UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
(Mark One)
| ☐ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☒ | ANNUAL REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2016 |
OR
| ☐ | TRANSITION REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☐ | SHELL COMPANY REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of event requiring this shell company report |
For the transition period from ________________ to ________________
Commission file number: 001-35129
ARCOS DORADOS HOLDINGS INC.
(Exact name of Registrant as specified in its charter)
British Virgin Islands
(Jurisdiction of incorporation or organization)
Dr. Luis Bonavita 1294, Office 501
Montevideo, Uruguay, 11300 WTC Free Zone
(Address of principal executive offices)
Juan David Bastidas
Chief Legal Officer
Arcos Dorados Holdings Inc.
Dr. Luis Bonavita 1294, 5th floor, Office 501, WTC Free Zone
Montevideo, Uruguay 11300
Telephone: +598 2626-3000
Fax: +598 2626-3018
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class |
Name of each exchange on which registered |
| Class A shares, no par value | New York Stock Exchange |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
(Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital stock or common stock as of the close of the period covered by the annual report.
Class A shares: 130,711,224
Class B shares: 80,000,000
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
☒ Yes ☐ No
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
☐ Yes ☒ No
Note – Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.
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 ☐ No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
☒ Yes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer, ” accelerated filer” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer ☐ | Accelerated filer ☒ | Non-accelerated filer ☐ | Emerging growth company ☐ |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act.
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| U.S. GAAP ☒ | International Financial Reporting Standards as issued by the International Accounting Standards Board ☐ | Other ☐ |
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.
☐ Item 17 ☐ Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
☐ Yes ☒ No
ARCOS DORADOS HOLDINGS INC.
____________________
Page
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| ITEM 10. ADDITIONAL INFORMATION | 101 |
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PRESENTATION OF FINANCIAL AND OTHER INFORMATION
All references to “U.S. dollars,” “dollars,” “U.S.$” or “$” are to the U.S. dollar. All references to “Argentine pesos” or “ARS$” are to the Argentine peso. All references to “Brazilian reais” or “R$” are to the Brazilian real. All references to “Mexican pesos” or “Ps.” are to the Mexican peso. All references to “Venezuelan bolívares” or “Bs.” are to the Venezuelan bolívar, the legal currency of Venezuela. See “Item 3. Key Information—A. Selected Financial Data—Exchange Rates and Exchange Controls” for information regarding exchange rates for the Argentine, Brazilian and Mexican currencies since January 1, 2012.
Definitions
In this annual report, unless the context otherwise requires, all references to “Arcos Dorados,” the “Company,” “we,” “our,” “ours,” “us” or similar terms refer to Arcos Dorados Holdings Inc., together with its subsidiaries. All references to “systemwide” refer only to the system of McDonald’s-branded restaurants operated by us or our franchisees in 20 countries and territories in Latin America and the Caribbean, including Argentina, Aruba, Brazil, Chile, Colombia, Costa Rica, Curaçao, Ecuador, French Guiana, Guadeloupe, Martinique, Mexico, Panama, Peru, Puerto Rico, Trinidad and Tobago, Uruguay, the U.S. Virgin Islands of St. Croix and St. Thomas, and Venezuela, which we refer to as the “Territories,” and do not refer to the system of McDonald’s-branded restaurants operated by McDonald’s Corporation, its affiliates or its franchisees (other than us).
We own our McDonald’s franchise rights pursuant to a Master Franchise Agreement for all of the Territories, except Brazil, which we refer to as the MFA, and a separate, but substantially identical, Master Franchise Agreement for Brazil, which we refer to as the Brazilian MFA. We refer to the MFA and the Brazilian MFA, as amended or otherwise modified to date, collectively as the MFAs. We commenced operations on August 3, 2007, as a result of our purchase of McDonald’s operations and real estate in the Territories (except for Trinidad and Tobago), which we refer to collectively as the “McDonald’s LatAm” business, and the acquisition of McDonald’s franchise rights pursuant to the MFAs, which together with the purchase of the McDonald’s LatAm business, we refer to as the “Acquisition.”
Financial Statements
We maintain our books and records in U.S. dollars and prepare our financial statements in accordance with accounting principles and standards generally accepted in the United States, or “U.S. GAAP.”
The financial information contained in this annual report includes our consolidated financial statements at December 31, 2016 and 2015 and for the years ended December 31, 2016, 2015 and 2014, which have been audited by Pistrelli, Henry Martin y Asociados S.R.L., member firm of Ernst & Young Global, as stated in their report included elsewhere in this annual report.
We were incorporated on December 9, 2010 as a direct, wholly owned subsidiary of Arcos Dorados Limited, the prior holding company for the Arcos Dorados business. On December 13, 2010, Arcos Dorados Limited effected a downstream merger into and with us, with us as the surviving entity. The merger was accounted for as a reorganization of entities under common control in a manner similar to a pooling of interest and the consolidated financial statements reflect the historical consolidated operations of Arcos Dorados Limited as if the reorganization structure had existed since Arcos Dorados Limited was incorporated in July 2006.
Our fiscal year ends December 31. References in this annual report to a fiscal year, such as “fiscal year 2016,” relate to our fiscal year ended on December 31 of that calendar year.
Operating Data
In January 2013, we made certain organizational changes in the structure of our geographical divisions in order to balance their relative weight in terms of number of restaurants and revenues. As a result of the reorganization effective January 1, 2013, Colombia and Venezuela, which were part of the South Latin America division, or “SLAD,” became part of the Caribbean division with headquarters located in Colombia. Therefore, from the beginning of 2013, SLAD is comprised of Argentina, Chile, Ecuador, Peru and Uruguay, and the Caribbean division is comprised of Aruba, Colombia, Curaçao, French Guiana, Guadeloupe, Martinique, Puerto Rico, Trinidad and Tobago, the U.S. Virgin Islands of St. Croix and St. Thomas, and Venezuela. Our other geographical divisions are
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Brazil and the North Latin America division, or “NOLAD,” consisting of Costa Rica, Mexico and Panama. In accordance with ASC 280, Segment Reporting, we began reporting the results of the revised structure of our geographical divisions on our segment financial reporting in the first quarter of fiscal year 2013. In accordance with ASC 280, Segment Reporting, we have restated our comparative segment information as of and for the year ended December 31, 2012 based on the structure prevailing since January 1, 2013.
As of January 1, 2016, senior management made changes in the allocation of certain expenses across operating segments. We made corresponding changes in the allocation of these expenses in order to align our segment financial reporting with the new allocation used by senior management as of that date. In accordance with ASC 280, Segment Reporting, we have restated our comparative segment information as of and for the years ended December 31, 2015 and 2014 based on the new allocation of expenses prevailing since January 1, 2016.
We operate McDonald’s-branded restaurants under two different operating formats: those directly operated by us, or “Company-operated” restaurants, and those operated by franchisees, or “franchised” restaurants. All references to “restaurants” are to our freestanding, food court, in-store and mall store restaurants and do not refer to our McCafé locations or Dessert Centers. Systemwide data represents measures for both our Company-operated restaurants and our franchised restaurants.
We are the majority stakeholder in three joint ventures with third parties that collectively own 18 restaurants. We consider these restaurants to be Company-operated restaurants. We also have granted developmental licenses to 11 restaurants. Developmental licensees own or lease the land and buildings on which their restaurants are located and pay a franchise fee to us in addition to the continuing franchise fee due to McDonald’s. We consider these restaurants to be franchised restaurants.
Market Share and Other Information
Market data and certain industry forecast data used in this annual report were obtained from internal reports and studies, where appropriate, as well as estimates, market research, publicly available information (including information available from the United States Securities and Exchange Commission, or the SEC, website) and industry publications, including Millward Brown Optimor, the United Nations Economic Commission for Latin America and the Caribbean and the CIA World Factbook. Industry publications generally state that the information they include has been obtained from sources believed to be reliable, but that the accuracy and completeness of such information is not guaranteed. Similarly, internal reports and studies, estimates and market research, which we believe to be reliable and accurately extracted by us for use in this annual report, have not been independently verified. However, we believe such data is accurate and agree that we are responsible for the accurate extraction of such information from such sources and its correct reproduction in this annual report.
Basis of Consolidation
The accompanying consolidated financial statements have been prepared on the accrual basis of accounting and include the accounts of the Company and its subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.
Rounding
We have made rounding adjustments to some of the figures included in this annual report. Accordingly, numerical figures shown as totals in some tables may not be an arithmetic aggregation of the figures that preceded them.
This annual report contains statements that constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Many of the forward-looking statements contained in this annual report can be identified by the use of forward-looking words such as “anticipate,” “believe,” “could,” “expect,” “should,” “plan,” “intend,” “estimate” and “potential,” among others.
Forward-looking statements appear in a number of places in this annual report and include, but are not limited to, statements regarding our intent, belief or current expectations. Forward-looking statements are based on our
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management’s beliefs and assumptions and on information currently available to our management. Such statements are subject to risks and uncertainties, and actual results may differ materially from those expressed or implied in the forward-looking statements due to of various factors, including, but not limited to, those identified in “Item 3. Key Information—D. Risk Factors” in this annual report. These risks and uncertainties include factors relating to:
| · | general economic, political, demographic and business conditions in Latin America and the Caribbean; |
| · | fluctuations in inflation and exchange rates in Latin America and the Caribbean; |
| · | our ability to implement our growth strategy; |
| · | the success of operating initiatives, including advertising and promotional efforts and new product and concept development by us and our competitors; |
| · | our ability to compete and conduct our business in the future; |
| · | changes in consumer tastes and preferences, including changes resulting from concerns over nutritional or safety aspects of beef, poultry, french fries or other foods or the effects of health pandemics and food-borne illnesses such as “mad cow” disease and avian influenza or “bird flu,” and changes in spending patterns and demographic trends, such as the extent to which consumers eat meals away from home; |
| · | the availability, location and lease terms for restaurant development; |
| · | our intention to focus on our restaurant reimaging plan; |
| · | our franchisees, including their business and financial viability and the timely payment of our franchisees’ obligations due to us and to McDonald’s; |
| · | our ability to comply with the requirements of the MFAs, including McDonald’s standards; |
| · | our decision to own and operate restaurants or to operate under franchise agreements; |
| · | the availability of qualified restaurant personnel for us and for our franchisees, and the ability to retain such personnel; |
| · | changes in commodity costs, labor, supply, fuel, utilities, distribution and other operating costs; |
| · | changes in labor laws; |
| · | our ability, if necessary, to secure alternative distribution of supplies of food, equipment and other products to our restaurants at competitive rates and in adequate amounts, and the potential financial impact of any interruptions in such distribution; |
| · | changes in government regulation; |
| · | material changes in tax legislation; |
| · | other factors that may affect our financial condition, liquidity and results of operations; and |
| · | other risk factors discussed under “Item 3. Key Information—D. Risk Factors.” |
Forward-looking statements speak only as of the date they are made, and we do not undertake any obligation to update them in light of new information or future developments or to release publicly any revisions to these statements in order to reflect later events or circumstances or to reflect the occurrence of unanticipated events.
