Company Quick10K Filing
ARC Group
Price1.25 EPS-0
Shares7 P/E-7
MCap9 P/FCF16
Net Debt-0 EBIT-1
TEV9 TEV/EBIT-7
TTM 2019-09-30, in MM, except price, ratios
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ARCK 10Q Quarterly Report

Part I - Financial Information
Item 1. Financial Statements.
Note 1. Description of Business
Note 2. Basis of Presentation and Significant Accounting Policies
Note 3. Net (Loss) / Income per Share
Note 4. Acquisition of Fat Patty'S
Note 5. Agreement To Acquire Tilted Kilt
Note 6. Inventory
Note 7. Property and Equipment, Net
Note 8. Intangible Assets
Note 9. Fair Value Measurements
Note 10. Notes Receivable
Note 11. Debt Obligations
Note 12. Leases
Note 13. Capital Stock
Note 14. Stock Options and Warrants
Note 15. Stock Compensation Plans
Note 16. Commitments and Contingencies
Note 17. Related - Party Transactions
Note 18. Judgments in Legal Proceedings
Note 19. Segment Reporting
Note 20. Restatement of Previously Issued Condensed Consolidated Financial Statements
Note 21. Subsequent Events
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations.
Item 4. Controls and Procedures.
Part II - Other Information
Item 6. Exhibits.
EX-31.1 ex31-1.htm
EX-31.2 ex31-2.htm
EX-32.1 ex32-1.htm

ARC Group Earnings 2019-09-30

Balance SheetIncome StatementCash Flow
20151162-12012201420172020
Assets, Equity
4.63.42.31.1-0.0-1.22012201420172020
Rev, G Profit, Net Income
0.60.40.20.0-0.2-0.42012201420172020
Ops, Inv, Fin

10-Q 1 form10-q.htm

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

FORM 10-Q

 

(Mark One)

 

[X] Quarterly report PURSUANT TO Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the quarterly period ended: September 30, 2019

 

or

 

[  ] Transition report PURSUANT TO Section 13 or 15(d) of the Exchange Act of 1934

 

For the transition period from ___________ to ______________

 

Commission File No. 000-54226

 


 

ARC GROUP, INC.

 

(Exact name of registrant as specified in its charter)

 

Nevada   59-3649554

(State or other jurisdiction of

incorporation or organization)

 

(IRS Employer

Identification No.)

 

1409 Kingsley Ave., Ste. 2

Orange Park, FL 32073

 

(Address of principal executive offices)

 

(904) 741-5500

 

(Registrant’s telephone number, including area code)

 

 

 

(Former name, former address and former fiscal year, if changed since last report)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
         

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1394 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

 

Yes [  ] No [X]

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).

 

Yes [X] No [  ]

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer [  ] Accelerated filer [  ]
Non-accelerated filer [  ] Smaller reporting company [X]
  Emerging growth company [  ]

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. [  ]

 

Indicate by check mark whether the registrant is a shell company (as defined in rule 12b-2 of the Exchange Act).

 

Yes [  ] No [X]

 

APPLICABLE ONLY TO ISSUERS INVOLVED IN

BANKRUPTCY PROCEEDINGS DURING THE

PRECEDING FIVE YEARS

 

Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.

 

Yes [  ] No [  ]

 

APPLICABLE ONLY TO CORPORATE ISSUERS

 

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date: There were 7,080,771 shares of the issuer’s Class A common stock, $0.01 par value per share, issued and outstanding on November 12, 2019.

 

 

 

   
 

 

TABLE OF CONTENTS

 

 

 i 
 

 

PART I – FINANCIAL INFORMATION

 

Item 1. Financial Statements.

 

ARC Group, Inc.

Condensed Consolidated Balance Sheets

 

   September 30, 2019   December 31, 2018 
   (Unaudited)     
         
Assets          
           
Cash and cash equivalents  $231,180   $345,228 
Accounts receivable, net   82,087    127,930 
Ad funds receivable, net   11,443    10,500 
Other receivables   579,984    556,986 
Prepaid expenses   72,680    34,582 
Inventory   195,123    211,025 
Notes receivable, net   9,344    2,967 
Other current assets   16,414    8,078 
           
Total current assets   1,198,255    1,297,296 
           
Deposits   34,779    49,421 
Notes receivable, net of current portion   634    2,553 
Intangible assets, net   783,739    786,565 
Property and equipment, net   1,524,380    12,537,502 
Operating lease right-of-use assets   3,582,774    - 
Financing lease right-of-use assets, net   10,896,130    - 
           
Total assets  $18,020,691   $14,673,337 
           
Liabilities and stockholders’ deficit          
           
Accounts payable and accrued expenses  $2,168,571   $1,478,745 
Accounts payable and accrued expenses – related party   350,530    231,187 
Other payables   555,525    544,098 
Accrued interest   76,267    29,105 
Settlement agreements payable   284,700    276,269 
Accrued legal contingency   169,620    163,764 
Contingent consideration   55,356    55,356 
Deferred franchise fees   13,093    13,718 
Operating lease liability   284,059    - 
Financing lease liability   202,944    175,764 
Seller payable   312,000    312,000 
Notes payable – related party, net   770,465    720,178 
Gift card liabilities   55,999    81,956 
           
Total current liabilities   5,299,129    4,082,140 
           
Deferred franchise fees, net of current portion   90,173    51,516 
Operating lease liability, net of current portion   3,351,890    - 
Financing lease liability net of current portion   11,054,732    11,210,146 
           
Total liabilities   19,795,924    15,343,802 
           
Stockholders’ deficit:          
           
Class A common stock – $0.01 par value: 100,000,000 shares authorized, 7,080,771 and 6,680,065 shares issued and outstanding at September 30, 2019 and December 31, 2018, respectively   70,808    66,801 
Series A convertible preferred stock – $0.01 par value: 1,000,000 shares authorized, 449,581 outstanding at September 30, 2019 and December 31, 2018, respectively   4,496    4,496 
Series B convertible preferred stock – $0.01 par value: 2,500,000 shares authorized, -0- outstanding at September 30, 2019 and December 31, 2018, respectively   -    - 
Additional paid-in capital   4,635,652    4,490,338 
Stock subscriptions payable   64,682    15,453 
Accumulated deficit   (6,550,871)   (5,247,553)
           
Total stockholders’ deficit   (1,775,233)   (670,465)
           
Total liabilities and stockholders’ deficit  $18,020,691   $14,673,337 

 

The accompanying notes are an integral part of these financial statements

 

 1 
   

 

ARC Group, Inc.

Condensed Consolidated Statements of Operations (Unaudited)

 

   For the Three Months Ended   For the Nine Months Ended 
   September 30, 2019   September 30, 2018   September 30, 2019   September 30, 2018 
                 
Revenue:                    
Restaurant sales  $3,803,609   $2,104,825   $12,150,290   $3,871,929 
Franchise and other revenue   239,035    231,983    670,142    690,892 
Franchise and other revenue – related party   -    23,256    -    100,994 
                     
Total revenue   4,042,644    2,360,064    12,820,432    4,663,815 
                     
Operating expenses:                    
Restaurant operating costs:                    
Cost of sales   1,368,797    811,009    4,447,133    1,360,529 
Labor   1,232,549    624,848    4,103,557    1,222,554 
Occupancy   117,436    57,713    432,463    171,048 
Other operating expenses   844,257    381,527    2,527,402    706,978 
Professional fees   52,828    366,956    443,984    614,123 
Employee compensation expense   402,008    163,512    973,944    414,924 
General and administrative expenses   446,730    418,301    878,919    720,033 
                     
Total operating expenses   4,464,605    2,823,866    13,807,402    5,210,189 
                     
Loss from operations   (421,961)   (463,802)   (986,970)   (546,374)
                     
Other (loss) / income:                    
Interest expense   (211,211)   (74,258)   (615,997)   (85,131)
Income from insurance proceeds   -    -    181,588    - 
Gain on bargain purchase option   -    624,952    -    624,952 
Other income   35,658    10,575    118,061    96,103 
                     
Total other (loss) / income   (175,553)   561,269   (316,348)   635,924 
                     
Net (loss) / income  $(597,514)   $97,467  $(1,303,318)  $89,550 
                     
Net (loss) / income per share – basic  $(0.08)  $0.01  $(0.18)  $0.01 
                     
Net (loss) / income per share – fully diluted  $(0.08)  $0.01  $(0.18)  $0.01 
                     
Weighted average number of shares outstanding – basic   7,071,985    6,524,427    7,077,875    6,795,644 
                     
Weighted average number of shares
outstanding – fully diluted
   7,071,985    6,554,427    7,077,875    6,810,809 

 

The accompanying notes are an integral part of these financial statements

 

 2 
   

 

ARC Group, Inc.

Condensed Consolidated Statements of Cash Flows (Unaudited)

 

   For the Nine Months Ended
September 30,
 
   2019   2018 
         
Cash flows from operating activities          
           
Net (loss) / income  $(1,303,318)  $89,550 

Adjustments to reconcile net loss to net cash provided by operating activities:

          
Depreciation expense   163,830    68,688 
Amortization of operating lease right-of-use assets   250,005    - 
Amortization of financing lease right-of-use assets   430,545    - 
Amortization of intangible assets   2,826    - 
Amortization of debt discount   23,285    2,596 
Stock-based compensation expense   189,849    303,503 
Gain on bargain purchase   -    (624,952)
Gain from insurance recoveries on impaired fixed assets   (100,000)   - 
Changes in operating activities, net of acquisition of Fat Patty’s concept:          
Accounts receivable   45,843    68,739 
Accounts receivable – related party   -    614 
Ad fund receivable   (943)   25,563 
Ad fund receivable – related party        519 
Other receivables   (22,998)   (370,312)
Prepaid expenses   (38,098)   (44,037)
Inventory   15,902    (2,793)
Deposits   14,642    - 
Other assets   (8,336)   9,406 
Accounts payable and accrued liabilities   709,955    730,747 
Accounts payable and accrued liabilities – related party   166,505    6,742 
Settlement agreements payable   8,431    8,431 
Accrued legal settlement   5,856    5,855 
Deferred franchise fees   38,032    (45,264)
Gift card liabilities   (25,957)   2,192 
           
Net cash provided by operating activities   565,856    235,787 
           
Cash flows from investing activities          
           
Issuances of notes receivable   (15,000)   - 
Repayments of notes receivable   10,542    21,025 
Cash acquired in business acquisition   -    7,100 
Insurance recoveries for impaired fixed assets   100,000    - 
Contingent consideration   -    (144,326)
Purchases of fixed assets   (477,877)   (227,584)
           
Net cash used by investing activities   (382,335)   (343,785)
           
Cash flows from financing activities          
           
Proceeds from issuance of notes payable – related party   1,540,886    106,410 
Payments on operating lease liability   (196,337)   - 
Payments on financing lease liability   (128,234)   - 
Payments on capital lease obligation   -    (86,674)
Repayments of notes payable – related party   (1,513,884)   - 
           
Net cash (used) / provided by financing activities   (297,569)   19,736 
           
Net decrease in cash and cash equivalents   (114,048)   (88,262)
Cash and cash equivalents, beginning of period   345,228    145,346 
           
Cash and cash equivalents, end of period  $231,180   $57,084 
           
Supplemental disclosure of cash flow information          
           
Cash paid for interest  $530,701   $- 
Cash paid for income taxes  $-   $- 
           
Schedule of non-cash transactions          
           
Preferred stock issued in exchange for common stock  $-   $4,496 
Property and equipment acquired through accounts payable  $-   $126,000 

Acquisition of Fat Patty’s franchise with note payable and deferred compensation liability

  $-   $852,000 
Property and equipment acquired with capital lease  $-   $11,500,000 
Recognition of operating lease liability and right-of-use assets  $3,832,779   $- 
Recognition of financing lease liability and right-of-use assets  $11,326,676   $- 

 

The accompanying notes are an integral part of these financial statements

 

 3 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 1. Description of Business

 

ARC Group, Inc., a Nevada corporation (the “Company”), was incorporated in April 2000. The Company’s business is focused primarily on the development of the Dick’s Wings & Grill® franchise (“Dick’s Wings”) and Fat Patty’s® concept (“Fat Patty’s”) and the acquisition of financial interests in other restaurant brands. The Dick’s Wings concept is currently comprised of its traditional Dick’s Wings restaurants and non-traditional units like the Dick’s Wings concession stands that the Company has at TIAA Bank Field (formerly EverBank Field) and Jacksonville Veterans Memorial Arena in Jacksonville, Florida. The Fat Patty’s concept is currently comprised of its traditional Fat Patty’s restaurants.

 

On August 30, 2018, the Company closed upon an asset purchase agreement for Fat Patty’s. Fat Patty’s is comprised of four company-owned restaurants located at 1442 Winchester Avenue, Ashland, Kentucky 41101, 5156 WV 34, Hurricane, West Virginia 25526, 3401 Rt. 60 East, Barboursville, West Virginia 25504, and 1935 Third Avenue, Huntington, West Virginia 25702 (collectively, the “Fat Patty’s Restaurants”). A description of the Company’s acquisition of Fat Patty’s is set forth herein under Note 4. – Acquisition of Fat Patty’s.

 

On October 30, 2018, the Company entered into an agreement to acquire the Tilted Kilt Eatery and Pub® restaurant franchise (“Tilted Kilt”). The Tilted Kilt franchise is comprised of 26 restaurants operating in 13 states, of which two were company owned and operated and the remaining 24 were franchise locations. A description of the transaction is set forth herein under Note 5. Agreement to Acquire Tilted Kilt.

 

At September 30, 2019, the Company had 20 Dick’s Wings restaurants and nine Dick’s Wings concession stands. Of the 20 restaurants, 16 were located in Florida and four were located in Georgia. The Company’s concession stands were also located in Florida. Four of the Company’s restaurants were owned by the Company, and the remaining 16 restaurants were owned and operated by franchisees. The Company’s concession stands were also owned by the Company. In addition, the Company had four Fat Patty’s restaurants at September 30, 2019. Of the four restaurants, three were located in West Virginia and one was located in Kentucky. All four of the restaurants were owned by the Company.

 

Note 2. Basis of Presentation and Significant Accounting Policies

 

Interim Financial Information

 

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) applicable to a going concern which contemplates the realization of assets and liquidation of liabilities in the normal course of business. The unaudited condensed consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All intercompany accounts and transactions were eliminated in consolidation.

 

 4 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The accompanying unaudited condensed consolidated financial statements have been prepared in conformity with the instructions to Form 10-Q and Article 8-03 of Regulation S-X and the related rules and regulations of the Securities and Exchange Commission (the “SEC”). Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements. Certain information and footnotes disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to SEC rules and regulations. Notwithstanding this, the Company believes that the disclosures herein are adequate to make the information presented not misleading.

 

The unaudited condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and the notes thereto for the year ended December 31, 2018 included in the Company’s Annual Report on Form 10-K. Information presented as of December 31, 2018 is derived from the audited consolidated financial statements. The results of operations for the three- and nine-month periods ended September 30, 2019 are not necessarily indicative of the results that the Company will have for any subsequent quarter or full fiscal year.

 

This summary of significant accounting policies is provided to assist the reader in understanding the Company’s financial statements. The financial statements and notes thereto are representations of the Company’s management. The Company’s management is responsible for their integrity and objectivity. These accounting policies conform to accounting principles generally accepted in the United States of America (“GAAP”) and have been consistently applied in the preparation of the financial statements.

 

Estimates

 

The preparation of condensed consolidated 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 amounts reported in the condensed consolidated financial statements and accompanying notes. Actual results could differ from those estimates.

