UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
Form
10-Q
x QUARTERLY REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
For
the quarterly period ended September 30, 2008
OR
o TRANSITION REPORT UNDER
SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
For
the transition period from
___________to___________
Commission
File Number 001-32334
TurboChef
Technologies, Inc.
(Exact
name of Registrant as specified in its Charter)
|
DELAWARE
|
48-1100390
|
|
(State
or other jurisdiction of incorporation or organization)
|
(IRS
employer identification number)
|
|
|
|
|
Six Concourse Parkway,
Suite 1900
Atlanta, Georgia
|
30328
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
|
|
|
|
Registrant's telephone
number, including area code:
|
|
(678)
987-1700
|
Indicate
by check mark whether the Registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the Registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. YES x
NO o
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definitions of “large accelerated filer”, “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
|
Large
Accelerated Filer o
|
Accelerated
Filer x
|
|
Non-Accelerated
Filer o (Do not check if
a smaller Reporting Company)
|
Smaller
Reporting Company o
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). YES o NO x
Indicate
the number of shares outstanding of each of the issuer's classes of common
stock, as of the latest practicable date.
|
Title of Each
Class
|
Number of Shares
Outstanding
At November
1,
2008
|
|
Common
Stock, $0.01 Par Value
|
30,789,825
|
TURBOCHEF
TECHNOLOGIES, INC.
TABLE
OF CONTENTS
UNAUDITED
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN
THOUSANDS, EXCEPT SHARE DATA)
|
|
|
September
30,
2008
|
|
|
December
31,
2007
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
assets:
|
|
|
|
|
|
|
|
Cash
and cash equivalents
|
|
$ |
7,007 |
|
|
$ |
10,149 |
|
|
Accounts
receivable, net of allowance of $397 and $195
|
|
|
10,372 |
|
|
|
38,657 |
|
|
Other
receivables
|
|
|
651 |
|
|
|
2,502 |
|
|
Inventory,
net
|
|
|
16,513 |
|
|
|
11,883 |
|
|
Prepaid
expenses
|
|
|
8,615 |
|
|
|
3,307 |
|
|
Total
current assets
|
|
|
43,158 |
|
|
|
66,498 |
|
|
|
|
|
|
|
|
|
|
|
|
Property
and equipment, net
|
|
|
6,589 |
|
|
|
6,728 |
|
|
Developed
technology, net of accumulated amortization of $3,519 and
$2,914
|
|
|
4,551 |
|
|
|
5,156 |
|
|
Goodwill
|
|
|
5,934 |
|
|
|
5,934 |
|
|
Covenant
not-to-compete, net of accumulated amortization of $1,706 and
$1,286
|
|
|
3,894 |
|
|
|
4,314 |
|
|
Other
assets
|
|
|
94 |
|
|
|
91 |
|
|
|
|
|
|
|
|
|
|
|
|
Total
assets
|
|
$ |
64,220 |
|
|
$ |
88,721 |
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities
and Stockholders' Equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
liabilities:
|
|
|
|
|
|
|
|
|
|
Accounts
payable
|
|
$ |
12,616 |
|
|
$ |
20,178 |
|
|
Accrued
expenses
|
|
|
5,143 |
|
|
|
9,894 |
|
|
Future
installments due on covenants not-to-compete and additional consideration
for assets acquired
|
|
|
2,343 |
|
|
|
3,801 |
|
|
Amounts
outstanding under credit facility
|
|
|
6,000 |
|
|
|
9,000 |
|
|
Deferred
revenue
|
|
|
8,739 |
|
|
|
9,554 |
|
|
Accrued
warranty
|
|
|
-- |
|
|
|
558 |
|
|
Deferred
rent
|
|
|
247 |
|
|
|
247 |
|
|
Other
current liabilities
|
|
|
-- |
|
|
|
1,908 |
|
|
Total
current liabilities
|
|
|
35,088 |
|
|
|
55,140 |
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
rent, non-current
|
|
|
791 |
|
|
|
974 |
|
|
Other
liabilities
|
|
|
108 |
|
|
|
100 |
|
|
|
|
|
|
|
|
|
|
|
|
Total
liabilities
|
|
|
35,987 |
|
|
|
56,214 |
|
|
|
|
|
|
|
|
|
|
|
|
Commitments
and contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders'
equity:
|
|
|
|
|
|
|
|
|
|
Preferred
stock, $1 par value, authorized 5,000,000 shares, 0 shares
issued
|
|
|
-- |
|
|
|
-- |
|
|
Preferred
membership units exchangeable for shares of TurboChef common
stock
|
|
|
380 |
|
|
|
380 |
|
|
Common
stock, $.01 par value, authorized 100,000,000 shares, issued 30,721,565
and 29,568,325 shares at September 30, 2008 and December
31, 2007, respectively
|
|
|
307 |
|
|
|
296 |
|
|
Additional
paid-in capital
|
|
|
185,657 |
|
|
|
173,857 |
|
|
Accumulated
deficit
|
|
|
(158,111
|
) |
|
|
(142,026
|
) |
|
Total
stockholders' equity
|
|
|
28,233 |
|
|
|
32,507 |
|
|
|
|
|
|
|
|
|
|
|
|
Total
liabilities and stockholders' equity
|
|
$ |
64,220 |
|
|
$ |
88,721 |
|
The
accompanying notes are an integral part of these financial
statements.
UNAUDITED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN
THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
|
|
|
Three
Months Ended
September
30,
|
|
|
Nine
Months Ended
September
30,
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
sales
|
|
$ |
20,088 |
|
|
$ |
32,247 |
|
|
$ |
65,240 |
|
|
$ |
72,912 |
|
|
Royalties
|
|
|
223 |
|
|
|
246 |
|
|
|
739 |
|
|
|
880 |
|
|
Total
revenues
|
|
|
20,311 |
|
|
|
32,493 |
|
|
|
65,979 |
|
|
|
73,792 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Costs
and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost
of product sales
|
|
|
12,338 |
|
|
|
19,579 |
|
|
|
39,536 |
|
|
|
45,043 |
|
|
Research
and development expenses
|
|
|
858 |
|
|
|
1,101 |
|
|
|
3,657 |
|
|
|
3,967 |
|
|
Selling,
general and administrative expenses
|
|
|
11,816 |
|
|
|
13,665 |
|
|
|
38,222 |
|
|
|
38,154 |
|
|
Total
costs and expenses
|
|
|
25,012 |
|
|
|
34,345 |
|
|
|
81,415 |
|
|
|
87,164 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
loss
|
|
|
(4,701
|
) |
|
|
(1,852
|
) |
|
|
(15,436
|
) |
|
|
(13,372
|
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
income
|
|
|
36 |
|
|
|
160 |
|
|
|
133 |
|
|
|
561 |
|
|
Interest
expense and other
|
|
|
(318
|
) |
|
|
(72
|
) |
|
|
(782
|
) |
|
|
(388
|
) |
|
|
|
|
(282
|
) |
|
|
88 |
|
|
|
(649
|
) |
|
|
173 |
|
|
Net
loss
|
|
$ |
(4,983 |
) |
|
$ |
(1,764 |
) |
|
$ |
(16,085 |
) |
|
$ |
(13,199 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Per
share data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss per share - basic and diluted
|
|
$ |
(0.16 |
) |
|
$ |
(0.06 |
) |
|
$ |
(0.53 |
) |
|
$ |
(0.45 |
) |
|
Weighted
average number of common shares outstanding - basic and
diluted
|
|
|
30,471,742 |
|
|
|
29,274,530 |
|
|
|
30,269,081 |
|
|
|
29,248,970 |
|
The
accompanying notes are an integral part of these financial
statements.
UNAUDITED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN
THOUSANDS)
|
|
|
Nine
Months Ended September 30,
|
|
|
|
|
2008
|
|
|
2007
|
|
|
Cash
flows from operating activities:
|
|
|
|
|
|
|
|
Net
loss
|
|
$ |
(16,085 |
) |
|
$ |
(13,199 |
) |
|
Adjustments
to reconcile net loss to net cash provided by (used in) operating
activities:
|
|
|
|
|
|
|
|
|
|
Depreciation
and amortization
|
|
|
3,728 |
|
|
|
2,906 |
|
|
Amortization
of deferred rent
|
|
|
(183
|
) |
|
|
(183
|
) |
|
Amortization
of deferred loan costs and non-cash interest
|
|
|
534 |
|
|
|
321 |
|
|
Amortization
of common stock and warrant issued in exchange for marketing and related
services
|
|
|
3,275 |
|
|
|
-- |
|
|
Non-cash
compensation expense
|
|
|
2,718 |
|
|
|
1,225 |
|
|
Provision
for doubtful accounts
|
|
|
242 |
|
|
|
302 |
|
|
Other
|
|
|
(19
|
) |
|
|
11 |
|
|
Changes
in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
Accounts
receivable
|
|
|
27,863 |
|
|
|
(20,868
|
) |
|
Inventories
|
|
|
(5,485
|
) |
|
|
(2,203
|
) |
|
Prepaid
expenses and other assets
|
|
|
(1,492
|
) |
|
|
981 |
|
|
Accounts
payable and other payables
|
|
|
(7,563
|
) |
|
|
10,745 |
|
|
Accrued
expenses and warranty
|
|
|
(5,322
|
) |
|
|
3,254 |
|
|
Deferred
revenue
|
|
|
(815
|
) |
|
|
2,682 |
|
|
Net
cash provided by (used in) operating activities
|
|
|
1,396 |
|
|
|
(14,026
|
) |
|
|
|
|
|
|
|
|
|
|
|
Cash
flows from investing activities:
|
|
|
|
|
|
|
|
|
|
Purchases
of property and equipment
|
|
|
(2,118
|
) |
|
|
(571
|
) |
|
Disposals
of property and equipment
|
|
|
616 |
|
|
|
-- |
|
|
Net
cash used in investing activities
|
|
|
(1,502
|
) |
|
|
(571
|
) |
|
|
|
|
|
|
|
|
|
|
|
Cash
flows from financing activities:
|
|
|
|
|
|
|
|
|
|
Borrowings
under credit facility
|
|
|
8,000 |
|
|
|
9,000 |
|
|
Repayments
of credit facility
|
|
|
(11,000
|
) |
|
|
-- |
|
|
Proceeds
from the exercise of stock options
|
|
|
146 |
|
|
|
313 |
|
|
Payment
of deferred loan costs
|
|
|
(182
|
) |
|
|
(150
|
) |
|
Net
cash (used in) provided by financing activities
|
|
|
(3,036
|
) |
|
|
9,163 |
|
|
|
|
|
|
|
|
|
|
|
|
Net
decrease in cash and cash equivalents
|
|
|
(3,142
|
) |
|
|
(5,434
|
) |
|
Cash
and cash equivalents at beginning of period
|
|
|
10,149 |
|
|
|
19,675 |
|
|
Cash
and cash equivalents at end of period
|
|
$ |
7,007 |
|
|
$ |
14,241 |
|
|
|
|
|
|
|
|
|
|
|
|
NON
CASH OPERATING AND FINANCING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance
of common stock and warrant in exchange for marketing and related
services
|
|
$ |
5,240 |
|
|
$ |
-- |
|
|
|
|
|
|
|
|
|
|
|
|
Issuance
of common stock for acquisition of intangible assets
|
|
$ |
1,821 |
|
|
$ |
1,520 |
|
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL
DISCLOSURES OF CASH FLOW INFORMATION:
|
|
|
|
|
|
|
|
|
|
Cash
paid for interest
|
|
$ |
$305 |
|
|
$ |
28 |
|
|
Cash
paid for income taxes
|
|
|
-- |
|
|
|
-- |
|
The
accompanying notes are an integral part of these financial
statements.
NOTES
TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE
1. NATURE OF OPERATIONS AND BASIS OF PRESENTATION
TurboChef
Technologies, Inc. (the “Company”) was incorporated in 1991 and became a
Delaware corporation in 1993. The Company is a leading provider of equipment,
technology and services focused on the high speed preparation of food products.
