayment is also required in the amount of the proceeds from the sale of any collateral. In addition, the Company is required to satisfy certain financial covenants regarding cash flow and capital expenditures.
The average rate on the $40 million revolving credit line was 5.66% for the fiscal year ended March 6, 2004. The average rate on the $50 million revolving credit line was 8.23% for the fiscal year ended March 1, 2003. At March 6, 2004, the Company had outstanding borrowings under this new revolving credit facility of $13.3 million and borrowing availability of approximately $12.9 million. Also, at March 6, 2004, the Company had borrowings under the real estate subline and the equipment subline of $4.7 million and $4.6 million, respectively. At March 1, 2003, the Company had outstanding borrowings under the revolving credit facility of $15.1 million, and had approximately $4.6 million of additional borrowing availability.
7. FINANCING ARRANGEMENTS (CONTINUED)
Obligation of special purpose entity is comprised of a seven year variable rate note payable, due in monthly installments with a balloon payment due in December 2008 (see Note 16):
8. INCOME TAXES
The income tax provision (benefit) is summarized as follows:
Actual income tax provision are different from amounts computed by applying a statutory federal income tax rate to income or loss. The computed amount is reconciled to total income tax provision.
8. INCOME TAXES, CONTINUED
The approximate tax effect of each type of temporary difference and carryforward that gave rise to the Company’s deferred income tax assets and liabilities for fiscal 2004 and fiscal 2003 is as follows:
The Company will file a consolidated federal income tax return, with its parent corporation, PF Management, for fiscal 2004. Under consolidated tax return rules, PF Management will be able to utilize the net operating loss and certain other deductions of the Company that could not otherwise be currently utilized by the Company on a separate return basis. The tax sharing agreement between PF Management and the Company does not require PF Management to reimburse the Company for the net operating loss and other deductions that could not be currently utilized on a separate return basis. Accordingly, the Company recorded a noncash distribution to PF Management in the amount of $3,578,169 for the utilization of the Company’s deferred tax assets in PF Management’s consolidated federal income tax return.
At March 6, 2004, federal and state loss carryovers of approximately $5,316,000 and $9,858,000, respectively, are available to offset future federal and state taxable income. The carryover periods range from fifteen to twenty years, which will result in expirations of varying amounts beginning in fiscal 2015 and continuing through fiscal 2022.
Realization of certain deferred tax assets is dependent upon generating sufficient taxable income in the appropriate jurisdiction prior to the expiration of the carryforward periods. Although realization is not assured, management believes it is more likely than not the deferred tax assets will be realized.
9. LEASED PROPERTIES
The Company operates certain machinery and equipment and furniture and fixtures under leases classified as capital leases. The leases have original terms ranging from one to eight years. The assets covered under these leases have carrying values of $310,904 and $162,358 at March 6, 2004 and March 1, 2003, respectively.
Certain machinery and equipment and real estate are under operating leases with terms that are effective for varying periods until 2012. Certain of these leases have remaining renewal clauses, exercisable at the option of the lessee. Amounts below include leases with related parties (see Note 16).
At March 6, 2004, minimum rental payments required under operating and capital leases are summarized as follows:
Rental expense charged to continuing operations is as follows:
10. EMPLOYEE BENEFITS
The Company maintains a 401(k) Retirement Plan for its employees which provides that the Company will make a matching contribution of up to 50% of an employee’s voluntary contribution, limited to the lesser of 5% of that employee’s annual compensation or $13,000 for fiscal 2004. The Company’s contributions were $494,203, $484,639, and $450,085 in fiscal 2004, 2003 and 2002, respectively.
The Company provides employee health insurance benefits to employees. During fiscal 2002, benefits were provided through both fully insured and self insurance group medical plans, which are partially funded by the Company. During fiscal 2004 and fiscal 2003, medical benefits were provided primarily through self insurance group medical plans. During fiscal 2004, 2003 and 2002, contributions included in operations were $4,139 We had to subtract stop loss reimbursements.,845, $2,833,789 and $1,579,999, respectively.
Effective August 1, 2000, the Company adopted the Pierre Foods, Inc. Compensation Exchange Plan. The Plan is a non-qualified deferred compensation plan in which eligible participants consist of highly compensated employees and the Company’s Board of Directors. Cash contributions to the Plan were $43,839 and $55,270 during fiscal 2003 and fiscal 2002, respectively. Effective December 31, 2002, the Company terminated the plan.
