UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant |X|
Filed by a Party other than the Registrant |_|
Check the appropriate box:
|_| Preliminary Proxy Statement |_| Confidential, for Use of the
|X| Definitive Proxy Statement Commission Only (as permitted
|_| Definitive Additional Materials by Rule 14a-6(e)(2))
|_| Soliciting Material Pursuant to
ss.240.14a-12
FLANIGAN'S ENTERPRISES, INC
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box): |X| No fee required.
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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|_| Fee paid previously with preliminary materials.
|_| Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(4) Date Filed:
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FLANIGAN'S ENTERPRISES, INC.
5059 N.E. 18th Avenue
Fort Lauderdale, Florida 33334
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD FRIDAY, FEBRUARY 26, 2010
To the Shareholders of Flanigan's Enterprises, Inc.,
Please take notice that the Annual Meeting of Shareholders of Flanigan's
Enterprises, Inc., a Florida corporation, (the "Company"), will be held on
Friday, February 26, 2010 at 10:00 a.m., local time, at our corporate
headquarters, 5059 N.E. 18th Avenue, Fort Lauderdale, Florida 33334 to consider
and act upon the following matters:
(1) To elect three directors of the Company to hold office until the
year 2013 Annual Meeting and until their successors are elected; and
(2) To transact such other business as may properly come before the
meeting or any adjournment thereof.
The foregoing items of business are more fully described in the proxy statement
accompanying this notice. All shareholders are invited to attend the meeting in
person. Only shareholders of record at the close of business on January 12, 2010
are entitled to notice of and to vote at the meeting or any postponement or
adjournment thereof. Any shareholder of the Company at the close of business on
January 12, 2010, attending the meeting and entitled to vote may do so in
person, even if such shareholder returned a proxy.
Pursuant to rules promulgated by the Securities and Exchange Commission, (the
"SEC"), we have elected to provide access to our proxy materials both by sending
you the attached proxy statement and proxy card and by notifying you of the
availability of our proxy statement and our fiscal 2009 Annual Report to
Shareholders at our website at www.flanigans.net under the link "Financial". No
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online voting, however, is available.
By Order of the Board of Directors
Jeffrey D. Kastner
Secretary
Fort Lauderdale, Florida
January 26, 2010
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WHETHER OR NOT YOU EXPECT TO ATTEND THE ANNUAL MEETING, PLEASE COMPLETE, DATE
AND RETURN THE ENCLOSED PROXY AND MAIL IT PROMPTLY IN THE ENCLOSED ENVELOPE,
WHICH WILL ENSURE REPRESENTATION OF YOUR SHARES. REGARDLESS OF THE NUMBER OF
SHARES YOU OWN, YOUR VOTE IS IMPORTANT. NO POSTAGE NEED BE AFFIXED IF MAILED IN
THE UNITED STATES.
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Important Notice Regarding the Availability of Proxy Materials for the Annual
Meeting of Shareholders to be held on February 26, 2010 - the Proxy Statement
and 2009 Annual Report to Shareholders are available at our website at
www.flanigans.net under the link "Financial."
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FLANIGAN'S ENTERPRISES, INC.
5059 N.E. 18th Avenue
Fort Lauderdale, Florida 33334
PROXY STATEMENT
ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD FRIDAY, FEBRUARY 26, 2010
The Board of Directors of Flanigan's Enterprises, Inc. (the "Company"), is
furnishing this proxy statement to you in connection with our solicitation of
proxies to be used at our Annual Meeting of Shareholders, (the "Annual
Meeting"), to be held Friday, February 26, 2010, at 10:00 a.m., local time, or
at any postponement(s) or adjournment(s) thereof, for the purposes set forth in
this proxy statement and in the accompanying Notice of Annual Meeting of
Shareholders. The Annual Meeting will be held at our corporate offices at 5059
N.E. 18th Avenue, Fort Lauderdale, Florida 33334. The telephone number at that
location is 954-377-1961. Unless the context indicates otherwise, all references
in this proxy statement to "we", "us", "our", "Flanigan's" or the "Company" mean
Flanigan's Enterprises, Inc.
The date of this proxy statement is January 26, 2010 and it was first mailed on
or about January 26, 2010 to shareholders entitled to vote at the Annual
Meeting.
ABOUT OUR ANNUAL MEETING
What is the purpose of our Annual Meeting?
At our Annual Meeting, shareholders will act upon the matters outlined in the
notice of meeting on the cover page of this proxy, including the election of
three directors for a term of three years and to consider and act upon any other
matters that may properly come before the meeting. In addition, our management
will report on our performance during fiscal year 2009 and respond to
appropriate questions from shareholders.
VOTING
Who can attend the meeting?
All shareholders as of the close of business on January 12, 2010, (the "Record
Date"), or their duly appointed proxies, may attend our Annual Meeting. Even if
you currently plan to attend our Annual Meeting, we recommend that you also
submit your proxy as described below so that your vote will be counted if you
cannot attend our Annual Meeting.
If you hold shares in "street name", that is, through a broker or other nominee,
you will need to bring a copy of your brokerage statement reflecting your stock
ownership as of the Record Date and check in with our Inspectors of Election at
our Annual Meeting.
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Who is entitled to vote at the meeting?
Only holders of our common stock of record on the Record Date are entitled to
receive notice of and to vote the common shares held by them on that date at our
Annual Meeting, or any postponement(s), adjournment(s) or continuation(s) of our
meeting.
What are the voting rights of our shareholders?
On the Record Date, there were 1,861,933 shares of our common stock outstanding,
each of which is entitled to one vote with respect to each matter to be voted on
at our Annual Meeting. Therefore, if you owned 100 shares of our common stock on
the Record Date, you may cast 100 votes for each matter properly presented at
the Annual Meeting.
What constitutes a quorum?
The presence at our Annual Meeting, in person or by proxy, of the holders of a
majority of the shares of our common stock outstanding as of the Record Date
will constitute a "quorum", permitting our meeting to be held and action to be
validly taken. If you submit a properly executed proxy card, even if you abstain
from voting or if you withhold your vote with respect to any proposal, you will
be considered present for purposes of a quorum. If you hold your shares in
"street name" through a broker or other representative and the broker or
representative indicates on the proxy that it does not have discretionary
authority as to certain shares to vote on a particular matter, (broker
non-votes), the shares represented by such broker non-votes will be counted in
determining the presence of a quorum.
If less than a majority of outstanding common shares entitled to vote are
represented at the meeting, a majority of the shares present at the meeting may
adjourn the meeting to another date, time or place, and notice need not be given
of the new date, time or place if the new date, time or place is announced at
the meeting before an adjournment is taken.
Will my shares be voted if I do not provide my proxy?
If your shares are held in the name of a brokerage firm, they may be voted by
the brokerage firm (as indicated above) even if you do not give the brokerage
firm specific voting instructions. If you are a registered shareholder and hold
your shares directly in your own name, your shares will not be voted unless you
provide a proxy or fill out a written ballot in person at the meeting.
How do I vote?
You can vote in any of the following ways:
(1) To vote by mail:
o Mark, sign and date each proxy card that you receive; and
o Return it in the enclosed prepaid envelope.
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(2) To vote in person if you are a registered shareholder:
o Attend our Annual Meeting;
o Bring valid photo identification; and
o Deliver your completed proxy card or ballot in person.
(3) To vote in person if your shares are held in "street name":
o Attend our Annual Meeting;
o Bring valid photo identification; and
o Obtain a legal proxy from your bank or broker to vote the shares
that are held for your benefit, attach it to your completed proxy
card and deliver it in person.
Prior to the Annual Meeting, we will select one or more Inspectors of Election.
These Inspectors will determine the number of common shares represented at the
meeting, the existence of a quorum, the validity of proxies and will count the
ballots and votes and will determine and report the results to us.
What does it mean if I get more than one proxy card?
It means you hold shares registered in more than one account. Please vote or
provide a proxy for all accounts in one of the manners described above to ensure
that all your shares are voted.
Can I change my vote after I return my proxy card?
Yes, even after you have submitted your proxy card you may change your vote at
any time before the proxy is exercised by filing with our Secretary either a
notice of revocation or a duly executed proxy bearing a later date. The powers
of the proxy holders will be suspended if you attend the meeting in person and
so request, although attendance at the meeting will not by itself revoke a
previously granted proxy.
What are the Board's recommendations?
The enclosed proxy is solicited on behalf of our Board of Directors. Unless you
give other instructions on your proxy card, the persons named as proxy holders
on the proxy card will vote in accordance with the recommendations of our Board
of Directors. Our Board of Directors recommends a vote:
o "FOR" the election of Jeffrey D. Kastner, Michael B. Flanigan and
Mike Roberts to serve on our Board of Directors for the next three
years and until their successors are elected.
Our Board of Directors does not foresee or have any reason to believe that the
proxy holders will have to vote for substitute or alternate board nominees. In
the event that any nominee is not available for election and a substitute
nominee is designated by the Board of Directors, the proxy holders will vote as
recommended by the Board of Directors or, if no recommendation is given, in
accordance with their best judgment.