The Company’s customizable commercial speed cook ovens cook food products at
high speeds with food quality comparable, and in many cases superior, to
conventional heating methods. The Company's primary markets have been with
commercial food service operators throughout North America, Europe and
Australia. However, with the recent introduction of oven equipment for
residential markets, the Company has extended application of its high-speed
cooking technologies and has created an additional business
segment.
The
condensed consolidated financial statements of the Company as of September 30,
2008 and 2007 included herein have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission (“SEC”) and have not been
audited by independent registered public accountants. In the opinion of
management, all adjustments of a normal and recurring nature necessary to
present fairly the financial position and results of operations and cash flows
for all periods presented have been made. Pursuant to SEC rules and regulations,
certain information and footnote disclosures normally included in financial
statements prepared in accordance with accounting principles generally accepted
in the United States of America (“GAAP”) have been condensed or omitted from
these statements unless significant changes have taken place since the end of
the Company's most recent fiscal year. The Company's December 31, 2007
consolidated balance sheet was derived from audited financial statements and
notes included in the Company's Annual Report on Form 10-K for the year ended
December 31, 2007, but does not include all disclosures required by GAAP. It is
suggested that these financial statements be read in conjunction with the
financial statements and notes included in the aforementioned Form 10-K. The
results of operations for the three and nine months ended September 30, 2008 are
not necessarily indicative of the results to be expected for the full
year.
The
unaudited condensed consolidated financial statements include the accounts of
TurboChef Technologies, Inc. and its majority-owned and controlled companies.
Significant intercompany accounts and transactions have been eliminated in
consolidation.
On August
12, 2008, the Company announced that The Middleby Corporation agreed to acquire
all of the outstanding common stock of TurboChef Technologies, Inc. in a deal
valued at approximately $200 million in cash and stock as of August 11, 2008,
the last trading date prior to the announcement of the acquisition (see Note
11).
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES
For
information regarding significant accounting policies, see Note 2 to the
Consolidated Financial Statements of the Company for the year ended
December 31, 2007, set forth in the Form 10-K.
USE
OF ESTIMATES
The
preparation of the financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Management bases its estimates on certain
assumptions which they believe are reasonable in the circumstances and actual
results could differ from those estimates. The more significant estimates
reflected in these financial statements include warranty, accrued expenses and
valuation of stock-based compensation.
Based
upon current expectations of 2008 results, the Company revised its accrual of
incentive based compensation expense for the year, resulting in a decrease in
selling, general and administrative expenses of $585,000 for the three months
ended September 30, 2008.
REVENUE
RECOGNITION
Revenues
from product sales, which includes all revenues except royalty revenues, are
recognized when no significant vendor obligation remains, title to the product
passes (depending on terms, either upon shipment or delivery), and the customer
has the intent and ability to pay in accordance with contract payment terms that
are fixed and determinable. Certain customers may purchase installation
services. Revenues from these services are deferred and recognized when the
installation service is performed. Certain customers may purchase extended
warranty coverage. Revenue from sales of extended warranties is deferred and
recognized in product sales on a straight-line basis over the term of the
extended warranty contract. Royalty revenues are recognized based on the sales
dates of licensees’ products, and service revenues are recorded based on
attainment of scheduled performance milestones. The Company reports its revenue
net of any sales tax collected.
The
Company’s product sales sometimes involve multiple elements (i.e., products,
extended warranties and installation services). Revenue under multiple element
arrangements is accounted for in accordance with Emerging Issues Task Force
(“EITF”) Issue No. 00-21, “Accounting for Revenue Arrangements
with Multiple Deliverables”. Under this
method, for elements determined to be separate units of accounting, revenue is
allocated based upon the relative fair values of the individual
components.
The
Company provides for returns on product sales based on historical experience and
adjusts such reserves as considered necessary. Reserves for sales returns and
allowances are recorded in the same accounting period as the related revenues
and are not significant for any of the periods presented.
Deferred
revenue includes amounts billed to customers for which revenue has not been
recognized. Deferred revenue consists primarily of unearned revenue from
extended warranty contracts and other amounts billed to customers where the sale
transaction is not yet complete and, accordingly, revenue cannot be
recognized.
COST
OF PRODUCT SALES
Cost of
product sales is calculated based upon the cost of the oven, the cost of any
accessories supplied with the oven, an allocation of cost for applicable
delivery, duties and taxes and a warranty provision. Cost of product sales also
includes cost of replacement parts and accessories and cost of labor, parts and
payments to third parties in connection with fulfilling extended warranty
contracts. For extended warranty contracts, sold prior to the insurance program
as discussed below, the Company compares expected expenditures on extended
warranty contracts to the deferred revenue over the remaining life of the
contracts, and if the expenditures are anticipated to be greater than the
remaining deferred revenue the Company records a charge to cost of product sales
for the difference. Cost of product sales does not include any cost allocation
for administrative and technical support services required to deliver or install
the oven or an allocation of costs associated with the quality control of the
Company's contract manufacturers. These costs are recorded within selling,
general and administrative expenses. Cost of product sales also does not
attribute any allocation of compensation or general and administrative expenses
to royalty and services revenues.
PRODUCT
WARRANTY
The
Company’s ovens are warranted against defects in material and workmanship for a
period of one year (“OEM Warranties”). Additionally, the Company
offers to certain customers extended warranties (“ESP Warranties”). In 2007, the
Company entered into an agreement with an insurance company to insure its
obligations under the OEM and ESP Warranties. The Company remits premiums to the
insurance company and submits for reimbursement all eligible claims made under
the OEM and ESP Warranties. Premiums are recorded as a component of cost of
product sales at the time products are sold for OEM Warranties and over the term
of the extended warranty coverage for ESP Warranties. Premiums will be reviewed
by the Company and the insurance provider and may be adjusted prospectively to
reflect actual and anticipated experience.
GOODWILL
AND OTHER INTANGIBLE ASSETS
Goodwill
represents the excess purchase price of net tangible and intangible assets
acquired in business combinations over their estimated fair values. Statement of
Financial Accounting Standards (“SFAS”) No. 142, Goodwill and Other Intangible
Assets, requires goodwill and other acquired intangible assets that have
indefinite useful lives to no longer be amortized; however, these assets must
undergo an impairment test at least annually. The annual goodwill
impairment test, completed as of October 2007, determined that the carrying
amount of goodwill was not impaired and there have been no developments
subsequent to October 2007 that would indicate impairment exists. The goodwill
impairment review will continue to be performed annually or more frequently if
facts and circumstances warrant a review. The annual impairment test for 2008
has not yet been completed.
SFAS No.
142 also requires that intangible assets with definite lives be amortized over
their estimated useful lives and reviewed for impairment in accordance with SFAS
No. 144, Accounting for
the Impairment or Disposal of Long-Lived Assets. Currently, acquired
developed technology and covenants not-to-compete are both amortized using the
straight-line method over estimated useful lives of 10 years, and the Company
recorded $342,000, in the aggregate, of amortization expense for each of the
three months ended September 30, 2008 and 2007 and $1.0 million for each of the
nine months ended September 30, 2008 and 2007 for these long-lived intangible
assets. Annual amortization for each of the next five years will approximate
$1.4 million.
EARNINGS
PER COMMON SHARE
Basic
earnings per share is calculated by dividing net loss by the weighted-average
number of common shares outstanding during each period. Diluted earnings
per common share is calculated by dividing net income, adjusted on an “as if
converted” basis, by the weighted-average number of actual shares outstanding
and, when dilutive, the share equivalents that would arise from the assumed
conversion of convertible instruments.
The
effect of potentially dilutive stock options and warrants is calculated using
the treasury stock method. For the three and nine months ended September 30,
2008 the potentially dilutive securities include options, warrants and
restricted stock units, convertible into 4.1 million shares of common stock and
Enersyst Development Center, LLC (“Enersyst”) preferred membership units
exchangeable for 37,000 shares of common stock, all of which were
excluded from the calculation of shares applicable to loss per share, because
their inclusion would have been anti-dilutive. For the three and nine months
ended September 30, 2007 the potentially dilutive securities included options
and restricted stock units, which were convertible into 3.8 million shares of
common stock, Enersyst preferred membership units exchangeable
for 37,000 shares of common stock and an indeterminate number of
shares issuable in the future to settle the equity portion of the Company’s
liability for additional consideration due under an asset acquisition agreement,
all of which were excluded from the calculation of shares applicable to loss per
share because their inclusion would have been anti-dilutive.
STOCK
BASED EMPLOYEE COMPENSATION
The fair
value of restricted stock awards is determined based on the number of
shares granted and the quoted price of the Company’s common stock on the date of
grant. Such fair values will be recognized as compensation expense over the
requisite service period, net of estimated forfeitures, using the straight-line
method in accordance with SFAS No. 123 (revised 2004), Share-Based Payment, a
revision of SFAS No. 123, Accounting for Stock Based
Compensation.
During
the nine months ended September 30, 2008, the Company issued 526,000 restricted
stock units to certain employees. These restricted stock units had a weighted
average fair value of $6.31 per unit and the aggregate fair value was $3.3
million. The fair value of these awards was based upon the market price of the
underlying common stock as of the date of grant. All of these awards vest over a
five-year period provided the individual remains in the employment or service of
the Company as of the vesting date. Additionally, these shares could vest
earlier in the event of a change in control, merger or other acquisition, or
upon termination for disability or death. The shares of common stock will be
issued at vesting. As of September 30, 2008, 1.2 million restricted
stock units have been issued by the Company. Stock-based compensation expense
related to these awards was $640,000 and $2.5 million for the three and nine
months ended September 30, 2008. For the three months ended September 30, 2008,
stock-based compensation expense of $51,000 is included in research and
development expenses, $10,000 is included in cost of product sales and the
remainder is included in selling, general and administrative expenses For the
nine months ended September 30, 2008, stock-based compensation expense of
$276,000 is included in research and development expenses, $26,000 is included
in cost of product sales, and the remainder is included in selling, general and
administrative expenses. Stock-based compensation expense related to these
awards was $536,000 and $1.2 million for the three and nine months ended
September 30, 2007. For the three months ended September 30,
2007, stock-based compensation expense of $46,000 is included in research
and development expenses, $4,000 is included in cost of product sales and the
remainder is included in selling, general and administrative expenses and for
the nine months ended September 30, 2007, stock-based compensation expense of
$92,000 is included in research and development expenses, $8,000 is included in
cost of product sales, and the remainder is included in selling, general and
administrative expenses. As of September 30, 2008, the unrecognized
compensation expense related to these restricted stock awards was $8.2
million with a remaining weighted average life of 2.1 years.
NEW
ACCOUNTING PRONOUNCEMENTS
In
September 2006, the FASB issued SFAS No. 157, Fair Value Measurements. SFAS
No. 157 defines fair value, establishes a framework for measuring fair value in
GAAP, and expands disclosures about fair value measurements. This Statement
applies under other accounting pronouncements that require or permit fair value
measurements; however, this statement does not require any new fair value
measurements. The definition of fair value retains the exchange price notion in
earlier definitions of fair value. This Statement emphasizes that fair value is
a market-based measurement, not an entity-specific measurement, and establishes
a fair value hierarchy that distinguishes between (1) market participant
assumptions based on market data and (2) the reporting entity’s own assumptions
about market participant assumptions developed based on the best information
available in the circumstances. This Statement clarifies that market participant
assumptions include assumptions about risk and assumptions about the effect of a
restriction on the sale or use of an asset and clarifies that a fair value
measurement for a liability reflects its nonperformance risk. This Statement
expands disclosures about the use of fair value to measure assets and
liabilities in interim and annual periods subsequent to initial recognition.