 

Restatement

 

The Company has restated its previously issued condensed consolidated statement of operations for the three- and nine-month periods ended September 30, 2018. The impact of the restatement is more specifically described herein under Note 20. Restatement of Previously Issued Condensed Consolidated Financial Statements.

 

Going Concern

 

The company concluded that facts existed that created an uncertainty about the Company’s ability to continue as a going concern as of December 31, 2016. The Company generated net income of $344,740 and cash flows from operations of $248,345 during the year ended December 31, 2017. While the Company had a working capital deficit of $2,784,844 at December 31, 2018 and a net loss of $282,483 during the year ended December 31, 2018, it generated cash flows from operations of $478,238 during the year ended December 31, 2018. The improvement in cash flows during the year ended December 31, 2017 was due primarily to the Company’s acquisition of two Company-owned Dick’s Wings restaurants in December 2016. The improvement in cash flows during the year ended December 31, 2018 was due primarily to the Company’s acquisition of Fat Patty’s in August 2018.

 

 5 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

While the Company generated a net loss of $1,303,318 during the nine-month period ended September 30, 2019 and had a working capital deficit of $4,100,874 at September 30, 2019, the Company generated cash flow from operating activities of $565,856 during the nine-month period ended September 30, 2019 and received continued financial support from related parties during the nine-month period ended September 30, 2019 and the years ended December 31, 2018 and 2017. As a result of these factors, the Company concluded that the substantial doubt about its ability to continue as a going concern had been alleviated as of September 30, 2019.

 

Segment Disclosure

 

The Company has both Company-owned restaurants and franchised restaurants, all of which operate in the full-service casual dining industry in the United States. Pursuant to the standards of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 280, Segment Reporting (“ASC 280”), the Company’s Chief Executive Officer, who comprises the Company’s Chief Operating Decision Maker function for the purposes of ASC 280, concluded that the Company has two segments for reporting purposes, which are Company-owned restaurants and franchise operations.

 

Other Receivables

 

Other receivables was comprised primarily of receipts from credit card sales by Company-owned Fat Patty’s restaurants that occurred after the Company completed the acquisition of Fat Patty’s that were held by the former owner of Fat Patty’s, all of which are expected to be collected in full by the Company during the next 12 months.

 

Intangible Assets, Net

 

The Company acquired various intangible assets in connection with the acquisition of Fat Patty’s. The intangible assets were comprised of a tradename and a non-compete agreement. The Company amortizes the non-compete agreement on a straight-line basis over the expected period of benefit, which is five years. The tradename has an indefinite life and is not subject to amortization but tested for impairment on an annual basis. The Company recognized $942 and $2,826 of amortization expense for the non-compete agreement during the three- and nine-month periods ended September 30, 2019.

 

Other Payables

 

Other payables was comprised primarily of accounts payable owed to the former owner of Fat Patty’s for alcohol and other items purchased by him in connection with the operation of the concept.

 

Revenue Recognition

 

The Company generates revenue from two primary sources: (a) retail sales at company-operated restaurants; and (b) franchise revenue, which consists of royalties based on a percentage of sales reported by franchised restaurants, funds contributed by franchisees to the Company’s general advertising fund, and initial and renewal franchise license fees.

 

 6 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Revenue From Company-Owned Restaurants

 

Revenue from company-owned restaurants is primarily recognized as customers pay for products at the point of sale. The Company reports Company-owned restaurant revenues net of sales and use taxes collected from customers and remitted to governmental taxing authorities.

 

Revenue From Franchised Restaurants

 

The Company grants individual restaurant franchises to operators in exchange for initial franchise license fees and continuing royalty payments.

 

Initial and renewal franchise license fees are payable by the franchisee upon a new restaurant opening or renewal of an existing franchise agreement. Under franchise agreements, the Company provides franchisees with: (a) a franchise license, which includes a non-exclusive license to our intellectual property for the duration of the franchise agreement and where the Company manages a marketing or co-op advertising fund, advertising and promotion management; (b) pre-opening services, such as training and inspections; and (c) ongoing services, such as development of training materials and menu items and restaurant monitoring and inspections. The services that the Company provides are highly interrelated and dependent on the franchise license so the Company does not consider the services to be individually distinct and therefore accounts for them as a single performance obligation. The performance obligation is satisfied by providing a right to use the Company’s intellectual property over the term of each franchise agreement. Accordingly, initial and renewal franchise fees are recognized as revenue on a straight-line basis over the term of the respective agreement.

 

The Company’s performance obligation under area development agreements generally consists of an obligation to grant exclusive development rights for a particular geographic region over a stated term. These development rights are not distinct from franchise agreements and are creditable towards the initial franchise license fee, so upfront fees paid by franchisees for exclusive development rights are deferred and allocated to the appropriate franchise restaurant when the franchise agreement is executed.

 

Franchise royalty revenues represents sales-based royalties that are related entirely to the Company’s performance obligation under the franchise agreement. Continuing franchise royalty revenues are based on a percentage of monthly sales and are recognized on the accrual basis as franchise sales occur. In certain circumstances, the Company may reduce or waive franchise license fees and/or the franchise royalty percentage for a period of time.

 

Franchises contributions to the Company’s general advertising funds are calculated as a percentage of monthly sales. Contributions to the fund generally represent sales-based or fixed monthly fee amounts that are related entirely to the Company’s performance obligation under the franchise agreement and are recognized as franchise sales occur.

 

 7 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

ASC Topic 606

 

On January 1, 2018, the Company adopted the provisions of ASC Topic 606, Revenue From Contracts With Customers (“ASC 606”). ASC 606 supersedes the current revenue recognition guidance, including industry-specific guidance. ASC 606 provides a single framework in which revenue is required to be recognized to depict the transfer of goods or services to customers in amounts that reflect the consideration to which a company expects to be entitled in exchange for those goods or services. The Company adopted this new guidance effective the first day of fiscal year 2018, using the modified retrospective method of adoption. Under this method, the cumulative effect of initially adopting the guidance was recognized as an adjustment to the opening balance of equity at January 1, 2018.

 

Franchise Fees

 

ASC 606 impacted the timing of recognition of franchise fees. Under previous guidance, these fees were typically recognized upon the opening of restaurants. Under ASC 606, the fees are deferred and recognized as revenue over the term of the individual franchise agreements. The effect of the required deferral of fees received in a given year will be mitigated by the recognition of revenue from fees retrospectively deferred from prior years. The Company recognized $4,718 and $11,968 of deferred franchise fees as income during the three- and nine-month periods ended September 30, 2019, and recognized $7,250 and $45,264 of deferred franchise fees as income during the three- and nine-month periods ended September 30, 2018, respectively. The carrying value of the Company’s deferred franchised fees was $103,266 at September 30, 2019.

 

Advertising Funds

 

ASC 606 also impacted the accounting for transactions related to the Company’s general advertising fund. Under previous guidance, franchisee contributions to and expenditures by the fund were not included in the Company’s condensed consolidated financial statements. Under ASC 606, the Company records contributions to and expenditures by the fund as revenue and expenses within the Company’s condensed consolidated financial statements. The Company recognized contributions to and expenditures by the fund of $33,255 and $97,123 during the three- and nine-month periods ended September 30, 2019, and recognized contributions to and expenditures by the fund of $46,816 and $145,076 during the three- and nine-month periods ended September 30, 2018, respectively.

 

Gift Card Funds

 

Additionally, ASC 606 impacted the accounting for transactions related to the Company’s gift card program. Under previous guidance, estimated breakage income on gift cards was deferred until it was deemed remote that the unused gift card balance would be redeemed. Under ASC 606, breakage income on gift cards is recognized as gift cards are utilized. The effect of this change on the Company’s condensed consolidated financial statements was negligible.

 

 8 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Disaggregation of Revenue

 

The following table disaggregate revenue by primary geographical market and source:

 

   Three Months Ended
September 30, 2019
   Three Months Ended
September 30, 2018
   Nine Months Ended
September 30, 2019
   Nine Months Ended
September 30, 2018
 
Primary
Geographic Markets
                    
Florida  $1,587,413   $1,285,038   $4,239,126   $3,489,830 
Georgia   256,430    47,050    824,190    146,009 
Kentucky   616,417    232,744    1,907,793    232,744 
Louisiana   95,884        625,227     
North Carolina   625        625     
Texas   625        625     
West Virginia   1,485,250    795,232    5,222,846    795,232 
Total revenue  $4,042,644   $2,360,064   $12,820,432   $4,663,815 
                     
Sources of Revenue                    
Restaurant sales  $3,803,609   $2,104,825   $12,150,290   $3,871,929 
Royalties   193,010    197,369    547,548    591,847 
Franchise fees   4,718    7,250    11,968    45,264 
Advertising fund fees   33,255    46,816    97,123    145,077 
Other revenue   8,052    3,804    13,503    9,698 
Total revenue  $4,042,644   $2,360,064   $12,820,432   $4,663,815 

 

Deferred Revenue

 

Deferred revenue consists of contract liabilities resulting from initial and renewal franchise license fees paid by franchisees, which are generally recognized on a straight-line basis over the term of the underlying franchise agreement, as well as upfront development fees paid by franchisees, which are generally recognized on a straight-line basis over the term of the underlying franchise agreement once it is executed or if the development agreement is terminated.

 

The following table presents changes in deferred franchise fees as of and for the nine-month period ended September 30, 2019:

 

   Total Liabilities 
Deferred franchise fees at December 31, 2018  $65,234 
Revenue recognized during the period   (11,968)
New deferrals due to cash received   50,000 
Deferred franchise fees at September 30, 2019  $103,266 

 

 9 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Anticipated Future Recognition of Deferred Franchise Fees

 

The following table presents the estimated franchise fees to be recognized in the future related to performance obligations that were unsatisfied at September 30, 2019:

 

Year

  Franchise
Fees to be Recognized
 
2019 (remaining three months)  $4,250 
2020   17,000 
2021   15,925 
2022   14,000 
2023   11,637 
Thereafter   40,454 
Total  $103,266 

 

Recent Accounting Pronouncements

 

In February 2016, the FASB issued Accounting Standards Update (“ASU”) 2016-02, Leases (“ASU 2016-02”), establishing Accounting Standards Codification (“ASC”) Topic 842, Leases (“ASC Topic 842”), which modified and superseded the guidance under ASC Topic 840, Leases (“ASC Topic 840”). The FASB subsequently issued several other Accounting Standards Updates, including ASU 2018-11 and ASU 2018-12, which among other things provide for a practical expedient related to the recognition of the cumulative effect on retained earnings resulting from the adoption of the pronouncements.

 

ASC Topic 842 modifies the principles for the recognition, measurement, presentation, and disclosure of leases for both parties to a contract (i.e., lessees and lessors). The new standard requires lessees to apply a dual approach, classifying leases as either finance or operating leases based on the principle of whether or not the lease is effectively a financed purchase by the lessee. This classification determines whether lease expense is recognized based on an effective interest method or on a straight-line basis over the term of the lease, respectively. A lessee is also required to record a right-of-use asset and lease liability for all leases with a term of greater than 12 months regardless of their classification. Leases with a term of 12 months or less are accounted for in the same manner as operating leases under ASC Topic 840.

 

The Company adopted ASC Topic 842 effective January 1, 2019 applying the modified retrospective transition approach. Under this approach, results for reporting periods beginning after January 1, 2019, are presented under Topic 842, while prior periods are not adjusted and continue to be reported under the accounting standards in effect for those periods. The Company recognized $3,832,779 and $3,832,286 of additional assets and liabilities, respectively, in connection with its operating leases upon the adoption of ASC Topic 842 on January 1, 2019. The Company did not recognize any additional assets or liabilities in connection with its financing lease upon the adoption of ASC Topic 842 on January 1, 2019.

 

 10 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The Company determines whether a contract is or contains a lease at inception of the contract based on whether an identified asset exists and whether the Company has the right to obtain substantially all of the benefit of the assets and to control its use over the full term of the agreement. When available, the Company uses the rate implicit in the lease to discount lease payments to present value. However, none of our leases provide a readily determinable implicit rate. Therefore, the Company estimated its incremental borrowing rate considering both the revolving credit rates and a credit notching approach to discount the lease payments based on information available at lease commencement. There are no material residual value guarantees and no restrictions or covenants included in the Company’s lease agreements. Certain of the Company’s leases include provisions for variable payments. These variable payments are typically determined based on a measure of throughput or actual days or another measure of usage and are not included in the calculation of lease liabilities and right-of-use assets.

 

The Company elected the package of practical expedients available for implementation, which allows for the following:

 

  An entity need not reassess whether any expired or existing contracts are or contain leases;
     
  An entity need not reassess the lease classification for any expired or existing leases; and
     
  An entity need not reassess initial indirect costs for any existing leases.

 

Furthermore, the Company elected the optional transition method to make January 1, 2019 the initial application date of the standard. This package of practical expedients allows entities to account for their existing leases for the remainder of their respective lease terms following the previous accounting guidance.

 

The Company also elected to adopt the optional transition practical expedient provided in ASU 2018-01 to not evaluate under ASC Topic 842 for existing or expired land easements prior to the application date to determine if they meet the definition of a lease.

 

The impact of ASC Topic 842 is more specifically described herein under Note 12. Leases.

 

In June 2018, the FASB issued ASU 2018-07, Improvements to Nonemployee Share-Based Payment Accounting (“ASU 2018-07”), which expands the scope of ASC Topic 718, Compensation – Stock Compensation, to include share-based payment transactions for acquiring goods and services from nonemployees. ASU 2018-07 aligns the measurement and classification guidance for share-based payments to nonemployees with the guidance for share-based payments to employees, with certain exceptions. Under the new guidance, the measurement of equity-classified nonemployee awards is fixed at the grant date. The Company adopted ASU 2018-07 on January 1, 2019. The adoption of ASU 2018-07 did not have a significant impact on the Company’s condensed consolidated financial statements.

 

The Company reviewed all other significant newly-issued accounting pronouncements and concluded that they either are not applicable to the Company’s operations or that no material effect is expected on the Company’s condensed consolidated financial statements as a result of future adoption.

 

 11 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 3. Net (Loss) / Income Per Share

 

The Company calculates basic and diluted net (loss) / income per share in accordance with ASC Topic 260, Earnings per Share. Basic net (loss) / income per share is based on the weighted-average number of shares of the Company’s common stock outstanding during the applicable period and is calculated by dividing the reported net (loss) / income for the applicable period by the weighted-average number of shares of common stock outstanding during the applicable period. Diluted net (loss) / income per share is calculated by dividing the reported net (loss) / income for the applicable period by the weighted-average number of shares of common stock outstanding during the applicable period, as adjusted to give effect to the exercise or conversion of all potentially dilutive securities outstanding at the end of the applicable period.