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What vote is required to approve each item?
Election of Directors: A plurality of the votes cast at the meeting is required
for the election of directors. A properly executed proxy marked "WITHHOLD
AUTHORITY" with respect to one or more directors will not be voted with respect
to the director or directors indicated, although it will be counted for purposes
of determining whether there is a quorum. Shareholders do not have the right to
cumulate their votes for directors.
Other Items: For most other items which may properly come before the meeting,
the affirmative vote of a majority of the common shares present, either in
person or by proxy, and voting will be required for approval, unless otherwise
required by law. You may vote "FOR", "AGAINST" or "ABSTAIN" on any other
proposal.
If you sign your proxy card or broker voting instruction card with no further
information, your shares will be voted in accordance with the recommendations of
our Board, i.e., "FOR" all proposals.
So far as our management is aware, no matters other than those described in this
proxy statement will be acted upon at our Annual Meeting. In the event any other
matters properly come before our Annual Meeting for a vote of shareholders, the
persons named as proxies on the proxy card will vote in accordance with their
best judgment on such other matters.
Who pays for the preparation of the proxy statement and the cost of soliciting
votes for our Annual Meeting?
We will pay the cost of preparing, assembling and mailing the proxy statement,
notice of meeting and enclosed proxy card. In addition to the use of mail, our
employees may solicit proxies personally and by telephone. Our employees will
receive no compensation for soliciting proxies other than their regular
salaries. We may request banks, brokers and other custodians, nominees and
fiduciaries to forward copies of the proxy material to their principals and to
request authority for the execution of proxies and we may reimburse those
persons for their expenses incurred in connection with these activities. We will
compensate only independent third party agents that are not affiliated with us
to solicit proxies. At this time, we do not anticipate that we will be retaining
a third party solicitation firm, but should we determine, in the future, that it
is in our best interests to do so, we will retain a solicitation firm and pay
for all costs and expenses associated with retaining this solicitation firm.
How and when may I submit proposals or director nominations for inclusion in the
Proxy Statement for our 2011 Annual Meeting?
If you would like to submit a proposal for the 2011 Annual Meeting of
Shareholders, it must be received by our Secretary, Jeffrey D. Kastner, at our
corporate headquarters located at 5059 N.E. 18th Avenue, Fort Lauderdale,
Florida 33334, at any time prior to September 28, 2010, and must otherwise
comply with Rule 14a-8 under the Exchange Act, in order to be eligible for
inclusion in the proxy statement for that meeting, unless the date of the next
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annual meeting changes by more than 30 days from the date of this Annual
Meeting, in which case notice must be received a reasonable time before mailing.
In general, advance notice of nominations of persons for election to the Board
or the proposal of business to be considered by the shareholders must be given
to our Secretary not less than 120 days prior to the first anniversary of the
date of the mailing of materials regarding the prior year's annual meeting,
which mailing date is identified above in this Proxy Statement, unless the date
of the next annual meeting changes by more than 30 days from the date of this
Annual Meeting, in which case notice must be received a reasonable time before.
A shareholder's notice of nomination should set forth (i) as to each person whom
the shareholder proposes to nominate for election or re-election as a director
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Exchange Act, (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director, if elected); (ii) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reason for conducting
such business at the meeting and any material interest to such business of such
shareholder and the beneficial owner, if any, on whose behalf the nomination or
proposal is made; and (iii) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made,
(A) the name and address of such shareholder, as they appear on our books, and
of such beneficial owner, (B) the number of shares of common stock that are
owned, (beneficially or of record), by such shareholder and such beneficial
owner, (C) a description of all arrangements or understandings between such
shareholder and such beneficial owner and any other person or persons,
(including their names), in connection with the proposal of such business by
such shareholder and any material interest of such shareholder and of such
beneficial owner in such business, and (D) a representation that such
shareholder or its agent or designee intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting.
You should review the information contained in this proxy statement separately
from our 2009 Annual Report to Shareholders. Our principal corporate offices are
located at 5059 N.E. 18th Avenue, Fort Lauderdale, Florida 33334, and our
telephone number is (954) 377-1961. A list of shareholders entitled to vote at
the Annual Meeting will be available at our offices for a period of ten days
prior to the meeting and at the meeting itself for examination by any
shareholder.
Where can I find the voting results?
We will publish the voting results in our Form 10-Q for the second quarter of
our fiscal year 2010, which we will file with the SEC on or about May 18, 2010.
To view our form 10-Q online, go to our website at www.flanigans.net under the
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link "Financial."
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Can shareholders and other interested parties communicate directly with our
Board? If so, how?
Yes. You may communicate directly with one or more members of our Board of
Directors by writing to the Company's Corporate Secretary, Flanigan's
Enterprises, Inc., 5059 N.E. 18th Avenue, Fort Lauderdale, Florida 33334. The
Company's Secretary will then forward all questions or comments directly to our
Board of Directors or a specific Director, as the case may be.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table shows, as of January 12, 2010, the beneficial ownership of
our Common Stock by (i) any person or group who is known by us to be the
beneficial owner of more than 5% of our Common Stock; (ii) each of our current
directors, including the nominees for director; (iii) each of the Named
Executive officers, (as defined herein); and (iv) all our current directors and
executive officers as a group. Unless otherwise indicated, the address for each
beneficial owner is c/o Flanigan's Enterprises, Inc., 5059 N.E. 18th Avenue,
Fort Lauderdale, Florida 33334.
The following table is based upon information supplied by our officers,
directors, principal shareholders and schedules 13D and 13G filed with the
United States Securities and Exchange Commission, (the "SEC"). The number of
shares of our common stock is determined under the rules of the SEC and the
information does not necessarily indicate beneficial ownership for any other
purpose. Under the SEC rules, beneficial ownership includes any shares as to
which the individual or entity has sole or shared voting power or investment
power and also includes any shares that the individual or entity has the right
to acquire through the exercise of stock options or warrants and any references
in the footnotes to this table to shares subject to stock options or warrants
refers only to stock options or warrants that are so exercisable. For purposes
of computing the percentage of outstanding shares of our common stock held by
each person or entity, any shares that such person or entity has the right to
acquire are deemed to be outstanding, but are not deemed to be outstanding for
the purpose of computing the percentage ownership of any other person. Unless
otherwise indicated in the footnotes to this table and subject to community
property laws where applicable, we believe that the shareholders named in this
table have sole voting and investment power with respect to the shares of our
common stock indicated as beneficially owned. The inclusion in the table of any
shares deemed beneficially owned does not constitute an admission of beneficial
ownership of those shares.
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Amount and
Nature of
Beneficial
Ownership as of Percent
Name and Address of Beneficial Owner January 12, 2010(1) of Class(2)
---------------------------------------- ------------------- -----------
5% Shareholders:
Robino Stortini Holdings LLC (3) 128,500 6.9%
6 Larch Avenue, Suite 101
Wilmington, Delaware 19804
Jeffrey D. Kastner (4) 654,013 35.1%
James G. Flanigan (5) 373,320 20.1%
Michael B. Flanigan (6) 197,195 10.6%
Patrick J. Flanigan (7) 155,260 8.3%
Current Named Executive Officers and Directors:
Jeffrey D. Kastner (4) 654,013 35.1%
James G. Flanigan (5) 373,320 20.1%
Michael B. Flanigan (6) 197,195 10.6%
Patrick J. Flanigan (7) 155,260 8.3%
August Bucci 9,500 *
Christopher O'Neil 6,500 *
Barbara J. Kronk --
Germaine M. Bell --
Mike Roberts --
Jean Picard 1,070 *
All current executive officers and directors 967,891 52.0%
as a group (10 persons) (4)(5)(6)(7)
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* less than one (1%) percent of the outstanding shares of class.
(1) The persons named in the table have sole voting and investment power
with respect to all shares beneficially owned by them, except as noted
in the footnotes below.
(2) Applicable percentage ownership is based upon 1,861,933 shares of
common stock outstanding as of the Record Date. Beneficial ownership is
determined in accordance with the rules of the Securities and Exchange
Commission and includes voting and investment power with respect to
shares.
(3) Based solely on reports filed by Robino Stortini Holdings LLC with the
SEC.
(4) Includes 633,690 shares which are owned of record (in equal shares) by
five separate trusts of which Jeffrey D. Kastner is one of three
trustees. As a trustee, Mr. Kastner has shared voting and investment
power of these shares. The five trusts include the trusts established
by Joseph G. Flanigan for James G. Flanigan (See Note (5) below),
Michael B. Flanigan (See Note (6) below) and Patrick J. Flanigan (See
Note (7) below).
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(5) Includes 138,693 shares which are owned of record by a trust of which
James G. Flanigan is one of three trustees and a beneficiary (for which
Mr. Flanigan has shared voting and investment power), 400 shares owned
as custodian for his children (for which Mr. Flanigan has shared voting
and investment power), 12,776 shares owned by his spouse (for which Mr.