SFAS No. 157 is effective for fiscal years beginning after November 15, 2007,
and interim periods within those fiscal years. In February 2008, the FASB issued
Staff Position (FSP) No. 157-2, which delays the effective date of SFAS No. 157
for non-financial assets and liabilities, except those recognized or disclosed
at fair value in the financial statements on a recurring basis. The Company
adopted the requirements of this statement as it pertains to financial assets
and liabilities as of January 1, 2008. The adoption did not have a material
effect on the Company’s financial position or results of operations. The Company
does not expect the adoption of SFAS No. 157, as it pertains to non-financial
assets and liabilities, to have a material effect on the Company’s financial
position or results of operations.
In
February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial
Assets and Financial Liabilities, including an amendment of SFAS No. 115,
Accounting for Certain
Investments in Debt and Equity Securities. SFAS No. 159 permits entities
to choose to measure many financial instruments and certain other items at fair
value. The objective of which is to improve financial reporting by providing
entities with the opportunity to mitigate volatility in reported earnings caused
by measuring related assets and liabilities differently without having to apply
complex hedge accounting provisions. Eligible items for the measurement option
include all recognized financial assets and liabilities except: investments in
subsidiaries, interests in variable interest entities, employers’ and plans’
obligations for pension benefits, assets and liabilities recognized under
leases, deposit liabilities, financial instruments that are a component of
shareholder’s equity. Also included are firm commitments that involve only
financial instruments, nonfinancial insurance contracts and warranties and host
financial instruments. The statement permits all entities to choose at specified
election dates, after which the entity shall report unrealized gains and losses
on items for which the fair value option has been elected in earnings, at each
subsequent reporting date. The fair value option may be applied instrument by
instrument; however, the election is irrevocable and is applied only to entire
instruments and not to portions of instruments. SFAS No. 159 is effective for
fiscal years beginning after November 15, 2007. The Company adopted the
requirements of this statement as of January 1, 2008. The adoption of this
statement did not have a material effect on the Company’s financial position or
results of operations as the Company did not elect to change the measurement of
any assets or liabilities to fair value.
In
December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations. SFAS
No. 141R changes accounting for business combinations through a requirement
to recognize 100 percent of the fair values of assets acquired, liabilities
assumed, and noncontrolling interests in acquisitions of less than a 100 percent
controlling interest when the acquisition constitutes a change in control of the
acquired entity. Other requirements include capitalization of acquired
in-process research and development assets, expensing, as incurred,
acquisition-related transaction costs and capitalizing restructuring charges as
part of the acquisition only if requirements of SFAS No. 146, Accounting for Costs Associated with
Exit or Disposal Activities, are met. SFAS No. 141R is effective for
business combination transactions for which the acquisition date is on or after
the beginning of the first annual reporting period beginning on or after
December 15, 2008. The implementation of this guidance will affect the
Company’s results of operations and financial position after its effective date
only to the extent it completes applicable business combinations and therefore
the impact can not be determined at this time.
In
December 2007, the FASB issued SFAS No. 160, Noncontrolling Interest in
Consolidated Financial Statements, an amendment of ARB No. 51 (“SFAS
No. 160”). SFAS No. 160 establishes the economic entity concept of
consolidated financial statements, stating that holders of residual economic
interest in an entity have an equity interest in the entity, even if the
residual interest is related to only a portion of the entity. Therefore, SFAS
No. 160 requires a noncontrolling interest to be presented as a separate
component of equity. SFAS No. 160 also states that once control is
obtained, a change in control that does not result in a loss of control should
be accounted for as an equity transaction. The statement requires that a change
resulting in a loss of control and deconsolidation is a significant event
triggering gain or loss recognition and the establishment of a new fair value
basis in any remaining ownership interests. SFAS No. 160 is effective for
fiscal years beginning on or after December 15, 2008. The Company does not
expect the adoption of SFAS No. 160 to have a material impact on its results of
operations and financial position.
In March
2008, the FASB issued SFAS No. 161, Disclosures about Derivative
Instruments and Hedging Activities, an amendment of FASB Statement
No. 133 (“SFAS No. 161”). SFAS No. 161 requires additional
disclosures about the objectives of the derivative instruments and hedging
activities, the method of accounting for such instruments under SFAS 133 and its
related interpretations, and a tabular disclosure of the effects of such
instruments and related hedged items on the Company’s financial position,
financial performance, and cash flows. SFAS No. 161 is effective for
financial statements issued for fiscal years and interim periods beginning after
November 15, 2008, with early adoption encouraged. The Company does not
expect the adoption of SFAS No. 161 to have a material impact on its results of
operations and financial position as the Company does not currently participate
in any derivative or hedging activities.
NOTE
3. INVENTORY
Inventory
consists of the following (in thousands):
|
|
|
September
30,
2008
|
|
|
December
31,
2007
|
|
|
|
|
|
|
|
|
|
|
Parts
inventory, net
|
|
$ |
10,302 |
|
|
$ |
6,734 |
|
|
Finished
goods – ovens
|
|
|
5,022 |
|
|
|
3,835 |
|
|
Demonstration
inventory, net
|
|
|
661 |
|
|
|
595 |
|
|
|
|
|
15,985 |
|
|
|
11,164 |
|
|
Costs
of inventory subject to a deferred revenue relationship
|
|
|
528 |
|
|
|
719 |
|
|
|
|
$ |
16,513 |
|
|
$ |
11,883 |
|
NOTE
4. PROPERTY AND EQUIPMENT
Property
and equipment consists of the following (in thousands):
|
|
|
Estimated
Useful
Lives
(Years)
|
|
|
September
30,
2008
|
|
|
December
31,
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tooling
and equipment
|
|
3-7
|
|
|
$ |
6,953 |
|
|
$ |
6,921 |
|
|
Furniture
and fixtures
|
|
5
|
|
|
|
1,526 |
|
|
|
1,458 |
|
|
Leasehold
improvements
|
|
5-7.5
|
|
|
|
4,372 |
|
|
|
3,140 |
|
|
|
|
|
|
|
|
12,851 |
|
|
|
11,519 |
|
|
Less
accumulated depreciation and amortization
|
|
|
|
|
|
(6,262
|
) |
|
|
(4,791
|
) |
|
|
|
|
|
|
$ |
6,589 |
|
|
$ |
6,728 |
|
NOTE
5. ACCRUED WARRANTY
The
Company generally provides a one-year parts and labor warranty on its ovens
(“OEM warranties”). Provisions for warranty claims are recorded at the time
products are sold and are reviewed and adjusted periodically by management to
reflect actual and anticipated experience. Because warranty estimates are
forecasts that are based on the best available information, claims costs may
differ from amounts provided, and these differences may be
material.
An
analysis of changes in the liability for product warranty claims is as follows
(in thousands):
|
|
|
Three
Months Ended
September
30,
|
|
|
Nine
Months Ended
September
30,
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Balance
at beginning of period
|
|
$ |
15 |
|
|
$ |
2,718 |
|
|
$ |
558 |
|
|
$ |
1,889 |
|
|
Provision
for warranties
|
|
|
-- |
|
|
|
-- |
|
|
|
(178
|
) |
|
|
1,955 |
|
|
Warranty
expenditures
|
|
|
(15
|
) |
|
|
(962
|
) |
|
|
(380
|
) |
|
|
(2,088
|
) |
|
Adjustments
|
|
|
-- |
|
|
|
(583
|
) |
|
|
-- |
|
|
|
(583
|
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
at end of period
|
|
$ |
-- |
|
|
$ |
1,173 |
|
|
$ |
-- |
|
|
$ |
1,173 |
|
In 2007,
the Company entered into an agreement with an insurance company to insure all of
its obligations under the OEM warranties. The Company remits premiums to the
insurance company and submits for reimbursement all eligible claims made under
the OEM warranties. Premiums are recorded as a component of cost of product
sales at the time products are sold. Premiums will be
reviewed by the Company and the insurance provider and may be adjusted
prospectively to reflect actual and anticipated experience. The Company includes
the outstanding reimbursement amount in other receivables in the accompanying
unaudited condensed consolidated balance sheets. The above table represents the
remaining warranty obligation for ovens sold prior to the insurance
agreement.
NOTE
6. INCOME TAXES
In
preparing its financial statements, the Company estimates income taxes in each
of the jurisdictions in which it operates. This process involves estimating
actual current tax exposure together with assessing temporary differences
resulting from differing treatment of items for tax and financial reporting
purposes. These differences result in deferred income tax assets and
liabilities. In addition, as of September 30, 2008, the Company had net
operating losses (“NOLs”) of approximately $120.5 million, of which $17.3
million are subject to annual limitations resulting from the change in control
provisions in Section 382 of the Internal Revenue Code. These NOLs begin to
expire in 2011. A valuation allowance is recorded to reduce net deferred income
tax assets to the amount that is more likely than not to be realized. Based on
its history of losses, the Company recorded a valuation allowance as of
September 30, 2008, equal to the full amount of net deferred income tax assets
including those related to NOLs.
NOTE
7. STOCKHOLDERS’ EQUITY
The
Company issued an aggregate of 526,000 restricted stock units to certain
employees in the nine months ended September 30, 2008.
A summary
of restricted stock unit (RSU) activity follows:
|
|
|
Number
of
RSUs
|
|
|
Weighted
Average
Grant-Date
Fair
Value
|
|
|
|
|
|
|
|
|
|
|
Balance
at January 1, 2008
|
|
|
626,641 |
|
|
$ |
15.18 |
|
|
RSUs
granted
|
|
|
526,000 |
|
|
|
6.31 |
|
|
RSUs
vested
|
|
|
(177,875
|
) |
|
|
14.86 |
|
|
RSUs
forfeited
|
|
|
(42,000
|
) |
|
|
8.86 |
|
|
Balance
at September 30, 2008
|
|
|
932,766 |
|
|
$ |
10.52 |
|
On
December 7, 2007, the Company completed a tender offer that allowed 30 employees
to amend or cancel certain options to remedy potential adverse personal tax
consequences. Additionally, the Company entered into an agreement with four
officers of the Company not eligible to participate in the tender offer to amend
their options to also remedy potential adverse personal tax
consequences. As a result, the Company amended 572,000 options
granted after October 29, 2003 that, for financial reporting purposes, were or
may have been granted at a discount to increase the option grant price to the
fair market value on the date of grant and issued to the employee a dollar
denominated RSU for the difference in option grant price between the amended
option and the original discounted price. The dollar denominated RSUs
were settled in shares on March 7, 2008 and resulted in the issuance of 265,668
shares of common stock. The Company accounted for this transaction as an
increase to common stock and additional paid-in-capital, with the offsetting
decrease to other current liabilities.
In April
2008, in conjunction with the termination of certain individuals, the Company
amended 440,000 fully vested outstanding options. For each affected option, the
exercisable period was extended from three to twelve months. In accordance with
SFAS No. 123(R), the Company valued the modified options immediately before and
immediately after the modification using current market conditions. This
valuation resulted in $320,000 being recorded as incremental stock-based
compensation expense in the current period. For the nine months ended September
30, 2008, $83,000 is included in research and development expenses and the
remainder is included in selling, general and administrative expenses, all of
which was recorded in the second quarter of 2008.
The fair
value of the amended options was determined using the Black-Scholes option
valuation model with the following weighted average
assumptions:
|
Expected
life (in years)
|
|
|
1.00
|
|
|
Volatility
|
|
|
52.54
|
%
|
|
Risk
free interest rate—options
|
|
1.34
– 1.97
|
%
|
|
Dividend
yield
|
|
|
0.0
|
%
|
Additionally,
the vesting of certain terminated individuals restricted stock units was
accelerated. The acceleration resulted in a non-cash charge of $505,000. For the
nine months ended September 30, 2008, $120,000 is included in research and
development expenses and the remainder is included in selling, general and
administrative expenses, all of which was recorded in the second quarter of
2008.
The
Company signed an agreement on April 28, 2008 (the “MSLO Agreement”) with Martha
Stewart Living Omnimedia, Inc. (“MSLO”). The Agreement creates a
three-year relationship involving marketing and promotional activities with both
Martha Stewart and Emeril Lagasse for the Company’s residential products,
including, among other things, certain licensed rights to marketing collateral,
access to their television shows and websites and their personal appearances at
Company functions. Certain provisions of the MSLO Agreement survive
termination.