 

The following table sets forth the computation of basic and diluted net (loss) / income per share:

 

   Three Months Ended   Nine Months Ended 
   September 30, 2019   September 30, 2018   September 30, 2019   September 30, 2018 
Numerator                    
Net (loss) / income  $(597,514)  $97,467   $(1,303,318)  $89,550 
                     
Denominator                    
Weighted average shares outstanding — basic   7,071,985    6,524,427    7,077,875    6,795,644 
Dilutive effect of potential shares of common stock       30,000        15,165 
Weighted average shares outstanding – fully diluted   7,071,985    6,554,427    7,077,875    6,810,809 
Basic net income / (loss) per share  $(0.08)  $0.01   $(0.18)  $0.01 
Fully diluted net income / (loss) per share  $(0.08)  $0.01   $(0.18)  $0.01 

 

Note 4. Acquisition of Fat Patty’s

 

On August 3, 2018, the Company entered into an asset purchase agreement with CSA, Inc., a West Virginia corporation (“CSA”), CSA Investments, LLC, a West Virginia limited liability company (“CSA Investments”), CSA of Teays Valley, Inc., a West Virginia corporation (“CSA Teays Valley”), CSA, Inc. of Ashland, a Kentucky corporation (“CSA Ashland”), Fat Patty’s, LLC, a West Virginia limited liability company (“FPLLC”), and Clint Artrip, an individual (“Artrip”; together with CSA, CSA Investments, CSA Teays Valley, and CSA Ashland, FPLLC, the “Sellers”), pursuant to which the Company agreed to acquire all of the assets associated with Fat Patty’s (the “Fat Patty’s Acquisition”). The Company agreed to pay the Sellers $12,352,000 for the assets, of which $12,000,000 was to be paid to the Sellers at closing, $40,000 was to be paid to the Sellers within 10 days after the closing and the remaining $312,000 will be paid to the Sellers on the first anniversary of the closing. The closing of the Fat Patty’s Acquisition occurred on August 30, 2018, however, as discussed below, the Company entered into a separate related agreement with a third party that resulted in a direct transfer of the Properties (as defined below) from the Sellers to the third party. Accordingly, in substance, the Company only acquired the net assets detailed below for a purchase price of $852,000.

 

 12 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

In connection with the Fat Patty’s Acquisition, the Company entered into a secured convertible promissory note with Seenu G. Kasturi on August 30, 2018 pursuant to which the Company borrowed $622,929 from Mr. Kasturi to help finance the Fat Patty’s Acquisition. All principal and accrued but unpaid interest is due and payable by the Company in full on the earlier of (i) the fifth (5th) anniversary of the date of the note, or (ii) the date that Mr. Kasturi demands repayment in full by providing written notice thereof to the Company. Interest accrues at the rate of six percent (6%) per annum and is payable in full on the maturity date. Mr. Kasturi has the right, at any time during the term of the note and from time to time, to convert all of any portion of the outstanding principal of the note, together with accrued and unpaid interest payable thereon, into shares of the Company’s common stock at a conversion rate of $1.36 per share. The note is secured by all of the assets of the Company.

 

Also on August 3, 2018, the Company entered into a purchase and sale agreement with Store Capital Acquisitions, LLC, a Delaware limited liability company (“Store Capital”), pursuant to which the Company agreed to sell all of the real property acquired in the Fat Patty’s Acquisition to Store Capital (the “Property Acquisition”). The real property consists of the four properties upon which the restaurants acquired in the Asset Acquisition are located (collectively, the “Properties”). Store Capital agreed to pay the Company $11,500,000 for the Properties at closing. Title to the Properties was transferred directly from the applicable Sellers to Store Capital, and the purchase price for the Properties was paid by Store Capital directly to Sellers. Accordingly, the Company never took title to, or ownership of, the Properties. As a result, the ultimate purchase price paid by the Company was $852,000, which was the difference between the $12,352,000 purchase price for the assets that the Company agreed to pay to the Sellers and the $11,500,000 purchase price for the Properties that was paid by Store Capital. The closing of the Property Acquisition occurred on August 30, 2018.

 

In connection with the Property Acquisition, the Company entered into a master lease agreement (the “Master Lease”) with Store Capital on August 30, 2018 pursuant to which the Company leased each of the Properties from Store Capital. The initial term of the lease expires on August 31, 2038. The Company has the option to extend the term of the lease for four additional successive periods of five years each. The aggregate base annual rent is $876,875 and is subject to annual increases commencing September 1, 2019 in an amount equal to the lesser of: (i) 1.75%, or (ii) 1.25 times the change in the Consumer Price Index. The Company is responsible for all costs and obligations relating to the Properties.

 

The acquisition of Fat Patty’s was accounted for as a business combination using the acquisition method of accounting in accordance with Accounting Standard Codification (“ASC”) Topic 805, Business Combinations (“ASC 805”), with the Company considered the acquirer of Fat Patty’s. In accordance with ASC 805, the assets acquired and the liabilities assumed have been measured at fair value based on a report issued by a third-party valuation firm with the remaining purchase price, if any, recorded as goodwill.

 

 13 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

For purposes of measuring the estimated fair value, where applicable, of the assets acquired and the liabilities assumed as reflected in the Company’s condensed consolidated financial statements, the guidance in ASC Topic 820, Fair Value Measurements and Disclosures (“ASC 820”) has been applied, which establishes a framework for measuring fair value. In accordance with ASC 820, fair value is an exit price and is defined as “the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date.” The Company incurred $82,929 of acquisition-related transaction costs. Under ASC 805, acquisition-related transaction costs and acquisition-related restructuring charges are not included as components of consideration transferred but are accounted for as expenses in the period in which the costs are incurred. Accordingly, the Company recognized $82,929 of acquisition-related transaction costs during the year ended December 31, 2018. The acquisition-related transaction costs were recorded in general and administrative expenses.

 

The assets acquired and liabilities assumed were comprised of the following:

 

Cash  $7,100 
Inventory   91,424 
Intangible assets   788,840 
Equipment   614,295 
Total assets acquired   1,501,659 
      
Gift card liabilities   (24,707)
Total liabilities assumed   (24,707)
      
Gain on bargain purchase   (624,952)
Net assets acquired with note payable and deferred compensation liability  $852,000 

 

The estimates of fair values recorded are Level 3 inputs that have been determined by management based upon various market and income analyses and recent asset appraisals. The Company made certain adjustments to the amounts initially allocated to intangible assets and gift card liabilities after evaluating additional information that was present on the date the acquisition was completed.

 

The fair value of the identifiable assets acquired and liabilities assumed of $1,476,952 exceeded the purchase price of Fat Patty’s by $624,952. Consequently, the Company reassessed the recognition and measurement of identifiable assets acquired and liabilities assumed and concluded that the valuation procedures and resulting measures were appropriate. As a result, the Company recognized a gain of $624,952 during the year ended December 31, 2018 in connection with the acquisition. The Sellers of Fat Patty’s received cash without any earnouts or indemnification holdbacks, which was the primary motivation for the sale of Fat Patty’s. This was the primary reason the acquisition resulted in a bargain purchase. The gain was recorded in the other income in the Company’s condensed consolidated statements of operations.

 

The following table summarizes certain financial information for the three- and nine-month periods ended September 30, 2019 contained in the Company’s condensed consolidated financial statements and certain unaudited pro forma financial information for the three- and nine-month periods ended September 30, 2018 as if the acquisition of Fat Patty’s had occurred on January 1, 2018:

 

 14 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

   Three Months
Ended
September 30, 2019
   Three Months
Ended
September 30, 2018
   Nine Months
Ended
September 30, 2019
   Nine Months
Ended
September 30, 2018
 
Revenue  $4,042,644   $4,323,019   $12,820,432   $12,515,636 
(Loss) / income from continuing operations   (421,961)   (13,051)   (986,970)   1,256,629 
Net income / (loss)   (597,514)   548,218    (1,303,318)   1,892,553 
Net income / (loss) per share – basic  $(0.08)  $0.08   $(0.18)  $0.28 
Net income / (loss) per share – fully diluted  $(0.08)  $0.08   $(0.18)  $0.28 

 

The results of operations for Fat Patty’s were included in the Company’s results of operations beginning August 30, 2018. The actual amounts of revenue and net income for Fat Patty’s that were included in the Company’s condensed consolidated statements of operations for the three-month period ended September 30, 2019 were $2,101,667 and $110,399, respectively, and the actual amounts of revenue and net income for Fat Patty’s that were included in the Company’s condensed consolidated statements of operations for the nine-month period ended September 30, 2019 were $7,130,639 and $720,887, respectively.

 

The unaudited pro forma financial information has been presented for informational purposes only and is not necessarily indicative of the actual results that would have occurred had the acquisition been consummated on January 1, 2018 or of the future results of the combined entities. For additional information about the Company’s acquisition of Fat Patty’s, please refer to the Company’s Current Reports on Form 8-K filed with the SEC on August 9, 2018 and September 5, 2018.

 

Note 5. Agreement to Acquire Tilted Kilt

 

On October 30, 2018, the Company entered into a Membership Interest Purchase Agreement with SDA Holdings, LLC, a Louisiana limited liability company (“SDA Holdings”), and Fred D. Alexander pursuant to which the Company agreed to acquire all of the issued and outstanding membership interests in SDA Holdings for $10. SDA Holdings is the owner of the Tilted Kilt Pub & Eatery® restaurant franchise. SDA Holdings is owned by Mr. Alexander, who is a member of the Company’s board of directors.

 

The closing of the transaction is conditioned upon SDA Holdings, Trustee Services Group (the “Custodian”), Seenu G. Kasturi, who served as the Company’s President and Chief Financial Officer and the Chairman of its board of directors as of December 31, 2018, Let’s Eat Incorporated (“Let’s Eat”), the Reilly Group, LLC (the “Reilly Group”) and John Reynauld entering into an amendment to that certain Custodian Agreement, dated June 7, 2018, by an among the parties to add SDA Holdings as a party to the agreement and remove Mr. Kasturi as a party to the agreement, in which event SDA Holdings will be required to deliver 718,563 shares of the Company’s common stock to the Custodian. The closing of the transaction is also conditioned upon the Company raising gross proceeds of at least $2,000,000 through the sale of debt or equity securities, as well as other customary closing conditions. Upon closing of this acquisition, the Company will issue 666,667 shares of common stock to Mr. Kasturi, place 718,563 shares of common stock into escrow to replace a like number of shares placed in escrow by Mr. Kasturi, and through a wholly-owned subsidiary, be the obligor under a demand promissory note in favor of Mr. Kasturi in the principal amount of up to $2,500,000.

 

 15 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

As of September 30, 3019, the conditions to closing had not yet been satisfied or waived by the parties. There is no set closing date for the transaction.

 

Note 6. Inventory

 

Inventory was comprised of the following at September 30, 2019 and December 31, 2018, respectively:

 

   September 30, 2019   December 31, 2018 
Food  $130,786   $120,426 
Beverages   64,337    90,599 
Total  $195,123   $211,025 

 

Note 7. Property and Equipment, Net

 

Property and equipment was comprised of the following at September 30, 2019 and December 31, 2018, respectively:

 

   September 30, 2019   December 31, 2018 
Land, buildings and improvements  $-0-   $11,500,000 
Leasehold improvements   342,500    323,500 
Furniture, fixtures and equipment   1,466,977    1,021,735 
Subtotal   1,809,477    12,845,235 
Less: accumulated depreciation   (285,097)   (307,733)
Total  $1,524,380   $12,537,502 

 

The land, buildings and improvements of $11,500,000 included within property and equipment at December 31, 2018 consisted of gross assets acquired on the capital lease. On January 1, 2019, in connection with the adoption of ASC Topic 842, the Company determined that the lease was a financing lease and recorded a right-of-use asset and lease liability for the lease, reversing the capital lease asset and capital lease obligation previously recognized.

 

Depreciation expense was $61,851 and $163,830 during the three- and nine-month periods ended September 30, 2019, respectively, and was $49,481 and $68,688 during the three- and nine-month periods ended September 30, 2018, respectively.

 

 16 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 8. Intangible Assets

 

The Company acquired various intangible assets in connection with the acquisition of Fat Patty’s. Intangible assets include a tradename valued at $770,000 and a non-compete agreement valued at $18,840 for a total of $788,840 on August 30, 2018, which is the date the acquisition of Fat Patty’s was completed. The Company amortizes the non-compete agreement on a straight-line basis over the expected period of benefit, which is five years. The tradename has an indefinite life and is not subject to amortization but tested for impairment on an annual basis. The Company recognized $2,275 of amortization expense on the non-compete agreement during the year ended December 31, 2018. Accordingly, the Company had total intangible assets of $786,565 at December 31, 2018. The Company recognized $942 and $2,826 of amortization expense on the non-compete agreement during the three- and nine-month periods ended September 30, 2019. Accordingly, the Company had total intangible assets of $783,739 at September 30, 2019.

 

The following table presents the future amortization expense to be recognized from the Company’s intangible assets at September 30, 2019:

 

 

Year

  Amortization Expense
to be Recognized
 
2019 (remaining three months)  $942 
2020   3,768 
2021   3,768 
2022   3,768 
2023   1,493 
Thereafter    
Total  $13,739 

 

Note 9. Fair Value Measurements

 

On December 19, 2016, the Company acquired all of the issued and outstanding membership interests of Seediv, LLC, a Louisiana limited liability company (“Seediv”), from Seenu G. Kasturi for $600,000 and an earn-out payment. Seediv is the owner and operator of the Dick’s Wings & Grill restaurant located at 100 Marketside Avenue, Suite 301, in the Nocatee development in Ponte Vedra, Florida (the “Nocatee Restaurant”) and the Dick’s Wings & Grill restaurant located at 6055 Youngerman Circle in Argyle Village in Jacksonville, Florida (the “Youngerman Circle Restaurant”; together with the Nocatee Restaurant, the “Nocatee and Youngerman Circle Restaurants”).

 

In connection with the acquisition of Seediv, the Company agreed to pay contingent consideration in the form of an earn-out payment. The Company determined that the fair value of the liability for the contingent consideration was estimated to be $20,897 at the acquisition date. The Company determined the fair value of the contingent consideration based on a probability-weighted approach derived from earn-out criteria estimates and a probability assessment with respect to the likelihood of achieving the earn-out criteria. The measurement was based upon significant inputs not observable in the market, including internal projections and an analysis of the target markets. The resultant probability-weighted contingent consideration was discounted using a discount rate based upon the weighted-average cost of capital.

 

 17 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

As of December 31, 2017, the Company calculated the earnout payment in accordance with the provisions of the membership interest purchase agreement and determined that the earnout payment was $199,682. The Company recognized additional Seediv compensation expense in the amount of $178,785 during the year ended December 31, 2017 in connection with the earnout payment and the liability for the contingent consideration was increased by $178,785 to $199,682 at December 31, 2017. The Company made payments in the amount of $144,326 to Mr. Kasturi with respect to the earnout payment during the year ended December 31, 2018. The Company did not make any payments to Mr. Kasturi during the nine-month period ended September 30, 2019. Accordingly, the outstanding balance of contingent consideration was $55,356 at September 30, 2019 and December 31, 2018, respectively.

 

The following table presents the contingent consideration recorded by the Company in connection with the acquisition of Seediv within the fair value hierarchy utilized to measure fair value on a recurring basis at September 30, 2019 and December 31, 2018, respectively:

 

   Level 1   Level 2   Level 3 
September 30, 2019  $   $55,356   $ 
December 31, 2018  $   $55,356   $ 

 

The earnout payment was to be calculated based on the earnings before interest, taxes, depreciation and amortization (“EBITDA”) for the Nocatee and Youngerman Circle Restaurants during the year ended December 31, 2017. As of December 31, 2017, the EBITDA for the Nocatee and Youngerman Circle Restaurants was utilized to compute the ending contingent consideration liability. As a result, the fair value measurement of the contingent consideration represented a Level 2 fair value measurement at September 30, 2019 and December 31, 2018 because it was based on other significant observable inputs.

 

The Company’s other financial instruments consist of cash and cash equivalents, accounts and ad fund receivables, notes receivable, operating and financing lease right-of-use assets and liabilities, accounts payable, accrued expenses and notes payable. The estimated fair values of the cash and cash equivalents, accounts and ad fund receivables, notes receivable, accounts payable, accrued expenses and notes payable (and the related beneficial conversion feature associated with the notes payable) approximate their respective carrying amounts due to the short-term maturities of these instruments. The estimated fair value of the financing and operating lease right-of-use assets and liabilities approximated their respective carrying amounts as the interest rate used in calculating the right-of-use-assets and liabilities approximated the interest rate on the outstanding debt.