11. STOCK OPTIONS
The Company’s 1997 Incentive Stock Option Plan, as amended, provided for the issuance of up to 1,000,000 shares of the Company’s common stock to key employees, including officers of the Company. The Company may grant Incentive Stock Options (“ISOs”) or nonqualified stock options to eligible employees. Stock options granted under this plan have terms of ten years, vest evenly over five years, and are assigned an exercise price of not less than the fair value on the date of grant.
The Company’s 1997 Special Stock Option Plan, as amended, provided for the issuance of up to 1,500,000 shares of the Company’s common stock to key management employees, including officers and directors of the Company and certain other individuals. All options granted under this Plan are nonqualified stock options. Stock options granted under this plan have terms of ten years, vest immediately, and are assigned an exercise price of not less than the fair value on the date of the grant.
During fiscal 2003, effective with the management buyout discussed in Note 1 - Basis of Presentation, Acquisition and Discontinued Operations, all stock option plans were terminated and all outstanding options were cancelled.
A summary of the changes in shares under option and the weighted-average exercise prices for these Plans follows:
12. DISCLOSURES ABOUT FAIR VALUES OF FINANCIAL INSTRUMENTS
The Company’s nonderivative financial instruments consist primarily of cash and cash equivalents, trade and note receivables, trade payables and long-term debt. The estimated fair values of the financial instruments have been determined by the Company using available market information and appropriate valuation techniques. Considerable judgment is required, however, to interpret market data to develop the estimates of fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts that the Company could realize in a current market exchange. The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated fair value amounts.
At March 6, 2004 excluding long-term debt, the book values of each of the nonderivative financial instruments recorded in the Company’s balance sheet are considered representative of fair value due to variable interest rates, short terms to maturity and/or short length of time outstanding.
The fair value of the Company’s Senior Notes is estimated based on quoted market prices and interest rates currently available for issuance of debt with similar terms and maturities. As of March 6, 2004 and March 1, 2003, the fair value of the Senior Notes was $115,000,000 and $85,100,000, respectively.
13. MAJOR BUSINESS SEGMENT
During fiscal 2004, fiscal 2003 and fiscal 2002, the Company operated solely in the food manufacturing segment. Sales by major product line are as follows:
Significantly all revenues and long-lived assets are derived from and reside in the United States.
14. COMMITMENTS AND CONTINGENCIES
The Company’s new three year variable rate $40 million revolving credit facility includes letter of credit subfacilities in the amount of $7.5 million. The Company provides a secured letter of credit in the amount of $3,500,000 to its insurance carrier for the underwriting of certain performance bonds, which expires in fiscal 2005. The Company also provides secured letters of credit to its insurance carriers for outstanding and potential worker’s compensation and general liability claims. Letters of credit for these claims totaled $75,000 in fiscal 2004. In addition, the Company provides secured letters of credit to a limited number of suppliers. Letters of credit for suppliers totaled $250,000 in fiscal 2004.
The Company is involved in various legal proceedings. Management believes, based on the advice of legal counsel, that the outcome of such proceedings will not have a materially adverse effect on the Company’s financial position or future results of operations and cash flows.
See Note 17 to the Consolidated Financial Statements for a further discussion of commitments, contingencies and contractual obligations.
15. SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid for interest, income taxes refunded and non-cash transactions consisting of notes issued for assets acquired, capital lease additions and certain tax benefits utilized by the Parent accounted for as a distribution to the Parent are as follows:
During the fourth quarter of fiscal 2002, the special purpose leasing entity exchanged a note payable in the amount of $6,200,000 for the purchase of an aircraft for $6,200,000, in a non-cash transaction (see Note 16).
16. TRANSACTIONS WITH RELATED PARTIES
Related party transactions during fiscal 2004, 2003 and 2002 arose in connection with the following relationships:
As discussed in Note 17 - “Restructuring of Senior Notes,” on March 8, 2004 the Company executed a Fourth Supplemental Indenture and, pursuant to the terms of the Fourth Supplemental Indenture, the Company terminated substantially all of its related party transactions. The following related party transactions are specifically permitted under the terms of the Fourth Supplemental Indenture:
• Columbia Hill Land Company, LLC, owned 50% by each of Messrs. Richardson and Clark, Chairman and Vice-Chairman, respectively, leases office space to the Company in Hickory, North Carolina, pursuant to a ten-year lease that commenced in September 1998. Rents paid under the lease were approximately $116,000 in fiscal 2004.