Flanigan has shared voting and investment power) and 13,700 shares
owned of record by a trust, the beneficiaries of which are his
children, and of which he is the sole trustee.
(6) Includes 134,915 shares owned of record by a trust of which Michael B.
Flanigan is one of three trustees and a beneficiary (for which Mr.
Flanigan has shared voting and investment power), 1,000 shares owned by
his spouse (for which Mr. Flanigan has shared voting and investment
power), 650 shares owned as custodian for his children and
stepchildren, (for which Mr. Flanigan has shared voting and investment
power), 10,200 shares owned of record by a trust, the beneficiaries of
which are his children and of which he is the sole trustee and 3,500
shares owned of record by a trust, the beneficiaries of which are his
stepchildren and of which he is the sole trustee.
(7) Includes 136,960 shares owned of record by a trust of which Patrick J.
Flanigan is one of three trustees and a beneficiary (for which Mr.
Flanigan has shared voting and investment power), 2,000 shares owned by
his spouse (for which Mr. Flanigan has shared voting and investment
power), 400 shares owned by his spouse as custodian for his children
(for which Mr. Flanigan has shared voting and investment power) and
13,700 shares owned of record by a trust, the beneficiaries of which
are his children and of which he is the sole trustee.
SECTION 16 (a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, (the "Exchange Act"),
requires the Company's officers, directors and persons who beneficially own more
than 10% of a registered class of the Company's equity securities to file
reports of ownership and changes in ownership with the SEC. Officers, directors
and greater than 10% stockholders are required by regulation to furnish the
Company with copies of all Section 16(a) reports they file.
Based solely upon review of the copies of such reports and any amendments
thereto furnished to us during and with respect to our 2009 fiscal year or
written representations from certain reporting persons that were not required to
file, we believe that during fiscal year 2009, our executive officers, directors
and greater-than-10% stockholders complied with all applicable Section 16(a)
filing requirements, except that (i) James G. Flanigan filed one (1) Form 4
late, which filing represented six (6) transactions; (ii) Michael Flanigan filed
one (1) Form 4 late, which filings represented three (3) transactions; and (iii)
Patrick J. Flanigan filed one (1) Form 4 late, which filing represented one (1)
transaction, during fiscal year 2009.
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PROPOSAL I - ELECTION OF DIRECTORS
Our By-Laws provide for a Board of Directors, which consists of three classes of
directors of three directors each. Three directors are to be elected to replace
those of the class whose terms expire this year. The three directors to be
elected at the Annual Meeting shall serve for a three year term expiring in 2013
and until their respective successors are elected and qualified. All of the
nominees named herein are presently serving as members of our Board of
Directors. We have no reason to believe that any of those named below will be
unable or unwilling to serve. If for any reason any nominee named is unable to
serve, the shares represented by all valid proxies will be voted for the
election of a substitute nominee recommended by the Board of Directors or the
Board of Directors may reduce the size of the Board.
Nominees receiving the highest number of affirmative votes cast, up to the
number of directors to be elected, will be elected as directors. Unless you
specify otherwise, the proxy holders will vote the proxies for the below three
nominees.
The name of each nominee, his age, the year in which he was first elected as a
director, his principal occupation or occupations for the past five years and
positions (other than director) with the Company, based upon information
furnished to us by the nominees, are as follows:
Director
Name and Age Since Principal Occupation for Past Five Years
------------ ----- ----------------------------------------
Jeffrey D. Kastner (56) 1985 Chief Financial Officer; General Counsel, Secretary
Michael B. Flanigan (47) 2005 President and shareholder of Twenty Seven Birds, Corp.,
a franchisee of the Company since 1985.
Mike Roberts (71) 2001 Founder of and a partner in The Action Group,
Inc., sales and marketing consultants to the beverage industry,
since 2001.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A
VOTE FOR THE ELECTION OF EACH OF THE ABOVE NOMINEES.
PROXY CARDS PROPERLY EXECUTED AND RETURNED
WILL BE SO VOTED UNLESS CONTRARY INSTRUCTIONS ARE
INDICATED ON THE PROXY CARD.
The following table sets forth the name and address of each of our directors,
including director nominees and executive officers, the year each current
director first became a director, and the age and positions currently held by
each such individual with us. The following table is as of January 12, 2010.
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Year First Became Positions and Offices
Name a Director Age with the Company
---------------------------- --------------------- ------ -----------------------------------------------------
James G. Flanigan 1991 45 Chief Executive Officer, President, Director
Jeffrey D. Kastner 1985 56 Chief Financial Officer, General Counsel,
Secretary, Director
August Bucci 2005 65 Chief Operating Officer, Executive Vice President,
Director
Patrick J. Flanigan 1991 49 Director
Michael B Flanigan 2005 47 Director
Barbara J. Kronk 2004 64 Director
Mike Roberts 2001 71 Director
Germaine M. Bell 1984 77 Director
Christopher O'Neil 2006 44 Supervisor, Director
Non-Director Executive
Officers
Jean Picard 71 Vice President of Package Operations
Directors and Nominees
JAMES G. FLANIGAN joined our Board of Directors in 1991. Mr. Flanigan has been a
Vice President and shareholder of Twenty Seven Birds Corporation, a franchisee
of the Company since 1985. Mr. Flanigan was elected President of the Company in
2002 and Chairman of the Board of Directors and Chief Executive Officer in 2005.
Mr. Flanigan is the son of our former Chairman of the Board of Directors and
former Chief Executive Officer, Joseph G. Flanigan, and is the brother of
Directors, Patrick J. Flanigan and Michael B. Flanigan.
JEFFREY D. KASTNER joined our Board of Directors in 1985. Mr. Kastner was
employed by the Company as a corporate attorney from 1979-1982 and has been
general counsel since 1982. Mr. Kastner was Assistant Secretary of the Company
from 1995-2004 and has been Secretary since 2004. In 2004, Mr. Kastner was
elected Chief Financial Officer of the Company. From 1983 through 2004, Mr.
Kastner was the President of Jeffrey D. Kastner, P.A., a law firm and engaged in
the private practice of law. Mr. Kastner received a Juris Doctor in Law in 1978
from the University of Florida, Gainesville, Florida.
AUGUST BUCCI joined our Board of Directors in 2005. Mr. Bucci was employed by
the Company as its Entertainment Director from 1978-1980; re-hired as Director
of Advertising in 1984; Supervisor of the Company's out of state bars and
nightclubs in 1985; Supervisor of Restaurants, Nightclubs and Bars in 1988;
Director of Operations - Restaurant Division in 1990; Vice President of
Restaurant Operations in 2002; and Chief Operating Officer and Executive Vice
President in 2003.
PATRICK J. FLANIGAN joined our Board of Directors in 1991. Mr. Flanigan has been
the President and sole shareholder of B. D. 43 Corp., a franchisee of the
Company since 1985. Mr. Flanigan has also been the President and sole
shareholder of B.D. 15 Corp., the general
14
partner of another franchisee since 1997. Mr. Flanigan is the son of our former
Chairman of the Board of Directors and former Chief Executive Officer, Joseph G.
Flanigan, and is the brother of Directors, James G. Flanigan and Michael B.
Flanigan.
MICHAEL B. FLANIGAN joined our Board of Directors in 2005. Mr. Flanigan has been
the President and shareholder of Twenty Seven Birds Corporation, a franchisee of
the Company since 1985. Mr. Flanigan is the son of our former Chairman of the
Board of Directors and former Chief Executive Officer, Joseph G. Flanigan, and
is the brother of Directors, James G. Flanigan and Patrick J. Flanigan.
CHRISTOPHER O'NEIL joined our Board of Directors in 2006. Employed in various
capacities by the Company since 1998, as of 2003, Mr. O'Neil has been employed
by the Company as a Supervisor where his responsibilities include restaurant
supervision and maintenance supervision.
BARBARA J. KRONK joined our Board of Directors in 2004. Mrs. Kronk is a
certified public accountant, who has been self-employed as a tax practitioner
since 1987. From 1988-2006, Mrs. Kronk was employed as an Instructor of
Accounting by the Florida Metropolitan University, Fort Lauderdale and Pompano
Beach, Florida, where she also served as Department Chair of Accountancy from
1998-2002. From 1987-1997 and again from 2002-2004, Mrs. Kronk was an Adjunct
Instructor of Accounting at various educational institutions in the Fort
Lauderdale, Florida area. Mrs. Kronk received a Master's degree in accounting
from Nova University, Fort Lauderdale, Florida.
MIKE ROBERTS joined our Board of Directors in 2001. Mr. Roberts is the founder
of and has been a partner in The Action Group, Inc., sales and marketing
consultants to the beverage industry, since 2001. From 1999-2001, Mr. Roberts
was a sales associate with Ginger Spirits, a liquor and wine broker, and from
1979-1999 held various executive sales positions with Southern Wine & Spirits of
America.