Upon
execution of the MSLO Agreement, the Company issued 381,049 shares of its common
stock to MSLO (valued at approximately $3.1 million) and issued MSLO a six-year
warrant to purchase an additional 454,000 shares of common stock at an exercise
price of $8.26 per share (valued at approximately $2.1 million) and in January
2009 and January 2010 TurboChef must provide MSLO with an additional $2.5
million of stock (valued at the then-current market value) or cash (at the
Company’s option). The initial issuance of shares and warrant, valued at $5.2
million, is included in prepaid expenses on the accompanying unaudited condensed
consolidated balance sheets and will be amortized ratably into selling, general
and administrative expenses over the remainder of 2008. The second and third
payments of $2.5 million each will be recorded as a prepaid expense and will be
amortized ratably into selling, general and administrative expenses as services
are to be rendered.
At the
Company’s request, MSLO will assist TurboChef in creating a joint marketing
relationship with a retailer that the parties may agree upon. Success
in that effort, as described in the MSLO Agreement, shall cause TurboChef to
provide MSLO with an additional $2.5 million of stock or cash (at TurboChef’s
option), and TurboChef has agreed to pay MSLO a royalty for three years for
products sold through such a retailer.
In
September 2008, the Company issued 297,712 shares of common stock, with a value
of $1.8 million, as the equity portion of the final installment of contingent
consideration payable under the terms of the Global Purchase
Agreement.
NOTE
8. CREDIT FACILITY
In
February 2008, the Company entered into an Amended and Restated Credit Agreement
with Bank of America, N.A. (the 2007 Credit Agreement). The 2007 Credit
Agreement allows the Company to borrow up to $20.0 million at any time under the
revolving credit facility, based upon a portion of the Company's eligible
accounts receivable and inventory. The 2007 Credit Agreement also provides for a
letter of credit facility within the credit limit of up to $5.0 million.
Revolving credit loans under the 2007 Credit Agreement bear interest at a rate
of the British Bankers Association LIBOR Rate plus 2.5% (7.50% as of September
30, 2008), unless for certain reasons Eurodollar Rate Loans are unavailable,
then at a rate of 2.5% over the higher of the Federal Funds Rate plus 0.5% and
Bank of America's prime rate. The Company's obligations under the 2007 Credit
Agreement are secured by substantially all of the assets of the Company and its
subsidiaries. The 2007 Credit Agreement contains customary affirmative and
negative covenants and acceleration provisions. The credit commitment expires on
February 28, 2009, and any outstanding indebtedness under the 2007 Credit
Agreement will be due on that date. As of December 31, 2007, the Company had
outstanding indebtedness of $9.0 million under the 2007 Credit Agreement which
was repaid on February 28, 2008. At September 30, 2008, the Company had
outstanding indebtedness of $6.0 million under the 2007 Credit Agreement, and
the borrowing base limitations permitted the Company to borrow an additional
$2.7 million, inclusive of $812,000 in outstanding letters of
credit.
NOTE
9. COMMITMENTS AND CONTINGENCIES
LEGAL
PROCEEDINGS
The
Company is party to legal proceedings from time to time that arise in the
ordinary course of business. Although the ultimate resolution of these various
proceedings cannot be determined at this time, the Company does not believe that
the outcome of any outstanding legal proceedings, individually or in the
aggregate, will have a material adverse effect on the future results of
operations or financial condition of the Company. For further information
on legal proceedings, see "Legal Proceedings" in Part II, Item 1, of this
report and the Company's Annual Report on Form 10-K for the year ended
December 31, 2007.
NOTE
10. SEGMENT INFORMATION AND CUSTOMER CONCENTRATIONS
SFAS
No. 131, Disclosure about
Segments of an Enterprise and Related Information, establishes standards
for the way in which public companies are to disclose certain information about
operating segments in their financial reports. It also establishes
standards for related disclosures about products and services, geographic areas,
and major customers.
The
results from operations are reported using two reportable operating
segments: Commercial and Residential. The Commercial and Residential
segments include the operations of each of the respective product lines
excluding corporate expenses, described below, other income (expense) and income
taxes.
The
accounting policies of the operating segments are the same as those described in
Summary of Significant Accounting Policies. The Chief Operating Decision Maker
evaluates performance of the segments based on operating income. Costs excluded
from this profit measure primarily consist of corporate expenses, other income
(expense) and income taxes. Corporate expenses are primarily comprised of
corporate overhead expenses. Thus, operating income includes only the costs that
are directly attributable to the operations of the individual segment. The
Company does not currently account for or report to the Chief Operating Decision
Maker its assets or capital expenditures by segments.
Information
about the Company's operations by operating segment follows (in
thousands):
|
|
|
Three
Months Ended
September
30,
|
|
|
Nine
Months Ended
September
30,
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Commercial:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$ |
19,878 |
|
|
$ |
32,228 |
|
|
$ |
64,721 |
|
|
$ |
73,527 |
|
|
Net
income
|
|
|
2,171 |
|
|
|
5,997 |
|
|
|
6,591 |
|
|
|
10,484 |
|
|
Residential:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$ |
433 |
|
|
$ |
265 |
|
|
$ |
1,258 |
|
|
$ |
265 |
|
|
Net
loss
|
|
|
(3,569
|
) |
|
|
(3,035
|
) |
|
|
(12,363
|
) |
|
|
(10,008
|
) |
|
Corporate:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$ |
-- |
|
|
$ |
-- |
|
|
$ |
-- |
|
|
$ |
-- |
|
|
Net
loss
|
|
|
(3,585
|
) |
|
|
(4,726
|
) |
|
|
(10,313
|
) |
|
|
(13,675
|
) |
|
Totals:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$ |
20,311 |
|
|
$ |
32,493 |
|
|
$ |
65,979 |
|
|
$ |
73,792 |
|
|
Net
loss
|
|
|
(4,983
|
) |
|
|
(1,764
|
) |
|
|
(16,085
|
) |
|
|
(13,199
|
) |
The
Company does not have significant assets outside of the United States. Total
revenues by geographic region for the three and nine months ended September 30
are as follows (in thousands):
|
REGION
|
|
Three
Months Ended
September
30,
|
|
|
Nine
Months Ended
September
30,
|
|
| |
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
North
America
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial:
|
|
$ |
16,891 |
|
|
$ |
28,807 |
|
|
$ |
54,686 |
|
|
$ |
63,743 |
|
|
Residential:
|
|
|
433 |
|
|
|
265 |
|
|
|
1,258 |
|
|
|
265 |
|
|
Total
North America revenue:
|
|
|
17,324 |
|
|
|
29,072 |
|
|
|
55,944 |
|
|
|
64,008 |
|
|
Europe
and Asia/Pacific
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commercial:
|
|
|
2,987 |
|
|
|
3,421 |
|
|
|
10,035 |
|
|
|
9,784 |
|
|
Residential:
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
Total
Europe and Asia/Pacific revenue:
|
|
|
2,987 |
|
|
|
3,421 |
|
|
|
10,035 |
|
|
|
9,784 |
|
|
Totals
|
|
$ |
20,311 |
|
|
$ |
32,493 |
|
|
$ |
65,979 |
|
|
$ |
73,792 |
|
The
Company is generally subject to the financial conditions of commercial food
service operators and related equipment providers; however, management does not
believe that there is significant credit risk with respect to trade receivables.
Additionally, the Company had been subject to customer concentration resulting
from the initial rollouts of several large customers. For the three months
ended September 30, 2008 and 2007, 37% and 69% of the Company's sales were made
to three customers, respectively. For the nine months ended September
30, 2008 and 2007, 44% and 66% of the Company's sales were made to three
customers, respectively. As of September 30, 2008, 24% of the outstanding
accounts receivable were related to two customers.
NOTE
11. ACQUISITION BY THE MIDDLEBY CORPORATION
On August
12, 2008, the Company announced that it had agreed to be acquired by The
Middleby Corporation (“Middleby”). At the effective time of the Merger (the
"Effective Time"), each issued and outstanding share of TurboChef's common stock
will be automatically converted into the right to receive 0.0486 shares (the
"Exchange Ratio") of the common stock of Middleby ("Middleby Common Stock") and
$3.67 in cash (the "Cash Consideration", and together with Middleby Common
Stock, the "Merger Consideration") for a total value of $6.47 based on
Middleby's closing stock price of $57.60 on August 11, 2008, the last trading
date prior to the announcement of the contemplated transaction. Based on
the closing sale price for Middleby Common Stock on November 7, 2008, the latest
practicable trading date before the filing of this report, the 0.0486 of a share
of Middleby Common Stock and $3.67 in cash represented approximately $5.35 in
value for each share of TurboChef common stock. Consummation of the
Merger is subject to various conditions, including the approval of TurboChef's
stockholders and other customary closing conditions. The agreement includes a
break-up fee of $7.0 million, which is payable by the Company to Middleby if the
Company terminates the agreement under certain circumstances. The Company
anticipates closing the transaction in 2008.
NOTE
12. SUBSEQUENT EVENTS
In
October 2008, the Company made additional headcount reductions across the entire
business. The Company expects to record charges of $1.9 million in the fourth
quarter of 2008, of which approximately $1.3 million is expected to be
non-cash.
Forward-looking
Statements
Certain
statements in this Quarterly Report constitute “forward-looking statements”
within the meaning of the Private Securities Litigation Reform Act of 1995.
These forward-looking statements involve known and unknown risks, uncertainties
and other factors which may cause our actual results, performance or
achievements to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking statements. Such
factors include, among others, the following: our history of losses; our
dependence on a limited number of customers; the effect of our long sales cycle;
our oven products are offered to emerging market segments requiring significant
marketing efforts to achieve market acceptance; our rapid expansion and the
potential difficulty in managing our growth; relationships with and dependence
on third parties for raw materials or components; our reliance on our senior
management team and the expertise of management personnel; the limited
experience of some of our senior executive officers in our industry; potential
liability for personal injury or property damage; the ability to protect our
proprietary information; the results of government inquiries and possible
regulatory action or private litigation regarding the results of our
investigation of our stock option grants and practices and the uncertainty of
the outcome of legal proceedings in which we are currently involved. Additional
information and factors are set out in “Risk Factors” in Part II, Item 1A, of
this report and Item 1A of our Annual Report on Form 10-K for 2007 filed with
the SEC. The words “believe,” “expect,” “anticipate,” “intend,” and “plan” and
similar expressions identify forward-looking statements. Readers are cautioned
not to place undue reliance on any of these forward-looking statements, which
speak only as of the date the statement was made. We undertake no obligation to
update any forward-looking statement.
Overview
TurboChef
Technologies, Inc. is a leading provider of equipment, technology and services
focused on the high-speed preparation of food products. Our user-friendly speed
cook ovens employ proprietary combinations of heating technologies, such as
convection, air impingement, microwave energy and other advanced methods, to
cook food products at speeds up to 12 times faster than, and to quality
standards that we believe are comparable or superior to, that of conventional
heating methods. While we continue to offer our three primary speed cook
countertop models: the C3 and Tornado® combination air and microwave
batch ovens and the High h Batch (air only) model, in 2007, we began to expand
our commercial offerings and now offer our i5 model, a new air/microwave
combination countertop batch oven. We also developed and now offer high speed
impingement air-only conveyor ovens, both floor model and countertop
versions.
In 2007
we entered the domestic residential oven market with the introduction of our
first speed cook oven model for the home. Our first residential products target
the premium segment of the residential oven market and are priced at a point
that we believe is appropriate for a high-end consumer purchase. We are selling
30” wall oven models, both a double oven version that includes a speed cook oven
and a regular convection oven and a single speed cook oven. We are working to
develop a range model, and over time we intend to develop other configurations
designed to satisfy consumer needs for residential oven appliances.