• As described above, on August 13, 2003, the Company obtained a three year variable rate $40 million revolving credit facility from Fleet Capital Corporation. Messrs. Richardson and Clark have provided guarantees of value and validity of the collateral securing this credit facility; they did not, however, guarantee payment of the facility, nor are they receiving guarantee fees (see further discussion in “Liquidity and Capital Resources”).
• On March 8, 2004 the Company took title to an aircraft that was transferred from Columbia Hill Aviation, LLC (“CHA”), owned 100% by PF Management, subject to existing purchase money debt. The aircraft was originally leased by the Company from CHA beginning in the fourth quarter of fiscal 2002. Effective March 1, 2002, the original lease was cancelled and replaced with a non-exclusive lease agreement. Pursuant to this new lease, the Company was obligated to make 16 quarterly lease payments of $471,500 each for the right to use the aircraft for up to 115 flight hours per quarter, based on availability. Under this lease agreement, CHA was responsible for all expenses incurred in the operation of the use of the aircraft, except that the Company provided its own flight crew. During fiscal 2004, the Company paid CHA approximately $2.6 million in lease payments. CHA was not a subsidiary of the Company; however, the Company considered CHA a non-independent special purpose leasing entity. Accordingly, CHA’s financial condition, results of operations and cash flows have been included in the Company’s consolidated financial statements included herein. Under the terms of the operating lease with CHA, and the financing agreements between CHA and its creditor, the Company did not maintain the legal rights of ownership to the aircraft, nor did CHA’s creditor maintain any legal recourse to the Company.
Any related party transactions described below that were in effect at March 6, 2004 were subsequently terminated as of March 8, 2004 pursuant to the terms of the Fourth Supplemental Indenture. As a result of the termination of these
related party transactions, subsequent to March 8, 2004, the Company will perform the purchasing and distribution services internally. Other related party services will be outsourced as necessary at comparable cost.
Under an agreement with a management services entity owned by certain officers and directors, as amended on December 17, 1999, the Company received corporate management services, which included, among other things, strategic planning, investor relations, management of the Company’s banking, accounting and legal relationships and general oversight. Management fees paid under this agreement were in lieu of salary compensation for certain of the Company’s senior executives. Amounts paid under the agreement were $925,000 in fiscal 2002. Effective April 25, 2001, the agreement was assigned to another management services entity, owned by certain officers and directors. Fees paid in fiscal 2002 under the assigned agreement were $325,000, with an additional $350,000 paid as a termination fee, and $292,500 paid in bonuses to its senior executives. This agreement was cancelled as of September 3, 2001. In addition, $426,435 was paid to this entity for reimbursement of expenses incurred in connection with the exchange as required by the amended exchange agreement (see Note 1).
The Company uses the services of an entity in which the Company’s principal shareholders have substantial ownership interests. Services provided by this entity include accounting, tax and administrative services, as well as consulting services related to the development of new sales, warehousing and distribution programs. Total payments for such services were approximately $203,000, $650,000 and $1,130,000 in fiscal 2004, 2003 and 2002, respectively.
The Company uses the services of an entity owned 100% by PF Management. This entity serves as the exclusive purchasing agent pursuant to a three-year agreement that commenced September 3, 2001. Under the agreement, the entity pays $100,000 per quarter for the right to serve as exclusive purchasing agent. Net payments to the purchasing entity were approximately $2,122,000, $3,960,000 and $620,000 in fiscal 2004, fiscal 2003 and fiscal 2002, respectively, and are recorded in cost of goods sold.
During the fourth quarter of fiscal 2002, the Company leased an aircraft from an entity owned 100% by PF Management. Under this lease, the Company maintained its own flight department and was responsible for all operating costs. Total payments under that lease were approximately $168,000 in fiscal 2002. Effective March 1, 2002, that lease was cancelled and replaced with a four-year non-exclusive operating lease agreement. Pursuant to the new lease, the Company is obligated to make minimum quarterly lease payments of $471,500 each for the right to use the aircraft for a specified number of hours. Under this lease arrangement, the entity is responsible for all expenses incurred in the operation and use of the aircraft, except that the Company must provide its own crew. On March 1, 2002, the Company paid $943,000 as a refundable deposit under the agreement and $471,500 for its first quarterly lease payment. During fiscal 2004 and fiscal 2003, the Company paid approximately $2,597,000 and $3,188,000, respectively for the aircraft lease.