GERMAINE M. BELL joined our Board of Directors in 1984. Mrs. Bell is retired,
but was employed by the Company from 1981 - 1993 as executive secretary to our
former Chairman of the Board of Directors, Joseph G. Flanigan, and was our
Assistant Secretary from 1986 - 1993.
Non-Director, Executive Officers
JEAN PICARD has been an employee of the Company since 1961. He has been Vice
President of Package Store Operations since 2002 and the Company's liquor
purchaser since 1998.
15
BOARD OF DIRECTORS STRUCTURE AND COMPENSATION
Board of Director Structure and Committees
Our business, property and affairs are managed under the direction of our Board
of Directors, except with respect to those matters reserved for our
shareholders. Our Board of Directors establishes our overall corporate policies,
reviews the performance of management in executing our business strategy and
managing our day-to-day operations and acts as an advisor to management. Our
Board's mission is to further the long-term interest of our shareholders.
Members of the Board of Directors are kept informed of our business through
discussions with management, primarily at meetings of the Board of Directors and
its committees and through reports and analyses presented to them. Significant
communications between our directors and management may occur apart from these
meetings.
James G. Flanigan serves as Chairman of our Board of Directors. The Board of
Directors held a total of four meetings during our 2009 fiscal year, which ended
on October 3, 2009. Every director attended at least 75% of the total number of
meetings of the Board of Directors and at least 75% of all meetings of the
committees of the Board of Directors on which the director served. The Board of
Directors has determined that we are a "controlled" company as defined by the
New York Stock Exchange/American Stock Exchange ("NYSE/AMEX") and SEC rules
since more than 50% of our issued and outstanding common stock is owned by the
immediate family of our Chairman of the Board of Directors, including through
revocable and irrevocable trusts established by our former Chairman, Joseph G.
Flanigan, for his children and grandchildren, and other officers and directors
of the Company. As a "controlled' company, the majority of the Board of
Directors need not be independent and the Board of Directors has determined that
only Mike Roberts, Barbara J. Kronk and Germaine M. Bell are independent as
defined by the NYSE/AMEX and SEC rules.
The Board of Directors currently has three committees, the Audit Committee, the
Independent Committee and the Corporate Governance and Nominating Committee,
each as described below.
Audit Committee
The Audit Committee of the Board of Directors, which currently consists of
Barbara J. Kronk, Germaine M. Bell and Mike Roberts, reviews the auditing,
accounting, financial reporting and internal control functions and selects our
independent auditors. This committee operates under a written charter adopted by
the Board of Directors, a copy of which is available on our website at
www.flanigans.net under the link "Corporate Governance", which committee
-----------------
annually reviews and assesses for adequacy. All of the committee members are
independent as required by applicable NYSE/AMEX and SEC rules. The committee met
four times during fiscal year 2009. The Board of Directors has determined that
Barbara J. Kronk satisfies the definition of "audit committee financial expert"
as promulgated by the SEC by virtue of her educational and work experience as
described above.
16
REPORT OF THE AUDIT COMMITTEE
The Audit Committee of our Board of Directors is composed of three independent
directors and operates under a written charter adopted by the Board of
Directors. The Audit Committee held four meetings during fiscal year 2009. The
Audit Committee meets separately with our Chief Financial Officer and our
independent public accountants, MarcumRachlin, a division of Marcum, LLP (f/k/a
Rachlin, LLP), at selected meetings. The Audit Committee oversees the financial
accounting and reporting processes, system of internal control, audit process
and process for monitoring compliance with laws and regulations. The Audit
Committee is responsible for, among other things, the appointment of the
independent auditors and the preparation of the report to be included in our
annual proxy statement pursuant to rules of the SEC. The charter of the Audit
Committee, as approved by the Board of Directors, is posted at our website at
www.flanigans.net under the link "Corporate Governance."
Our management has primary responsibility for the preparation, presentation and
integrity of our financial statements and for the appropriateness of the
accounting principles and reporting policies that are used. Management is also
responsible for testing the system of internal controls and reports to the Audit
Committee on any deficiencies found. Our independent auditors were responsible
for auditing the financial statements and for reviewing the unaudited interim
financial statements and for expressing an opinion about whether our financial
statements are fairly presented in all material respects in conformity with
accounting principles generally accepted in the United States. The Audit
Committee's responsibility is to monitor and oversee these procedures.
The Audit Committee hereby reports as follows:
1. The Audit Committee has reviewed and discussed the audited financial
statements with management and with the independent auditors, with and without
management present.
2. The Audit Committee discussed with the independent auditors matters required
to be discussed by Statement on Auditing Standards No. 61 as amended by
Statement on Auditing Standards No. 90 (Communication with Audit Committees), as
adopted by the Public Company Accounting Oversight board (PCAOB) in Rule 3200 T.
3. The Audit Committee has received the written disclosures and the letter from
our independent auditors required by applicable requirements of the Public
Company Accounting Oversight Board regarding the independent auditors'
communications with the Audit Committee concerning independence, and has
discussed with the independent auditors the independent auditors' independence.
Based upon the review and discussion referred to in paragraphs (1)
through (3) above, the Audit Committee recommended to our Board of Directors and
the Board approved, that the audited financial statements be included in our
Annual Report on Form 10-K for the fiscal year ended October 3, 2009 for filing
with the SEC.
17
Submitted by the Audit Committee of the Board of Directors
Members of the Audit Committee
Barbara J. Kronk, Chairperson
Germaine M. Bell
Mike Roberts
This report of the Audit Committee shall not be deemed incorporated by reference
by any general statement incorporating by reference this Proxy Statement into
any filing under the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, except to the extent that the Company
specifically incorporates this information by reference, and shall not otherwise
be deemed filed under such acts.
Independent Committee
The members of the Independent Committee are all of the independent directors,
Barbara J. Kronk, Germaine M. Bell and Mike Roberts. The primary function of the
Independent Committee is to assist the Board of Directors on matters that may
come before it requiring independent investigation and/or guidance. During our
fiscal year 2009, no matters were referred to the Independent Committee by the
Board of Directors. This committee met once during our fiscal year 2009.
Corporate Governance and Nominating Committee
The members of the Corporate Governance and Nominating Committee, are
James G. Flanigan, Barbara J. Kronk and Mike Roberts. This committee is
responsible for nominating individuals to serve as members of our Board of
Directors and for establishing policies affecting corporate governance.
Committee members, Barbara J. Kronk and Mike Roberts are considered independent
as defined under applicable NYSE/AMEX and SEC rules. The committee will consider
properly recommended shareholder nominations for directors. This committee
operates under a written charter adopted by the Board of Directors, a copy of
which is available on our website at www.flanigans.net under the link "Corporate
-----------------
Governance." The committee's policy is to identify and consider candidates for
election as directors, including candidates recommended by our shareholders. A
shareholder may nominate a person for election as a director at an annual
meeting of the shareholders only if written notice of such shareholder's intent
to make such nomination has been given to the Company's Corporate Secretary as
described in the applicable proxy statement for the previous year's annual
meeting of shareholders. Each written notice must set forth: (a) as to each
person whom the shareholder proposes to nominate for election as a director, (i)
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
that is otherwise required, in each case pursuant to and in accordance with
Regulation 14A under the Securities Exchange Act of 1934, as amended, and (ii)
such person's written consent to being named in the proxy statement as a nominee
and to serve as a director if elected; and (b) as to the shareholder making such
nomination, (i) the name and address of such shareholder, as they appear on the
Company's books, (ii) the class and number of shares of stock of the Company
which are owned by such shareholder, (iii) a representation that the shareholder
is a holder of record of
18
stock of the Company entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to propose such nomination, and (iv) a
representation whether the shareholder intends or is a part of a group which
intends (y) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Company's outstanding capital stock required to
elect the nominee and/or (z) otherwise to solicit proxies from shareholders in
support of such nomination. The Committee will evaluate the suitability of
potential candidates nominated by shareholders in the same manner as other
candidates identified to the Committee. For a further description of the process
for nominating directors, see "About the Proxy Materials and the Annual Meeting
- How and when may I submit proposals or director nominations for inclusion in
the Proxy Statement for the 2011 Annual Meeting?" This committee met once during
our fiscal year 2009.
Consideration of Director Nominees
The Corporate Governance and Nominating Committee utilizes a variety of methods
for identifying and evaluating nominees for director. The committee regularly
assesses the appropriate size of the Board and whether any vacancies of the
Board are expected due to retirement or otherwise. In the event that vacancies
are anticipated, or otherwise arise, the Corporate Governance and Nominating
Committee will consider various potential candidates for director. Candidates
may come to the attention of the committee through current Board members,
shareholders or other persons. The committee has not paid fees to any third
party to identify, evaluate or to assist in identifying or evaluating, potential
nominees, but may determine it necessary in the future. These candidates will be
evaluated at meetings of the Corporate Governance and Nominating Committee.
Nominees recommended by persons other than the current Board members or
executive officers will be subject to the process described in "About the Proxy
Materials and the Annual Meeting - How and when may I submit proposals or
director nominations for inclusion in the Proxy Statement for the 2011 Annual
Meeting?"