 

 18 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 10. Notes Receivable

 

In June 2016, the Company made a loan to one of its franchisees under a promissory note in the aggregate original principal amount of $25,000. In July 2016, the Company made an additional loan to the same franchisee under a line of credit agreement for an aggregate original principal amount of up to $28,136. In September 2016, the Company made an additional loan to the same franchisee under a second line of credit agreement for an aggregate original principal amount of up to $25,000. The loan under the promissory note is for a term of two years, is payable in monthly installments beginning January 1, 2017, and accrues interest at a rate of 5% per annum beginning September 1, 2016. The loan under the $28,136 line of credit agreement was for a term of two years, was payable in monthly installments beginning January 1, 2017, and did not require the payment of any interest. The loan was repaid in full during the year ended December 31, 2017. The loan under the $25,000 line of credit agreement is for a term of two years, is payable in monthly installments beginning January 1, 2017 and accrues interest at a rate of 5% per annum beginning October 1, 2016. A total of $414 was outstanding under the loan at December 31, 2018. The loan was repaid in full during the nine-month period ended September 30, 2019. Interest in the aggregate amount of $2 accrued and was paid in full under the loans during the nine-month period ended September 30, 2019. Interest in the aggregate amount of $139 and $657 accrued and was paid in full under the loans during the three- and nine-month periods ended September 30, 2018, respectively. No accrued interest was outstanding under the loans at September 30, 2019 and December 31, 2018.

 

In October 2017, the Company made a loan to one of its franchisees in the aggregate original principal amount of $7,659. The loan is due and payable in full on December 1, 2020, is payable in monthly installments beginning January 1, 2018, and does not require the payment of any interest. A total of $2,979 and $5,106 of principal was outstanding under the loan at September 30, 2019 and December 31, 2018, respectively.

 

In June 2019, the Company made a loan to one of its franchisees in the aggregate original principal amount of $15,000. The loan is due and payable in monthly installments with an initial payment of $2,000 due July 1, 2019, followed by six monthly payments of $2,000 due on the 27th day of each month thereafter beginning July 27th, with a final payment of $1,000 due on January 27, 2020. The loan does not require the payment of any interest. A total of $7,000 of principal was outstanding under the loan at September 30, 2019.

 

The carrying value of the Company’s outstanding notes receivable was $9,978 and $5,520 at September 30, 2019 and December 31, 2018, respectively, all of which was due from unrelated third parties. Of these amounts, $9,344 and $634 were classified as short-term and long-term notes receivable, respectively, at September 30, 2019, and $2,967 and $2,553 were classified as short-term and long-term notes receivable, respectively, at December 31, 2018. The Company generated interest income of $2 during the nine-month period ended September 30, 2019, and generated interest income of $139 and $657 during the three- and nine-month periods ended September 30, 2018, respectively. The Company did not have any interest receivable outstanding at September 30, 2019 and December 31, 2018.

 

 19 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 11. Debt Obligations

 

In September 2013, the Company entered into a loan agreement with Blue Victory Holdings, Inc., a Nevada corporation (“Blue Victory”), pursuant to which Blue Victory agreed to extend a revolving line of credit facility to the Company for up to $1,000,000. In March 2017, the Company entered into an amendment to the loan agreement with Blue Victory to reduce the maximum amount of funds available under the credit facility from $1,000,000 to $50,000. The credit facility is unsecured, accrues interest at a rate of 6% per annum, and will terminate upon the earlier to occur of the fifth anniversary of the loan agreement or the occurrence of an event of default. The outstanding principal balance of the credit facility and any accrued and unpaid interest thereon are payable in full on the termination date. All loan requests are subject to approval by Blue Victory. Loans may be prepaid by the Company without penalty and borrowed again at any time prior to the termination date. Blue Victory has the right to convert all or any portion of the outstanding principal of the credit facility, together with accrued interest payable thereon, into shares of common stock at a conversion rate equal to: (i) the closing price of the common stock on the date immediately preceding the conversion date if the common stock is then listed on the OTCQB or a national securities exchange, (ii) the average of the most recent bid and ask prices on the date immediately preceding the conversion date if the common stock is then listed on any of the tiers of the OTC Markets Group, Inc., or (iii) in all other cases, the fair market value of the common stock as determined by the Company and Blue Victory. The Company did not borrow any funds under the credit facility during the nine-month period ended September 30, 2019 and the year ended December 31, 2018, and there was no principal outstanding under the credit facility at September 30, 2019 and December 31, 2018.

 

The Company entered into an unsecured loan with Blue Victory during the year ended December 31, 2017. The amount of principal outstanding under the loan was $30,503 at December 31, 2017. The Company borrowed $277,707 and repaid $71,877 under the loan during the year ended December 31, 2018. Accordingly, the amount of principal outstanding under the loan was $236,333 at December 31, 2018. The Company borrowed $1,540,886 and repaid $1,513,884 under the loan during the nine-month period ended September 30, 2019. Accordingly, the amount of principal outstanding under the loan was $263,335 at September 30, 2019. The Company recognized $2,910 and $9,894 of interest expense under the loan during the three- and nine-month periods ended September 30, 2019, and recognized $816 and $2,466 of interest expense under the loan during the three- and nine-month periods ended September 30, 2018.

 

On August 30, 2018, the Company entered into a secured convertible promissory note with Seenu G. Kasturi pursuant to which the Company borrowed $622,929 to help finance the Fat Patty’s Acquisition. A description of the note is set forth herein under Note 4. Acquisition of Fat Patty’s. At the date of the financing, because the effective conversion rate of the convertible note was less than the market value of the Company’s common stock, a beneficial conversion feature of $155,732 was recorded as a discount to the convertible note and an increase to additional paid in capital. The Company recorded a total of $16,648 for amortization of the discount to the convertible note during the year ended December 31, 2018. Accordingly, the amount of unamortized debt discount outstanding was $139,084 at December 31, 2018. The Company recorded $8,410 and $23,285 for amortization of the discount to the convertible note during the three- and nine-month periods ended September 30, 2019. Accordingly, the amount of unamortized debt discount outstanding was $115,799 at September 30, 2019, and the principal balance of the note net of unamortized debt discount outstanding was $507,130 at September 30, 2019. The Company recognized $9,416 and $27,848 of interest expense under the convertible note during the three- and nine-month periods ended September 30, 2019.

 

The carrying value of the Company’s outstanding promissory notes, net of unamortized discount of $115,799 and $139,084 at September 30, 2019 and December 31, 2018, respectively, and excluding financing and operating lease liabilities, was $770,465 and $720,178 at September 30, 2019 and December 31, 2018, respectively.

 

 20 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 12. Leases

 

The Company leases certain office space, land, buildings and equipment. The Company’s lease agreements for equipment are immaterial in amount, both individually and collectively. The Company’s lease agreements do not contain any material residual value guarantees or material restrictive covenants, and none of the Company’s lease agreements include options to purchase the leased property. The Company does not have any significant leases that have not yet commenced that create significant rights and obligations for the Company. The Company elected the practical expedient under ASC 842 to not separate lease and non-lease components. A description of the Company’s operating and financing leases is set forth herein under Note 16. Commitments and Contingencies – Operating Leases and – Financing Leases.

 

Most of the Company’s lease agreements have fixed rental payments. Certain of the Company’s lease agreements include fixed rental payments that are adjusted periodically based on rate or are based in part on a percentage of sales. Payments based on a percentage of sales is not considered in the determination of lease payments for purposes of measuring the related lease liability.

 

Most of the Company’s real estate leases include one or more options to renew, with renewal terms that can extend the lease term from three to five years or more. The exercise of lease renewal options is at the Company’s sole discretion. If the Company is reasonably certain that it will exercise such options, the periods covered by such options are included in the lease term and are recognized as part of the Company’s right-of-use assets and liabilities.

 

The Company determines discount rates based on the rates of its outstanding debt.

 

The following table sets forth information about the Company’s operating and financing lease assets and liabilities included in its condensed consolidated balance sheet as of September 30, 2019:

 

   Classification on the Condensed
Consolidated Balance Sheet
  September 30, 2019 
Assets        
Operating lease right-of-use assets  Right-of-use assets  $3,582,774 
Financing lease right-of-use assets  Right-of-use assets   10,896,130 
Total right of use assets     $14,478,904 
         
Liabilities        
Current liabilities:        
Operating lease liability  Current operating lease liabilities  $284,059 
Financing lease liability  Current portion of other long-term liabilities   202,944 
Non-current liabilities:        
Operating lease liabilities, net of current portion  Operating lease liabilities   3,351,890 
Financing lease liabilities, net of current portion  Other long-term liabilities   11,054,732 
Total lease liabilities     $14,893,625 

 

 21 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The following table sets forth the supplemental cash flow information related to the Company’s leases for the three- and nine-month periods ended September 30, 2019:

 

   Three Months Ended
September 30, 2019
   Nine Months Ended
September 30, 2019
 
Cash paid for amounts included in the measurement of lease liabilities:          
Operating cash flows from operating leases  $138,036   $387,477 
Operating cash flows from financing leases   176,240    530,702 
Financing cash flows from financing leases   145,092    430,545 

 

The following table sets forth the components of lease costs related to the Company’s leases for the three- and nine-month periods ended September 30, 2019:

 

   Three Months Ended
September 30, 2019
   Nine Months Ended
September 30, 2019
 
Operating lease costs  $154,597   $441,146 
           
Financing lease costs:          
Amortization of right-of-use assets  $145,092   $430,546 
Interest on lease liabilities   176,240    530,701 
Total financing lease costs   321,332    961,247 

 

The following table shows certain information related to the weighted-average remaining lease terms and the weighted-average discount rates for our operating and financing leases:

 

   Weighted
Average
Remaining
Lease Term
   Weighted
Average
Discount Rate
 
    (in years)    (annual) 
           
Operating leases   10.91    7.73%
Financing leases   18.92    8.00%

 

 22 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The following table sets forth the maturity of our operating and financing leases liabilities as of September 30, 2019:

 

   Operating Leases   Financing Leases 
Year Ended December 31,          
2019 (remaining three months)  $124,703   $223,055 
2020   544,759    897,425 
2021   570,765    913,130 
2022   583,392    929,110 
2023   472,444    945,369 
Thereafter   3,206,389    15,924,033 
Total lease payments   5,502,452    19,832,122 
Less: imputed interest   (1,866,503)   (8,574,446)
Total  $3,635,949   $11,257,676 

 

Note 13. Capital Stock

 

The Company’s authorized capital consisted of 100,000,000 shares of Class A common stock, par value $0.01 per share, at September 30, 2019 and December 31, 2018, respectively, of which 7,080,771 and 6,680,065 shares of common stock were outstanding at September 30, 2019 and December 31, 2018, respectively, 1,000,000 shares of Series A convertible preferred stock, par value $0.01 per share, at September 30, 2019 and December 31, 2018, of which 449,581 shares were outstanding at September 30, 2019 and December 31, 2018, and 2,500,000 shares of Series B Convertible Preferred Stock, $0.01 par value per share, none of which was outstanding at September 30, 2019 and December 31, 2018.

 

In May 2018, the Company issued a stock option to an employee that is exercisable into 30,000 shares of common stock. The shares were valued on the date of grant by using the Black-Scholes pricing model. The Company recognized $10,002 of stock compensation expense during the year ended December 31, 2018 in connection with the vesting of the option. In February 2019, the stock option terminated in its entirety upon the termination of the employee’s employment with the Company. In connection therewith, the stock compensation previously recognized by the Company during the year ended December 31, 2018 was reversed during the nine-month period ended September 30, 2019.

 

In May 2018, the Company provided an employee with the right to receive $33,000 in cash or 20,000 shares of shares of the Company’s common stock on May 15, 2021. The shares were valued at a price per share equal to the closing price of the Company’s common stock on the OTCQB on the date of grant and remeasured as of December 31, 2018. In accordance with ASC 718, as the employee is able to settle the right in either cash or common stock, the Company recognized $8,701 of stock compensation expense in connection therewith during the year ended December 31, 2018 and recorded a corresponding liability which has been recorded in accounts payable and accrued expenses within the Company’s consolidated balance sheet. In February 2019, the right terminated in its entirety upon the termination of the employee’s employment with the Company. In connection therewith, the stock compensation previously recognized by the Company during the year ended December 31, 2018 was reversed during the nine-month period ended September 30, 2019.

 

 23 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

In August 2018, the Company entered into an agreement with a firm to provide investor relations services to the Company. Under the terms of the agreement, the Company agreed to pay the firm $12,250 and issue 3,500 shares of common stock to the firm upon the execution of the agreement as compensation for services to be performed during the months of August and September 2018. The Company agreed to pay the firm $7,000 and issue 1,500 shares of common stock each month thereafter during the remainder of the term of the agreement. The Company recognized $5,652 and $16,797 of stock compensation expense under the agreement during the three- and nine-month periods ended September 30, 2019.

 

The Company recognized $147 of stock compensation expense during the nine-month period ended September 30, 2019 in connection with the vesting of 10,706 shares of common stock earned by Mr. Kasturi on January 1, 2019 under the employment agreement that he was then a party to with the Company.

 

In January 2019, the Company issued a restricted stock award to Seenu G. Kasturi, who is the Company’s Chief Executive Officer, pursuant to the terms of a new employment agreement that the Company entered into with him. The Company recognized $49,505 and $145,824 of stock compensation expense in connection therewith during the three- and nine-month periods ended September 30, 2019. A description of the new employment agreement and restricted stock award is set forth herein under Note. 16 – Commitments and Contingencies – Employment Agreements – Seenu G. Kasturi.

 

In January 2019, the Company commenced a private offering of up to 5,000,000 units, each unit comprised of one share of common stock and one warrant to purchase one share of common stock, at a purchase price of $1.40 per unit (the “Offering”). Each warrant is exercisable for a term of five years at an exercise price of $1.55 per share, subject to adjustment. The units are being offered without registration under the Securities Act of 1933, as amended (“Securities Act”), solely to persons who qualify as accredited investors, as that term is defined in Rule 501 of Regulation D under the Securities Act, in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act and Rule 506(c) of Regulation D promulgated thereunder.

 

The Company retained Maxim Group, LLC (“Maxim”) to serve as its placement agent for the Offering. The Company agreed to pay the placement agent a placement fee equal to 7% of the aggregate gross proceeds raised in the Offering and warrants exercisable for a term of five years to purchase 4% of the number of shares of common stock included in the units sold in the Offering at an exercise price of $1.55 per share.

 

The Offering may be increased by up to an additional $1,000,000 at the mutual discretion of the Company and the placement agent. The initial closing of the Offering is conditioned, among other things, on the Company’s acceptance of subscriptions for at least $500,000 of units and the closing of the Company’s agreement to purchase all of the membership interests in SDA Holdings.

 

Net proceeds, if any, from the Offering will be used to fund the deferred portion of the purchase price for the Company’s acquisition of Fat Patty’s, future payments to the persons that owned Tilted Kilt prior to SDA Holdings, and the repayment of the loan made by Seenu G. Kasturi to help fund the acquisitions of Fat Patty’s and Tilted Kilt, and the balance for general corporate purposes.

 

 24 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The Offering was originally contemplated to terminate on March 31, 2019, unless extended by the Company and the placement agent to a date not later than May 31, 2019. On March 31, 2019, the Company extended the offering until May 31, 2019. No securities were sold in the offering during the three- and nine-month periods ended September 30, 2019.