On August
12, 2008, we announced an agreement to be acquired by Middleby. At the Effective
Time of the Merger, each issued and outstanding share of our common stock will
be automatically converted into the right to receive 0.0486 shares of Middleby
Common Stock and $3.67 in Cash Consideration for a total value of $6.47 based on
Middleby's closing stock price of $57.60 on August 11, 2008, the last trading
date prior to the announcement of the contemplated transaction. Based on
the closing sale price for Middleby Common Stock on November 7, 2008, the latest
practicable trading date before the filing of this report, the 0.0486 of a share
of Middleby Common Stock and $3.67 in cash represented approximately $5.35 in
value for each share of TurboChef common stock. Consummation of the
Merger is subject to various conditions, including the approval of TurboChef's
stockholders and other customary closing conditions. The agreement includes a
break-up fee of $7.0 million, which is payable by the Company to Middleby if the
Company terminates the agreement under certain circumstances. The Company
anticipates closing the transaction in 2008.
We
currently derive revenue primarily from the sale of our ovens to commercial
foodservice operators worldwide. In North America we sell our equipment through
our internal sales force as well as through manufacturer’s representatives, and
for the rest of the world we utilize a network of equipment distributors. We
also derive revenues from licensing our technologies to food service equipment
manufacturers and from the sale of our residential product through a network of
over 175 high-end consumer appliance dealers throughout the U.S.
We
believe it is important to our success that we continue to sell to our existing
base of commercial customers to meet their expansion or replacement needs, while
at the same time extending that customer base by concentrating our internal
sales efforts on major foodservice operators and by supporting our networks of
manufacturer’s representatives and equipment distributors. We must strive to do
that while maintaining a cost structure for our products and controlling our
operating expenses to provide a satisfactory return on sales. We must compete
effectively in the marketplace on the basis of price, quality and product
performance, and we must meet market demand through development and improvement
of our speed cook ovens and introduction of new oven products. These same
marketplace and product development factors will apply to our achieving success
with the launch of our residential speed cook oven products; however, the
residential market is new to us and there may be factors important to our
success that are unknown to us at present.
Our
financial results in 2008 as compared to 2007 reflect our continued efforts to
strengthen our operating systems and infrastructure and to solidify our sales
and marketing efforts to support the anticipated growth in our commercial
business and to support the development and launch of our new residential ovens.
In 2007, we focused on executing on the expansion plans of our contract
customers and expanding our revenues from our non-contract
customers. Through September 30, 2008 as compared to the same period in
2007, we experienced a 48% increase in commercial revenue from non-contract
customers and we experienced a 41% decrease in commercial revenue from contract
customers. For the balance of 2008 as compared to 2007, we expect continued
growth in our non-contract customer revenue, thus resulting in a further
diversification of our revenue base, and we expect a continued decline in our
contract customer revenue, primarily due to the completion of the initial roll
out in early 2008 from one contract customer. In the first half of 2008, in
connection with our planned realignment of certain aspects of our residential
business, principally marketing and promotion, we took steps to further decrease
our selling, general and administrative expenses by separating employment with
certain employees. We recorded charges in this regard totaling $1.5 million, of
which approximately $800,000 was non-cash. We expect to realize annualized
savings of approximately $3.0 million from this realignment. In October 2008, we
made additional headcount reductions across the entire business and expect to
record charges of $1.9 million in the fourth quarter of 2008. Approximately $1.3
million of this amount is non-cash. We expect to realize annualized savings of
approximately $3.0 million from this headcount reduction. As
discussed in Note 7 to the financial statements, in the second quarter of 2008,
we entered into a marketing relationship with MSLO supporting our residential
business and we expect to record non-cash charges of $5.2 million in 2008. In
the face of a more challenging economy, which we now expect will negatively
impact revenue expectations and profitability for the full year, we intend to
continue to tighten control of spending across the entire business. As a result
of the foregoing, we expect to generate a net loss on a consolidated basis for
2008.
The
following sets forth, as a percentage of revenue, consolidated statements of
operations data for the three and nine months ended September 30:
|
|
|
Three
Months Ended
September
30,
|
|
|
Nine
Months Ended
September
30,
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Revenues
|
|
|
100
|
% |
|
|
100
|
% |
|
|
100
|
% |
|
|
100
|
% |
|
Cost
of product sales
|
|
|
61 |
|
|
|
60 |
|
|
|
60 |
|
|
|
61 |
|
|
Research
and development expenses
|
|
|
4 |
|
|
|
4 |
|
|
|
5 |
|
|
|
5 |
|
|
Selling,
general and administrative expenses
|
|
|
58 |
|
|
|
42 |
|
|
|
58 |
|
|
|
52 |
|
|
Total
costs and expenses
|
|
|
123 |
|
|
|
106 |
|
|
|
123 |
|
|
|
118 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
loss
|
|
|
(23
|
) |
|
|
(6
|
) |
|
|
(23
|
) |
|
|
(18
|
) |
|
Interest
income
|
|
|
-- |
|
|
|
1 |
|
|
|
-- |
|
|
|
1 |
|
|
Interest
expense and other
|
|
|
(2
|
) |
|
|
(--
|
) |
|
|
(1
|
) |
|
|
(1
|
) |
|
Total
other income, net
|
|
|
(2
|
) |
|
|
1 |
|
|
|
(1
|
) |
|
|
-- |
|
|
Net
loss
|
|
|
(25 |
)
% |
|
|
(5
|
)% |
|
|
(24 |
)
% |
|
|
(18
|
)% |
We have
observed the following trends and events that are likely to have an impact on
our financial condition and results of operations in the future:
|
|
·
|
During
the three months ended September 30, 2008, total revenues decreased by 38%
over the comparable period in 2007, and during the nine months ended
September 30, 2008, total revenues decreased by 11% over the comparable
period in 2007. For the three months ended September 30, 2008, the change
was due to a decrease in sales to contract customers totaling $15.2
million offset by growth in sales to non-contract customers totaling $3.0
million. For the nine months ended September 30, 2008, the change was due
to a decrease in sales to contract customers totaling $20.1 million offset
by growth in sales to non-contract customers totaling $12.3 million.
Contract customers are those commercial customers for whom we have an
executed agreement addressing, among other items, service requirements and
purchase price. We generated 37% and 69% of our revenue from three
contract customers for the three months ended September 30, 2008 and 2007,
respectively, and we generated 44% and 66% of our revenue from three
contract customers for the nine months ended September 30, 2008 and 2007,
respectively. No other single customer accounted for more than
10% of our total revenues for the three and nine months ended September
30, 2008 or 2007. We expect our non-contract customer revenue to continue
to increase in 2008. As our customer base continues to grow, we expect our
customer concentration levels to decline.
|
|
|
|
|
|
|
·
|
During
the three months ended September 30, 2008 revenues from residential oven
sales increased 63% over the comparable period in 2007. We expect
residential sales to continue to increase, albeit not at the same rate as
in the third quarter of 2008, as we build brand awareness, grow the
network of dealers representing the product and build market
share.
|
|
|
·
|
In
the third quarter of 2008, our gross margin percentage of 39% was slightly
lower than the second quarter of 2008’s margin of 41% and the first
quarter of 2008’s margin of 40%. The deterioration in gross margin is
principally attributable to the negative effects of the sales mix in the
quarter. We generally expect gross margin percentages to trend in the
range of 40% for the remainder of 2008 reflecting the benefit of
sales price increases, offset by increases in input
costs.
|
| |
|
|
|
|
·
|
In
the third quarter of 2008, our research and development expenditures were
slightly lower than those of the comparable period in 2007. For 2008, we
expect our research and development expenditures in the range of $4.5 to
$5.0 million as we engineer improvements in our existing products and
develop additional residential and commercial products.
|
| |
|
|
|
|
·
|
During
the three months ended September 30, 2008, we decreased our selling,
general and administrative expenses, excluding depreciation and
amortization, by $2.2 million from the comparable period in 2007. The
decrease is primarily due to reduced expenses related to the option review
investigation concluded in 2007, offset in part by increases in merger
related expenses and marketing and related expenses associated with the
MSLO agreement. During the nine months ended September 20, 2008, we
decreased our selling, general and administrative expenses, excluding
depreciation and amortization, by $754,000 from the comparable period in
2007. The decrease is primarily due to reduced expenses related to the
option review investigation concluded in 2007, offset in part by increases
in merger related expenses and marketing and related expenses associated
with the MSLO agreement. We expect SG&A to decrease for 2008 as
compared to 2007 due to the non-recurrence of option investigation related
expenses incurred in 2007 of $7.7 million, offset by charges recorded in
connection with headcount reductions made in April and October 2008 and
the costs of the MSLO
agreement.
|
Our
future results will be affected by many factors, some of which are identified
below and in Part II, Item 1A, of this report and Item 1A of our Annual Report
on Form 10-K, including our ability to:
|
|
·
|
increase
our commercial revenue across our customer base;
|
| |
|
|
|
|
·
|
manage
costs related to commercial business segment;
|
|
|
|
|
|
|
·
|
successfully
launch our residential product line and obtain a meaningful share of the
residential market;
|
| |
|
|
|
|
·
|
manage
costs related to the residential product
launch.
|
As a
result, there is no assurance that we will achieve our expected financial
objectives.
Application
of Critical Accounting Policies
Below is
a discussion of our critical accounting policies. For a complete discussion of
our significant accounting policies, see the footnotes to the financial
statements included in our 2007 Annual Report on Form 10-K. These policies are
critical to the portrayal of our financial condition and/or are dependent on
subjective or complex judgments, assumptions and estimates. If actual results
differ significantly from management's estimates and projections, then there
could be a significant impact on the financial statements. The impact of changes
in key assumptions may not be linear. Our management has reviewed the
application of these policies with the audit committee of our board of
directors.
Revenue
Recognition
Revenues
from product sales, which includes all revenues except royalty revenues, are
recognized when no significant vendor obligation remains, title to the product
passes (depending on terms, either upon shipment or delivery), and the customer
has the intent and ability to pay in accordance with contract payment terms that
are fixed and determinable. Certain customers may purchase installation
services. Revenues from these services are deferred and recognized when the
installation service is performed. Certain customers may purchase extended
warranty coverage. Revenue from sales of extended warranties is deferred and
recognized in product sales on a straight-line basis over the term of the
extended warranty contract. Royalty revenues are recognized based on
the sales dates of licensees’ products, and services revenues are recorded based
on attainment of scheduled performance milestones. We report revenue net of any
sales tax collected.
Our product
sales sometimes involve multiple elements (i.e., products, extended warranties
and installation services). Revenue under multiple element arrangements is
accounted for in accordance with Emerging Issues Task Force (“EITF”) Issue No.
00-21, “Accounting for Revenue
Arrangements with Multiple Deliverables”. Under this
method, for elements determined to be separate units of accounting, revenue is
allocated based upon the relative fair values of the individual
components.
We
provide for returns on product sales based on historical experience and adjust
such reserves as considered necessary. To date, there have been no significant
sales returns.
Deferred
revenue includes amounts billed to customers for which revenue has not been
recognized. Deferred revenue consists primarily of unearned revenue from
extended warranty contracts and other amounts billed to customers where the sale
transaction is not yet complete and, accordingly, revenue cannot be
recognized.
Cost
of Product Sales
Cost of
product sales is calculated based upon the cost of the oven, the cost of any
accessories supplied with the oven, an allocation of cost for applicable
delivery, duties and taxes and a warranty provision. Cost of product sales also
includes cost of replacement parts and accessories and cost of labor, parts and
payments to third parties in connection with fulfilling extended warranty
contracts. For extended warranty contracts sold prior to the insurance program
discussed below, we compare expected expenditures on extended warranty contracts
to the deferred revenue over the remaining life of the contracts, and if the
expenditures are anticipated to be greater than the remaining deferred revenue
we record a charge to cost of product sales for the difference. Cost of product
sales does not include any cost allocation for administrative and technical
support services required to deliver or install the oven or an allocation of
costs associated with the quality control of the Company’s contract
manufacturers. These costs are recorded within selling, general and
administrative expenses. Cost of product sales also does not attribute any
allocation of compensation or general and administrative expenses to royalty and
services revenues.