The aircraft leasing entity is owned 100% by PF Management and the Company considers the entity a non-independent special purpose leasing entity. Accordingly, the entity’s assets and liabilities, results of operations and cash flows have been included in the Company’s consolidated financial statements. Under the terms of the operating lease with the entity, and the financing agreements between the entity and its creditor, the Company did not maintain the legal rights of ownership to the aircraft, nor does the entity’s creditor maintain any legal recourse to the Company.
Effective March 3, 2002, the Company entered into a one-year logistics agreement with PF Distribution, LLC (“PF Distribution”), owned 100% by PF Management. Under the agreement, PF Distribution will serve as the exclusive logistics agent for the Company, and will provide all warehousing, fulfillment and transportation services to the Company. The cost of PF Distribution’s services is based on flat rates per pound, which are calculated based on weight and volume characteristics of products, inventory pounds maintained and inventory pounds shipped. Rates were determined based on historical costs and industry standards. In fiscal 2004, distribution expense recorded in selling, general and administrative expense was approximately $31,126,000 million, of which approximately $30,999,000 million had been paid to PF Distribution as of March 6, 2004. In fiscal 2003, distribution expense recorded in selling, general and administrative expense was approximately $21,544,000 million, of which approximately $21,254,000 million had been paid to PF Distribution as of March 1, 2003.
Effective May 29, 2002, the Company terminated its $25 million credit facility with Fleet Capital. Also, effective May 29, 2002, the Company obtained a five-year variable-rate $50 million revolving credit facility from Foothill Capital Corporation, which includes a $16 million term loan subline, a $10 million capital expenditures subline and a $7 million
letter of credit subfacility. Funds available under this facility were available for working capital requirements, permitted investments and general corporate purposes. Borrowings under the facility were bearing interest at floating rates based upon the interest rate option selected from time to time by the Company and were secured by a first-priority security interest in substantially all of the Company’s assets. In addition, the Company was required to satisfy certain financial covenants regarding cash flow and capital expenditures. The collateral for the facility included substantially all of the Company’s assets. Messrs. Richardson and Clark guaranteed payment of the facility in exchange for guarantee fees. The Company paid such fees to each of Messrs. Richardson and Clark, annually in advance, equal to 1.5% of the amount committed for lending under the facility. In fiscal 2003, the Company paid each of Messrs. Richardson and Clark $750,000.
The Company has agreed to lease warehouse space from an entity in which the Company’s principal shareholders have substantial ownership interests. The lease is a ten-year term to begin the first day the facility is operational. During fiscal 2001, the Company paid $250,000 for specialized construction costs.
The Company uses the services of an entity in which one of the Company’s principal shareholders has a substantial ownership interest. This entity provides general construction and maintenance services. Total payments for such services were approximately $142,000 in fiscal 2002.
The Company uses the services of an entity in which the Company’s principal shareholders have substantial ownership interests. This entity provides team-building opportunities for customers and employees. Total payments for such services were approximately $530,000 and $90,000 in fiscal 2003 and fiscal 2002, respectively. During fiscal 2003, Messrs. Richardson and Clark each became 50% owners of the entity. Effective February 21, 2003, Messrs. Richardson and Clark sold their net assets in the entity to the Company for a total of $270,983. In exchange for the net assets, the Company issued notes in the amount of $135,491 to each of Messrs. Richardson and Clark. The notes are five-year notes, bearing interest at 6% per annum, with interest and principal due at maturity.
During fiscal 2004, 2003 and 2002, the Company maintained a $993,247 note receivable from its principal shareholders. Note is payable on demand and bears interest at the prime rate through the end of fiscal 2002, none thereafter.
The Company has mutual leasing agreements with certain related individuals and with certain companies in which the Company’s principal shareholders have substantial ownership interests. Total payments under such leasing agreements were approximately $260,000 in fiscal 2004, $176,000 in fiscal 2003 and $103,000 in fiscal 2002.
On January 14, 2000, the Company entered into a Consulting and Noncompete Agreement with Mr. Charles F. Connor, Jr., who at the time was a significant shareholder and co-founder of the Company. The agreement, which has a five-year term, provides payments of $200,000 per year and family medical insurance coverage. The net present value of payments under the agreement, including the net present value of the medical insurance coverage over the term, is estimated to be $831,000. This amount was expensed in selling, general and administrative expense during the fourth quarter of fiscal 2000, and the balance is reflected in other long-term liabilities.