 

On April 8, 2019, the Company granted a restricted stock award to Alex Andre, who is the Company’s Chief Financial Officer, for a total of 225,000 shares of the Company’s common stock. The shares vest in three equal annual installments commencing on April 30, 2020. The Company recognized $24,070 and $45,785 of stock compensation expense in connection therewith during the three- and nine-month periods ended September 30, 2019, respectively.

 

On April 17, 2019, the Company revised the terms of the Offering. As revised, the Offering covers the sale of up to 1,785,715 units, each unit comprised of one share of Series B convertible preferred stock (the “Shares”) and one warrant to purchase one share of common stock at a purchase price of $1.40 per unit, for an aggregate offering price of $2,500,000. Each warrant is exercisable for a term of five years at an exercise price equal to the lesser of: (i) $1.70 per share, and the greater of: (ii) one hundred twenty percent (120%) of the conversion price of the Shares and $0.28 per share, subject to adjustment. The units are being offered without registration under the Securities Act solely to persons who qualify as accredited investors, as that term is defined in Rule 501 of Regulation D under the Securities Act, in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act and Rule 506(c) of Regulation D promulgated thereunder.

 

The Company retained Maxim and Joseph Gunnar & Co., LLC to serve as its placement agents for the Offering. The Company agreed to pay the placement agents an aggregate placement fee equal to 7% of the aggregate gross proceeds raised in the Offering and warrants exercisable for a term of five years to purchase that number of shares of common stock equal to 7% of the number of Shares issued in the Offering and 7% of the number of shares of common stock underlying the warrants issued in the Offering at an exercise price of $1.70 per share.

 

The Offering may be increased by up to an additional $1,000,000 at the mutual discretion of the Company and Maxim. The Offering was set to terminate on April 30, 2019, unless extended by the Company and Maxim to a date not later than May 31, 2019. On April 30, 2019, the Company extended the Offering to May 31, 2019.

 

The initial closing of the Offering is conditioned, among other things, on the Company’s acceptance of subscriptions for at least $500,000 of Units and the closing of the Company’s agreement to purchase all of the membership interests in SDA Holdings, the sole owner of the entities which own Tilted Kilt.

 

The net proceeds, if any, from the Offering will be used to fund the partial repayment of the loan made by Seenu G. Kasturi, who is the Company’s Chief Executive Officer, Chief Financial Officer and Chairman of its board of directors, to SDA Holdings to help fund SDA Holding’s acquisition of Tilted Kilt.

 

 25 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

In connection therewith, on April 17, 2019, the Company filed a Certificate of Designation of Preferences, Rights and Limitations of the Series B Convertible Preferred Stock with the Secretary of State of Nevada designating 2,500,000 shares of the Company’s authorized but unissued shares of preferred stock, $0.01 par value per share, as Series B Convertible Preferred Stock (the “Series B Preferred Stock”).

 

The Series B convertible preferred stock has a stated value of $1.40 per share. In the event that the Company is liquidated, dissolved, effects certain mergers or consolidations, transfers all or substantially all of its assets, or completes certain other significant transactions, holders of the Series B convertible preferred stock are entitled to receive, in preference to holders of the Company’s common stock and the Company’s Series A convertible preferred stock, an amount per share equal to the greater of (i) $1.40 plus any declared and unpaid dividends thereon, and (ii) the amount per share such holder would receive if such holder converted such shares of Series B convertible preferred stock into shares of common stock at a conversion price of $1.40, subject to adjustment.

 

Upon the completion of a firm commitment underwritten public offering (a “Qualified Public Offering”) of the Company’s common stock and concurrent listing of the Company’s common stock on the Nasdaq Stock Market, NYSE or NYSE MKT within 12 months after the final closing of the Offering, each share of Series B convertible preferred stock will automatically convert into the securities issued by the Company in the Qualified Public Offering (the “Conversion Securities”) at a conversion price equal to the lesser of: (a) $1.40 per share, and (b) the greater of: (i) 70% of the public offering price of the Conversion Securities, and (ii) $0.28 per share (the “Conversion Price”), subject to adjustment. The Conversion Price is subject to adjustment for stock splits, stock dividends, or the reclassification of the common stock. In the event that the Company does not complete a Qualified Public Offering within 12 months after the final closing of the Offering or does not file with the SEC the audited financial statements and other financial information required to be filed in connection with the Company’s acquisition of the Fat Patty’s restaurant concept on August 30, 2018 or in connection with the Company’s proposed acquisition of the Tilted Kilt within four months after the final closing of the Offering, the Company will be required to repurchase all Shares issued in the Offering for a purchase price of $1.75 per share.

 

The Series B convertible preferred stock participates, on an as-converted to common stock basis, in any dividends declared or paid on common stock and votes together with holders of common stock, on an as-converted to common stock basis, on all matters presented to holders of common stock.

 

The Company cannot undertake certain corporate actions without approval of the holders of a majority of the issued and outstanding shares of Series B convertible preferred stock.

 

The Offering terminated on May 31, 2019. No securities were sold in the offering during the three- and nine-month periods ended September 30, 2019.

 

The Company recognized a total of $79,226 and $189,849 for stock compensation expense during the three- and nine-month periods ended September 30, 2019, respectively. The Company had a total of $64,682 and $15,453 of stock subscription payable outstanding at September 30, 2019 and December 31, 2018, respectively.

 

 26 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The following table sets forth the changes in stockholders’ equity as of September 30, 2019:

 

   Common Stock   Series A Convertible Preferred Stock   Series B Convertible Preferred Stock   Additional   Stock         
   Shares   Par
Value
   Shares   Par
Value
   Shares   Par
Value
   Paid-in Capital   Subscriptions Payable   Accumulated Deficit   Total 
Balance at December 31, 2018   6,680,065   $66,801    449,581   $4,496           $4,490,338   $15,453   $(5,247,553)  $(670,465)
Common stock issued for
services
   400,706    4,007                    155,316    49,229        208,552 
Cancellation of stock option
issued for services
                           (10,002)           (10,002)
Net loss                                   (1,303,318)   (1,303,318)
Balance at September 30, 2019   7,080,771   $70,808    449,581   $4,496           $4,635,652   $64,682   $(6,550,871)  $(1,775,233)

 

The following table sets forth the changes in stockholders’ equity as of September 30, 2018:

 

   Common Stock   Series A
Convertible
Preferred Stock
   Additional   Stock         
   Shares   Par
Value
   Shares   Par
Value
   Paid-in Capital   Subscriptions Payable   Accumulated Deficit   Total 
Balance at December 31, 2017   6,950,869   $69,509       $   $3,995,306   $26,853   $(4,768,592)  $(676,924)
Common stock issued for services   23,139    232            35,769    263,750        299,751 
Stock option issued for services                   3,752            3,752 
Deferred franchise fees                           (196,478)   (196,478)
Beneficial conversion feature                   155,732            155,732 
Common stock exchanged for preferred stock   (449,581)   (4,496)   449,581    4,496                 
Net income                           89,550    89,550 
Balance at September 30, 2018   6,524,427   $65,244    449,581   $4,496   $4,190,559   $290,603   $(4,875,520)  $(324,617)

 

Note 14. Stock Options and Warrants

 

The Company issued one stock option during the year ended December 31, 2018. The stock option was exercisable into 30,000 shares of common stock at an exercise price of $1.49 and vested in three equal annual installments commencing on the first anniversary of the date of issuance. The shares were valued on the date of grant by using the Black-Scholes pricing model in accordance with the provisions of ASC Topic 718. This stock option was the only stock option outstanding at December 31, 2018. In February 2019, the stock option terminated in its entirety. The Company did not issue any stock options or warrants exercisable into shares of the Company’s common stock during the three- and nine-month periods ended September 30, 2019 and 2018, and no stock options or warrants were exercised during the three- and nine-month periods ended September 30, 2019 and 2018. There were no stock options or warrants outstanding at September 30, 2019.

 

 27 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 15. Stock Compensation Plans

 

American Restaurant Concepts, Inc. 2011 Stock Incentive Plan

 

In August 2011, the Company adopted the American Restaurant Concepts, Inc. 2011 Stock Incentive Plan. Under the plan, 1,214,286 shares of common stock may be granted to employees, officers and directors of, and consultants and advisors to, the Company under awards that may be made in the form of stock options, warrants, stock appreciation rights, restricted stock, restricted units, unrestricted stock and other equity-based or equity-related awards. As of September 30, 2019, 142,858 shares of the Company’s common stock remained available for issuance under the plan. The plan terminates in August 2021. On August 18, 2011, the Company filed a registration statement on Form S-8, File No. 333-176383, with the SEC covering the public sale of all 1,214,286 shares of common stock available for issuance under the plan.

 

ARC Group, Inc. 2014 Stock Incentive Plan

 

In June 2014, the Company adopted the ARC Group, Inc. 2014 Stock Incentive Plan. Under the plan, 1,000,000 shares of common stock may be granted to employees, officers and directors of, and consultants and advisors to, the Company under awards that may be made in the form of stock options, warrants, stock appreciation rights, restricted stock, restricted units, unrestricted stock and other equity-based or equity-related awards. As of September 30, 2019, all 1,000,000 shares of the Company’s common stock remained available for issuance under the plan. The plan terminates in June 2024.

 

Note 16. Commitments and Contingencies

 

Employment Agreements

 

Seenu G. Kasturi

 

On January 18, 2017, the Company appointed Seenu G. Kasturi as its President, Chief Financial Officer and Chairman of its board of directors. In connection therewith, on January 18, 2017, the Company entered into an employment agreement with Mr. Kasturi to serve as the President and Chief Financial Officer of the Company. The employment agreement was for an initial term of three years with automatic one-year renewals thereafter unless earlier terminated or not renewed as provided therein. Under the terms of the employment agreement, Mr. Kasturi was paid annual compensation in the amount of $80,000 per year, consisting of: (i) an initial annual base salary of $26,000, and (ii) equity awards equal in value to $54,000 per year. Mr. Kasturi was eligible to receive increases in salary on January 1st of each subsequent year in the discretion of the Company’s board of directors. He was also eligible to receive annual bonuses in the discretion of the Company’s board of directors beginning with the Company’s fiscal year ended December 31, 2017. The employment agreement contains customary confidentiality, non-competition and non-solicitation provisions in favor of the Company.

 

 28 
   
 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

On January 2, 2019, the Company appointed Seenu G. Kasturi as its Chief Executive Officer. As a result of the appointment, Mr. Kasturi then served as the Company’s Chief Executive Officer, Chief Financial Officer and Chairman of the its board of directors. In connection therewith, on January 2, 2019, Mr. Kasturi resigned as the Company’s President and Richard W. Akam resigned as the Company’s Chief Executive Officer. Mr. Akam continues to serve as the Company’s Chief Operating Officer and Secretary.

 

On January 2, 2019, the Company entered into an amended and restated employment agreement with Mr. Kasturi to serve as the Chief Executive Officer and Chief Financial Officer of the Company. The agreement is for an initial term of three years with automatic one-year renewals thereafter unless earlier terminated or not renewed as provided therein. Under the terms of the agreement, Mr. Kasturi will be paid an initial annual base salary in the amount of $350,000. Mr. Kasturi will be eligible to receive increases in salary on January 1st of each subsequent year in the discretion of the Company’s board of directors. He will also be eligible to receive annual bonuses in the discretion of the Company’s board of directors beginning with the Company’s fiscal year ended December 31, 2019. The employment agreement contains customary confidentiality, non-competition and non-solicitation provisions in favor of the Company.

 

Pursuant to the terms of the new employment agreement, the Company entered into a restricted stock award agreement with Mr. Kasturi pursuant to which the Company granted 390,000 shares of the Company’s common stock to Mr. Kasturi. The shares vest in accordance with the following schedule: (i) 130,000 shares on March 31, 2019; (ii) 130,000 shares on March 31, 2020; and (iii) 130,000 shares on March 31, 2021. In the event the Company terminates the employment of Mr. Kasturi without “cause”, as such term is defined in the employment agreement, his restricted stock award will vest in full immediately. In the event Mr. Kasturi’s employment with the Company terminates by reason of death or “disability”, as such term is defined in the employment agreement, or if the Company terminates Mr. Kasturi’s employment for “cause”, as such term is defined in the employment agreement, or if Mr. Kasturi terminates his own employment with the Company, then any shares that have not yet vested will be forfeited to the Company. In the event of certain “changes in control” as such term is defined in the Company’s 2014 Stock Incentive Plan adopted by the Company’s board of directors on June 16, 2014, all restrictions and conditions on any of the shares then outstanding will automatically be deemed terminated or satisfied in full, as applicable, immediately prior to the consummation of the change in control event.

 

Richard W. Akam

 

On January 22, 2013, the Company appointed Richard W. Akam to serve as its Chief Operating Officer. In connection therewith, the Company entered into an employment agreement with Mr. Akam pursuant to which it agreed to pay him an annual base salary of $150,000, subject to annual adjustment and discretionary bonuses, plus certain standard and customary fringe benefits. The initial term of the employment agreement is for one year and automatically renews for additional one-year terms until terminated by Mr. Akam or the Company.

 

The employment agreement provided that, on July 22, 2013, the Company would grant Mr. Akam shares of its common stock equal in value to $50,000 if Mr. Akam was continuously employed by the Company through that date. The number of shares of common stock that the Company would issue to Mr. Akam would be calculated based on the last sales price of the Company’s common stock as reported on the OTCQB on July 22, 2013. The employment agreement also provided that the Company would grant Mr. Akam additional shares of its common stock equal in value to $50,000 on January 1st of each year thereafter if Mr. Akam was continuously employed by the Company through January 1st of the applicable year. The number of shares of common stock that the Company would issue to Mr. Akam for each applicable year would be calculated based on the average of the last sales price of shares of the Company’s common stock as reported on the OTCQB for the month of January of the applicable year.

 

 29 
   
 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Notwithstanding the above, and in connection therewith, Mr. Akam agreed that the number of shares that may be earned by him under his employment agreement in connection with any particular grant would be equal to the lesser of: (i) 71,429 shares of common stock, or (ii) the number of shares of common stock calculated by dividing $50,000 by the closing price of the Company’s common stock on the day immediately preceding the date the Company’s obligation to issue the shares to him fully accrues. Mr. Akam also agreed that in the event the Company was unable to fulfill its obligation to issue all of the shares earned by him with respect to any particular grant because it did not have enough shares of common stock authorized and available for issuance, (i) Mr. Akam would not require the Company to issue more shares of common stock than are then authorized and available for issuance by the Company, and (i) the Company would be permitted to settle any liability to Mr. Akam created as a result thereof in cash.

 

In the event the Company terminates Mr. Akam’s employment without “cause” (as such term is defined in the employment agreement), Mr. Akam will be entitled to receive the following severance compensation from the Company: (i) if the Company terminates Mr. Akam’s employment during the first year of his employment with the Company, that amount of compensation equal to the salary payable to Mr. Akam during that year, (ii) if the Company terminates Mr. Akam’s employment during the second year of his employment with the Company, that amount of compensation equal to nine months of the salary payable to Mr. Akam during that year, (iii) if the Company terminates Mr. Akam’s employment during the third year of his employment with the Company, that amount of compensation equal to six months of the salary payable to Mr. Akam during that year, and (iv) if the Company terminates Mr. Akam’s employment after the third year of his employment with the Company, that amount of compensation equal to three months of the salary payable to Mr. Akam during the year that such termination occurs. Mr. Akam will not be entitled to receive any severance compensation from the Company if the Company terminates his employment for “cause” or as a result of his disability, or if Mr. Akam resigns from his employment with the Company.