In evaluating nominations for candidates for membership on our Board of
Directors, the Corporate Governance and Nominating Committee will seek to
achieve a balance of knowledge, experience and capability on the Board and to
address the following membership criteria. Members of the Board should have the
highest professional and personal ethics and values. They should have broad
experience at the policy-making level in business, government, education,
technology or public interest. They should be committed to enhancing shareholder
value and should have sufficient time to carry out their duties and to provide
insight and practical wisdom based on experience. Their service on other boards
of public companies should be limited to a number that permits them, given their
individual circumstances, to perform responsibly all of their directors' duties.
We believe that the backgrounds and qualifications of our directors, considered
as a group, should provide a composite mix of experience, knowledge and
abilities that will best allow our Board to fulfill its responsibilities. All
nominees for director included on the Company's proxy card are currently serving
as Directors of the Company.
19
Shareholder Communications and Director Attendance at Annual Shareholder
Meetings
Our Board welcomes communications from shareholders and has adopted a procedure
for receiving and addressing such communications. Shareholders may send written
communications to the entire Board or individual directors, addressing them to
Flanigan's Enterprises, Inc., 5059 N.E. 18th Avenue, Fort Lauderdale, Florida
33334, Attention: Corporate Secretary. All such communications will be forwarded
to the full Board of Directors or to any individual director or directors to
whom the communication is directed unless the communication is clearly junk mail
or a mass mailing, a business solicitation, advertisement or job inquiry, or is
unduly hostile, threatening, illegal or similarly inappropriate, in which case
the Company has the authority to discard the communication or take appropriate
legal action regarding the communication.
Recognizing that director attendance at the Company's annual meeting of
shareholders can provide shareholders with an opportunity to communicate with
members of the Board of Directors, it is the policy of the Board of Directors to
strongly encourage, but not require, the members of the Board to attend such
meetings. All of our directors, with the exception of Mike Roberts, attended the
2009 Annual Meeting of Shareholders.
Our policies regarding shareholder communications and director attendance,
(which may be modified from time to time), can be found on our website at
www.flanigans.net under the link "Corporate Governance."
Director Compensation
Members of our Board of Directors who are employed by the Company presently
receive no additional remuneration for acting as directors. We compensate our
non-employee directors at the rate of $7,500 per year, plus $250 for each
meeting of the Board of Directors attended. In addition, we also reimburse
directors for reasonable out-of-pocket expenses incurred in connection with
their attendance at Board of Director meetings. Four regularly scheduled Board
of Director meetings are typically held during the fiscal year.
20
The following table sets forth the compensation paid by us during our fiscal
year 2009 to our non-employee directors:
DIRECTOR COMPENSATION TABLE
Annual Compensation
-------------------
---------------------------------------------------------------------------------------------------------------------
Change in
Pension Value
and Non
Fees qualified
Earned Non-Equity Deferred
or Paid Stock Option Incentive Plan Compensation All Other Total
Name in Cash Awards Awards Compensation Earnings Compensation ($)
---- -------- ------ ------ ------------ -------- ------------ ---
($)
---------------------------------------------------------------------------------------------------------------------
Barbara J. Kronk 9,500 0 0 0 0 0 9,500
---------------------------------------------------------------------------------------------------------------------
Germaine M Bell 9,500 0 0 0 0 0 9,500
---------------------------------------------------------------------------------------------------------------------
Mike Roberts 9,000 0 0 0 0 0 9,000
---------------------------------------------------------------------------------------------------------------------
Patrick J. Flanigan 8,500 0 0 0 0 0 8,500
---------------------------------------------------------------------------------------------------------------------
Michael B. Flanigan 8,500 0 0 0 0 0 8,500
---------------------------------------------------------------------------------------------------------------------
EXECUTIVE COMPENSATION
We do not have a compensation committee. Our Board of Directors is responsible
for establishing and administering our policies governing the compensation of
our executive officers, who are appointed by our Board of Directors. Because we
are a "controlled" company as defined by the NYSE/AMEX and SEC rules since more
than 50% of our issued and outstanding common stock is owned by the immediate
family of our Chairman of the Board of Directors and other officers and
directors of the Company, we are not required to have (i) a compensation
committee comprised of independent directors, or (ii) a majority of our
independent members of our Board determine or recommend to our Board, the
compensation levels of our executive officers.
The primary objective of our executive compensation program is to attract,
motivate and retain the executive talent needed to facilitate our business
strategies and long-range plans and to optimize shareholder value in a
competitive environment.
Our Board of Directors employs the following principles to provide an overall
framework for the compensation of our executive officers:
o reward outstanding performance;
o motivate executive officers to perform to the fullest of their
abilities;
o tie a significant portion of executives' total compensation to our
annual and long-term financial performance and the creation of
incremental shareholder value;
o offer compensation opportunities that attract and motivate the best
talent; and
o retain those with leadership abilities and skills necessary for
building long-term shareholder value.
21
Compensation Categories
Our Board of Directors considers all elements of compensation when determining
total compensation and the individual components of total compensation. Our
Board of Directors allocates total compensation between currently paid and
long-term compensation, cash and non-cash compensation. Our Board of Directors
believes that each of these compensation categories provides incentives and
rewards that address different elements of the compensation program's objective
and when considered together serve to achieve our overall compensation
objectives.
Our Board of Directors examines each of these factors in determining the basis
for allocating compensation to each different form of award, such as the
relationship of the award to the achievement of our long-term goals,
management's exposure to downside equity performance risk and the analysis of
cost to the Company versus expected benefit to the executive. As part of this
analysis, our Board of Directors believes that a meaningful portion of each
executive's compensation should be placed at-risk and linked to the
accomplishment of specific results that are expected to lead to the creation of
value for our shareholders from both the short-term and long-term perspectives.
Our Board of Directors believes that currently paid cash compensation provides
our executives with short-term rewards for success in achieving individual and
Company performance goals. Currently paid cash consideration includes base
salary and annual cash incentive bonuses. Our Board of Directors believes that
providing executives with competitive currently paid cash consideration is the
central element of attracting, retaining and motivating high quality executives.
Our Board of Directors believes that currently paid non-cash compensation
provides our executives with the same benefits as currently paid cash
compensation. Items of currently paid non-cash compensation for certain
executive officers include a Company provided vehicle or car allowance, Company
sponsored health insurance and other non-cash benefits.
Compensation Elements
Our executive compensation program consists primarily of the following elements:
Base Salary
Base salary is used to recognize the experience, skills, knowledge and
responsibilities required of our executive officers in their roles. When
establishing the 2009 base salaries of our executive officers other than the
Chief Executive Officer, the Board of Directors considered a number of factors,
including the seniority of the individual, the functional role of the position,
the level of the individual's responsibility, the historical base salary of the
individual and recommendations from the Chief Executive Officer. The Board of
Directors considered these same factors in establishing the base salary of the
Chief Executive Officer, as well as additional factors such as the Chief
Executive Officer's industry experience and profile. In addition, the Board of
Directors considered competitive market practices with
22
respect to these salaries, although it did not set base salaries according to
specific benchmarking standards.
The salaries of our executive officers are reviewed on an annual basis, as well
as at the time of promotion or other changes in responsibilities and modified
for merit, the general performance of the Company, the executive's success in
meeting or exceeding individual performance objectives and if significant
corporate goals were achieved. If necessary, the Board of Directors also
realigns base salaries with market levels for the same positions in companies of
similar size to the Company represented in the compensation data it reviews.
Annual Incentive Bonuses
Our variable compensation program includes eligibility for annual
performance-based and discretionary cash bonuses for senior management,
including each of our executive officers. In all cases, the amount of the cash
bonus is impacted by our results of operations. The awards of variable
compensation to the Chief Executive Officer and our executive officers are
reflected in the Summary Compensation Table below.
Employee Benefit Plans
We provide group life and health insurance plans for our hourly and salary
employees. We also maintain a 401(k) retirement plan for our hourly and salary
employees. Pursuant to the plan, participants may elect to make pre-tax
contributions to the plan, subject to certain limitations imposed under the plan
and the Internal Revenue Code of 1986, as amended. In addition, we may make
periodic discretionary contributions to the plan.
Other Benefits and Perquisites
We provide the opportunity for our executive officers to receive certain
perquisites and general health and welfare benefits. We offer these benefits to
provide an additional incentive for our executives, to remain competitive in the
general marketplace for executive talent and to enable our executives to better
focus on their performance.
We have or may provide the following personal benefits and perquisites to our
executive officers:
o eligibility to participate in our health, dental, vision, disability
insurance and life insurance programs;
o a Company provided vehicle or car allowance, along with the reimbursement
of expenses related to operating, maintaining and insuring the vehicle;
and
o eligibility to participate in our 401(k) retirement plan, subject to
certain limitations imposed under the plan and the Internal Revenue Code
of 1986.
Stock Option Grants in Last Fiscal Year.
We granted no stock options during our fiscal year 2009.