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We are incorporated under the laws of the British Virgin Islands with limited liability. We are incorporated in the British Virgin Islands because of certain benefits associated with being a British Virgin Islands company, such as political and economic stability, an effective judicial system, a favorable tax system, the absence of exchange control or currency restrictions, and the availability of professional and support services. However, the British Virgin Islands has a less developed body of securities laws as compared to the United States and provides protections for investors to a significantly lesser extent. In addition, British Virgin Islands companies may not have standing to sue before the federal courts of the United States.
A majority of our directors and officers, as well as certain of the experts named herein, reside outside of the United States. A substantial portion of our assets and several of such directors, officers and experts are located principally in Argentina, Brazil and Uruguay. As a result, it may not be possible for investors to effect service of process outside Argentina, Brazil and Uruguay upon such directors or officers, or to enforce against us or such parties in courts outside Argentina, Brazil and Uruguay judgments predicated solely upon the civil liability provisions of the federal securities laws of the United States or other non-Argentine, Brazilian or Uruguayan regulations, as applicable. In addition, local counsel to the Company have advised that there is doubt as to whether the courts of Argentina, Brazil or Uruguay would enforce in all respects, to the same extent and in as timely a manner as a U.S. court or non-Argentine, Brazilian or Uruguayan court, an original action predicated solely upon the civil liability provisions of the U.S. federal securities laws or other non-Argentine, Brazilian or Uruguayan regulations, as applicable; and that the enforceability in Argentine, Brazilian or Uruguayan courts of judgments of U.S. courts or non-Argentine, Brazilian or Uruguayan courts predicated upon the civil liability provisions of the U.S. federal securities laws or other non-Argentine, Brazilian or Uruguayan regulations, as applicable, will be subject to compliance with certain requirements under Argentine, Brazilian or Uruguayan law, including the condition that any such judgment does not violate Argentine, Brazilian or Uruguayan public policy.
We have been advised by Maples and Calder, our counsel as to British Virgin Islands law, that the United States and the British Virgin Islands do not have a treaty providing for reciprocal recognition and enforcement of judgments of courts of the United States in civil and commercial matters and that a final judgment for the payment of money rendered by any general or state court in the United States based on civil liability, whether or not predicated solely upon the U.S. federal securities laws, would not be automatically enforceable in the British Virgin Islands. We have been advised by Maples and Calder that a final and conclusive judgment obtained in U.S. federal or state courts under which a sum of money is payable (i.e., not being a sum claimed by a revenue authority for taxes or other charges of a similar nature by a governmental authority, or in respect of a fine or penalty or multiple or punitive damages) may be the subject of an action on a debt in the court of the British Virgin Islands under British Virgin Islands common law.
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ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
| A. | Directors and Senior Management |
Not applicable.
| B. | Advisers |
Not applicable.
| C. | Auditors |
Not applicable.
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE
| A. | Offer Statistics |
Not applicable.
| B. | Method and Expected Timetable |
Not applicable.
| A. | Selected Financial Data |
The selected balance sheet data as of December 31, 2016 and 2015 and the income statement data for the years ended December 31, 2016, 2015 and 2014 of Arcos Dorados Holdings Inc. are derived from the consolidated financial statements included elsewhere in this annual report, which have been audited by Pistrelli, Henry Martin y Asociados S.R.L., member firm of Ernst & Young Global. The selected balance sheet data as of December 31, 2014, 2013 and 2012 and the income statement data for the years ended December 31, 2013 and 2012 of Arcos Dorados Holdings Inc. are derived from consolidated financial statements audited by Pistrelli, Henry Martin y Asociados S.R.L., which are not included herein.
In January 2013, we made certain organizational changes in the structure of our geographical divisions in order to balance their relative weight in terms of number of restaurants and revenues. As a result of the reorganization effective January 1, 2013, Colombia and Venezuela, which were part of SLAD, became part of the Caribbean division with headquarters located in Colombia. Therefore, from the beginning of 2013, SLAD is comprised of Argentina, Chile, Ecuador, Peru and Uruguay, and the Caribbean division is comprised of Aruba, Colombia, Curaçao, French Guiana, Guadeloupe, Martinique, Puerto Rico, Trinidad and Tobago, the U.S. Virgin Islands of St. Croix and St. Thomas, and Venezuela. Our other geographical divisions are Brazil and NOLAD, consisting of Costa Rica, Mexico and Panama. In accordance with ASC 280 Segment Reporting, we began reporting the results of the revised structure of our geographical divisions on our segment financial reporting in the first quarter of fiscal year 2013. In accordance with ASC 280, Segment Reporting, we have restated our comparative segment information as of and for the year ended December 31, 2012 based on the structure prevailing since January 1, 2013.
As of January 1, 2016, senior management made changes in the allocation of certain expenses across operating segments. We made corresponding changes in the allocation of these expenses in order to align our segment financial reporting with the new allocation used by senior management as of that date. In accordance with ASC 280, Segment Reporting, we have restated our comparative segment information as of and for the years ended December 31, 2015 and 2014 based on the new allocation of expenses prevailing since January 1, 2016.
We were incorporated on December 9, 2010 as a direct, wholly owned subsidiary of Arcos Dorados Limited, the prior holding company for the Arcos Dorados business. On December 13, 2010, Arcos Dorados Limited effected a downstream merger into and with us, with us as the surviving entity. The merger was accounted for as a reorganization of entities under common control in a manner similar to a pooling of interest and the consolidated financial statements reflect the historical consolidated operations of Arcos Dorados Limited as if the reorganization structure had existed since Arcos Dorados Limited was incorporated in July 2006. We did not commence operations until the Acquisition on August 3, 2007.
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We maintain our books and records in U.S. dollars and prepare our consolidated financial statements in accordance with U.S. GAAP. This financial information should be read in conjunction with “Presentation of Financial and Other Information,” “Item 5. Operating and Financial Review and Prospects” and our consolidated financial statements, including the notes thereto, included elsewhere in this annual report.