 

The employment agreement also contains customary provisions that provide that, during the term of Mr. Akam’s employment with the Company and for a period of one year thereafter, Mr. Akam is prohibited from disclosing confidential information of the Company, soliciting Company employees and certain other persons, and competing with the Company.

 

On July 31, 2013, the Company appointed Richard Akam as its Chief Executive Officer, Chief Financial Officer and Secretary. The Company and Mr. Akam did not amend the employment agreement in connection with the above appointments, and Mr. Akam did not receive any additional compensation in connection with the above appointments.

 

On August 19, 2013, Richard Akam resigned as the Company’s Chief Financial Officer. Mr. Akam retained his positions as the Company’s Chief Executive Officer, Chief Operating Officer and Secretary.

 

 30 
   
 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

On January 31, 2017, the Company and Richard W. Akam entered into an amendment to the employment agreement. Under the terms of the amendment, the parties confirmed the appointment of Mr. Akam as the Company’s Chief Operating Officer on January 22, 2013 and as the Company’s Chief Executive Officer on July 31, 2013, clarified that Mr. Akam’s monthly base salary after the initial term of the employment agreement may be adjusted from time to time by the Company with Mr. Akam’s consent, removed the provision relating to the grant of shares of the Company’s common stock to Mr. Akam on January 1st of each year effective December 31, 2016, and clarified that the criteria for Mr. Akam’s annual bonuses will be identified and agreed upon by the Company and Mr. Akam by the end of the 1st quarter of each fiscal year.

 

On January 2, 2019, the Company entered into a Second Amendment to Employment Agreement with Richard W. Akam pursuant to which Mr. Akam resigned as the Company Chief Executive Officer but retained his positions as the Company’s Chief Operating Officer and Secretary.

 

Alex Andre

 

On July 15, 2019, the Company appointed Alex Andre as its Chief Financial Officer. In connection therewith, on July 15, 2019, Seenu G. Kasturi resigned as the Company’s Chief Financial Officer. Mr. Kasturi continued to serve as the Company’s Chief Executive Officer and Chairman of the Company’s board of directors.

 

On July 15, 2019, the Company entered into an employment agreement with Mr. Andre to serve as the Chief Financial Officer of the Company and, upon the completion of all applicable registration and licensing requirements, to serve as the General Counsel of the Company. The employment agreement is for an initial term of three years with automatic one-year renewals thereafter unless earlier terminated or not renewed as provided therein. Under the terms of the agreement, Mr. Andre will be paid an initial annual base salary in the amount of $175,000. On May 1, 2020, Mr. Andre’s salary will increase to $200,000 for the remainder of the employment term. Mr. Andre will be eligible to receive increases in salary on January 1st of each subsequent year in the discretion of the Company’s board of directors. On November 1, 2019, he will be eligible to receive an interim bonus of up to an amount equal to 10% of his then current base salary in the discretion of the Company’s board of directors, and will be eligible to receive annual bonuses on May 1st of each year thereafter of up to an amount equal to 10% of his then current base salary in the discretion of the Company’s board of directors. The employment agreement contains customary confidentiality, non-competition and non-solicitation provisions in favor of the Company.

 

Operating Leases

 

Company Headquarters

 

In January 2015, the Company entered into a lease with Crescent Hill Office Park for its corporate headquarters located at 6327-4 Argyle Forest Boulevard, Jacksonville, Florida. The lease provided for an initial monthly rent payment of $1,806 and expired on December 31, 2017, at which time it converted to a month-to-month lease.

 

In January 2018, the Company entered into a new, month-to-month lease with Crescent Hill Office Park for its corporate headquarters located at 6327-4 Argyle Forest Boulevard, Jacksonville, Florida. The lease provided for an initial monthly rent payment of $2,063 and continued in place until it terminated on December 31, 2018.

 

 31 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

On November 15, 2018, the Company entered into a triple net lease with the Kasturi Children’s Trust (the “Trust”) for its new corporate headquarters located at 1409 Kingsley Ave., Ste. 2, Orange Park, Florida. The lease is for a term of 60 months and provides the Company with an option to extend the lease by three additional five-year periods. The lease provides for rent payments in the amount of $4,000 per month. The Trust is an irrevocable trust for which the children of Seenu G. Kasturi are the beneficiaries. The trustee of the Trust is an unrelated third party.

 

Nocatee Restaurant

 

In October 2013, DWG Acquisitions, LLC, a Louisiana limited liability company (“DWG Acquisitions”), entered into a triple net shopping center lease with NTC-REG, LLC (“NTC-REG) for the Nocatee Restaurant. The lease provides for an initial monthly rent payment of $1,100 and an additional annual rent payment equal to the amount by which 6% of the restaurant’s annual gross sales exceeds the aggregate monthly rent payments accrued during the applicable year. The lease has an initial term of 53 months and provides DWG Acquisitions with an option to extend the lease by an additional term of 60 months. The lease was assumed by Seediv when Seediv acquired all of the assets and liabilities associated with the Nocatee and Youngerman Circle Restaurants from DWG Acquisitions pursuant to the terms of that certain asset purchase agreement, dated December 1, 2016, by and between Seediv and DWG Acquisitions (the “Seediv Purchase Agreement”).

 

On April 1, 2017, DWG Acquisitions, Seediv and NTC-REG entered into an assignment and assumption & first modification to lease agreement for the Nocatee Restaurant. Under the agreement, DWG Acquisitions assigned all of its right, title, interest and claim in and to the Nocatee lease, and Seediv assumed the payment and performance of all obligations, liabilities and covenants of DWG Acquisitions under the lease for the Nocatee Restaurant. In addition, the parties amended certain terms of the lease to state that the lease covers approximately 3,400 square feet of space, to extend the term of the lease for a 60-month period commencing on April 1, 2018 and expiring March 31, 2023, and to change the rent payments to an initial monthly rent payment of $7,035 without an additional annual rent payment.

 

Youngerman Circle Restaurant

 

In May 2014, DWG Acquisitions entered into a triple net lease with Raceland QSR, LLC, a Louisiana limited liability company (“Raceland QSR”), which is a related party, for the Youngerman Circle Restaurant. The lease provides for a monthly rent payment equal to 7% of the restaurant’s monthly net sales. The lease has an initial term of 10 years and renews automatically for additional one-year terms unless prior written notice is provided by either party. The lease was assumed by Seediv when Seediv acquired all of the assets and liabilities associated with the Nocatee and Youngerman Circle Restaurants from DWG Acquisitions pursuant to the terms of the Seediv Purchase Agreement.

 

 32 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

On December 20, 2016, Seediv entered into a new triple net lease with Raceland QSR for the Youngerman Circle Restaurant. The lease provides for rent payments to be made by the Company for each of 13 rent periods per year, with each rent period comprised of four weeks. The lease provides for an initial base rent payment equal to the greater of: (i) $10,000 per rent period, or (ii) 7.5% of the Youngerman Circle Restaurant’s net sales for the applicable rent period. Commencing on the fifth (5th) anniversary and continuing every five years thereafter, the base rent will be equal to the sum of: (i) the average base rent previously in effect for the preceding five-year period, and (ii) the product of such previous average base rent multiplied by 7.5%. The lease has an initial term of 20 years and provides the Company with an option to extend the lease for two additional five-year periods. The Company agreed to guarantee Seediv’s payment and performance of all of its obligations under the lease.

 

Valdosta Dick’s Wings Restaurant

 

On December 31, 2017, DWAG Valdosta, LLC, a Georgia limited liability company that is a wholly-owned subsidiary of the Company, entered into a triple net lease with PLD, L.L.L.P., a Georgia limited liability company, for the Dick’s Wings and Grill restaurant located at 153 Baytree Road, Valdosta, Georgia. The lease provides for monthly rent payments of $3,333 for the first two years and $5,000 for the following three years, plus an additional annual rent payment equal to the amount by which 6% of the restaurant’s annual gross sales exceeds $1,000,000. The lease has an initial term of five years and provides the Company with an option to extend the lease for two additional five-year periods.

 

Panama City Beach Dick’s Wings Restaurant

 

On July 1, 2015, DWG Acquisitions entered into a lease with Arquette Development Corporation, a Florida corporation (“Arquette Development”), for the Dick’s Wings and Grill restaurant located at 1136 Thomas Drive, Panama City Beach, Florida (the “Panama City Lease”). The lease provided for rent payments of $5,000 plus an additional annual rent payment equal to the amount by which 6% of the restaurant’s annual gross sales exceeds $1,200,000. The lease had an initial term of three years and provided DWG Acquisitions with an option to extend the lease for three additional three-year periods. The lease expired on June 30, 2018 and was not renewed by DWG Acquisitions. Upon the expiration of the lease, DWG Acquisitions entered into a month-to-month tenancy with Arquette Development pursuant to which DWAG PCB, LLC, a Florida limited liability company that is a wholly-owned subsidiary of the Company (“DWAG PCB”), makes monthly rent payments of $3,000 to Arquette Development on behalf of DWG Acquisitions.

 

Tallahassee Dick’s Wings Restaurant

 

On May 1, 2018, DWAG Tallahassee, LLC, a Florida limited liability company that is a wholly-owned subsidiary of the Company (“DWAG Tallahassee”), entered into a triple net lease with Bannerman Crossings III, LLC, a Florida limited liability company, for a Dick’s Wings and Grill restaurant to be located at 3427 Bannerman Rd., Suite 104, Tallahassee, Florida. The lease provides for no rent during the first year of the lease, followed by monthly rent payments equal to 6% of the restaurant’s monthly gross sales for each month remaining under the lease. The lease has an initial term of 10 years and provides the Company with an option to extend the lease for two additional five-year periods. Bannerman Crossings agreed to loan DWAG Tallahassee $250,000 to be used for tenant improvements to the property. DWAG has the right to terminate the lease at the end of the 42nd month of the initial term in the event if gross sales during the period commencing on the first day of the 25th month of the initial term and ending on the last day of the 36th month of the initial term are less than $1,400,000.

 

 33 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Gonzalez Tilted Kilt Restaurant

 

On September 25, 2018, TK Gonzales LA, LLC, a Louisiana limited liability company that is a wholly-owned subsidiary of the Company (“TK Gonzales”), entered into a triple net lease with Acadiana Development of Gonzales, LLC, a Louisiana limited liability company, for the Tilted Kilt restaurant located at 2838 Outfitter’s Drive, Gonzales, Louisiana. The lease provides for initial monthly rent payments of $12,000 that increase to $17,600 during the term of the lease. The lease has an initial term of 10 years and provides the Company with an option to extend the lease for two additional five-year periods.

 

Financing Leases

 

On August 30, 2018, the Company entered into the Master Lease. The initial term of the lease expires on August 31, 2038. The Company has the option to extend the term of the lease for four additional successive periods of five years each. The aggregate base annual rent is $876,875 and is subject to annual increases commencing September 1, 2019 in an amount equal to the lesser of: (i) 1.75%, or (ii) 1.25 times the change in the Consumer Price Index. The Company is responsible for all costs and obligations relating to the Properties.

 

Sponsorship Agreements

 

In July 2013, the Company entered into a three-year sponsorship agreement with the Jacksonville Jaguars, LLC (the “Jacksonville Jaguars”) and, in connection therewith, in August 2013, entered into a subcontractor concession agreement with Levy Premium Foodservice Limited Partnership (“Levy”) for a concession stand to be located at TIAA Bank Field in Jacksonville, Florida. The Company concurrently assigned all of its rights and obligations under the concession agreement to DWG Acquisitions in return for a fee of $2,000 per month for each full or partial month during which the concession agreement is in effect. In July 2015, the Company extended its sponsorship agreement with the Jaguars by an additional two years and entered into a subcontractor concession agreement with Ovations Food Services, L.P. (“Ovations”) for a second concession stand at TIAA Bank Field. The Company concurrently assigned all of its rights and obligations under the second concession agreement to DWG Acquisitions in return for an additional fee of $3,000 per month for each full or partial month during which the concession agreement is in effect.

 

In September 2016, the Company terminated its subcontractor concession agreements with Levy and Ovations and the related assignment agreements with DWG Acquisitions, and entered into a sub-concession agreement with Jacksonville Sportservice, Inc. (“Jacksonville Sportservice”) and DWG Acquisitions with respect to the two concession stands previously covered by the Levy and Ovations subcontractor concession agreements. The Company concurrently assigned all of its rights and obligations under the sub-concession agreement to DWG Acquisitions in return for a fee equal to the income generated by the concession stands less all expenses incurred by the concession stands for each full or partial month during which the concession agreement is in effect. In October 2017, the Company entered into a termination agreement with DWG Acquisitions whereby the Company terminated the assignment to DWG Acquisitions.

 

 34 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

In November 2017, the Company entered into a new five-year sponsorship agreement with the Jacksonville Jaguars. Under the terms of the sponsorship agreement, during each preseason and regular season football game played by the Jacksonville Jaguars and at certain other events held at the football-based stadium in Jacksonville, Florida currently named “Everbank Field”: (i) the Company has the right to display its branding on one fixed concession stand in the Bud Light Party Zone at Everbank Field and a second concession stand located on the concourse at Everbank Field, (ii) the Company has the right to have its food products sold or otherwise distributed from the stands and/or certain general concession areas at Everbank Field, and (iii) the Company has the right to receive a variety of stadium signage at Everbank Field, radio broadcasting on the Jacksonville Jaguars’ radio programming, and digital advertising on the Jacksonville Jaguars’ website and certain of its social media sites.

 

The term of the sponsorship agreement commences on April 1, 2018 and expires on the later of: (i) the conclusion of the 2022/23 NFL season, and (ii) February 28, 2023. The Company is required to pay the Jacksonville Jaguars annual fees in the amount of $200,000 during the first year of the agreement increasing to $216,490 during the last year of the agreement. In addition, the Company is required to provide the Jacksonville Jaguars with food, beverages and serving products equal in value to $35,000 during the first year of the agreement increasing to $37,890 during the last year of the agreement. In the event the Jacksonville Jaguars play in any post-season playoff games, the Company will pay the Jacksonville Jaguars an additional amount per playoff game equal to a pro-rated portion of the annual fee applicable during the then-current year of the agreement.

 

In July 2019, the Company entered into a First Amendment to Sponsorship Agreement (the “Amendment”), with the Jacksonville Jaguars, LLC, a Delaware limited liability company (the “Jaguars”). The Amendment amended the terms of that certain Sponsorship Agreement, dated November 27, 2017, by and between the Company and the Jaguars.

 

Under the terms of the Amendment, during each preseason and regular season football game played by the National Football League’s Jacksonville Jaguars and at certain other events held at the football-based stadium in Jacksonville, Florida currently named “TIAA Bank Field”: (i) the Company has the right to display its branding on two fixed concession stands in the stadium located in the Bud Light Party Zone at Everbank Field, five fixed concession stands on the stadium concourse, and two fixed concession stands on the upper club level of the stadium, and up to four portable concession stands on the north end zone deck, (ii) the Company has the right to have its food products sold or otherwise distributed from the stands and/or certain general concession areas at TIAA Bank Field, (iii) the Company has the right to receive a variety of advertising and stadium signage at TIAA Bank Field, radio broadcasting on the Jacksonville Jaguars’ radio programming, and digital advertising on the Jacksonville Jaguars’ website and certain of its social media sites, and (iv) the Company will be identified as the “Official Watch Party Restaurant / Bar for Jaguars away games, including social media spots, radio spots and banner ads.