23
Stock Ownership Guidelines
We have not implemented stock ownership guidelines for our executive officers.
We will continue to periodically review best practices and re-evaluate our
position with respect to stock ownership guidelines.
The following table sets forth information regarding the compensation paid or
distributed for services rendered by our principal executive, our principal
financial officer and our other executive officers whose total compensation
exceeded $100,000 (collectively the "Named Executives") for services rendered in
all capacities to us during the years indicated. For purposes of this table,
compensation paid or distributed in one fiscal year may include payment of
bonuses accrued in a prior fiscal year.
Qualified
Non Equity Non
Incentive Deferred All Other
Stock Option Plan Compensation Compensation Total
Name and Principal Position Year Salary Bonus Awards Awards Compensation Earnings (2) (1)(4)(5)
--------------------------- ---- ------ ----- ------ ------ ------------ -------- --- ---------
James G. Flanigan (3) 2009 $151,000 $ 310,000 $ $ $ $ $ 25,000 $ 486,000
Chairman of the Board and 2008 153,000 282,000 25,000 460,000
Chief Executive Officer
Jeffrey D. Kastner (3) 2009 146,000 $ 228,000 $ $ $ $ $ $ 374,000
Chief Financial Officer 2008 147,000 207,000 354,000
General Counsel and
Secretary
August Bucci (3) 2009 146,000 $ 228,000 $ $ $ $ $ $ 374,000
Chief Operating Officer 2008 146,000 224,000 370,000
and Executive Vice
President
Jean Picard (3) 2009 83,000 $ 55,000 $ $ $ $ $ $ 138,000
Vice President of Package 2008 82,000 51,000 133,000
Operations
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(1) This table does not include incidental personal benefits of a limited
nature. Although the amount of such benefits and extent to which they
are related to job performance cannot be ascertained specifically, we
have concluded that the aggregate per Named Executive Officer does not
exceed $10,000.
(2) Represents the amount of the premium paid by the Company for life
insurance on Mr. Flanigan's life, ($25,000 - 2009 and $25,000 - 2008),
the beneficiary of which has been designated by Mr. Flanigan.
(3) Includes annual performance based bonus amounts equal to 14% (for James
G. Flanigan), 2.25% (for each of Jeffrey D. Kastner and August Bucci)
and 1.5% (for Jean Picard), of our annual income, before income taxes,
depreciation and amortization, which exceeds $650,000, excluding
extraordinary items. These amounts are typically paid within 45 days
after the end of our fiscal year and for our fiscal years ended 2009
and 2008, amounted to $321,000 and $344,500 paid to Mr. Flanigan;
$51,600 and $55,300 paid to each of Messrs. Kastner and Bucci; and
$34,400 and $36,900 paid to Mr. Picard.
24
Also includes annual performance based bonus amounts payable to each of
Messrs. Kastner and Bucci equal to 5% of our pre-tax net income before
depreciation and amortization from our Company owned restaurants and
our share of the pre-tax net income before depreciation and
amortization from the restaurants owned by the limited partnerships
where we are the general partner and our share of the pre-tax income
before depreciation and amortization from the restaurant owned by an
unaffiliated third party that we manage. These amounts are typically
paid within 120 days of the end of our fiscal year and for our fiscal
years ended 2009 and 2008 amounted to $166,000 and $178,000 paid to
each of Messrs. Kastner and Bucci.
Also includes annual performance based bonus amounts payable to Mr.
Picard, equal to 3% of our pre-tax net income before depreciation and
amortization from our Company owned package liquor stores. These
amounts are typically paid within 120 days of the end of our fiscal
year and for our fiscal years ended 2009 and 2008, amounted to $24,000
and $22,000, paid to Jean Picard.
(4) No cash dividends were declared or paid by the Board of Directors
during our fiscal years 2009 and 2008.
(5) Does not include any limited partnership distributions made by any of
the affiliated limited partnerships or any franchise or management fees
paid by franchises, which are affiliated with any of the Named
Executives. See "Related Party Transactions".
Outstanding Equity Awards
There are no outstanding equity awards at October 3, 2009 with respect
to the Named Executives.
Option Exercises and Shares Vested
There were no option and stock exercises during our fiscal year ended
October 3, 2009 with respect to the Named Executives.
Pension Benefits
During our fiscal year ended October 3, 2009, we instituted a limited
retirement plan/death benefit whereby employees with thirty five (35) years of
employment with the Company receive upon his/her death or retirement a payment
equal to the smaller of (i) 15% of their last annual Form W-2 earnings; and (ii)
$10,000. With the exception of the above, we do not have any other plans that
provide for payments or other benefits at, following, or in connection with,
retirement.
Nonqualified Deferred Compensation
We do not have any plan that provided for deferred compensation.
25
RELATED PARTY TRANSACTIONS
Affiliated Franchises
---------------------
Coconut Grove, Florida
James G. Flanigan, our Chairman of the Board of Directors, Chief Executive
Officer and President of the Company, and Michael B. Flanigan, a member of our
Board of Directors and James G. Flanigan's brother, are each a 35.24% owner of a
company which has a franchise arrangement with us for the operation of a
combination restaurant/package liquor store located in Coconut Grove, Florida.
James G. Flanigan manages the day-to-day business operations of this franchised
location. During fiscal year 2009, this franchised location's operations
generated $7,333,000 in gross revenues and paid to us $172,000 in franchise
fees.
Pompano Beach, Florida
Patrick G. Flanigan, brother to both James G. Flanigan and Michael B. Flanigan
and a member of our Board of Directors, owns 100% of a company which has a
franchise arrangement with us for the operation of a combination
restaurant/package liquor store located in Pompano Beach, Florida. Patrick G.
Flanigan manages the day-to-day business operations of this franchised location.
During fiscal year 2009, this franchised location's operations generated
$4,260,000 in gross revenues and paid to us $128,000 in franchise fees.
Boca Raton, Florida
James G. Flanigan owns 100% of a company which manages a restaurant for a
company which has a franchise arrangement with us for the operation of a
restaurant located in Boca Raton, Florida. James G. Flanigan manages the
day-to-day business operations of this franchised location. During fiscal year
2009, this franchised location's operations generated $3,201,000 in gross
revenues and paid to us $96,000 in franchise fees.
Subsequent to our fiscal year 2009, the Company purchased the operating assets
of this franchised restaurant from the franchisee and on October 18, 2009, this
restaurant began operating as a Company-owned restaurant. As of October 18,
2009, James G. Flanigan no longer manages the business operations of this
location.
Deerfield Beach, Florida
Our officers and directors collectively own 30% of the shareholder interest of a
company which has a franchise arrangement with us for the operation of a
combination restaurant/package liquor store located in Deerfield Beach, Florida.
The shareholder interest of the Chairman's family represents an additional 60%
of the total invested capital. The Company manages the day- to- day operations
of this franchised location. During fiscal year 2009, this franchised location's
operations generated $2,634,000 in gross revenues and paid to us $64,000 in
franchise and management fees.
26
Fort Lauderdale, Florida
Patrick G. Flanigan is the sole general partner and a 25% limited partner in a
limited partnership which has a franchise arrangement with us for the operation
of a restaurant located in Fort Lauderdale, Florida. Patrick G. Flanigan manages
the day-to-day operations of this franchised location. The Company is a 25%
limited partner in this limited partnership and officers and directors of the
Company (excluding Patrick G. Flanigan) own an additional 33.8% limited
partnership interest in this franchised location. During fiscal year 2009, this
franchised location's operations generated $2,298,000 in gross revenues and paid
to us $93,000 in franchise fees.
Affiliated Limited Partnerships
-------------------------------
Surfside, Florida
We are the sole general partner and a 45% limited partner in this limited
partnership which has owned and operated a restaurant in Surfside, Florida under
our "Flanigan's Seafood Bar and Grill" service mark since March 6, 1998. An
additional 34.9% limited partnership interest is collectively beneficially owned
by our officers and directors or their families. During fiscal year 2009, this
location's operations generated $2,951,000 in gross revenues and we received
$33,600 in distributions from this limited partnership.
Kendall, Florida
We are the sole general partner and a 41% limited partner in this limited
partnership which has owned and operated a restaurant in Kendall, Florida under
our "Flanigan's Seafood Bar and Grill" service mark since April 4, 2000. An
additional 29.7% limited partnership interest is collectively beneficially owned
by our officers and directors or their families. During fiscal year 2009, this
location's operations generated $4,984,000 in gross revenues and we received
$166,600 in distributions from this limited partnership.
West Miami, Florida
We are the sole general partner and a 27% limited partner in this limited
partnership which has owned and operated a restaurant in West Miami, Florida
under our "Flanigan's Seafood Bar and Grill" service mark since October 11,
2001. An additional 34.1% limited partnership interest is collectively
beneficially owned by our officers and directors or their families. During
fiscal year 2009, this location's operations generated $4,671,000 in gross
revenues and we received $114,700 in distributions from this limited
partnership.