Product
Warranty
We
warrant our ovens against defects in material and workmanship for a period of
one year from the date of installation (“OEM warranties”). Anticipated future
warranty costs are estimated based upon historical experience and are recorded
in the periods ovens are sold. Periodically, our warranty reserve is reviewed to
determine if the reserve is sufficient to cover the estimated repair costs
associated with the remaining ovens under warranty. Because warranty estimates
are forecasts that are based on the best available information, claims cost may
differ from amounts provided, and these differences may be
material.
At this
time, we believe that, based upon historical data, the current warranty reserve
is sufficient to cover the estimate of associated costs. If warranty costs trend
higher, we would need to record a higher initial reserve as well as reserve the
estimated amounts necessary to cover all ovens remaining under warranty. Any
such additional reserves would be charged to cost of goods sold and could have a
material effect on our financial statements.
In 2007,
we entered into an agreement with an insurance company to insure all of our
obligations under the OEM warranties. We remit premiums to the insurance company
and submit for reimbursement eligible claims made under the OEM warranties.
Premiums are recorded as a component of cost of product sales at the time
products are sold. Premiums will be reviewed by the Company and the
insurance provider and may be adjusted prospectively to reflect actual and
anticipated experience.
Stock-Based
Compensation and Other Equity Instruments
The fair
value of restricted stock awards is determined based on the number of
shares granted and the quoted price of our common stock on the date of grant.
Such fair values will be recognized as compensation expense over the requisite
service period, net of estimated forfeitures, using the straight-line method in
accordance with SFAS No. 123 (revised 2004), Share-Based Payment, a
revision of SFAS No. 123, Accounting for Stock Based
Compensation.
During
the nine months ended September 30, 2008, we issued 526,000 restricted stock
units to certain employees. These restricted stock units had a weighted average
fair value of $6.31 per unit and the aggregate fair value was $3.3 million. The
fair value of these awards was based upon the market price of the underlying
common stock as of the date of grant. All of these awards vest over a five-year
period provided the individual remains in our employ or service as of the
vesting date. Additionally, these shares could vest earlier in the event of a
change in control, merger or other acquisition, or upon termination for
disability or death. The shares of common stock will be issued at
vesting. As of September 30, 2008, we have issued 1.2 million
restricted stock units. Stock-based compensation expense related to these awards
was $640,000 and $2.5 million for the three and nine months ended September 30,
2008. For the three months ended September 30, 2008, stock-based compensation
expense of $51,000 is included in research and development expenses, $10,000 is
included in cost of product sales and the remainder is included in selling,
general and administrative expenses For the nine months ended September 30,
2008, stock-based compensation expense of $276,000 is included in research and
development expenses, $26,000 is included in cost of product sales, and the
remainder is included in selling, general and administrative
expenses. Stock-based compensation expense related to these awards was
$536,000 and $1.2 million for the three and nine months ended September 30,
2007. For the three months ended September 30, 2007, stock-based
compensation expense of $46,000 is included in research and development
expenses, $4,000 is included in cost of product sales and the remainder is
included in selling, general and administrative expenses and for the nine months
ended September 30, 2007, stock-based compensation expense of $92,000 is
included in research and development expenses, $8,000 is included in cost of
product sales, and the remainder is included in selling, general and
administrative expenses. As of September 30, 2008, the unrecognized
compensation expense related to these restricted stock awards was $8.2
million with a remaining weighted average life of 2.1 years.
Deferred
Income Taxes
In
preparing our financial statements, we are required to estimate our income taxes
in each of the jurisdictions in which we operate. This process involves
estimating actual current tax exposure together with assessing temporary
differences resulting from differing treatment of items for tax and financial
reporting purposes. These differences result in deferred income tax assets and
liabilities. In addition, as of September 30, 2008, we have net operating losses
(“NOLs”) of approximately $120.5 million, of which $17.3 million are subject to
annual limitations resulting from the change in control provisions in Section
382 of the Internal Revenue Code. These NOLs begin to expire in
2011.
We
currently have significant deferred tax assets, including those resulting from
NOLs, tax credit carryforwards and deductible temporary differences. We provide
a full valuation allowance against our net deferred tax assets. Management
weighs the positive and negative evidence to determine if it is more likely than
not that some or all of the deferred tax assets will be realized. Forming a
conclusion that a valuation allowance is not needed is difficult when there is
negative evidence such as cumulative losses in past years. Despite our
profitability in 2004 and our future plans and prospects, we have continued to
maintain a full valuation allowance on our net tax benefits until profitability
has been sustained over a time period and in amounts that are sufficient to
support a conclusion that it is more likely than not that a portion or all of
the deferred tax assets will be realized. A decrease in our valuation allowance
would result in an immediate material income tax benefit, an increase in total
assets and stockholders’ equity, and could have a significant impact on earnings
in future periods.
Commitments
and Contingencies
We
evaluate contingent liabilities including threatened or pending litigation in
accordance with SFAS No. 5,
Accounting for Contingencies. We define a loss contingency as a condition
involving uncertainty as to a possible loss related to a previous event that
will not be resolved until one or more future events occur or fail to occur. Our
primary loss contingencies relate to pending or threatened litigation. We record
a liability for a loss contingency when we believe that it is probable that a
loss has been incurred and the amount of the loss can be reasonably estimated.
When we believe the likelihood of a loss is less than probable and more than
remote, we do not record a liability but we disclose material loss contingencies
in the notes to the consolidated financial statements. We make these assessments
based on facts and circumstances and in some instances based in part on the
advice of outside legal counsel.
Segment
Information
SFAS
No. 131, Disclosure about
Segments of an Enterprise and Related Information, establishes standards
for the way in which public companies are to disclose certain information about
operating segments in their financial reports. It also establishes
standards for related disclosures about products and services, geographic areas,
and major customers.
The
results from operations are reported using two reportable operating
segments: Commercial and Residential. The Commercial and Residential
segments include the operations of each of the respective product lines
excluding corporate expenses, described below, other income (expense) and income
taxes.
The
accounting policies of the operating segments are the same as those described in
Summary of Significant Accounting Policies. The Chief Operating Decision Maker
evaluates performance of the segments based on operating income. Costs excluded
from this profit measure primarily consist of corporate expenses, other income
(expense) and income taxes. Corporate expenses are primarily comprised of
corporate overhead expenses. Thus, operating income includes only the costs that
are directly attributable to the operations of the individual segment. The
Company does not currently account for or report to the Chief Operating Decision
Maker its assets or capital expenditures by segments.
Results
of Operations
Revenues
Total
revenues decreased 38%, or $12.2 million, to $20.3 million for the three months
ended September 30, 2008 compared to $32.5 million for the comparable period in
2007. Total revenues decreased 11%, or $7.8 million, to $66.0 million
for the nine months ended September 30, 2008 compared to $73.8 million for the
comparable period in 2007.
We
currently derive the majority of sales, cost of product sales and gross profit
from our Commercial segment. For the three months ended September 30, 2008,
total commercial revenues decreased 38%, or $12.3 million, to $19.9 million as
compared to $32.2 million for the comparable period in 2007. The decrease in
total revenues is primarily attributable to decreased units sales volume,
partially offset by increased average sales prices. Excluding royalty revenues,
for the three months ended September 30, 2008, sales to contract customers
decreased by 67% over the comparable period in 2007 and sales to non-contract
customers increased by 30% over that same period. Contract customers are those
commercial customers for whom we have an executed agreement addressing, among
other items, service requirements and purchase price.
For the
nine months ended September 30, 2008, total commercial revenues decreased 12%,
or $8.8 million, to $64.7 million as compared to $73.5 million for the
comparable period in 2007. The decrease in total revenues is primarily
attributable to decreased units sales volume, partially offset by increased
average sales prices. Excluding royalty revenues, for the nine months ended
September 30, 2008, sales to contract customers decreased by 41% over the
comparable period in 2007 and sales to non-contract customers increased by 48%
over that same period.
Royalty
revenues, which consists of revenue from licensing our technology to third
parties, was $223,000 and $739,000 for the three and nine months ended September
30, 2008, respectively, as compared to $246,000 and $880,000 for the comparable
periods in 2007. We expect further diminution in royalty revenues as the
resources which generate this revenue are repurposed to support our commercial
oven business and to benefit our residential speed cook oven
initiative.
Cost
of Product Sales and Gross Profit
For the
three months ended September 30, 2008, cost of product sales was $12.4 million,
a decrease of $7.2 million compared to $19.6 million for the comparable period
in 2007. For the nine months ended September 30, 2008, cost of product sales was
$39.5 million, a decrease of $5.5 million compared to $45.0 million for the
comparable period in 2007. The variability in cost of product sales was due
primarily to variability in the number of ovens sold. In the three month months
ended September 30, 2008, we experienced an increase in cost of product sales as
a percentage of product sales primarily due to increases in component pricing,
partially offset by a decrease in warranty costs. In the nine month months ended
September 30, 2008, we experienced a decrease in cost of product sales as a
percentage of product sales primarily due to increased average sales prices
resulting from improved sales mix and a decrease in warranty costs, partially
offset by increases in component pricing.
Gross
profit on product sales for the three months ended September 30, 2008 was $7.7
million, a decrease of $5.0 million, compared to gross profit on product sales
of $12.7 million for the comparable period in 2007. Gross profit on product
sales for the nine months ended September 30, 2008 was $25.7 million, a decrease
of $2.2 million, compared to gross profit on product sales of $27.9 million for
the comparable period in 2007. The variability in the gross profit on product
sales was due primarily to the number of ovens sold. Gross profit on product
sales as a percentage of product sales revenue declined during the three months
ended September 30, 2008 due primarily to increases in component pricing,
partially offset by a decrease in warranty costs, and improved during the nine
months ended September 30, 2008 due to increased average sales prices resulting
from improved sales mix and a decrease in warranty costs, partially offset by
increases in component pricing.
Research
and Development
We
currently incur research and development expenditures in our Commercial and
Residential segments. Research and development expenses consist primarily of
payroll and benefits, consulting services paid to third parties, supplies,
facilities and other administrative costs for support of the engineers,
scientists and other research and development personnel who design, develop,
test and enhance our ovens and oven-related services. Research and development
costs are expensed as incurred.
For the
three months ended September 30, 2008, research and development expenses
decreased 22%, or $243,000, to $858,000 as compared to $1.1 million for the
comparable period in 2007. For the nine months ended September 30, 2008,
research and development expenses decreased 8%, or $310,000, to $3.7 million as
compared to $4.0 million for the comparable period in 2007. The net decrease in
the three and nine month periods was primarily attributable to a decrease in
research activities in our Residential segment as our single wall speed cook
oven reached marketability.
The
following table quantifies the net decrease in research and development
expenses over periods presented (in thousands):
|
|
|
Increase
(Decrease) in
Research
and Development
Expenses
for the Three
Months
Ended
September
30, 2007 to 2008
|
|
|
Increase
(Decrease) in
Research
and Development
Expenses
for the Nine
Months
Ended
September
30, 2007 to 2008
|
|
|
Design,
prototype and other related expenses
|
|
$ |
(143 |
) |
|
$ |
(625 |
) |
|
Engineering
related general and administrative expenses
|
|
|
(38
|
) |
|
|
309 |
|
|
Payroll
and related expenses
|
|
|
(62
|
) |
|
|
6 |
|
|
Total
decrease
|
|
$ |
(243 |
) |
|
$ |
(310 |
) |
Selling,
General and Administrative
Selling,
general and administrative expenses, or SG&A, consist primarily of payroll
and related costs; variable commissions and bonuses for personnel and
third-party representatives engaged in sales functions; marketing, advertising
and promotional expenses; legal and professional fees; travel; communications;
facilities; insurance and other administrative expenses; depreciation of
furniture, fixtures and equipment and amortization of intangible assets. These
expenses are incurred to support our sales and marketing activities and our
executive, finance, legal, business applications, human resources and other
administrative functions.