 

The Amendment is for a term of 10 NFL football seasons and expires on the later of: (i) the conclusion of the 2028/29 NFL season, and (ii) February 2029. The Company is required to pay the Jaguars annual fees in the amount of $500,000 during the 2019/20 NFL season and $794,444 for each of the next nine NFL seasons. In addition, the Company is required to provide the Jaguars with food, beverages and serving products equal in value to $35,700 during the 2019/20 NFL season increasing to $40,000 for each of the last six NFL seasons. In the event the Jaguars play in any post-season playoff games, the Company will pay the Jaguars an additional amount per playoff game equal to a pro-rated portion of the annual fee applicable during the then-current year of the agreement.

 

 35 
   

 

 ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The following table presents the future minimum annual payments under the sponsorship agreement as of September 30, 2019:

 

Year  

Minimum

Annual
Payments

 
2019 (remaining three months)   $ 166,667  
2020     794,000  
2021     794,000  
2022     794,000  
2023     794,000  
Thereafter     3,970,000  
Total   $ 7,312,667  

 

Teay’s Valley Fire

 

On March 25, 2019, the Company experienced a fire at its Fat Patty’s restaurant located at 5156 State Route 34 in Hurricane, West Virginia. As a result, the restaurant was closed for repair. The company has an insurance policy in place on the property and received insurance proceeds in the amount of $186,224 and $766,109 under the policy for such items as lost income and damaged equipment during the three- and nine-month periods ended September 30, 2019. The Company recorded $186,224 and $584,521 of the insurance proceeds under “revenue – restaurant sales” for the three-and nine-month periods ended September 30, 2019 on its condensed consolidated statements of operations as that portion of the insurance proceeds was paid for lost income from business interruption, and recorded the remaining $181,588 of the insurance proceeds under “income from insurance proceeds” on its condensed consolidated statements of operations for the three- and nine-month periods ended September 30, 2019 as that portion of the insurance proceeds was for equipment and other assets that were destroyed in the fire. The restaurant is expected to reopen in mid-November 2019.

 

Note 17. Related-Party Transactions

 

Except as otherwise set forth below, all of the following transactions are with Seenu G. Kasturi or an entity affiliated with Mr. Kasturi. On January 18, 2017, Mr. Kasturi was appointed as the Company’s President, Chief Financial Officer and Chairman of the Company’s board of directors. As of September 30, 2019, Mr. Kasturi was the beneficial owner of 30.3% of the Company’s common stock and 100% of the Company’s Series A convertible preferred stock, collectively representing 89.4% of the voting power of the Company’s capital stock.

 

 36 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Seenu G. Kasturi has served as Vice President and Controller of TKFO since June 2018. He has owned all of the outstanding membership interests in DWG Acquisitions and Raceland QSR and has served as the President, Treasurer and Secretary of DWG Acquisitions and Raceland QSR, since their formation in 2013 and 2012, respectively. Mr. Kasturi has owned 90% of the equity interests in Blue Victory and has served as its President, Treasurer, Secretary and sole member of its board of directors since its formation in 2009. He also owned all of the outstanding membership interests in Seediv, and served as its President, Treasurer and Secretary, from its formation in July 2016 to December 19, 2016, the date the Company acquired Seediv.

 

Employment Agreements

 

In January 2017, the Company appointed Seenu G. Kasturi as its President, Chief Financial Officer and Chairman of the board of directors and, in connection therewith, entered into an employment agreement with him. In January 2019, the Company appointed Mr. Kasturi as its Chief Executive Officer and entered into a new employment agreement with him. As of September 30, 2019, Mr. Kasturi served as the Company’s Chief Executive Officer, Chief Financial Officer and Chairman of the its board of directors. A description of the employment agreement is set forth herein under Note 16. Commitments and Contingencies – Employment Agreements – Seenu G. Kasturi.

 

In January 2013, the Company entered into an employment agreement with Richard W. Akam in connection with his appointment as the Company’s Chief Operating Officer. As of September 30, 2019, Mr. Akam served as the Company’s Chief Operating Officer and Secretary. A description of the employment agreement is set forth herein under Note 16. Commitments and Contingencies – Employment Agreements – Richard W. Akam.

 

In July 2019, the Company appointed Alex Andre as its Chief Financial Officer and, in connection therewith, entered into an employment agreement with him. A description of the employment agreement is set forth herein under Note 16. Commitments and Contingencies – Employment Agreements – Alex Andre.

 

Financing Transactions

 

The Company is a party to a credit facility with Blue Victory. A description of the credit facility is set forth herein under Note 11. Debt Obligations.

 

The Company borrowed funds from, and repaid funds to, Blue Victory under a separate loan that it had entered into with Blue Victory during the year ended December 31, 2017. A description of the loan is set forth herein under Note 11. Debt Obligations.

 

Leases

 

In October 2013, DWG Acquisitions entered into a triple net shopping center lease with NTC-REG, LLC (“NTC-REG) for the Nocatee Restaurant. A description of the lease is set forth herein under Note 16. Commitments and Contingencies – Operating Leases. The lease was assumed by Seediv on December 1, 2016 when Seediv acquired all of the assets and liabilities associated with the Nocatee and Youngerman Circle Restaurants from DWG Acquisitions, and became the Company’s obligation when the Company acquired Seediv on December 19, 2016. On April 1, 2017, DWG Acquisitions, Seediv and NTC-REG entered into an assignment and assumption & first modification to lease agreement for the Nocatee Restaurant. A description of the agreement is set forth herein under Note 16. Commitments and Contingencies – Operating Leases.

 

 37 
   

 

 ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

In May 2014, DWG Acquisitions entered into a triple net lease with Raceland QSR for the Youngerman Circle Restaurant. A description of the lease is set forth herein under Note 16. Commitments and Contingencies – Operating Leases. The lease was assumed by Seediv on December 1, 2016 when Seediv acquired all of the assets and liabilities associated with the Nocatee and Youngerman Circle Restaurants from DWG Acquisitions, and became the Company’s obligation when the Company acquired Seediv on December 19, 2016. On December 20, 2016, Seediv entered into a new triple net lease with Raceland QSR for the Youngerman Circle Restaurant. A description of the lease is set forth herein under Note 16. Commitments and Contingencies – Operating Leases.

 

On November 15, 2018, the Company entered into a triple net lease with the Kasturi Children’s Trust (the “Trust”) for its new corporate headquarters. A description of the lease is set forth herein under Note 16. Commitments and Contingencies – Operating Leases.

 

Upon the expiration of the Panama City Lease on June 30, 2018, DWG Acquisitions entered into a month-to-month tenancy with Arquette Development pursuant to which DWAG PCB makes monthly rent payments of $3,000 to Arquette Development on behalf of DWG Acquisitions. A description of the Panama City Lease and DWG Acquisitions’ month-to-month tenancy with Arquette Development is set forth herein under Note 16. Commitments and Contingencies – Operating Leases.

 

Franchise Agreements

 

Prior to December 31, 2018, the Company had been a party to several franchise agreements with DWG Acquisitions pursuant to which DWG Acquisitions owned and operated Dick’s Wings restaurants. The terms of these franchise agreements were identical to the terms of the franchise agreements that the Company enters into with unrelated franchisees, except that the Company did not require DWG Acquisitions to pay a franchise fee to the Company under the franchise agreements for the Nocatee and Youngerman Circle Restaurants. The Company generated $23,256 and $100,994 in royalties and franchise fees through its franchise agreements with DWG Acquisitions during the three- and nine-month periods ended September 30, 2018, respectively. The Company had a total of $41,512 for accounts payable and accrued expenses outstanding from DWG Acquisitions at December 31, 2018. The Company did not have any accounts payable and accrued expenses outstanding from DWG Acquisitions at September 30, 2019.

 

In September 2018, the Company became a franchisee of a Tilted Kilt restaurant located in Gonzales, Louisiana. Richard W. Akam, who serves as the Company’s Chief Operating Officer and Secretary, has served as President of TKFO since June 2018, and Ketan Pandya, who serves as a member of the Company’s board of directors, has served as Vice President of Franchise Relations of TKFO since June 2018. Fred D. Alexander, who serves as a member of the Company’s board of directors, is the owner of SDA Holdings. The Company closed the Tilted Kilt restaurant and terminated the franchise agreement in August 2019. The Company paid ad fund fees of $1,444 and $9,423 to Tilted Kilt during the three- and nine-month periods ended September 30, 2019. The Company was not required to pay any royalties or franchise fees to Tilted Kilt under its franchise agreement with Tilted Kilt.

 

Series A Convertible Preferred Stock

 

In June 2018, the Company entered into a securities purchase agreement with Seenu G. Kasturi pursuant to which the Company issued Mr. Kasturi 449,581 shares of Series A convertible preferred stock in exchange for 449,581 shares of common stock then held by Mr. Kasturi. A description of this transaction is set forth herein under Note 13. Capital Stock.

 

 38 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Acquisitions and Dispositions

 

On December 19, 2016, the Company acquired all of the outstanding membership interests of Seediv from Seenu G. Kasturi for a purchase price of $600,000 and an earnout payment. The earn-out payment was determined to be $199,682, of which $144,326 had been paid as of September 30, 2019. As part of the transaction, the Company assumed debt owed by Seediv to Blue Victory in the amount of $216,469 which the Company repaid in full during the year ended December 31, 2017. A description of the debt is set forth herein under Note 11. Debt Obligations.

 

On October 4, 2017, Seediv entered into an agreement for purchase and sale of real estate with Raceland QSR pursuant to which Seediv agreed to purchase the real property located at 6055 Youngerman Circle in Argyle Circle, Jacksonville, Florida from Raceland QSR. The purchase price for the property was to be the lesser of: (i) $2,000,000, or (ii) the appraised value of the property determined by the appraisal completed by the financing source proposed to be utilized by Seediv to finance the acquisition of the property. The agreement provided for the payment by Seediv of a deposit of $10,000 within 10 days of the date of the agreement to an escrow agent to be selected by the parties with the remainder of the purchase price to be paid by Seediv at closing. Seediv had the right to terminate the transaction in the event that certain feasibility studies, the title commitment or the appraisal was unsatisfactory to Seediv, or if Raceland QSR breached any of its representations, warranties, covenants, agreements or obligations under the agreement, in which case the deposit would be returned to Seediv. The closing of the transaction was to occur on December 3, 2017.

 

On November 30, 2017, Seediv and Raceland QSR entered into an amendment to the agreement pursuant to which the parties agreed to extend the closing date by 60 calendar days. On February 1, 2018, Seediv and Raceland QSR entered into a termination agreement and mutual release with respect to the agreement pursuant to which the parties agreed to terminate the agreement and release each other from any claims arising out of the agreement.

 

On August 30, 2018, the Company closed upon the asset purchase agreement for Fat Patty’s. In connection therewith, the Company issued a secured convertible promissory note to Seenu G. Kasturi pursuant to which the Company borrowed $622,929 to help finance this acquisition. A description of the promissory note is set forth herein under Note 11. Debt Obligations.

 

On October 30, 2018, the Company entered into a membership interest purchase agreement with SDA Holdings and Fred D. Alexander pursuant to which the Company agreed to acquire all of the issued and outstanding membership interests in SDA Holdings. A description of this transaction is set forth herein under Note 5. Agreement to Acquire Tilted Kilt. Richard W. Akam, who served as the Company’s Chief Operating Officer and Secretary as of September 30, 2019, has served as President of TKFO since June 2018, and Ketan Pandya, who serves as a member of the Company’s board of directors, has served as Vice President of Franchise Relations of TKFO since June 2018. Mr. Alexander serves as a member of the Company’s board of directors.

 

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 ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Other Related-Party Arrangements.

 

Certain part-time employees of the Company are also employed on a part-time basis by various entities affiliated with Seenu G. Kasturi. In addition, the Company had a total of $350,530 and $231,187 of accounts payable and accrued expenses outstanding at September 30, 2019 and December 31, 2018, respectively, that were owed to employees and other affiliates of the Company primarily for salaries and other payroll liabilities.

 

Note 18. Judgments in Legal Proceedings

 

On February 25, 2011, a legal proceeding entitled Duval Station Investment, LLC vs. Hot Wing Concepts, Inc. d/b/a Dick’s Wings and Grill, and American Restaurant Concepts, Inc. was filed with the Fourth Judicial Circuit Court in and for Duval County, Florida. In the complaint, the plaintiff alleged damages for breach of guaranty. On October 4, 2011, a final judgment was entered by the court in favor of the plaintiff in the amount of $161,747, and on November 11, 2011 a final judgment for attorneys’ fees and costs was entered in favor of the plaintiff in the amount of $33,000. These judgments, together with accrued interest of $2,369 thereon, resulted in a total loss from legal proceedings of $197,116 during the year ended December 25, 2011. The Company had not paid any part of the judgment or the accrued interest thereon. As a result, the loss was reflected in settlement agreements payable at September 30, 2019 and December 31, 2018. Interest expense in the amount of $2,841 and $8,431 accrued on the outstanding balance of the loss during the three- and nine-month periods ended September 30, 2019. The interest expense was credited to settlement agreements payable. The Company had accrued interest of $89,953 and $81,522 outstanding at September 30, 2019 and December 31, 2018, respectively. The outstanding judgment and legal fees in the amount of $194,747 along with the accrued interest of $89,953 totaled $284,700 at September 30, 2019. The outstanding judgment and legal fees in the amount of $194,747 along with the accrued interest of $81,522 totaled $276,269 at December 31, 2018.

 

In January 2015, Santander Bank filed a complaint against the Company in the Circuit Court, Fourth Judicial Circuit in and for Duval County, Florida, seeking damages of $194,181 plus interest, costs and attorney’s fees for breach of a guaranty of certain obligations of Ritz Aviation, LLC (“Ritz Aviation”) under a promissory note executed by Ritz Aviation in July 2005. During the Company’s fourth fiscal quarter of 2016, Santander Bank informed the Company that certain assets of Ritz Aviation had been sold for $82,642 and that the proceeds from the sale were applied towards the balance of the damages being sought, resulting in an outstanding balance of damages sought of $111,539. The outstanding balance of damages sought was reflected in accrued legal contingency at September 30, 2019 and December 31, 2018. Interest expense in the amount of $1,974 and $5,856 accrued on the outstanding balance of the accrued legal contingency during the three- and nine-month period ended September 30, 2019. The interest expense was credited to accrued legal contingency. A total of $47,495 and $41,638 of accrued interest, and $10,586 of other expenses (excluding legal fees), were outstanding at September 30, 2019 and December 31, 2018, respectively, resulting in an aggregate potential loss of $169,620 and $163,764 at September 30, 2019 and December 31, 2018, respectively. This case is currently pending.

 

 40 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Note 19. Segment Reporting

 

The Company has two reportable segments, which are Company-owned restaurants and franchise operations.

 

Company-Owned Restaurants

 

Company-owned restaurants consist of several brands that are aggregated into one reportable segment because of the nature of the products and services, the production processes, the customers, the methods used to distribute the products and services, the nature of the regulatory environment, and store level profit margin for each of the brands are similar. The brands are Dick’s Wings and Grill and Fat Patty’s. All Company-owned restaurants are casual dining restaurants. There were a total of eight and nine company-owned restaurants at September 30, 2019 and December 31, 2018, respectively.

 

Franchise Operations

 

The Company only offers franchises for the Dick’s Wings brand. All franchised restaurants are casual dining restaurants. Franchises are sold in markets where expansion is deemed advantageous to the development of the Dick’s Wings brand and system of restaurants. The Company enters into franchise agreements with franchisees to build and operate restaurants using the Dicks Wings brand within a defined geographic area. The agreements have a 10-year term and can be renewed for one additional 10-year term.