On January 6, 2000, the Company entered into a Consulting and Noncompete Agreement with Mr. L. Dent Miller, who at the time was a significant shareholder, former President of Claremont Restaurant Group and former member of the Company’s Board of Directors. The agreement, which has a five-year term, provides payments of $200,000 per year. The net present value of payments under the agreement is estimated to be $807,000. This amount was expensed in selling, general and administrative expense during the fourth quarter of fiscal 2000, and the balance is reflected in other long-term liabilities. Mr. Miller resigned from his position as a member of the Board of Directors of the Company, pursuant to his Consulting and Noncompete Agreement. Subsequent to fiscal 2000, Mr. Miller is no longer a shareholder or related party.
On December 16, 1999, the Board of Directors approved a loan to Mr. James C. Richardson, the Company’s current Chairman, of an amount up to $8.5 million for the purpose of enabling Mr. Richardson to purchase shares of the Company’s common stock owned by certain shareholders. The terms of the loan provide that outstanding amounts will bear a simple interest rate of 8.5%, with principal and interest due on demand. At March 4, 2000, disbursements under the loan approval totaled $5 million. Due to the nature of the loan, the outstanding balance is presented as a reduction of shareholders’ equity.
On July 6, 1999, the Company replaced certain existing Change in Control Agreements with the Company’s current Chairman (Mr. Richardson) and current Vice Chairman (Mr. Clark) with revised Change in Control Agreements. The revised agreements provided that, if a change in control of the Company occurred, the following benefits would be provided by the Company: three times the amount of the annual base salary of the officer; three times the amount of the cash bonus paid or payable to such person for the most recent fiscal year; and a “gross-up” payment for all excise and income tax liabilities resulting from payments under the Change in Control Agreements. The Richardson Change in Control Agreement was cancelled on October 21, 2002, and the Clark Change in Control Agreement was cancelled October 17, 2002.
On September 3, 2001, the Company entered into Employment Agreements with the Company’s current Chairman (Mr. Richardson) and current Vice-Chairman (Mr. Clark). The agreements specify terms relating to salary, bonus and benefits to be paid to the executive during the three-year term of the agreements.
The Company purchases pork products from an entity in which one of the Company’s Principal Shareholders has a substantial ownership interest. During fiscal 2003 and 2002, the Company purchased pork products totaling $194,170 and $150,720, respectively.
On August 18, 1999, the Company entered into an Incentive Agreement with the Company’s current President (Mr. Woodhams), which replaced a Change in Control Agreement and Employment Contract. The agreement, as amended on January 1, 2000 and December 31, 2001, specifies terms relating to salary and bonus amounts to be paid to the executive during the four-year term of the agreement, as well as severance and disposition bonus amounts to be received upon any sale of the Company.
On December 31, 2001, the Company entered into Employment Agreements with the Company’s current Chief Financial Officer (Ms. Witters) and current Senior Vice President of Sales (Mr. Naylor). The agreements specify terms relating to salary, bonus and benefit amounts to be paid to the executive during the three-year term of the agreements, as well as severance and disposition bonus amounts to be received upon any sale of the Company.
17. SUBSEQUENT EVENTS
Restructuring of Senior Notes.
In November 2002, the Company received a notice alleging that the Company was in violation of certain non-financial covenants under the Indenture covering the Senior Notes. The Company disagreed that it had violated any Indenture covenants.
On March 8, 2004, following a consent solicitation in which consents of holders of $112.4 million in aggregate principal amount of the Company’s outstanding Notes, representing 97.74% of the outstanding Notes, consented to a Fourth Supplemental Indenture between the Company and U.S. Bank National Association, as trustee (the “Trustee”), the Company entered into the Fourth Supplemental Indenture with the Trustee. Among other things, the Fourth Supplemental Indenture increased the annual interest rate on the Notes from 10.75% to 12.25% through March 31, 2005 and 13.25% thereafter; required the payment of a cash consent fee equal to 3% of the principal amount of Notes held by each consenting noteholder; granted to the noteholders liens on the assets of the Company and its subsidiaries, such liens being junior to the senior liens securing the Company’s current credit facility, granted to noteholders a repurchase right allowing all of the noteholders to require the Company to repurchase their Notes at par plus accrued interest on March 31, 2005, provided for the payment of a portion of certain cash flow of the Company (referred to as “excess cash”) to reduce the principal amount of Notes outstanding at the end of the Company’s fiscal years; added restrictive covenants limiting the compensation payable to certain senior executives of the Company and limiting future related party transactions; required the termination of all related party transactions, except for certain specifically-permitted transactions (see Note 16, “Transactions with Related Parties”); provided for the assumption by the Company of approximately $15.4 million of subordinated debt of PF Management; required the Company to comply with certain corporate governance standards, including appointing an independent director acceptable to the Company and the noteholders to its board and hiring an independent auditor to monitor the Company’s compliance with the Indenture; and waived any and all defaults of the Indenture existing as of March 8, 2004.