| For the Years Ended December 31, | ||||||||||||||||||||
| 2016 | 2015 (1) | 2014 (1) | 2013 (1) | 2012 (1) | ||||||||||||||||
| (in thousands of U.S. dollars, except for per share data) | ||||||||||||||||||||
| Income Statement Data: | ||||||||||||||||||||
| Sales by Company-operated restaurants | $ | 2,803,334 | $ | 2,930,379 | $ | 3,504,302 | $ | 3,859,883 | $ | 3,634,371 | ||||||||||
| Revenues from franchised restaurants | 125,296 | 122,361 | 146,763 | 173,427 | 163,023 | |||||||||||||||
| Total revenues | 2,928,630 | 3,052,740 | 3,651,065 | 4,033,310 | 3,797,394 | |||||||||||||||
| Company-operated restaurant expenses: | ||||||||||||||||||||
| Food and paper | (1,012,976 | ) | (1,037,487 | ) | (1,243,907 | ) | (1,350,515 | ) | (1,269,146 | ) | ||||||||||
| Payroll and employee benefits | (607,082 | ) | (660,773 | ) | (791,677 | ) | (814,112 | ) | (753,120 | ) | ||||||||||
| Occupancy and other operating | (752,428 | ) | (793,622 | ) | (939,481 | ) | (1,055,188 | ) | (984,004 | ) | ||||||||||
| Royalty fees | (142,777 | ) | (149,089 | ) | (173,663 | ) | (188,885 | ) | (180,547 | ) | ||||||||||
| Franchised restaurants—occupancy | (55,098 | ) | (54,242 | ) | (63,939 | ) | (63,273 | ) | (56,057 | ) | ||||||||||
| General and administrative expenses | (221,075 | ) | (270,680 | ) | (272,065 | ) | (317,745 | ) | (314,619 | ) | ||||||||||
| Other operating income (expenses), net | 41,386 | 6,560 | (95,476 | ) | (15,070 | ) | (3,261 | ) | ||||||||||||
| Total operating costs and expenses | (2,750,050 | ) | (2,959,333 | ) | (3,580,208 | ) | (3,804,788 | ) | (3,560,754 | ) | ||||||||||
| Operating income | 178,580 | 93,407 | 70,857 | 228,522 | 236,640 | |||||||||||||||
| Net interest expense | (66,880 | ) | (64,407 | ) | (72,750 | ) | (88,156 | ) | (54,247 | ) | ||||||||||
| Loss from derivative instruments | (3,065 | ) | (2,894 | ) | (685 | ) | (4,141 | ) | (891 | ) | ||||||||||
| Foreign currency exchange results | 32,354 | (54,032 | ) | (74,117 | ) | (38,783 | ) | (18,420 | ) | |||||||||||
| Other non-operating (expenses) income | (2,360 | ) | (627 | ) | 146 | (848 | ) | (2,119 | ) | |||||||||||
| Income (loss) before income taxes | 138,629 | (28,553 | ) | (76,549 | ) | 96,594 | 160,963 | |||||||||||||
| Income tax expense | (59,641 | ) | (22,816 | ) | (32,479 | ) | (42,722 | ) | (46,375 | ) | ||||||||||
| Net income (loss) | 78,988 | (51,369 | ) | (109,028 | ) | 53,872 | 114,588 | |||||||||||||
| Less: Net income attributable to non-controlling interests | (178 | ) | (264 | ) | (305 | ) | (18 | ) | (256 | ) | ||||||||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc. | 78,810 | (51,633 | ) | (109,333 | ) | 53,854 | 114,332 | |||||||||||||
| Earnings (Loss) per share: | ||||||||||||||||||||
| Basic net income (loss) per common share attributable to Arcos Dorados | $ | 0.37 | $ | (0.25 | ) | $ | (0.52 | ) | $ | 0.26 | $ | 0.55 | ||||||||
| Diluted net income (loss) per common share attributable to Arcos Dorados | $ | 0.37 | $ | (0.25 | ) | $ | (0.52 | ) | $ | 0.26 | $ | 0.55 | ||||||||
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| As of December 31, | ||||||||||||||||||||
| 2016 | 2015 | 2014 | 2013 | 2012 | ||||||||||||||||
| (in thousands of U.S. dollars, except for share data) | ||||||||||||||||||||
| Balance Sheet Data(2): | ||||||||||||||||||||
| Cash and cash equivalent | $ | 194,803 | $ | 112,519 | $ | 139,030 | $ | 175,648 | $ | 184,851 | ||||||||||
| Total current assets | 445,190 | 378,996 | 447,196 | 666,451 | 601,498 | |||||||||||||||
| Property and equipment, net | 847,966 | 833,357 | 1,092,994 | 1,244,311 | 1,176,350 | |||||||||||||||
| Total non-current assets | 1,059,863 | 1,024,206 | 1,347,584 | 1,513,808 | 1,447,665 | |||||||||||||||
| Total assets | 1,505,053 | 1,403,202 | 1,794,780 | 2,180,259 | 2,049,163 | |||||||||||||||
| Accounts payable | 217,914 | 187,685 | 220,337 | 311,060 | 244,365 | |||||||||||||||
| Short-term debt and current portion of long-term debt | 28,099 | 163,740 | 38,684 | 12,276 | 2,202 | |||||||||||||||
| Total current liabilities | 548,308 | 577,314 | 542,066 | 659,156 | 578,274 | |||||||||||||||
| Long-term debt, excluding current portion | 551,580 | 491,327 | 761,080 | 771,171 | 649,968 | |||||||||||||||
| Total non-current liabilities | 605,169 | 538,998 | 795,127 | 825,804 | 724,579 | |||||||||||||||
| Total liabilities | 1,153,477 | 1,116,312 | 1,337,193 | 1,484,960 | 1,302,853 | |||||||||||||||
| Total common stock | 506,884 | 504,772 | 498,616 | 491,735 | 484,569 | |||||||||||||||
| Total equity | 351,576 | 286,890 | 457,587 | 695,299 | 746,310 | |||||||||||||||
| Total liabilities and equity | 1,505,053 | 1,403,202 | 1,794,780 | 2,180,259 | 2,049,163 | |||||||||||||||
| Shares outstanding | 210,711,224 | 210,538,896 | 210,216,043 | 209,867,426 | 209,529,412 | |||||||||||||||
| For the Years Ended December 31, | ||||||||||||||||||||
| 2016 | 2015 | 2014 | 2013 | 2012(3) | ||||||||||||||||
| (in thousands of U.S. dollars, except percentages) | ||||||||||||||||||||
| Other Data: | ||||||||||||||||||||
| Total Revenues | ||||||||||||||||||||
| Brazil | $ | 1,333,237 | $ | 1,361,989 | $ | 1,816,046 | $ | 1,842,324 | $ | 1,797,556 | ||||||||||
| Caribbean division(4) | 409,671 | 398,144 | 594,220 | 830,447 | 754,730 | |||||||||||||||
| NOLAD | 363,965 | 367,364 | 385,114 | 407,772 | 384,041 | |||||||||||||||
| SLAD | 821,757 | 925,243 | 855,685 | 952,767 | 861,067 | |||||||||||||||
| Total | 2,928,630 | 3,052,740 | 3,651,065 | 4,033,310 | 3,797,394 | |||||||||||||||
| Operating Income(5) | ||||||||||||||||||||
| Brazil | $ | 122,636 | $ | 116,820 | $ | 155,799 | $ | 188,445 | $ | 193,339 | ||||||||||
| Caribbean division(4) | (12,392 | ) | (40,102 | ) | (91,859 | ) | 37,837 | 40,692 | ||||||||||||
| NOLAD | 45,145 | 8,710 | (9,150 | ) | (5,314 | ) | (5,557 | ) | ||||||||||||
| SLAD | 66,359 | 78,022 | 62,768 | 84,324 | 74,824 | |||||||||||||||
| Corporate and others and purchase price allocation | (43,168 | ) | (70,043 | ) | (46,701 | ) | (76,770 | ) | (66,658 | ) | ||||||||||
| Total | 178,580 | 93,407 | 70,857 | 228,522 | 236,640 | |||||||||||||||
| Operating Margin(5)(6) | ||||||||||||||||||||
| Brazil | 9.2 | % | 8.6 | % | 8.6 | % | 10.2 | % | 10.8 | % | ||||||||||
| Caribbean division(4) | (3.0 | ) | (10.1 | ) | (15.5 | ) | 4.6 | 5.4 | ||||||||||||
| NOLAD | 12.4 | 2.4 | (2.4 | ) | (1.3 | ) | (1.4 | ) | ||||||||||||
| SLAD | 8.1 | 8.4 | 7.3 | 8.9 | 8.7 | |||||||||||||||
| Total | 6.1 | 3.1 | 1.9 | 5.7 | 6.2 | |||||||||||||||
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| Adjusted EBITDA(5)(7) | ||||||||||||||||||||
| Brazil | $ | 168,076 | $ | 174,102 | $ | 220,711 | $ | 245,957 | $ | 240,954 | ||||||||||
| Caribbean division(4) | 18,049 | 2,059 | (11,284 | ) | 67,180 | 69,109 | ||||||||||||||
| NOLAD | 36,288 | 31,424 | 25,035 | 27,397 | 26,738 | |||||||||||||||
| SLAD | 76,327 | 100,718 | 82,859 | 105,495 | 93,756 | |||||||||||||||
| Corporate and others | (60,295 | ) | (78,132 | ) | (65,647 | ) | (101,562 | ) | (89,996 | ) | ||||||||||
| Total | 238,445 | 230,171 | 251,674 | 344,467 | 340,561 | |||||||||||||||
| Adjusted EBITDA Margin(5)(8) | ||||||||||||||||||||
| Brazil | 12.6 | % | 12.8 | % | 12.2 | % | 13.4 | % | 13.4 | % | ||||||||||
| Caribbean division(4) | 4.4 | 0.5 | (1.9) | 8.1 | 9.2 | |||||||||||||||
| NOLAD | 10.0 | 8.6 | 6.5 | 6.7 | 7.0 | |||||||||||||||
| SLAD | 9.3 | 10.9 | 9.7 | 11.1 | 10.9 | |||||||||||||||
| Total | 8.1 | 7.5 | 6.9 | 8.5 | 9.0 | |||||||||||||||
| Other Financial Data: | ||||||||||||||||||||
| Working capital(9) | $ | (103,118 | ) | $ | (198,318 | ) | $ | (94,870 | ) | $ | 7,295 | $ | 23,224 | |||||||
| Capital expenditures(10) | 92,282 | 92,055 | 170,638 | 313,786 | 300,482 | |||||||||||||||
| Dividends declared per common share | — | — | 0.24 | 0.24 | 0.24 | |||||||||||||||
| As of December 31, | |||||||||||||||
| 2016 | 2015 | 2014 | 2013 | 2012 | |||||||||||
| Number of systemwide restaurants | 2,156 | 2,141 | 2,121 | 2,062 | 1,948 | ||||||||||
| Brazil | 902 | 883 | 866 | 812 | 731 | ||||||||||
| Caribbean division | 353 | 356 | 359 | 365 | 353 | ||||||||||
| NOLAD | 517 | 518 | 513 | 507 | 503 | ||||||||||
| SLAD | 384 | 384 | 383 | 378 | 361 | ||||||||||
| Number of Company-operated restaurants | 1,553 | 1,588 | 1,577 | 1,538 | 1,453 | ||||||||||
| Brazil | 584 | 615 | 614 | 583 | 533 | ||||||||||
| Caribbean division | 266 | 267 | 270 | 270 | 259 | ||||||||||
| NOLAD | 365 | 364 | 352 | 344 | 335 | ||||||||||
| SLAD | 338 | 342 | 341 | 341 | 326 | ||||||||||
| Number of franchised restaurants | 603 | 553 | 544 | 524 | 495 | ||||||||||
| Brazil | 318 | 268 | 252 | 229 | 198 | ||||||||||
| Caribbean division | 87 | 89 | 89 | 95 | 94 | ||||||||||
| NOLAD | 152 | 154 | 161 | 163 | 168 | ||||||||||
| SLAD | 46 | 42 | 42 | 37 | 35 | ||||||||||
____________________
| (1) | Due to certain changes in accounting for expenses in 2016, certain reclassifications have been made from “Occupancy and other operating expenses” to “Payroll and employee benefits” in the Income Statement Data for the fiscal years ended December 31, 2015 and 2014 in order to ensure comparability with our results for the fiscal year ended December 31, 2016. Income Statement Data for the fiscal years ended December 31, 2013 and 2012 has not been restated and is therefore not comparable to 2016, 2015 and 2014. See Note 2 to our consolidated financial statements for additional information. |
| (2) | Due to changes in accounting standards, certain reclassifications have been made from “Non-current assets” to “Short-term debt and current portion of long-term debt” and to “Long-term debt, excluding current portion” in the Balance Sheet Data as of December 31, 2015. Balance Sheet Data as of December 31, 2014, 2013 and 2012 has not been restated and is therefore not comparable to the Balance Sheet Data as of December 31, 2016 and 2015. See Note 2 to our consolidated financial statements for additional information. |