 

In exchange for royalty payments, advertising funds, franchise fees and area development fees, the Company provides the franchisees with the use of its Dick’s Wings trademarks and Dick’s Wings system, which includes uniform operating procedures, standards for consistency and quality of products, technical knowledge, and procedures for accounting, inventory control and management. The Company also provides franchisees with assistance with site selection, prototypical architectural plans, interior and exterior design and layout, training, marketing and sales techniques, and restaurant openings. Franchisees generally remit royalty payments weekly for the prior week’s sales. Franchise fees and area development fees are paid upon the signing of the related franchise agreements.

 

Franchisees are required to operate their restaurants in compliance with their franchise agreements, which includes adherence to operating and quality control standards, procedures and specifications established by the Company. Franchisees are evaluated regularly by the Company for compliance with their franchise agreements through the use of periodic, unannounced, on-site inspections and standard evaluation reports.

 

The Company is not required to provide loans, leases, or guarantees to franchisees or the franchisees’ employees and vendors. If a franchisee becomes financially distressed, the Company is not required to provide financial assistance. If financial distress leads to insolvency of the franchisee or the filing of a petition by or against the franchisee under bankruptcy laws, the Company has the right, but not the obligation, to acquire the franchise at fair value as determined by an independent appraiser selected by the Company.

 

There were a total of 16 and 17 franchised restaurants at September 30, 2019 and December 31, 2018, respectively.

 

 41 
   

 

 ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Segment Financial Information

 

Information on segments and a reconciliation of income from operations to net loss is as follows:

 

    Three Months Ended
September 30,  2019
    Three Months Ended
September 30,  2018
    Nine Months Ended
September 30,  2019
    Nine Months Ended
September 30,  2018
 
Revenue                        
Company-owned restaurants   $ 3,803,609     $ 2,104,825     $ 12,150,290     $ 3,871,929  
Franchise operations     239,035       255,239       670,142       791,886  
Total revenue   $ 4,042,644     $ 2,360,064     $ 12,820,432     $ 4,663,815  
                                 
Net Loss                        
Company-owned restaurants   $ 240,570     $ 229,728     $ 639,735     $ 410,820  
Franchise operations     76,872       133,402       276,414       590,597  
Total income from operations     317,442       363,130       916,149       1,001,417  
Corporate and unallocated expenses     (914,956 )     (265,663 )     (2,219,467 )     (911,867 )
Net (loss) / income   $ (597,514 )   $ 97,467     $ (1,303,318 )   $ 89,550  
                                 
Depreciation and Amortization                        
Company-owned restaurants   $ 296,843     $ 47,833     $ 864,980     $ 70,995  
Franchise operations                        
Corporate     1,389       146       5,511       289  
Total   $ 298,232     $ 47,979     $ 870,491     $ 71,284  
                                 
Capital Expenditures                        
Company-owned restaurants   $ 317,780     $ 88,408     $ 468,877     $ 223,526  
Franchise operations                        
Corporate           1,224       9,000       4,058  
Total   $ 317,780     $ 89,632     $ 477,877     $ 227,584  

 

Note 20. Restatement of Previously Issued Condensed Consolidated Financial Statements

 

The Company is restating its condensed consolidated financial statements for the three- and nine-month periods ended September 30, 2018 to correct an error related to the manner by which it recorded $92,638 and $204,378, respectively, of food discounts provided to customers and complimentary meals provided to employees. The Company recorded each of these items as an increase to restaurant operating costs – other operating expenses rather than as a reduction to restaurant sales on its condensed consolidated statements of operations. As a result, restaurant sales and restaurant operating costs – other operating expenses were each overstated by $92,638 and $204,378 during the three-and nine-month periods ended September 30, 2018, respectively. The Company has restated its condensed consolidated financial statements for the three- and nine-month periods ended September 30, 2018 for the sole purpose of reducing restaurant sales and restaurant operating costs – other operating expenses by $92,638 and $204,378, respectively.

 

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 ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

The impact of the restatement on the Company’s condensed consolidated statement of operations for the three- and nine-month periods is presented below. The restatement did not have any impact on the Company’s condensed consolidated balance sheet as of September 30, 2018 or the Company’s statement of cash flows for the nine-month period ended September 30, 2018.

 

    For the Three Months Ended September 30, 2018  

 

Condensed Consolidated Statement of

Operations:

  As Previously Reported     Adjustments     As
Restated
 
Restaurant sales   $ 2,197,463     $ (92,638 )   $ 2,104,825  
Revenue     2,452,702       (92,638 )     2,360,064  
Restaurant operating costs – other operating expenses     (474,165 )     92,638       (381,527 )
Total operating expenses     (2,916,504 )     92,638       (2,823,866 )

 

   For the Nine Months Ended September 30, 2018 

 

Condensed Consolidated Statement of

Operations:

  As Previously Reported   Adjustments   As
Restated
 
Restaurant sales  $4,076,307   $(204,378)  $3,871,929 
Revenue   4,868,193    (204,378)   4,663,815 
Restaurant operating costs – other operating expenses   (911,356)   204,378    (706,978)
Total operating expenses   (5,414,567)   204,378    (5,210,189)

 

Note 21. Subsequent Events

 

Acquisition of WingHouse Concept

 

On October 11, 2019, the Company and ARC WingHouse, LLC, a Florida limited liability company that is a wholly-owned subsidiary of the Company (“ARC WingHouse”), entered into an Asset Purchase Agreement (the “Asset Purchase Agreement”) with Soaring Wings, LLC, a Florida limited liability company (“Soaring Wings”), Soaring Wings HQ, LLC, a Florida limited liability company (“Soaring Wings HQ”), Soaring Wings Advertising, LLC, a Florida limited liability company (“Soaring Wings Advertising”), Soaring Wings IP, LLC, a Florida limited liability company (“Soaring Wings IP”), and the wholly-owned subsidiaries of Soaring Wings that own and operate all of the Restaurants (as defined below) (the “WH Operating Entities”). Soaring Wings, Soaring Wings HQ, Soaring Wings Advertising, Soaring Wings IP and the WH Operating Entities are sometimes collectively referred to as the “Sellers” and each a “Seller”. The Company and ARC Winghouse are sometimes collectively referred to as the “Purchasers”. The transactions contemplated by the Asset Purchase Agreement are sometimes referred to herein collectively as the “Acquisition”. The closing of the Acquisition occurred on October 11, 2019 (the “Closing Date”).

 

 43 
   

 

 ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Sellers are the owners and operators of the WingHouse Bar and Grill restaurant concept (the “WingHouse Concept”), which is comprised of 24 WingHouse Bar and Grill restaurants (the “Restaurants”). Purchasers agreed to pay the Sellers a total of $18,000,000 as adjusted pursuant to a working capital adjustment (the “Purchase Price”), and to assume, satisfy and discharge certain assumed liabilities. On the Closing Date, ARC WingHouse paid $11,000,000 to the Sellers and delivered to Sellers a promissory note in the amount of $1,000,000 (the “Purchaser Note”). The Purchaser Note accrues interest at a rate of five percent (5%) per annum. The Purchaser Note is due and payable in a single payment on the earliest to occur of the following: (i) the first anniversary of the date of the Purchaser Note, (ii) the merger or sale of substantially all the membership interest or assets of ARC WingHouse, and (iii) the liquidation, dissolution or winding up of ARC WingHouse. In addition, ARC WingHouse delivered to SW WH Holdings, LLC, a Florida limited liability company (“SW WH Holdings”), an equity interest in ARC WingHouse representing a ten percent (10%) ownership interest in ARC WingHouse (the “Equity Interest”). The Company also agreed to deliver to Soaring Wings shares (the “ARC Stock”) of the Company’s common stock on each of the first three anniversaries of the Closing Date. The number of shares of common stock to be delivered on each anniversary will be equal to the quotient of $1,000,000 divided by the following per share prices: (i) $1.40 per share of common stock on the first anniversary, (ii) 2.00 per share of common stock on the second anniversary, and (iii) $3.00 per share of common stock on the third anniversary (collectively, the “ARC Stock Consideration”). The per share price of the ARC Stock Consideration will be equitably adjusted for any stock dividend, stock split, reverse stock split or recapitalization. If the ARC Stock is not listed and quoted for trading on the NYSE, NASDAQ Global Select Market, NASDAQ Global Market or NASDAQ Capital Market on any of the first, second and third anniversaries of the Closing (the first such anniversary referred to as a “Listing Failure Anniversary”), then ARC WingHouse will pay $1,000,000 cash to Soaring Wings on the Listing Failure Anniversary and each anniversary of the Closing after a Listing Failure Anniversary (if any), ending on the third anniversary of the Closing Date in full satisfaction of the Company’s obligation to deliver the ARC Stock Consideration to Soaring Wings on the Listing Failure Anniversary and each anniversary thereafter, ending on the 3rd anniversary (the “Contingent Cash Consideration”). Notwithstanding the existence of a Listing Failure Anniversary, Soaring Wings may, in its sole discretion, elect to receive ARC Stock on the Listing Failure Anniversary and/or any anniversary after the Listing Failure Anniversary in lieu of a $1,000,000 cash payment by providing ARC WingHouse with written notice no less than 30 days before the Listing Failure Anniversary or subsequent anniversary, as applicable. The ARC Stock Consideration is subject to the terms of a Put Agreement (as defined below), and Sellers were granted customary piggy-back registration rights with respect to the ARC Stock Consideration.

 

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ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

Also on October 11, 2019, the Purchasers entered into a Put Agreement (the “Put Agreement”; together with the Asset Purchase Agreement, the “Purchase Agreements”) with Soaring Wings pursuant to which Soaring Wings was granted the right, but not the obligation, upon written notice to the Purchasers given at any time before the Put Deadline (as defined below), to require the Company to purchase, for cash, at the Put Closing (as defined below), all or any portion of the shares of ARC Stock received by Soaring Wings under Section 1.2(c) of the Asset Purchase Agreement or Section 15 of the Put Agreement. In the event Soaring Wings receives ARC Stock pursuant to Section 1.2(c) of the Asset Purchase Agreement and puts all of such ARC Stock to the Company, then the amount payable by the Company to Soaring Wings at the Put Closing will be equal to the Put Price (as defined below). In the event Soaring Wings elects to put only a portion of such shares to the Company, either because Soaring Wings received Contingent Cash Consideration on one or more of such anniversaries, Soaring Wings sold some of the ARC Stock, Soaring Wings elected to retain some of the ARC Stock and put only a portion of the ARC Stock to the Company, and/or for any other reason, then the amount payable by the Company to Soaring Wings at the Put Closing will calculated in the following manner: (x) the Put Price, multiplied by (y) a fraction, the numerator of which is the number of shares of ARC Stock put to the Company by Soaring Wings hereunder, and the denominator of which is the number of shares of ARC Stock received by Soaring Wings under the Asset Purchase Agreement had Soaring Wings received ARC Stock on each of the first, second and third anniversaries of the Closing Date. The amount payable by the Company to Soaring Wings at the Put Closing is referred to herein as, the “Put Payment”. In the event that Soaring Wings receives the Put Price from Purchasers, then, without any action on the part of the Purchasers, SW WH Holdings or any other person, the Equity Interest will be immediately terminated and forfeited to ARC WingHouse and no longer be owned beneficially or of record by SW WH Holdings.

 

For the purposes hereof, “Put Price” means an amount equal to: (i) $6,000,000, less (ii) the aggregate dividends (if any) received by Soaring Wings from the Company attributable to any shares of ARC Stock received by Soaring Wings under Section 1.2(c) of the Asset Purchase Agreement and not required to be paid to City National Bank (as defined below) pursuant to that certain Subordination Agreement, dated October 11, 2019, by ARC WingHouse and Soaring Wings for the benefit of City National Bank (the “Subordination Agreement”), less (iii) the aggregate distributions (other than tax distributions) made by ARC WingHouse to Soaring Wings under its operating agreement that are not required to be paid to City National Bank pursuant to the Subordination Agreement, less (iv) the aggregate cash payments made by Purchaser to Soaring Wings following a Listing Failure Anniversary pursuant to Section 1.2(c) of the Asset Purchase Agreement that are not required to be paid to City National Bank pursuant to the Subordination Agreement (and for the avoidance of doubt, were not applied to satisfy losses pursuant to Section 7.9(b) under the Asset Purchase Agreement), less (v) the aggregate amount of losses satisfied by Sellers to Purchasers or their indemnitees pursuant to Sections 7.9(a), (b) and (c) under the Asset Purchase Agreement that are not required to be paid to City National Bank pursuant to the Subordination Agreement.

 

For the purposes hereof, “Put Deadline” means the later of (y) the fifth anniversary of the Closing Date and (z) 12 months following the date on which the Company provides written notice to Soaring Wings that: (i) it has indefeasibly paid and satisfied in full the Loan (as defined below), (ii) Soaring Wings is not restricted from exercising its rights under this Agreement (in whole or in part) pursuant to the Subordination Agreement, or otherwise, and (iii) the Company has legally sufficient funds to pay the Put Payment in full.

 

In connection with the closing of the Acquisition, Seenu G. Kasturi executed a guaranty in favor of Soaring Wings guaranteeing all of the Purchasers’ obligations under the Asset Purchase Agreement, the Put Agreement, and the Purchaser Note.

 

Financing of WingHouse Acquisition

 

On October 11, 2019, ARC WingHouse entered into a Loan Agreement (the “Loan Agreement”) with City National Bank of Florida (“City National Bank”) pursuant to which the Company borrowed $12,250,000 (the “Loan”) to help fund the acquisition of the WingHouse Concept. In connection therewith, ARC WingHouse issued a promissory note in favor of City National Bank in the amount of $12,250,000 (the “CNB Note”). Interest accrues under the CNB Note at a rate of six percent (6%) per annum. The Company makes monthly payments of principal and interest of $179,481 to City National Bank under the CNB Note. The entire outstanding principal balance of the CNB Note plus all accrued interest is due and payable in full on October 11, 2024.

 

 45 
   

 

ARC Group, Inc.

Notes to Condensed Consolidated Financial Statements

 

ARC WingHouse may make prepayments of principal under the CNB Note, provided, however, that (i) if ARC WingHouse prepays any portion of the outstanding balance of the CNB Note during the first year of the term of the CNB Note, ARC WingHouse will pay a fee to City National Bank in an amount equal to three percent (3%) of the amount prepaid by ARC WingHouse in excess of $2,250,000, (ii) if ARC WingHouse prepays any portion of the outstanding balance of the CNB Note during the second year of the term of the CNB Note, ARC WingHouse will pay to City National Bank a fee in an amount equal to two percent (2%) of the amount prepaid by ARC WingHouse, and (iii) if ARC WingHouse prepays any portion of the outstanding balance of the CNB Note during the third (3rd) year of the term of the CNB Note, ARC WingHouse will pay to City National Bank a fee in an amount equal to one percent (1%) of the amount prepaid by ARC WingHouse. Thereafter, ARC WingHouse may make prepayments of principal under the CNB Note without penalty or premium.

 

Seenu G. Kasturi, as guarantor for the loan, deposited $1,250,000 with City National Bank in an account that is under the sole control of City National Bank. Mr. Kasturi granted a security interest to City National Bank in the account and the funds held therein as security for the loan. City National Bank will return the funds to Mr. Kasturi in the event ARC WingHouse contributes a like amount of funds to City National Bank. City National Bank will return all funds held in the account to Mr. Kasturi or ARC WingHouse, as applicable, upon repayment of the loan by ARC WingHouse.

 

In addition, ARC WingHouse deposited $1,000,000 with City National Bank in an account that is under the sole control of City National Bank. ARC WingHouse granted a security interest to City National Bank in the account and the funds held therein as security for the loan. After April 11, 2020, but no sooner than City National Bank receives AR