SG&A
expenses decreased 14%, or $1.8 million, to $11.8 million for the three months
ended September 30, 2008 as compared to $13.6 million for the comparable period
in 2007. Legal and professional fees decreased by $1.2 million primarily due to
decreased expenses related to the option review investigation which was
concluded in 2007, offset by merger related costs. Payroll and related expenses
decreased by $881,000 due to a reduction in incentive based compensation. Travel
and related expenses decreased by $326,000 due to cost containment efforts
across the entire business. Depreciation and amortization increased $299,000 due
to the Dallas facilities expansion completed in early 2008 and an increase in
the depreciable base of demonstration oven inventory.
SG&A
expenses increased nominally, or $68,000, to $38.2 million for the nine months
ended September 30, 2008, as compared to $38.1 million for the comparable period
in 2007. Legal and professional fees decreased by $3.5 million primarily due to
decreased expenses related to the option review investigation which was
concluded in 2007, offset by merger related costs. Stock based compensation
expense increased by $1.3 million attributable to costs associated with the
termination of certain employees and the issuance of RSUs in 2007 and 2008.
Selling, marketing and related expenses increased $959,000 primarily due to
increased marketing expenses in the Residential segment, notably the non-cash
cost associated with the MSLO agreement offset by decreased trade show activity,
and decreased Commercial segment commissions to our manufacturer representatives
as a result of decreased oven sales through those channels. Payroll and related
expenses increased by $522,000 primarily due to expenses associated with the
termination of certain employees, partially offset by a reduction in
incentive based compensation. Depreciation and amortization increased $821,000
due to the Dallas facilities expansion completed in early 2008 and an increase
in the depreciable base of demonstration oven inventory.
The
following table quantifies the net increase (decrease) in selling, general and
administrative expenses for the periods presented (in thousands):
|
|
|
Increase
(Decrease) in
Selling,
General and Administrative
Expenses
for the Three
Months
Ended September 30,
2007
to 2008
|
|
|
Increase
(Decrease) in
Selling,
General and Administrative
Expenses
for the Nine
Months
Ended September 30,
2007
to 2008
|
|
|
Legal
and professional fees
|
|
$ |
(1,165 |
) |
|
$ |
(3,453 |
) |
|
Stock
based compensation
|
|
|
99 |
|
|
|
1,302 |
|
|
Selling,
marketing and related expenses
|
|
|
39 |
|
|
|
959 |
|
|
Depreciation
and amortization
|
|
|
299 |
|
|
|
821 |
|
|
Payroll
and related expenses
|
|
|
(881
|
) |
|
|
522 |
|
|
Travel
and related expenses
|
|
|
(326
|
) |
|
|
(377
|
) |
|
Rent
and occupancy costs
|
|
|
86 |
|
|
|
294 |
|
|
Total
increase (decrease)
|
|
$ |
(1,849 |
) |
|
$ |
68 |
|
Net
Other Income (Expense)
Net other
expense for the three and nine months ended September 30, 2008 was $282,000 and
$649,000, as compared to net other income of $88,000 and $173,000 for the
comparable periods in 2007, primarily due to decreased interest income as a
result of lower average cash on hand and increased interest expense as a result
of borrowing against the credit facility.
Liquidity
and Capital Resources
Our
capital requirements in connection with our product and technology development
and marketing efforts have been significant. In light of the expected growth in
both our Commercial and Residential business, including the 2008 launch of our
new residential speed cook single wall oven and new commercial ovens, the
capital requirements for these efforts likely will continue to be
significant.
Our
management anticipates that current cash on hand, including availability under
our credit facility with Bank of America, provides sufficient liquidity for us
to execute our business plan and expand our business as needed in the near term.
This facility was renewed and extended through February 28, 2009 and provides
stand-by credit availability to augment the cash flow anticipated from
operations. As of December 31, 2007, we had outstanding $9.0 million with an
additional $10.1 million available under the credit facility. The outstanding
amount of $9.0 million was repaid on February 28, 2008. At September 30, 2008,
we had outstanding $6.0 million with an additional $2.7 million available under
the credit facility, inclusive of $812,000 in outstanding letters of credit.
However, should the launch of our residential speed cook oven products or a
significant increase in demand for commercial products engender significant
expansion of our operations, we may require additional capital in future
periods.
Cash
provided by operating activities was $1.4 million for the nine months ended
September 30, 2008 as compared to cash used in operating activities of $(14.0)
million for the comparable period in 2007. Net cash provided by operating
activities for the nine months ended September 30, 2008 resulted from our net
loss of $(16.1) million less non-cash charges of $10.3 million (principally
amortization of common stock and warrant issued in exchange for marketing and
related services, non-cash compensation expense and depreciation and
amortization) offset by a decreased investment in working capital of $7.2
million. The change in working capital items included decreases in accounts
receivable, primarily related to one customer, offset by decreases in accounts
payable, accrued expenses and warranty, and increases in inventory and prepaid
expenses. Net cash used in operating activities for the nine months ended
September 30, 2007 resulted from our net loss of $(13.2) million less non-cash
charges of $4.6 million (principally depreciation and amortization) offset by an
increased investment in working capital of $5.4 million. The change in working
capital items included increases in accounts receivable and inventory,
primarily related to sales to one customer, offset by increases in accounts
payable and accrued expenses.
Cash used
in investing activities for the nine months ended September 30, 2008 was $(1.5)
million compared to $(571,000) for the comparable period in 2007. Net cash used
in investing activities resulted principally from capital expenditures in
leasehold improvements as we expanded our manufacturing and warehouse facilities
in Dallas, Texas, offset by disposals of certain property and equipment. We
anticipate capital expenditures of approximately $1.0 million during the balance
of 2008 and expect to fund these from working capital.
Cash used
in financing activities for the nine months ended September 30, 2008 was $(3.0)
million compared to cash provided by financing activities of $9.2 million for
the comparable period in 2007 due to the net repayment of borrowings under our
credit facility and decreased proceeds from the exercise of stock
options.
At
September 30, 2008, we had cash and cash equivalents of $7.0 million and working
capital of $8.1 million as compared to cash and cash equivalents of $10.1
million and working capital of $11.4 million at December 31, 2007.
Contractual
Cash Obligations
As of
September 30, 2008, our future contractual cash obligations are as follows (in
thousands):
|
|
|
Payments
Due By Period
|
|
|
|
Total
|
|
|
October
– December
2008
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
Thereafter
|
|
|
Installment
Payments for
Covenants
Not-to-Compete
|
|
$ |
1,330 |
|
|
$ |
1,330 |
|
|
$ |
-- |
|
|
$ |
-- |
|
|
$ |
-- |
|
|
$ |
-- |
|
|
$ |
-- |
|
|
Installment
Payments for
Contingent
Consideration
Due
Under Asset
Purchase
Agreement
|
|
|
1,013 |
|
|
|
1,013 |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
Payments
Due under
Agreement
with MSLO
|
|
|
5,000 |
|
|
|
-- |
|
|
|
2,500
|
* |
|
|
2,500
|
* |
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
Operating
Leases
|
|
|
4,115 |
|
|
|
321 |
|
|
|
1,165 |
|
|
|
901 |
|
|
|
902 |
|
|
|
826 |
|
|
|
-- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$ |
11,458 |
|
|
$ |
2,664 |
|
|
$ |
3,665 |
|
|
$ |
3,401 |
|
|
$ |
902 |
|
|
$ |
826 |
|
|
$ |
-- |
|
*
Obligation may be settled by the issuance of common stock at the Company’s
option.
We
believe that existing working capital and cash flow from operations, together
with availability under our credit facility with Bank of America, will provide
sufficient cash flow to meet our contractual obligations. We intend to seek
financing for any amounts that we are unable to pay from operating cash flows.
Financing alternatives are routinely evaluated to determine their practicality
and availability in order to provide us with additional funding at the least
possible cost.
We
believe that our existing cash, credit availability and anticipated future cash
flows from operations will be sufficient to fund our working capital and capital
investment requirements for the next twelve months and a reasonable period of
time thereafter.
Off-Balance
Sheet Arrangements
We do not
have any off-balance sheet arrangements that have or are reasonably likely to
have a current or future effect on our financial condition, changes in financial
condition, revenues or expenses, results of operations, liquidity, capital
expenditures, or capital resources that are material.
Authoritative
Pronouncements
In
September 2006, the FASB issued SFAS No. 157, Fair Value Measurements. SFAS
No. 157 defines fair value, establishes a framework for measuring fair value in
GAAP, and expands disclosures about fair value measurements. This Statement
applies under other accounting pronouncements that require or permit fair value
measurements; however, this statement does not require any new fair value
measurements. The definition of fair value retains the exchange price notion in
earlier definitions of fair value. This Statement emphasizes that fair value is
a market-based measurement, not an entity-specific measurement, and establishes
a fair value hierarchy that distinguishes between (1) market participant
assumptions based on market data and (2) the reporting entity’s own assumptions
about market participant assumptions developed based on the best information
available in the circumstances. This Statement clarifies that market participant
assumptions include assumptions about risk and assumptions about the effect of a
restriction on the sale or use of an asset and clarifies that a fair value
measurement for a liability reflects its nonperformance risk. This Statement
expands disclosures about the use of fair value to measure assets and
liabilities in interim and annual periods subsequent to initial recognition.
SFAS No. 157 is effective for fiscal years beginning after November 15, 2007,
and interim periods within those fiscal years. In February 2008, the FASB issued
Staff Position (FSP) No. 157-2, which delays the effective date of SFAS No. 157
for non-financial assets and liabilities, except those recognized or disclosed
at fair value in the financial statements on a recurring basis. We adopted the
requirements of this statement as it pertains to financial assets and
liabilities as of January 1, 2008. The adoption did not have a material effect
on our financial position or results of operations. We do not expect the
adoption of SFAS No. 157, as it pertains to non-financial assets and
liabilities, to have a material effect on our financial position or results of
operations.
In
February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial
Assets and Financial Liabilities, including an amendment of SFAS No. 115,
Accounting for Certain
Investments in Debt and Equity Securities. SFAS No. 159 permits entities
to choose to measure many financial instruments and certain other items at fair
value. The objective of which is to improve financial reporting by providing
entities with the opportunity to mitigate volatility in reported earnings caused
by measuring related assets and liabilities differently without having to apply
complex hedge accounting provisions. Eligible items for the measurement option
include all recognized financial assets and liabilities except: investments in
subsidiaries, interests in variable interest entities, employers’ and plans’
obligations for pension benefits, assets and liabilities recognized under
leases, deposit liabilities, financial instruments that are a component of
shareholder’s equity. Also included are firm commitments that involve only
financial instruments, nonfinancial insurance contracts and warranties and host
financial instruments. The statement permits all entities to choose at specified
election dates, after which the entity shall report unrealized gains and losses
on items for which the fair value option has been elected in earnings, at each
subsequent reporting date. The fair value option may be applied instrument by
instrument; however, the election is irrevocable and is applied only to entire
instruments and not to portions of instruments. SFAS No. 159 is effective for
fiscal years beginning after November 15, 2007. We adopted the requirements of
this statement as of January 1, 2008. The adoption of this statement did not
have a material effect on our financial position or results of operations as we
did not elect to change the measurement of any assets or liabilities to fair
value.
In
December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations. SFAS
No. 141R changes accounting for business combinations through a requirement
to recognize 100 percent of the fair values of assets acquired, liabilities
assumed, and noncontrolling interests in acquisitions of less than a 100 percent
controlling interest when the acquisition constitutes a change in control of the
acquired entity. Other requirements include capitalization of acquired
in-process research and development assets, expensing, as incurred,
acquisition-related transaction costs and capitalizing restructuring charges as
part of the acquisition only if requirements of SFAS No. 146, Accounting for Costs Associated with
Exit or Disposal Activities, are met. SFAS No. 141R is effective for
business combination transactions for which the acquisition date is on or after
the beginning of the first annual reporting period beginning on or after
December 15, 2008. The implementation of this guidance will affect our
results of operations and financial position after its effective date only to
the extent it completes applicable business combinations and therefore the
impact can not be determined at this time.