4
| (3) | Segment information as of and for the year ended December 31, 2012 is presented based on the segment structure prevailing as of and from January 1, 2013. See “Presentation of Financial and Other Information—Operating Data.” |
| (4) | Currency devaluations in Venezuela have had a significant effect on our income statements and have impacted the comparability of our income statements in 2016 and 2015 as compared to 2014, 2013 and 2012. See “Item 5. Operating and Financial Review and Prospects—A. Operating Results—Foreign Currency Translation—Venezuela.” |
| (5) | Segment information for the years ended December 31, 2016, 2015 and 2014 is presented based on the allocation of expenses prevailing as of January 1, 2016. See “Presentation of Financial and Other Information—Operating Data.” Segment information for the years ended December 31, 2013 and 2012 has not been restated and is therefore not comparable to the segment information for the years ended December 31, 2016, 2015 and 2014. |
| (6) | Operating margin is operating income divided by total revenues, expressed as a percentage. |
| (7) | Adjusted EBITDA is a measure of our performance that is reviewed by our management. Adjusted EBITDA does not have a standardized meaning and, accordingly, our definition of Adjusted EBITDA may not be comparable to Adjusted EBITDA as used by other companies. Total Adjusted EBITDA is a non-GAAP measure. For our definition of Adjusted EBITDA, see “Item 5. Operating and Financial Review and Prospects—A. Operating Results—Key Business Measures” |
| (8) | Adjusted EBITDA margin is Adjusted EBITDA divided by total revenues, expressed as a percentage. |
| (9) | Working capital equals current assets minus current liabilities. |
| (10) | Includes property and equipment expenditures and purchase of restaurant businesses paid at the acquisition date. |
Presented below is the reconciliation between net income and Adjusted EBITDA on a consolidated basis:
| For the Years Ended December 31, | ||||||||||||||||||||
|
Consolidated Adjusted EBITDA Reconciliation |
2016 | 2015 | 2014 | 2013 | 2012 | |||||||||||||||
| (in thousands of U.S. dollars) | ||||||||||||||||||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc. | $ | 78,810 | $ | (51,633 | ) | $ | (109,333 | ) | $ | 53,854 | $ | 114,332 | ||||||||
| Plus (Less): | ||||||||||||||||||||
| Net interest expense | 66,880 | 64,407 | 72,750 | 88,156 | 54,247 | |||||||||||||||
| Loss from derivative instruments | 3,065 | 2,894 | 685 | 4,141 | 891 | |||||||||||||||
| Foreign currency exchange results | (32,354 | ) | 54,032 | 74,117 | 38,783 | 18,420 | ||||||||||||||
| Other non-operating expenses (income), net | 2,360 | 627 | (146 | ) | 848 | 2,119 | ||||||||||||||
| Income tax expense | 59,641 | 22,816 | 32,479 | 42,722 | 46,375 | |||||||||||||||
| Net income attributable to non-controlling interests | 178 | 264 | 305 | 18 | 256 | |||||||||||||||
| Operating income | 178,580 | 93,407 | 70,857 | 228,522 | 236,640 | |||||||||||||||
| Plus (Less): | ||||||||||||||||||||
| Items excluded from computation that affect operating income: | ||||||||||||||||||||
| Depreciation and amortization | 92,969 | 110,715 | 116,811 | 114,860 | 92,328 | |||||||||||||||
|
Gains from sale or insurance recovery of property and equipment
|
(57,244 | ) | (12,308 | ) | (3,379 | ) | (10,326 | ) | (3,328 | ) | ||||||||||
| Write-offs and related contingencies of property and equipment | 5,776 | 6,038 | 7,111 | 6,489 | 4,259 | |||||||||||||||
| Impairment of long-lived assets | 7,697 | 12,343 | 50,886 | 2,958 | 1,982 | |||||||||||||||
| Impairment of goodwill | 5,045 | 679 | 2,029 | — | 683 | |||||||||||||||
| Stock-based compensation related to the special awards in connection with the initial public offering under the 2011 Plan | — | 210 | 2,503 | 1,964 | 7,997 | |||||||||||||||
| Reorganization and optimization plan | 5,341 | 18,346 | 4,707 | — | — | |||||||||||||||
| 2008 Long-Term Incentive Plan incremental compensation from modification |
281 | 741 | 149 | — | — | |||||||||||||||
| Adjusted EBITDA | 238,445 | 230,171 | 251,674 | 344,467 | 340,561 | |||||||||||||||
5
Exchange Rates and Exchange Controls
In 2016, 73.9% of our total revenues were derived from our restaurants in Argentina, Brazil, Mexico and Puerto Rico. While we maintain our books and records in U.S. dollars, our revenues are conducted in the local currency of the territories in which we operate, and as such may be affected by changes in the local exchange rate to the U.S. dollar. The exchange rates discussed in this section have been obtained from each country’s central bank. However, in most cases, for consolidation purposes, we use a foreign currency to U.S. dollar exchange rate provided by Bloomberg that differs slightly from that reported by the aforementioned central banks.
Argentina
During 2001 and 2002, Argentina went through a period of severe political, economic and social crisis. Among other consequences, the crisis resulted in Argentina defaulting on its foreign debt obligations and the introduction of numerous changes in economic policies, including currency controls that tightened restrictions on capital flows, exchange controls, an official U.S. dollar exchange and transfer restrictions that substantially limited the ability of companies to retain foreign currency or make payments abroad. In addition, since 2007, Argentina has faced significant inflationary pressures and experienced several economic recessions, from which the Argentine economy has yet not fully recovered.
Since President Mauricio Macri assumed office on December 10, 2015, the Macri administration has adopted several significant economic and policy reforms. For instance, the Macri administration eased currency controls in place since 2001 and reached agreements with a large majority of holdout creditors (in terms of claims) in connection with its 2001-2002 default on foreign indebtedness, which allowed Argentina to regain access to international financial markets.
In addition, on January 8, 2016, President Macri declared a state of administrative emergency on the national statistics system in response to the divergence between official and private inflation statistics that began in 2007 and resulted in censure by the International Monetary Fund (the “IMF”) in 2013. The declaration temporarily suspended publication of statistical data by the INDEC, the national institute for statistics. Since then, the Macri administration’s appointee to the INDEC implemented a series of methodological reforms, which have reduced the divergence between official and private inflation statistics and led the IMF to lift its censure on November 10, 2016.
While exchange control restrictions have been eased, exchange control restrictions impacted our ability to transfer funds abroad and prevented or delayed payments that our Argentine subsidiaries were required to make outside Argentina in the past.
The Argentine peso depreciated 14.3% against the U.S. Dollar in 2012, 32.4% in 2013, 30.7% in 2014, 51.7% in 2015, 21.9% in 2016, and appreciated 2.9% in the first quarter of 2017.
The following table sets forth, for the periods indicated, the high, low, average and period-end exchange rates for the purchase of U.S. dollars expressed in Argentine pesos per U.S. dollar. The average rate is calculated by using the average of the Central Bank of Argentina’s reported exchange rates on each day during a monthly period and on the last day of each month during an annual or interim period. As of April 25, 2017, the exchange rate for the purchase of U.S. dollars as reported by the Central Bank of Argentina was ARS$15.414 per U.S. dollar.
|
Period- |
Average |
Low |
High | |
| (Argentine pesos per U.S. dollar) | ||||
| ARS$ | ARS$ | ARS$ | ARS$ | |
| Year Ended December 31: | ||||
| 2012 | 4.917 | 4.224 | 4.305 | 4.917 |
| 2013 | 6.518 | 5.543 | 4.923 | 6.518 |
| 2014 | 8.552 | 8.231 | 6.543 | 8.556 |
| 2015 | 13.005 | 9.442 | 8.554 | 13.763 |
| 2016 | 15.850 | 14.945 | 13.069 | 16.039 |
6
| Quarter Ended: | ||||
| March 31, 2017 | 15.382 | 15.681 | 15.368 | 16.053 |
| Month Ended: | ||||
| October 31, 2016 | 15.175 | 15.181 | 15.115 | 15.225 |
| November 30, 2016 | 15.844 | 15.340 | 15.018 | 15.844 |
| December 31, 2016 | 15.850 | 15.830 | 15.523 | 16.039 |
| January 31, 2017 | 15.912 | 15.907 | 15.808 | 16.053 |
| February 24, 2017 | 15.455 | 15.599 | 15.368 | 15.835 |
| March 31, 2017 | 15.382 | 15.524 | 15.382 | 15.669 |
| April 30, 2017 (through April 25, 2017) | 15.414 | 15.451 | 15.174 | 15.669 |
____________________
Note: For consolidation purposes, we use an Argentine peso / U.S. dollar exchange rate provided by Bloomberg that differs slightly from that reported by the Central Bank of Argentina.
Exchange Controls
In June 2005, the Argentine government issued Decree 616/2005, which established additional restrictions over all capital flows that could result in future payment obligations of foreign currency by residents to non-residents. Pursuant to the decree, all private sector indebtedness of physical persons or corporations in Argentina were required to be agreed upon and repaid not prior to 365 days from the date of entry of the funds into Argentina, regardless of the form of repayment. The decree outlined several types of transactions that were exempted from its requirements, including foreign trade financings and primary offerings of debt securities issued pursuant to a public offering and listed on an authorized market.