The restrictive covenants limiting compensation payable to certain senior executives of the Company contain provisions for bonuses based on the profitability of the Company and cash payments made on the Notes which could significantly increase the limitation.
Concurrently with the execution of the Fourth Supplemental Indenture the Company took title to an aircraft transferred from a related party subject to existing purchase money debt; forgave the $993,247 related party note receivable from its principal shareholders; cancelled the balances owed by the Company to certain related parties; and assumed the operating leases of PF Distribution in connection with the Fourth Supplemental Indenture. Minimum lease payments on the former PF Distribution operating leases will be $3.0 million during fiscal year 2005, $2.9 million during fiscal year 2006 and $0.5 million during fiscal year 2007.
As noted above, the Company assumed $15.4 million of subordinated debt of PF Management in connection with the Fourth Supplemental Indenture. Principal payments on the former PF Management debt will be $4.8 million during fiscal year 2005, $3.6 million during fiscal year 2006 and $7.0 million during fiscal year 2007. The interest rates on the former PF Management debt range from 4.4% to 25%.
Other Events
On May 11, 2004, the shareholders of PF Management, the sole shareholder of the Company, agreed to sell their shares of stock in PF Management to an affiliate of Madison Dearborn Capital Partners (“MDCP”). The sale is scheduled to close on or around June 30, 2004, subject to the satisfaction or waiver of conditions typical of leveraged buyout transactions, including (among others) these:
• The buyer’s receipt of, and reasonable satisfaction with, consents of certain of the Company’s customers and suppliers and the acquiescence of federal antitrust authorities;
• The absence at the closing of a material adverse change in the assets, liabilities, business, operations, results or condition of the Company and PF Management since November 29, 2003;
• The buyer’s receipt of, and reasonable satisfaction with, audited financial statements of the Company for the fiscal year ended March 6, 2004 and of PF Management for the same fiscal year and the two immediately preceding fiscal years;
• The buyer’s receipt of tenders of not less than a majority of the aggregate principal amount of the Company’s 10-3/4% senior notes due 2006; and
• The buyer’s receipt of financing necessary to consummate the transaction.
The Company’s President and Chief Executive Officer, Norbert E. Woodhams, and its Senior Vice President of Sales and Marketing, Robert C. Naylor, have signed amended employment agreements committing them to continue working for the Company after the sale. The stated term of employment for each executive is one year, but each agreement will renew automatically and continuously year-to-year unless terminated. Messrs. Woodhams and Naylor are both expected to make significant equity investments in the Company under its new owner.
There is no assurance that any or all of the conditions to the buyer’s and shareholders’ obligations to close the transaction will be satisfied or waived or that the transaction will close in accordance with the agreed-upon terms (or at all).
SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
REPORT OF MANAGEMENT
The management of Pierre Foods, Inc. is responsible for the preparation and integrity of the consolidated financial statements of the Company. The financial statements and notes have been prepared by the Company in accordance with accounting principles generally accepted in the United States of America and, in the judgment of management, present fairly and consistently the Company’s financial position and results of operations and cash flows. The financial information contained elsewhere in this annual report is consistent with that in the financial statements. The financial statements and other financial information in this annual report include amounts that are based on management’s best estimates and judgments.
The Company maintains a system of internal accounting controls to provide reasonable assurance that assets are safeguarded and that transactions are executed in accordance with management’s authorization and recorded properly to permit the preparation of financial statements in accordance with generally accepted accounting principles.
The Company’s financial statements have been audited by Deloitte & Touche LLP. Management has made available to them all of the Company’s financial records and related data, and believes that all representations made to Deloitte & Touche LLP during this audit were valid and appropriate.
/S/ NORBERT E. WOODHAMS
/S/ PAMELA M. WITTERS
Norbert E. Woodhams
Pamela M. Witters
President and Chief Executive Officer
Chief Financial Officer and Treasurer