In
December 2007, the FASB issued SFAS No. 160, Noncontrolling Interest in
Consolidated Financial Statements, an amendment of ARB No. 51 (“SFAS
No. 160”). SFAS No. 160 establishes the economic entity concept of
consolidated financial statements, stating that holders of residual economic
interest in an entity have an equity interest in the entity, even if the
residual interest is related to only a portion of the entity. Therefore, SFAS
No. 160 requires a noncontrolling interest to be presented as a separate
component of equity. SFAS No. 160 also states that once control is
obtained, a change in control that does not result in a loss of control should
be accounted for as an equity transaction. The statement requires that a change
resulting in a loss of control and deconsolidation is a significant event
triggering gain or loss recognition and the establishment of a new fair value
basis in any remaining ownership interests. SFAS No. 160 is effective for
fiscal years beginning on or after December 15, 2008. We do not expect the
adoption of SFAS No. 160 to have a material impact on our results of operations
and financial position.
In March
2008, the FASB issued SFAS No. 161, Disclosures about Derivative
Instruments and Hedging Activities, an amendment of FASB Statement
No. 133 (“SFAS No. 161”). SFAS No. 161 requires additional
disclosures about the objectives of the derivative instruments and hedging
activities, the method of accounting for such instruments under SFAS 133 and its
related interpretations, and a tabular disclosure of the effects of such
instruments and related hedged items on our financial position, financial
performance, and cash flows. SFAS No. 161 is effective for financial
statements issued for fiscal years and interim periods beginning after
November 15, 2008, with early adoption encouraged. We do not expect the
adoption of SFAS No. 161 to have a material impact on our results of
operations and financial position as we do not currently participate in any
derivative or hedging activities.
For the
three and nine months ended September 30, 2008, approximately 15% of our
revenues were derived from sales outside of the United States, as compared to
15% and 11% for the comparable periods in 2007. Less than 10% of these sales and
subsequent accounts receivable and selling, general and administrative expenses
for the three and nine months ended September 30, 2008 and 2007 were
denominated in foreign currencies. The Company is subject to risk of financial
loss resulting from fluctuations in exchange rates of foreign currencies against
the US dollar. At this time, the Company does not engage in any hedging
activities.
The
Company believes that revenues from sources outside of the United States will
increase during 2008. There is no assurance that the Company will not be subject
to foreign exchange losses in the future.
The
Company’s outstanding debt of $6.0 million debt at September 30, 2008 related to
indebtedness under our credit agreement with Bank of America contains a floating
interest rate. Thus, our interest rate is subject to market risk in the form of
fluctuations in interest rates. The effect of a hypothetical one percentage
point increase in our variable rate debt would result in an increase of $60,000
in our annual pre-tax loss assuming no further changes in the amount of
borrowings subject to variable rate interest from amounts outstanding at
September 30, 2008.
Evaluation
of disclosure controls and procedure
Disclosure
controls and procedures are our controls and other procedures that are designed
to ensure that information required to be disclosed by us in our reports that we
file or submit under the Securities Exchange Act of 1934 is recorded, processed,
summarized and reported within the time periods specified in the SEC's rules and
forms. Disclosure controls and procedures include, without limitation, controls
and procedures designed to ensure that information required to be disclosed by
us in our reports that we file or submit under the Securities Exchange Act of
1934 is accumulated and communicated to our management, including our principal
executive officer and principal financial officer, as appropriate to allow
timely decisions regarding required disclosure.
Our
management evaluated, with the participation of our principal executive officer
and principal financial officer, the effectiveness of our disclosure controls
and procedures as of the end of the period covered by this report. Based on this
evaluation, our principal executive officer and our principal financial officer
have concluded that, as of the end of the period covered by this report, our
disclosure controls and procedures were effective.
Changes
in internal control over financial reporting
There
have been no significant changes in our internal controls during the most recent
fiscal quarter, or in any other factors that could affect these controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses, that have affected or are reasonably likely to materially
affect our internal control over financial reporting during our most recent
fiscal quarter covered by this report.
The
Company is party to legal proceedings from time to time that arise in the
ordinary course of our business. Although the ultimate resolution of these
various proceedings cannot be determined at this time, the Company does not
believe that the outcome of any outstanding legal proceedings, individually or
in the aggregate, will have a material adverse effect on the future results of
operations or financial condition of the Company. For further information
on legal proceedings, see Item 3 of the Company's Annual Report on Form 10-K for
the year ended December 31, 2007.
On
September 9, 2008, a purported shareholder class action lawsuit was filed in the
Superior Court of Fulton County, Georgia, on behalf of the public stockholders
of the Company, challenging the Company’s proposed merger with The Middleby
Corporation. The complaint names TurboChef, Middleby and the current members of
the Company’s board of directors as defendants. Among other things, the
complaint alleges breach of fiduciary duty by the Company’s directors in
connection with approval of the Merger Agreement. Plaintiff is seeking to enjoin
the proposed transaction and to recover costs of litigation. The Company
believes that the lawsuit is without merit.
The
Company has announced that it entered into a merger agreement on August 12, 2008
with The Middleby Corporation pursuant to which the Company would be merged with
and into a wholly-owned subsidiary of The Middleby Corporation. In
addition to the discussion of the risk factors which are found in Item 1A of the
Company's Annual Report on Form 10-K for the year ended December 31, 2007, the
following additional risk factors should be considered:
TurboChef
will be subject to business uncertainties and contractual restrictions while the
merger is pending.
Uncertainty
about the merger and diversion of management attention could harm TurboChef,
whether or not the merger is completed. In response to the announcement of the
merger, existing or prospective customers, suppliers, distributors and retailers
of TurboChef may delay or defer their purchasing or other decisions concerning
TurboChef, or they may seek to change their existing business relationship. In
addition, as a result of the announcement of the merger, current and prospective
employees could experience uncertainty about their future with TurboChef. The
success of the Company will depend in part on the retention of personnel
critical to the business and operation of the Company, and the uncertainties
discussed above may impair the Company's ability to retain, recruit or
motivate key personnel. The closing of the merger will also require a
significant amount of time and attention from management. In addition, the
pendency of the merger could exacerbate the diversion of management resources
from other transactions or activities that TurboChef may undertake. The
diversion of management attention away from ongoing operations could adversely
affect ongoing operations and business relationships. The merger agreement also
restricts TurboChef from making certain acquisitions and taking other specified
actions until the merger occurs. These restrictions may prevent TurboChef from
pursuing attractive business opportunities that may arise prior to the closing
of the merger.
If
the proposed merger is not completed, TurboChef will have incurred substantial
costs that may adversely affect TurboChef's financial results, operations and
financial condition and the market price of TurboChef common stock.
TurboChef
has incurred and will continue to incur substantial costs in connection with the
proposed merger. These costs, which to date are estimated to aggregate to over
$2.0 million, are primarily associated with the fees and expenses of attorneys,
accountants and TurboChef's financial advisors, although additional
unanticipated costs may also be incurred. In addition, TurboChef has diverted
significant management resources in an effort to complete the merger, and
TurboChef is subject to restrictions contained in the merger agreement on the
conduct of its business. Although TurboChef has agreed that its board of
directors will, subject to fiduciary exceptions, recommend that its stockholders
approve the merger proposal, there is no assurance that the merger proposal will
be approved, and there is no assurance that the other conditions to the closing
of the merger will be satisfied. If the merger is not completed, TurboChef will
have incurred these significant costs, including the diversion of management
resources, for which it would have received little or no benefit. In addition,
TurboChef will be required to pay Middleby a termination fee of $7.0 million if
the merger agreement is terminated in specified circumstances. If the merger is
not completed, the above risks and liabilities will adversely affect TurboChef's
business, financial results, financial condition, cash flows and stock
price.
The
merger agreement contains provisions that limit TurboChef's ability to pursue
alternatives to the merger and could discourage a potential competing acquiror
that might be willing to pay more to acquire TurboChef.
The
merger agreement contains provisions that make it more difficult for TurboChef
to sell its business to a party other than Middleby. These provisions include
the prohibition on TurboChef generally from soliciting any acquisition proposal
or offer for a competing transaction and the requirement that TurboChef pay a
termination fee of $7.0 million if the merger agreement is terminated in
specified circumstances. These provisions might discourage a third party
that might have an interest in acquiring all or a significant part of TurboChef
from considering or proposing that acquisition, even if that party were prepared
to pay consideration with a higher per share value than the current proposed
merger consideration. Furthermore, the termination fee may result in a potential
competing acquiror proposing to pay a lower per share value to acquire TurboChef
than it might otherwise have proposed to pay.
Our
ability to access the capital and credit markets could harm our financial
position.
Recently,
the capital and credit markets have become increasingly volatile as a result of
adverse conditions that have caused the failure and near failure of a number of
large financial services companies. If the capital and credit markets continue
to experience volatility and the availability of funds remains limited, it is
possible that our ability to access the capital and credit markets may be
limited by these or other factors at a time when we would like, or need, to do
so, which could have an impact on our ability to react to changing economic and
business conditions.
None.
None.
We held
our annual meeting of stockholders on July 18, 2008. The stockholders
voted on three proposals, as more fully described in our definitive Proxy
Statement, dated June 11, 2008. A total of 3,686,215 shares were non-votes on
Proposal 1. The votes were as follows:
Proposal
1: Election of Directors
|
Nominee
|
For
|
Withheld
|
|
Richard
E. Perlman
|
20,415,353
|
2,630,104
|
|
James
K. Price
|
20,791,222
|
2,254,235
|
|
James
W. DeYoung
|
19,173,962
|
3,871,495
|
|
Sir
Anthony Jolliffe
|
19,400,741
|
3,644,716
|
|
J.
Thomas Presby
|
22,993,009
|
52,448
|
|
William
A. Shutzer
|
22,472,547
|
572,910
|
|
Raymond
H. Welsh
|
22,471,680
|
573,777
|
Proposal
2: Approval of an amendment to the Company’s 2003 Stock Incentive Plan to
increase the number of shares of the Company’s common stock available for awards
under the Plan by an additional 1,666,667 shares. A total of 7,718,404 shares
were non-votes on Proposal 2.
|
|
For
|
Against
|
Abstain
|
|
|
|
11,755,268
|
7,229,115
|
28,885
|
|
Proposal
3: Ratification of the appointment of Ernst & Young LLP as the Company’s
Independent Registered Public Accounting Firm for fiscal year 2007.
|
|
For
|
Against
|
Abstain
|
|
|
|
26,635,406
|
85,003
|
11,263
|
|
None.
EXHIBITS
|
2.1
|
Agreement
and Plan of Merger, dated August 12, 2008, by and among TurboChef
Technologies, Inc., The Middleby Corporation and Chef Acquisition Corp.
(incorporated by reference to Exhibit 2.1 to the Company’s Current Report
on Form 8-K filed with the Commission on August 13,
2008).
|
|
|
|
|
10.1
|
Stockholder
Voting and Support Agreement, dated April 30, 2008, by and among The
Middleby Corporation and the stockholders named therein (incorporated by
reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed with the Commission on August 13, 2008).
|
|
|
|
|
31.1
|
Certification
of Principal Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
|
|
|
|
|
31.2
|
Certification
of Principal Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
|
|
|
|
|
32.1
|
Certification
of Principal Executive Officer and Principal Financial Officer pursuant to
Section 906 of the Sarbanes-Oxley Act of
2002
|
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
|
|
TURBOCHEF
TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
J. Miguel Fernandez de Castro
|
|
|
|
|
J.
Miguel Fernandez de Castro
|
|
| |
|
Chief
Financial Officer |
|
| |
|
(Duly
Authorized Officer and |
|
| |
|
Principal
Financial Officer) |
|
Dated:
November 10, 2008
25