In addition, the decree stipulated that all capital inflows within the private sector to the local exchange market due to foreign indebtedness of physical persons or corporations within Argentina (excluding foreign trade financings and primary offerings of debt securities issued pursuant to a public offering and listed on an authorized market), as well as all capital inflows of non-residents received by the local exchange market destined for local money holdings, all kinds of financial assets or liabilities of the financial and non-financial private sector (excluding foreign direct investment and primary offerings of debt securities issued pursuant to a public offering and listed on an authorized market) and investments in securities issued by the public sector that are acquired in secondary markets, had to meet certain requirements described in section 4 of the decree, including the following:
| · | the funds could only be transferred outside the local exchange market after a 365-day period from the date of entry of the funds into Argentina (the “Minimum Stay Period”) of 365 calendar days; |
| · | any amounts resulting from the exchange of the funds had to be credited to an account within the Argentine banking system; |
| · | a non-transferable, non-interest-bearing deposit had to be maintained for a term of 365 calendar days, in an amount equal to 30% of any inflow of funds to the Argentine foreign exchange market (the “Deposit”); and |
| · | the Deposit had to be in U.S. dollars, in any of the financial entities of Argentina, and could not be used as collateral or guaranty for any credit transaction. Any breach of the provisions of Argentine foreign exchange regulations is subject to criminal penalties. |
The requirements of Decree No. 616/2005 were subsequently eased by the Macri administration as detailed below.
On December 18, 2015, through Resolution No. 3/2015, the Ministry of Treasury and Public Finance amended Executive Decree No. 616/2005, stating that for new inflows of funds into Argentina through the Argentine foreign exchange market, (i) the Minimum Stay Period was reduced from 365 calendar days to 120 calendar days from the date of entry of the funds into Argentina and (ii) the rate of the Deposit was reduced to 0% of the funds, effectively eliminating it as a requirement. Subsequently, on January 5, 2017, the Ministry of Treasury published Resolution No. 1-E/2017, which further reduced the Minimum Stay Period from 120 to 0 days, effectively eliminating it as a requirement.
7
On August 8, 2016, the Central Bank of Argentina also introduced material changes to the foreign exchange regime by means of Communication “A” 6037 (“Communication 6037”) that significantly eased foreign exchange controls. The current foreign exchange regime is detailed below.
Inflow and settlement through the local foreign exchange market. The proceeds from foreign financial indebtedness incurred by institutions in the private non-financial sector and the financial sector and by Argentine local governments are not required to be transferred and settled through the local foreign exchange market, which would otherwise require conversion into Argentine pesos.
Whether funds are settled through the local foreign exchange market or not, resident debtors with foreign debt from the private non-financial sector and the financial sector are required to register such debt in the “Report of Issuances of Securities and Other Foreign Indebtedness of the Private Financial and Non-Financial Sector” pursuant to Central Bank of Argentina’s Communication “A” 3602, as amended, supplemented and restated (“Communication 3602”).
Payment of Services and Profits (Interest, Earnings and Dividends). Local residents are entitled to access the local foreign exchange market to transfer outside of Argentina amounts for payment of any services, interests, earnings, dividends and the acquisition of non-financial, non-produced assets (activos no financieros no producidos).
Access to the local foreign exchange market for any of these purposes requires the presentation of documentation evidencing compliance with the reporting regimes established by Communication 3602 and, in the case of direct investments (such as an ownership interest of at least 10% of a local company’s capital stock or voting rights), the requirements of Communication “A” 4237 (as amended, supplemented and restated) shall also apply.
Payment of Principal on Foreign Financial Debts. In the case of access to the local foreign exchange market for payment of principal on foreign financial indebtedness, including cancellation of financial standby arrangements granted by Argentine banking entities, applicable regulations require a sworn affidavit by the debtor confirming the filing, if applicable, in the “Report of Issuances of Securities and Other Foreign Indebtedness of the Private Financial and Non-Financial Sector” pursuant to Communication 3602.
Foreclosure of Local Guarantees. Only an Argentine financial entity that provides a guarantee for an Argentine import operation shall have access to the local foreign exchange market in order to make payments under such guarantee. Consequently, an Argentine resident that is not a financial entity and that is a guarantor of any cross-border financing shall not have access to the local foreign exchange market in order to make payments or transfer funds abroad pursuant to the guarantee.
However, as of the date hereof, subject to the satisfaction of certain conditions, resident individuals, legal entities from the private sector organized in Argentina and not authorized to deal in foreign exchange, certain trusts and other estates domiciled in Argentina, as well as Argentine local governments will be allowed access to the local foreign exchange market without the prior authorization of the Central Bank of Argentina to purchase foreign currency without specific allocation (atesoramiento). Previously, acquisitions of foreign currency for a non-specific purpose were subject to monthly caps. The Central Bank of Argentina eliminated these caps on August 9, 2016 through Communication 6037.
In addition, non-residents have access to the local foreign exchange market to transfer outside of Argentina payments for services, income and current transfers payable in Argentina, pursuant to the specific legal framework that regulates the access to this market by non-residents.
Notwithstanding the measures recently adopted by the Macri administration, the Central Bank of Argentina and the federal government in the future may impose additional exchange controls that may impact our ability to transfer funds abroad and may prevent or delay payments that our Argentine subsidiaries are required to make outside Argentina.
Brazil
Brazilian Resolution 3,568 establishes that, without prejudice to the duty of identifying customers, operations of foreign currency purchase or sale up to $3,000 or its equivalent in other currencies are not required to submit documentation relating to legal transactions underlying these foreign exchange operations. According to Resolution 3,568, the Central Bank of Brazil may define simplified forms to record operations of foreign currency purchases and sales of up to $3,000 or its equivalent in other currencies.
8
The Brazilian Monetary Council may issue further regulations in relation to foreign exchange transactions, as well as on payments and transfers of Brazilian currency between Brazilian residents and non-residents (such transfers being commonly known as the international transfer of reais), including those made through so-called non-resident accounts.
Brazilian law also imposes a tax on foreign exchange transactions, or “IOF/Exchange,” on the conversion of reais into foreign currency and on the conversion of foreign currency into reais. As of October 7, 2014, the general IOF/Exchange rate applicable to almost all foreign currency exchange transactions was increased from zero to 0.38%, although other rates may apply in particular operations, such as the below transactions which are currently not taxed:
| · | inflow related to transactions carried out in the Brazilian financial and capital markets, including investments in our common shares by investors which register their investment under Resolution No. 4,373; |
| · | outflow related to the return of the investment mentioned under the first bulleted item above; and |
| · | outflow related to the payment of dividends and interest on shareholders’ equity in connection with the investment mentioned under the first bulleted item above. |
Notwithstanding these rates of the IOF/Exchange, in force as of the date hereof, the Minister of Finance is legally entitled to increase the rate of the IOF/Exchange to a maximum of 25% of the amount of the currency exchange transaction, but only on a prospective basis.
Although the Central Bank of Brazil has intervened occasionally to control movements in the foreign exchange rates, the exchange market may continue to be volatile as a result of capital movements or other factors, and, therefore, the Brazilian real may substantially decline or appreciate in value in relation to the U.S. dollar in the future.
Brazilian law further provides that whenever there is a significant imbalance in Brazil’s balance of payments or reasons to foresee such a significant imbalance, the Brazilian government may, and has done so in the past, impose temporary restrictions on the remittance of funds to foreign investors of the proceeds of their investments in Brazil. The likelihood that the Brazilian government would impose such restricting measures may be affected by the extent of Brazil’s foreign currency reserves, the availability of foreign currency in the foreign exchange markets on the date a payment is due, the size of Brazil’s debt service burden relative to the economy as a whole and other factors. We cannot assure you that the Central Bank will not modify its policies or that the Brazilian government will not institute restrictions or delays on cross-border remittances in respect of securities issued in the international capital markets.
The Brazilian real depreciated 9.6% against the U.S. dollar in 2012, 15.5% in 2013, 11.3% in 2014, 47.0% in 2015, and appreciated 19.4% in 2016 and 5.9% in the first quarter of 2017.
The following table sets forth, for the periods indicated, the high, low, average and period-end exchange rates for the purchase of U.S. dollars expressed in Brazilian reais per U.S. dollar as reported by the Central Bank of Brazil. As of April 25, 2017, the exchange rate for the purchase of U.S. dollars as reported by the Central Bank of Brazil was R$3.158 per U.S. dollar.
|
Period- |
Average |
Low |
High | |
| (Brazilian reais per U.S. dollar) | ||||
| R$ | R$ | R$ | R$ | |
| Year Ended December 31: | ||||
| 2012 | 2.112 | 1.955 | 1.702 | 2.112 |
| 2013 | 2.343 | 2.158 | 1.953 | 2.446 |
| 2014 | 2.656 | 2.356 | 2.197 | 2.740 |
| 2015 | 3.905 | 3.388 | 2.569 | 4.195 |
| 2016 | 3.259 | 3.450 | 3.119 | 4.156 |
9
|
Period- |
Average |
Low |
High | |
| (Brazilian reais per U.S. dollar) | ||||
| R$ | R$ | R$ | R$ | |
| Quarter Ended: | ||||
| March 31, 2017 | 3.168 | 3.146 | 3.064 | 3.273 |
| Month Ended: | ||||
| October 31, 2016 | 3.181 | 3.187 | 3.119 | 3.236 |
| November 30, 2016 | 3.397 | 3.342 | 3.202 | 3.445 |
| December 31, 2016 | 3.259 | 3.352 | 3.259 | 3.465 |
| January 31, 2017 | 3.127 | 3.200 | 3.127 | 3.273 |
| February 28, 2017 | 3.099 | 3.104 | 3.051 | 3.148 |
| March 31, 2017 | 3.168 | 3.128 | 3.077 | 3.174 |
| April 30, 2017 (through April 25, 2017) | 3.158 | 3.125 | 3.092 | 3.158 |
| ____________________ |
Note: For consolidation purposes, we use a Brazilian reais / U.S. dollar exchange rate provided by Bloomberg that differs slightly from that reported by the Central Bank of Brazil.
Mexico
For the last few years, the Mexican government has maintained a policy of non-intervention in the foreign exchange markets, other than conducting periodic auctions for the purchase of U.S. dollars, and has not had in effect any exchange controls (although these controls have existed and have been in effect in the past). We cannot assure you that the Mexican government will maintain its current policies with regard to the Mexican peso or that the Mexican peso will not further depreciate or appreciate significantly in the future.