Weston, Florida
We are the sole general partner and a 30% limited partner in this limited
partnership which has owned and operated a restaurant in Weston, Florida under
our "Flanigan's Seafood Bar and Grill" service mark since January 20, 2003. An
additional 35.1% limited partnership
27
interest is collectively beneficially owned by our officers and directors or
their families. During fiscal year 2009, this location's operations generated
$3,980,000 in gross revenues, but we received no distributions from this limited
partnership.
Stuart, Florida
We are the sole general partner and 13% limited partner in this limited
partnership which has owned and operated a restaurant in a Howard Johnson's
Hotel in Stuart, Florida under our "Flanigan's Seafood Bar and Grill" service
mark since January 11, 2004. An additional 31.0% limited partnership interest is
collectively beneficially owned by our officers and directors or their families.
During fiscal year 2009, this location's operations generated $1,954,000 in
gross revenues, but we received no distributions from this limited partnership.
Wellington, Florida
We are the sole general partner and a 28% limited partner in this limited
partnership which has owned and operated a restaurant in Wellington, Florida
under our "Flanigan's Seafood Bar and Grill" service mark since May 27, 2005. An
additional 25.7% limited partnership interest is collectively beneficially owned
by our officers and directors or their families. During fiscal year 2009, this
location's operations generated $2,764,000 in gross revenues and we received
$5,150 in distributions from this limited partnership.
Pinecrest, Florida
We are the sole general partner and a 40% limited partner in this limited
partnership which has owned and operated a restaurant in Pinecrest, Florida
under our "Flanigan's Seafood Bar and Grill" service mark since August 14, 2006.
An additional 15.0% limited partnership interest is collectively beneficially
owned by our officers and directors or their families. During fiscal year 2009,
this location's operations generated $4,700,000 in gross revenues and we
received $210,400 in distributions from this limited partnership.
Pembroke Pines, Florida
We are the sole general partner and a 17% limited partner in this limited
partnership which has owned and operated a restaurant in Pembroke Pines, Florida
under our "Flanigan's Seafood Bar and Grill" service mark since October 29,
2007. An additional 17.9% limited partnership interest is collectively
beneficially owned by our officers and directors or their families. During
fiscal year 2009, this location's operations generated $2,930,000 in gross
revenues and we received $18,225 in distributions from this limited partnership.
Davie, Florida
We are the sole general partner and a 48% limited partner in this limited
partnership which has owned and operated a restaurant in Davie, Florida under
our "Flanigan's Seafood Bar
28
and Grill" service mark since July 29, 2008. An additional 9.7% limited
partnership interest is collectively beneficially owned by our officers and
directors or their families. During fiscal year 2009, this location's operations
generated $3,843,000 in gross revenues and we received $73,800 in distributions
from this limited partnership.
During our fiscal years 2009 and 2008, our executive officers and/or directors
received the following distributions as limited partners of the above-described
limited partnerships and not as compensation:
Annual Distributions from Affiliated Limited Partnerships
---------------------------------------------------------
Fiscal Surfside, Kendall, W. Miami Weston Stuart Wellington Pinecrest Prembroke Davie
Names Year Fl. Fl. Fl. Fl. Fl. Fl. Fl. Pines, FL FL Total
----- ---- -------- -------- --------- --------- ------- --------- --------- --------- -------- --------
James G. Flanigan, 2009 $ 2,000 $ 46,200 $ 34,875 $ -- $ -- $ 250 $ 2,400 $ 2,250 $ 2,250 $ 90,225
Chairman of the 2008 $ 4,000 $ 52,800 $ 21,375 $ 10,150 $ -- $ 1,200 $ 1,200 $ 3,500 $ -- $ 94,225
Board and Chief
Executive Officer
Jeffrey D. Kastner, 2009 $ 1,000 $ 3,875 $ -- $ -- $ 500 $ 5,600 $ 2,250 $ 4,500 $ 17,725
Chief Financial 2008 $ 2,000 $ 2,375 $ 1,450 $ -- $ 2,000 $ 2,800 $ 3,500 $ -- $ 14,125
Officer, General
Counsel and
Secretary
August H. Bucci, 2009 $ 400 $ 7,000 $ 9,300 $ -- $ -- $ 500 $ 4,000 $ 2,250 $ 4,500 $ 27,950
Chief Operating 2008 $ 800 $ 8,000 $ 5,700 $ 5,800 $ -- $ 2,000 $ 2,800 $ 3,500 $ -- $ 28,600
Officer and
Executive Vice
President
Jean Picard, 2009 $ 400 $ 1,400 $ 1,550 $ -- $ -- $ 100 $ 800 $ 225 $ 4,475
Vice President of 2008 $ 800 $ 1,600 $ 950 $ 580 $ -- $ 400 $ 400 $ 350 $ 5,080
Package Store
Operations
Patrick J. Flanigan, 2009 $ 1,000 $ 1,400 $ 15,500 $ -- $ -- $ 500 $ 2,400 $ 450 $ 900 $ 22,150
Director 2008 $ 2,000 $ 1,600 $ 9,500 $ 8,120 $ -- $ 2,000 $ 1,200 $ 700 $ -- $ 25,120
Michael B. Flanigan, 2009 $ 3,400 $ 46,200 $ 38,750 $ -- $ -- $ 1,000 $ 28,000 $ 2,250 $ 4,500 $124,100
Director 2008 $ 6,800 $ 52,800 $ 23,750 $ 19,430 $ -- $ 4,000 $ 12,400 $ 3,500 $ -- $122,680
Christopher O'Neil 2009 $ -- $ 200 $ 3,200 $ 450 $ 3,850
Supervisor, 2008 $ -- $ 800 $ 1,600 $ 700 $ 3,100
Director
Mike Roberts 2009 $ 400 $ -- $ -- $ 400
Director 2008 $ 800 $ 580 $ -- $ 1,380
Germaine M. Bell, 2009 $ 200 $ 200
Director 2008 $ 400 $ 400
All Executive 2009 $ 8,800 $102,200 $103,850 $ -- $ -- $ 3,050 $ 46,400 $ 10,125 $ 16,650 $291,075
Officers and 2008 $ 17,600 $116,800 $ 63,650 $ 46,110 $ -- $ 12,400 $ 22,400 $ 15,750 $ -- $294,710
Directors
Each of the above transactions was reviewed by the Board of Directors at the
time made and were, in the opinion of management and the Board, entered into on
terms which were no less favorable to the Company than could be obtained in
similar transactions with disinterested third parties.
29
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We retained Rachlin, LLP, to act as our independent registered public accounting
firm during our fiscal year 2009. On June 1, 2009, Rachlin, LLP, ("Rachlin"),
merged with and into Marcum, LLP, ("Merger"), and began practicing in Florida as
"MarcumRachlin, a division of Marcum, LLP" ("MarcumRachlin"). Accordingly,
effective June 1, 2009, Rachlin ceased to act as the Company's independent
registered public accounting firm and MarcumRachlin became the Company's
independent registered public accounting firm through the balance of our fiscal
year 2009 and has been retained as the Company's independent registered public
accounting firm for our fiscal year 2010. This change in the Company's
independent registered public accounting firm was accepted by the Audit
Committee of the Company's Board of Directors.
The principal accountant's reports of Rachlin on the consolidated financial
statements of the Company as at and for the fiscal years ended September 27,
2008 and September 29, 2007 did not contain any adverse opinion or disclaimer of
opinion and were not qualified or modified as to uncertainty, audit scope or
accounting principles.
During the fiscal years ended September 27, 2008 and September 29, 2007 and
through the effective time of the Merger, there were no disagreements with
Rachlin on any matter of accounting principles or practices, financial statement
disclosure, or auditing scope of procedure, which if not resolved to Rachlin's
satisfaction would have caused it to make reference thereto in connection with
its reports on the financial statements for such years. During the fiscal years
ended September 27, 2008 and September 29, 2007 and through June 1, 2009, there
were no events of the type described in Item 304(a)(1)(v) of Regulation S-K.
During the fiscal years ended September 27, 2008 and September 29, 2007 and
through the effective time of the Merger, the Company did not consult with
Marcum LLP or MarcumRachlin with respect to any of (i) the application of
accounting principles to a specific transaction, either completed or proposed;
(ii) the type of audit opinion that might be rendered on the Company's financial
statements; or (iii) any matter that was either the subject of a disagreement
(as defined in Item 304(a)(1)(iv) of Regulation S-K) or an event of the type
described in Item 304(a)(1)(v) of Regulation S-K.
The Company provided Rachlin with a copy of the foregoing disclosure and Rachlin
furnished the Company with a copy of its letter addressed to the Securities and
Exchange Commission, dated June 5, 2009, stating that it agreed with the
disclosures made herein.
A representative of MarcumRachlin is expected to be present at the Annual
Meeting; will have an opportunity to make a statement, if he or she so desires;
and is expected to be available to respond to appropriate questions.