The Mexican peso depreciated 19.8% against the U.S. dollar in 2016 and appreciated 9.0% in the first quarter of 2017.
The following table sets forth, for the periods indicated, the high, low, average and period-end free-market exchange rate for the purchase of U.S. dollars, expressed in nominal Mexican pesos per U.S. dollar, as reported by the Central Bank of Mexico in the Federal Official Gazette. All amounts are stated in Mexican pesos per U.S. dollar. The annual and interim average rates reflect the average of month-end rates, and monthly average rates reflect the average of daily rates. As of April 25, 2017, the free-market exchange rate for the purchase of U.S. dollars as reported by the Central Bank of Mexico in the Federal Official Gazette as the rate of payment of obligations denominated in non-Mexican currency payable in Mexico was Ps.18.923 per U.S. dollar.
|
Period |
Average |
Low |
High | |
| (Mexican pesos per U.S. dollar) | ||||
| Ps. | Ps. | Ps. | Ps. | |
| Year Ended December 31: | ||||
| 2012 | 13.010 | 13.167 | 12.630 | 14.395 |
| 2013 | 13.077 | 12.821 | 11.981 | 13.439 |
| 2014 | 14.718 | 13.358 | 12.846 | 14.785 |
| 2015 | 17.207 | 15.967 | 14.556 | 17.378 |
| 2016 | 20.664 | 18.789 | 17.177 | 21.051 |
| Quarter Ended: | ||||
| March 31, 2017 | 18.796 | 20.321 | 18.708 | 21.908 |
| Month Ended: | ||||
| October 31, 2016 | 18.844 | 18.973 | 18.515 | 19.409 |
| November 30, 2016 | 20.552 | 19.969 | 18.509 | 21.051 |
| December 31, 2016 | 20.664 | 20.543 | 20.223 | 20.749 |
| January 31, 2017 | 21.021 | 21.396 | 20.619 | 21.908 |
| February 28, 2017 | 19.834 | 20.353 | 19.701 | 20.791 |
| March 31, 2017 | 18.796 | 19.301 | 18.708 | 19.937 |
| April 30, 2017 (through April 25, 2017) | 18.923 | 18.736 | 18.486 | 18.923 |
____________________
Note: For consolidation purposes, we use a Mexican peso/U.S. dollar exchange rate provided by Bloomberg that differs slightly from that reported by the Central Bank of Mexico.
10
| B. | Capitalization and Indebtedness |
Not applicable.
| C. | Reasons for the Offer and Use of Proceeds |
Not applicable.
| D. | Risk Factors |
Our business, financial condition and results of operations could be materially and adversely affected if any of the risks described below occur. As a result, the market price of our class A shares could decline, and you could lose all or part of your investment. This annual report also contains forward-looking statements that involve risks and uncertainties. See “Forward-Looking Statements.” Our actual results could differ materially and adversely from those anticipated in these forward-looking statements as a result of certain factors, including the risks facing our company or investments in Latin America and the Caribbean described below and elsewhere in this annual report.
Certain Factors Relating to Our Business
Our rights to operate and franchise McDonald’s-branded restaurants are dependent on the MFAs, the expiration of which would adversely affect our business, results of operations, financial condition and prospects.
Our rights to operate and franchise McDonald’s-branded restaurants in the Territories, and therefore our ability to conduct our business, derive exclusively from the rights granted to us by McDonald’s in two MFAs through 2027. The initial term of the franchise for French Guiana, Guadeloupe and Martinique expires on August 2, 2017 and includes an option to extend the agreement for these territories for an additional period of 10 years through August 2, 2027. On July 20, 2016, we exercised our option to extend our rights to operate and franchise McDonald’s-branded restaurants in these three territories. As a result, our ability to continue operating in our current capacity following the extended term of the MFAs is dependent on the renewal of our contractual relationship with McDonald’s.
McDonald’s has the right, in its reasonable business judgment based on our satisfaction of certain criteria set forth in the MFAs, to grant us an option to extend the term of the MFAs with respect to all Territories for an additional period of 10 years after the expiration in 2027 of the initial term of the MFAs upon such terms as McDonald’s may determine. Pursuant to the MFAs, McDonald’s will determine whether to grant us the option to renew between August 2020 and August 2024. If McDonald’s grants us the option to renew and we elect to exercise the option, then we and McDonald’s will amend the MFAs to reflect the terms of such renewal option, as appropriate. We cannot assure you that McDonald’s will grant us an option to extend the term of the MFAs or that the terms of any renewal option will be acceptable to us, will be similar to those contained in the MFAs or will not be less favorable to us than those contained in the MFAs.
If McDonald’s elects not to grant us the renewal option or we elect not to exercise the renewal option, we will have a three-year period in which to solicit offers for our business, which offers would be subject to McDonald’s approval. Upon the expiration of the MFAs, McDonald’s has the option to acquire all of our non-public shares and all of the equity interests of our wholly owned subsidiary Arcos Dourados Comercio de Alimentos Ltda., the master franchisee of McDonald’s for Brazil, at their fair market value.
In the event McDonald’s does not exercise its option to acquire LatAm, LLC and Arcos Dourados Comercio de Alimentos Ltda., the MFAs would expire and we would be required to cease operating McDonald’s-branded restaurants, identifying our business with McDonald’s and using any of McDonald’s intellectual property. Although we would retain our real estate and infrastructure, the MFAs prohibit us from engaging in certain competitive businesses, including Burger King, Subway, KFC or any other quick-service restaurant, or QSR, business, or duplicating the McDonald’s system at another restaurant or business during the two-year period following the expiration of the MFAs. As the McDonald’s brand and our relationship with McDonald’s are among our primary competitive strengths, the expiration of the MFAs for any of the reasons described above would materially and adversely affect our business, results of operations, financial condition and prospects.
11
Our business depends on our relationship with McDonald’s and changes in this relationship may adversely affect our business, results of operations and financial condition.
Our rights to operate and franchise McDonald’s-branded restaurants in the Territories, and therefore our ability to conduct our business, derive exclusively from the rights granted to us by McDonald’s in the MFAs. As a result, our revenues are dependent on the continued existence of our contractual relationship with McDonald’s.
Pursuant to the MFAs, McDonald’s has the ability to exercise substantial influence over the conduct of our business. For example, under the MFAs, we are not permitted to operate any other QSR chains, we must comply with McDonald’s high quality standards, we must own and operate at least 50% of all McDonald’s-branded restaurants in each of the Territories, we must maintain certain guarantees in favor of McDonald’s, including a standby letter of credit (or other similar financial guarantee acceptable to McDonald’s) in an amount of $80.0 million, to secure our payment obligations under the MFAs and related credit documents, we cannot incur debt above certain financial ratios, we cannot transfer the equity interests of our subsidiaries, any significant portion of their assets or any of the real estate properties we own without McDonald’s consent, and McDonald’s has the right to approve the appointment of our chief executive officer and chief operating officer. In addition, the MFAs require us to reinvest a significant amount of money, including through reimaging our existing restaurants, opening new restaurants and advertising, which plans McDonald’s has the right to approve. Under the 2017-2019 restaurant opening and reinvestment plan, we are required to open 180 restaurants and to reinvest $292 million in existing restaurants from 2017 through 2019. We cannot assure you that we will have available the funds necessary to finance these commitments, and their satisfaction may require us to incur additional indebtedness, which could adversely affect our financial condition. Moreover, we may not be able to obtain additional indebtedness on favorable terms, or at all. Failure to comply with these commitments could constitute a material breach of the MFAs and may lead to a termination by McDonald’s of the MFAs. In addition, on January 25, 2017, McDonald’s Corporation agreed to provide growth support for the same period. We project that the impact of this support could result in an effective royalty rate of 5.3% in 2017, 5.7% in 2018 and 5.9% in 2019.
Notwithstanding the foregoing, McDonald’s has no obligation to fund our operations. In addition, McDonald’s does not guarantee any of our financial obligations, including trade payables or outstanding indebtedness, and has no obligation to do so.
If the terms of the MFAs excessively restrict our ability to operate our business or if we are unable to satisfy our restaurant opening and reinvestment commitments under the MFAs, our business, results of operations and financial condition would be materially and adversely affected.
For certain periods of 2014, 2015 and 2016, McDonald’s Corporation granted us limited waivers for our non-compliance with certain quarterly financial ratios specified in the MFA; a failure to extend such waiver or comply with our original commitments could result in a material breach of the MFA.
During certain periods of 2014, 2015 and 2016, we were not in compliance with certain quarterly financial ratios specified in the MFA. We obtained a limited waiver from McDonald’s Corporation through and including June 30, 2016. During the waiver period we were not required to maintain these quarterly financial ratios. We have been in compliance with these quarterly ratios since the expiration of the waiver. However, if we are unable to comply with our original commitments under the MFA or to obtain a waiver for any non-compliance in the future, we could be in material breach. If we breach the MFA, McDonald’s will have certain rights, including the ability to acquire all or portions of our business. See “Item 10. Additional Information—C. Material Contracts—The MFAs.”
McDonald’s has the right to acquire all or portions of our business upon the occurrence of certain events and, in the case of a material breach of the MFAs, may acquire our non-public shares or our interests in one or more Territories at 80% of their fair market value.
Pursuant to the MFAs, McDonald’s has the right to acquire our non-public shares or our interests in one or more Territories upon the occurrence of certain events, including the death or permanent incapacity of our controlling shareholder or a material breach of the MFAs. In the event McDonald’s were to exercise its right to acquire all of our non-public shares, McDonald’s would become our controlling shareholder.
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McDonald’s has the option to acquire all, but not less than all, of our non-public shares at 100% of their fair market value during the twelve-month period following the eighteen-month anniversary of the death or permanent incapacity of Mr. Staton, our Executive Chairman and controlling shareholder. In addition, if there is a material breach that relates to one or more Territories in which there are at least 100 restaurants in operation, McDonald’s has the right either to acquire all of our non-public shares or our interests in our subsidiaries in such Territory or Territories. By contrast, if the initial material breach of the MFAs affects or is attributable to any of the Territories in which there are less than 100 restaurants in operation, McDonald’s only has the right to acquire the equity interests of any of our subsidiaries in the relevant Territory. For example, since we have more than 100 restaurants in Mexico, if a Mexican subsidiary were to materially breach the MFA, McDonald’s would have the right either to acquire our entire business throughout Latin America and the Caribbean or just our Mexican operations, whereas upon a similar breach by our Ecuadorean subsidiary, McDonald’s would only have the right to acquire our interests in our operations in Ecuador.
McDonald’s was granted a perfected security interest in the equity interests of LatAm, LLC, Arcos Dourados Comercio de Alimentos Ltda. and certain of their subsidiaries to protect this right. In the event this right is exercised as a result of a material breach of the MFAs, the amount to be paid by McDonald’s would be equal to 80% of the fair market value of the acquired equity interests. If McDonald’s exercises its right to acquire our interests in one or more Territories as a result of a material breach, our business, results of operations and financial condition would be materially and adversely affected. See “Item 10. Additional Information—C. Material Contracts—The MFAs—Termination” for more details about fair market value calculation.
The failure to successfully manage our future growth may adversely affect our results of operations.
Our business has grown significantly since the Acquisition, largely due to the opening of new restaurants in existing and new markets within the Territories, and also from an increase in comparable store sales. Our total number of restaurant locations has increased from 1,569 at the date of the Acquisition to 2,156 as of December 31, 2016. However, during 2014, 2015 and 2016, our rate of restaurant openings slowed. This was mainly due to a shift in capital allocation strategy to increase our focus on existing restaurants over continued expansion.
Our growth is, to a certain extent, dependent on new restaurant openings and therefore may not be constant from period to period; it may accelerate or decelerate in response to certain factors. There are many obstacles to opening new restaurants, including determining the availability of desirable locations, securing reliable suppliers, hiring and training new personnel and negotiating acceptable lease terms, and, in times of adverse economic conditions, franchisees may be more reluctant to provide the investment required to open new restaurants. In addition, our growth in comparable store sales is dependent on continued economic growth in the countries in which we operate as well as our ability to continue to predict and satisfy changing consumer preferences.
We plan our capital expenditures on an annual basis, taking into account historical information, regional economic trends, restaurant opening and reimaging plans, site availability and the investment requirements of the MFAs in order to maximize our returns on invested capital. The success of our investment plan may, however, be harmed by factors outside our control, such as changes in macroeconomic conditions, changes in demand and construction difficulties that could jeopardize our investment returns and our future results and financial condition.
We depend on oral agreements with third-party suppliers and distributors for the provision of products that are necessary for our operations.
Supply chain management is an important element of our success and a crucial factor in optimizing our profitability. We use McDonald’s centralized supply chain management model, which relies on approved third-party suppliers and distributors for goods, and we generally use several suppliers to satisfy our needs for goods. This system encompasses selecting and developing suppliers of core products—beef, chicken, buns, produce, cheese, dairy mixes, beverages and toppings—who are able to comply with McDonald’s high quality standards, and establishing sustainable relationships with these suppliers. McDonald’s standards include cleanliness, product consistency, timeliness, following internationally recognized manufacturing practices, meeting or exceeding all local food regulations and compliance with our Hazard Analysis Critical Control Plan, a systematic approach to food safety that emphasizes protection within the processing facility, rather than detection, through analysis, inspection and follow-up.
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Our 16 largest suppliers account for approximately 55.0% of our purchases. Very few of our suppliers have entered into written contracts with us as we only have oral agreements with a vast majority of them. Our supplier approval process is thorough and lengthy in order to ensure compliance with McDonald’s high quality standards. We therefore tend to develop strong relationships with approved suppliers and, given our importance to them, have found that oral agreements with them are generally sufficient to ensure a reliable supply of quality products. While we source our supplies from many approved suppliers in Latin America and the Caribbean, thereby reducing our dependence on any one supplier, the informal nature of the majority of our relationships with suppliers means that we may not be assured of long-term or reliable supplies of products from those suppliers.
In addition, certain supplies, such as beef, must often be locally sourced due to restrictions on their importation. In light of these restrictions, as well as the MFAs’ requirement to purchase certain core supplies from approved suppliers, we may not be able to quickly find alternate or additional supplies in the event a supplier is unable to meet our orders.
If our suppliers fail to provide us with products in a timely manner due to unanticipated demand, production or distribution problems, financial distress or shortages, if our suppliers decide to terminate their relationship with us or if McDonald’s determines that any product or service offered by an approved supplier is not in compliance with its standards and we are obligated to terminate our relationship with such supplier, we may have difficulty finding appropriate or compliant replacement suppliers. As a result, we may face inventory shortages that could negatively affect our operations.
Our financial condition and results of operations depend, to a certain extent, on the financial condition of our franchisees and their ability to fulfill their obligations under their franchise agreements.
As of December 31, 2016, 28.0% of our restaurants were franchised. Under our franchise agreements, we receive monthly payments which are, in most cases, the greater of a fixed rent or a certain percentage of the franchisee’s gross sales. Franchisees are independent operators with whom we have franchise agreements. We typically own or lease the real estate upon which franchisees’ restaurants are located and franchisees are required to follow our operating manual that specifies items such as menu choices, permitted advertising, equipment, food handling procedures, product quality and approved suppliers. Our operating results depend to a certain extent on the restaurant profitability and financial viability of our franchisees. The concurrent failure by a significant number of franchisees to meet their financial obligations to us could jeopardize our ability to meet our obligations.
In addition, we are liable for our franchisees’ monthly payment of a continuing franchise fee to McDonald’s, which represents a percentage of those franchised restaurants’ gross sales. To the extent that our franchisees fail to pay this fee in full, we are responsible for any shortfall. As such, the concurrent failure by a significant number of franchisees to pay their continuing franchise fees could have a material adverse effect on our results of operations and financial condition.
We do not have full operational control over the businesses of our franchisees.
We are dependent on franchisees to maintain McDonald’s quality, service and cleanliness standards, and their failure to do so could materially affect the McDonald’s brand and harm our future growth. Although we exercise significant influence over franchisees through the franchise agreements, franchisees have some flexibility in their operations, including the ability to set prices for our products in their restaurants, hire employees and select certain service providers. In addition, it is possible that some franchisees may not operate their restaurants in accordance with our quality, service, cleanliness, health or product standards. Although we take corrective measures if franchisees fail to maintain McDonald’s quality, service and cleanliness standards, we may not be able to identify and rectify problems with sufficient speed and, as a result, our image and operating results may be negatively affected.
Ownership and leasing of a broad portfolio of real estate exposes us to potential losses and liabilities.
As of December 31, 2016, we owned the land for 496 of our 2,156 restaurants and the buildings for all but 11 of our restaurants. The value of these assets could decrease or rental costs could increase due to changes in local demographics, the investment climate and increases in taxes.
The majority of our restaurant locations, or those operated by our franchisees, are subject to long-term leases. We may not be able to renew leases on acceptable terms or at all, in which case we would have to find new locations to lease or be forced to close the restaurants. If we are able to negotiate a new lease at an existing location, we may be subject to a rent increase. In addition, current restaurant locations may become unattractive due to changes in neighborhood demographics or economic conditions, which may result in reduced sales at these locations.
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The success of our business is dependent on the effectiveness of our marketing strategy.
Market awareness is essential to our continued growth and financial success. Pursuant to the MFAs, we create, develop and coordinate marketing plans and promotional activities throughout the Territories, and franchisees contribute a percentage of their gross sales to our marketing plan. In addition, we are required under the MFAs to spend at least 5% of our sales on advertising and promotional activities. Pursuant to the MFAs, McDonald’s has the right to review and approve our marketing plans in advance and may request that we cease using the materials or promotional activities at any time if McDonald’s determines that they are detrimental to its brand image. We also participate in global and regional marketing activities undertaken by McDonald’s and pay McDonald’s up to 0.2% of our sales in order to fund such activities.
If our advertising programs are not effective, or if our competitors begin spending significantly more on advertising than we do, we may be unable to attract new customers or existing customers may not return to our restaurants and our operating results may be negatively affected.
We use non-committed lines of credit to partially finance our working capital needs.
We use non-committed lines of credit to partially finance our working capital needs. Given the nature of these lines of credit, they could be withdrawn and no longer be available to us, or their terms, including the interest rate, could change to make the terms no longer acceptable to us. The availability of these lines of credit depends on the level of liquidity in financial markets, which can vary based on events outside of our control, including financial or credit crises. Any inability to draw upon our non-committed lines of credit could have an adverse effect on our working capital, financial condition and results of operations.
Covenants and events of default in the agreements governing our outstanding indebtedness could limit our ability to undertake certain types of transactions and adversely affect our liquidity.
As of December 31, 2016, we had $610.2 million in total outstanding indebtedness, consisting of $579.7 million in long-term debt and $30.5 million related to the fair market value of our outstanding derivative instruments. The agreements governing our outstanding indebtedness contain covenants and events of default that may limit our financial flexibility and ability to undertake certain types of transactions. For instance, we are subject to negative covenants that restrict some of our activities, including restrictions on:
| · | creating liens; |
| · | paying dividends; |
| · | maintaining certain leverage ratios; |
| · | entering into sale and lease-back transactions; and |
| · | consolidating, merging or transferring assets. |
During certain periods of 2014, we were not in compliance with certain quarterly financial ratios specified in our revolving credit facility with Bank of America, N.A. We were able to successfully negotiate an amendment to the credit facility to increase these financial ratios, and we are currently in compliance with the revised ratios. See “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Net Cash (used in) Financing Activities—Revolving Credit Facilities”.