AUDIT FEE
In our fiscal year ended October 3, 2009, we were billed by and paid
MarcumRachlin, $140,000 in connection with the preparation of our annual audit
and our filing on Form 10-K and we were billed $76,000 for the quarterly review
of our filings on Form 10-Q. During our fiscal year ended October 3, 2009, we
also paid the balance of $21,000 billed for the quarterly review of our filings
on Form 10-Q during our fiscal year ended September 27, 2008.
In our fiscal year ended September 27, 2008, we were billed by and paid
MarcumRachlin, $120,000 in connection with the preparation of our annual audit
and our filing on Form 10-K and we were billed $68,000 for the quarterly review
of our filings on Form 10-Q, $47,000 of which was paid during our fiscal year
ended September 27, 2008 and the balance of which, ($21,000), was paid
subsequent thereto.
AUDIT COMMITTEE POLICY REGARDING PRE-APPROVAL OF AUDIT AND
PERMISSIBLE NON-AUDIT SERVICES OF OUR INDEPENDENT AUDITORS
Our Audit Committee implements a policy that generally requires that all audit
and permissible nonaudit services provided by the Company's independent auditors
will be pre-approved by the Audit Committee. These services may include audit
services, audit-related services, tax services and other services. All audit and
permissible non-audit services provided by the Company's independent auditors
have been pre-approved by the Company's Audit Committee. Our Audit Committee has
considered whether the provision of services under the heading "All Other Fees"
is compatible with maintaining the accountants' independence and determined that
it is consistent with such independence.
30
FINANCIAL INFORMATION SYSTEM DESIGN AND IMPLEMENTATION FEES
MarcumRachlin did not perform any services or bill any fees for direct or
indirect operation and/or supervision of the operation of our information
systems, management of our local area network and/or designing or implementing a
hardware or software system that aggregates source data underlying the financial
statements or generates information that are significant to our financial
statements taken as a whole for our fiscal years ended October 3, 2009 or
September 27, 2008.
TAX FEES AND ALL OTHER FEES
In our fiscal year ended October 3, 2009, we were billed and paid MarcumRachlin
an aggregate of $49,000 for the preparation of our income tax returns $7,000 in
connection with the IRS audit of our income tax returns for the fiscal years
ended September 30, 2006 and September 29, 2007 and $2,000 for the appeal of our
real and personal property tax assessments.
In our fiscal year ended September 27, 2008, we were billed and paid
MarcumRachlin an aggregate of $49,000 for the preparation of our income tax
returns, $10,000 in connection with the IRS audit of our income tax returns for
the fiscal years ended September 30, 2006 and September 29, 2007 and $3,800 for
the appeal of our real and personal property tax assessments.
In our fiscal years ended October 3, 2009 and September 27, 2008, we paid
MarcumRachlin $14,000 and $12,000, respectively, in connection with the audit of
our 401(k) Plan.
The Audit Committee has considered the provisions for services by MarcumRachlin,
other than services rendered in connection with auditing of our annual financial
statements and reviewing our interim financial statements and determined that
the provisions for these services are compatible with maintaining the
independence of MarcumRachlin.
SHAREHOLDER PROPOSALS FOR 2011 ANNUAL MEETING
The rules and regulations of the Securities and Exchange Commission afford
shareholders the right to submit proposals to us which we must then include in
our proxy materials and which will be voted on by shareholders at the Annual
Meeting next ensuing. Under these regulations any shareholder desiring to submit
a proposal to be voted on at our 2011 Annual Meeting must deliver the proposal
to us no later than September 28, 2010.
DELIVERY OF DOCUMENTS TO SHAREHOLDERS SHARING AN ADDRESS
The Securities and Exchange Commission has adopted rules that permit companies
and intermediaries such as brokers to satisfy delivery requirements for proxy
statements with respect to multiple shareholders sharing the same address by
delivering a single proxy statement addressed to those shareholders. This
process of "householding" potentially
31
provides extra convenience for shareholders and cost savings for companies. The
Company and some brokers household proxy materials, delivering a single proxy
statement to multiple shareholders sharing an address unless contrary
instructions have been received from the affected shareholders.
Once you have received notice from your broker or us that they or we will be
householding materials to your address, householding will continue until you are
notified otherwise or until you revoke your consent. If, at any time, you no
longer wish to participate in householding and would prefer to receive a
separate proxy statement, or if you are receiving multiple copies of the proxy
statement and wish to receive only one, please notify your broker if your shares
are held in a brokerage account or us if you hold registered shares. You can
notify us by sending a written request to our Corporate Secretary, at 5059 N.E.
18th Avenue, Fort Lauderdale, Florida 33334 or by calling us at 954-377-1961.
ADDITIONAL MATERIALS
Included herewith please find a copy of the Company's Annual Report on Form 10-K
for the year ended October 3, 2009, without exhibits, filed with the SEC on
January 4, 2010. This document does not form any part of the material for
solicitation of proxies. We will provide, without charge, a copy of the exhibits
to its Form 10-K, upon written request to our Corporate Secretary, at 5059 N.E.
18th Avenue, Fort Lauderdale, Florida 33334.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities Exchange Act
of 1934, as amended, which requires us to file reports, proxy statements and
other information with the SEC. You may inspect and request copies (at
prescribed rates) of our reports, proxy statements and other information filed
by us at the public reference facilities at the SEC's office at Judiciary Plaza,
100 F Street, N.E., Washington, D.C. 20549. Our reports, proxy statements and
other information can also be accessed electronically by means of the SEC's home
page on the Internet at http://www.sec.gov.
AVAILABILITY OF FORM 10-K
We will furnish, upon request and without charge to each shareholder from whom
we solicit a proxy, a copy of our current annual report on Form 10-K, without
exhibits, filed with the SEC. Requests should be in writing and addressed to our
corporate headquarters, 5059 N.E. 18th Avenue, Fort Lauderdale, Florida 33334.
Attn: Corporate Secretary.
OTHER MATTERS
As of the date of this proxy statement, we do not intend to present and have not
been informed that any other person intends to present, any matters for action
at the meeting other than those specifically referred to herein. If, however,
any other matters are properly presented at the meeting it is the intention of
the persons named in the proxies to vote the shares of stock represented thereby
in accordance with their best judgment on such matters.
32
BY ORDER OF THE BOARD OF DIRECTORS
Jeffrey D. Kastner
Secretary
January 26, 2010
33
[X] PLEASE MARK VOTES REVOCABLE PROXY
AS IN THIS EXAMPLE FLANIGAN'S ENTERPRISES, INC.
Proxy Solicited on Behalf of the Board of Directors of Flanigan's Enterprises,
Inc. for Annual Meeting of Shareholders February 26, 2010.
The undersigned shareholder of Flanigan's Enterprises, Inc., a Florida
corporation (the "Company") hereby constitutes and appoints Jeffrey D. Kastner
and James G. Flanigan, jointly and severally as his true and lawful agents and
proxies with full power of substitution in each, to represent the undersigned at
the Annual Meeting of Shareholders of Flanigan's Enterprises, Inc, to be held at
the Company's executive offices, 5059 N.E. 18th Avenue, Ft. Lauderdale, FL 33334
on Friday, February 26, 2010 at 10:00 A.M. and at any adjournments or
postponements thereof, to cast, on behalf of the undersigned, all votes that the
undersigned is entitled to cast at such meeting and otherwise to represent the
undersigned at the meeting with all powers possessed by the undersigned if
personally present at the meeting. The undersigned hereby acknowledges receipt
of the Notice of Annual Meeting of Shareholders and revokes any proxy heretofore
given with respect to such meeting.
Please sign exactly as name appears below.
With- For All
For hold Except
1. ELECTION OF DIRECTORS. [_] [_] [_]
Nominees:
Jeffrey D. Kastner, Michael B. Flanigan, and Mike Roberts
INSTRUCTION: To withhold authority to vote for any individual nominee, mark "For
All Except" and write that nominee's name in the space provided below.
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2. In their discretion upon other matters as may properly come before the
meeting.
This proxy, when properly executed, will be voted in the manner directed
herein by the undersigned stockholder. If no direction is made, this proxy will
be voted for Proposal one.
When shares are held by joint tenants, both must sign. Executors,
administrators, trustees, etc. should give full title as such. If the signer is
a corporation, please sign full corporate name by duly authorized officer.
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Please be sure to date and sign | Date |
this proxy card in the box below. | |
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| |
| |
-----------Sign above-----------------------------------------------------------
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Detach above card, sign, date and mail in postage paid
envelope provided.
FLANIGAN'S ENTERPRISES, INC.
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PLEASE ACT PROMPTLY
PLEASE COMPLETE, DATE, SIGN AND MAIL THIS PROXY CARD
PROMPTLY IN THE ENCLOSED POSTAGE-PAID ENVELOPE.
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IF YOUR ADDRESS HAS CHANGED, PLEASE CORRECT THE ADDRESS IN THE SPACE PROVIDED
BELOW AND RETURN THIS PORTION WITH THE PROXY IN THE ENVELOPE PROVIDED.
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