If we fail to satisfy the covenants set forth in these agreements or another event of default occurs under the agreements, our outstanding indebtedness under the agreements could become immediately due and payable. If our outstanding indebtedness becomes immediately due and payable and we do not have sufficient cash on hand to pay all amounts due, we could be required to sell assets, to refinance all or a portion of our indebtedness or to obtain additional financing. Refinancing may not be possible and additional financing may not be available on commercially acceptable terms, or at all.
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Our inability to attract and retain qualified personnel may affect our growth and results of operations.
We have a strong management team with broad experience in human resources, product development, supply chain management, operations, finance, marketing, real estate development and training. Our growth plans place substantial demands on our management team, and future growth could increase those demands. In addition, pursuant to the MFAs, McDonald’s is entitled to approve the appointment of our chief executive officer and chief operating officer. Our ability to manage future growth will depend on the adequacy of our resources and our ability to continue to identify, attract and retain qualified personnel. Failure to do so could have a material adverse effect on our business, financial condition and results of operations.
Also, the success of our operations depends in part on our ability to attract and retain qualified regional and restaurant managers and general staff. If we are unable to recruit and retain our employees, or fail to motivate them to provide quality food and service, our image, operations and growth could be adversely affected.
The resignation, termination, permanent incapacity or death of our Executive Chairman could adversely affect our business, results of operations, financial condition and prospects.
Due to Mr. Staton’s unique experience and leadership capabilities, it would be difficult to find a suitable successor for him if he were to cease serving as Executive Chairman for any reason. In the event of Mr. Staton’s death or permanent incapacity, pursuant to the MFA, McDonald’s has the right to acquire all of our non-public shares during the twelve-month period beginning on the eighteen-month anniversary of his death or incapacity.
In addition, in the event that we need to appoint a new CEO, pursuant to the MFA, we must submit to McDonald’s the name of such proposed successor for McDonald’s approval. If we and McDonald’s have not agreed upon a successor CEO after six months, McDonald’s may designate a temporary CEO in its sole discretion pending our submission of information relating to a further candidate and McDonald’s approval of that candidate. A delay in finding a suitable successor CEO could adversely affect our business, results of operations, financial condition and prospects.
Labor shortages or increased labor costs could harm our results of operations.
Our operations depend in part on our ability to attract and retain qualified restaurant managers and crew. While the turnover rate varies significantly among categories of employees, due to the nature of our business we traditionally experience a high rate of turnover among our crew and we may not be able to replace departing crew with equally qualified or motivated staff.
As of December 31, 2016, we had 82,040 employees in our company-operated restaurants and staff. Controlling labor costs is critical to our results of operations, and we closely monitor those costs. Some of our employees are paid minimum wages; any increases in minimum wages or changes to labor regulations in the Territories could increase our labor costs. For example, during 2016, Venezuela implemented four increases in the minimum wage, a 20% increase in March, a 30% increase in May, a 50% increase in September and a 20% increase in November, resulting in a new minimum wage of Bs.$40,638.15 as of December 2016. In Argentina, a law enacted in November 2010 requires companies to pay overtime to all employees (except directors and managers). In addition, certain proposed bills have attempted to implement additional payments for weekends and mandatory employee profit-sharing, but none of those have been enacted by Congress. These or similar regulations, if adopted, may have an adverse impact on our results of operations. Competition for employees could also cause us to pay higher wages.
Some of our employees are represented by unions and are working under agreements that are subject to annual salary negotiations. We cannot guarantee the results of any such collective bargaining negotiations or whether any such negotiations will result in a work stoppage. In addition, employees may strike for reasons unrelated to our union arrangements. Any future work stoppage could, depending on the affected operations and the length of the work stoppage, have a material adverse effect on our financial position, results of operations or cash flows.
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A failure by McDonald’s to protect its intellectual property rights, including its brand image, could harm our results of operations.
The profitability of our business depends in part on consumers’ perception of the strength of the McDonald’s brand. Under the terms of the MFAs, we are required to assist McDonald’s with protecting its intellectual property rights in the Territories. Nevertheless, any failure by McDonald’s to protect its proprietary rights in the Territories or elsewhere could harm its brand image, which could affect our competitive position and our results of operations.
Under the MFAs, we may use, and grant rights to franchisees to use, McDonald’s intellectual property in connection with the development, operation, promotion, marketing and management of our restaurants. McDonald’s has reserved the right to use, or grant licenses to use, its intellectual property in Latin America and the Caribbean for all other purposes, including to sell, promote or license the sale of products using its intellectual property. If we or McDonald’s fail to identify unauthorized filings of McDonald’s trademarks and imitations thereof, and we or McDonald’s do not adequately protect McDonald’s trademarks and copyrights, the infringement of McDonald’s intellectual property rights by others may cause harm to McDonald’s brand image and decrease our sales.
Non-compliance with anti-terrorism and anti-corruption regulations could harm our reputation and have an adverse effect on our business, results of operations and financial condition.
A material breach under the MFAs would occur if we, or our subsidiaries that are a party to the MFAs, materially breached any of the representations or warranties or obligations under the MFAs (not cured within 30 days after receipt of notice thereof from McDonald’s) relating to or otherwise in connection with any aspect of the master franchise business, the franchised restaurants or any other matter in or affecting any one or more Territories, including by failing to comply with anti-terrorism or anti-corruption policies and procedures required by applicable law.
We maintain policies and procedures that require our employees to comply with anti-corruption laws, including the Foreign Corrupt Practices Act of 1977 (the “FCPA”), and our corporate standards of ethical conduct. However, we cannot ensure that these policies and procedures will always protect us from intentional, reckless or negligent acts committed by our employees or agents. If we are not in compliance with the FCPA and other applicable anti-corruption laws, we may be subject to criminal and civil penalties and other remedial measures, which could have an adverse impact on our business, financial condition, and results of operations. Any investigation of any potential violations of the FCPA or other anti-corruption laws by U.S. or other governmental authorities could adversely impact our reputation, cause us to lose or become disqualified from bids, and lead to other adverse impacts on our business, financial condition and results of operations.
Any tax increase or change in tax legislation may adversely affect our results of operations.
Since we conduct our business in many countries in Latin America and the Caribbean, we are subject to the application of multiple tax laws and multinational tax conventions. Our effective tax rate therefore depends on these tax laws and multinational tax conventions, as well as on the effectiveness of our tax planning abilities. Our income tax position and effective tax rate are subject to uncertainty as our income tax position for each year depends on the profitability of Company-operated restaurants and on the profitability of franchised restaurants operated by our franchisees in tax jurisdictions that levy a broad range of income tax rates. It is also dependent on changes in the valuation of deferred tax assets and liabilities, the impact of various accounting rules, changes to these rules and tax laws and examinations by various tax authorities. If our actual tax rate differs significantly from our estimated tax rate, this could have a material impact on our financial condition. In addition, any increase in the rates of taxes, such as income taxes, excise taxes, value added taxes, import and export duties, and tariff barriers or enhanced economic protectionism could negatively affect our business. Fiscal measures that target either QSRs or any of our products could also be taken.
We cannot assure you that any governmental authority in any country in which we operate will not increase taxes or impose new taxes on our operations or products in the future.
Tax assessments in any of the jurisdictions in which we operate may negatively affect our business and results of operations.
As part of the ordinary course of business, we are subject to inspections by federal, municipal and state tax authorities in Latin America. These inspections may generate tax assessments which, depending on their results, may have an adverse effect on our financial results. See “Item 8. Financial Information—A. Consolidated Statements and Other Financial Information—Legal Proceedings.”
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Litigation and other pressure tactics could expose our business to financial and reputational risk.
Given that we conduct our business in many countries, we may be subject to multi-jurisdictional private and governmental lawsuits, including but not limited to lawsuits relating to labor and employment practices, taxes, trade and business practices, franchising, intellectual property, consumer, real property, landlord/tenant, environmental, advertising, nutrition and antitrust matters. In the past, QSR chains have been subject to class-action lawsuits claiming that their food products and promotional strategies have contributed to the obesity of some customers. We cannot guarantee that we will not be subject to these types of lawsuits in the future. We may also be the target of pressure tactics such as strikes, boycotts and negative publicity from government officials, suppliers, distributors, employees, unions, special interest groups and customers that may negatively affect our reputation.
Information technology system failures or interruptions or breaches of our network security may interrupt our operations, subject us to increased operating costs and expose us to litigation.
We rely heavily on our computer systems and network infrastructure across our operations including, but not limited to, point-of-sale processing at our restaurants. As of the date of this annual report, we have not experienced any information security problems. However, despite our implementation of security measures and controls that provide reasonable assurance regarding our security posture, there remains the risk that our technology systems are vulnerable to damage, disability or failures due to physical theft, fire, power loss, telecommunications failure or other catastrophic events, as well as from internal and external security breaches, denial of service attacks, viruses, worms and other disruptive problems caused by hackers. If our technology systems were to fail, and we were unable to recover in a timely way, we could experience an interruption in our operations which could have a material adverse effect on our financial condition and results of operations.
Our insurance may not be sufficient to cover certain losses.
We face the risk of loss or damage to our properties, machinery and inventories due to fire, theft and natural disasters such as earthquakes and floods. While our insurance policies cover some losses in respect of damage or loss of our properties, machinery and inventories, our insurance may not be sufficient to cover all such potential losses. In the event that such loss exceeds our insurance coverage or is not covered by our insurance policies, we will be liable for the excess in losses. In addition, even if such losses are fully covered by our insurance policies, such fire, theft or natural disaster may cause disruptions or cessations in its operations and adversely affect our financial condition and results of operations.
Certain Factors Relating to Our Industry
The food services industry is intensely competitive and we may not be able to continue to compete successfully.
Although competitive conditions in the QSR industry vary in each of the countries in which we conduct our operations, we compete with many well-established restaurant companies on price, brand image, quality, sales promotions, new product development and restaurant locations. Since the restaurant industry has few barriers to entry, our competitors are diverse and range from national and international restaurant chains to individual, local restaurant operators. Our largest competitors include Burger King, Yum! Brands (which operates KFC restaurants and Pizza Hut and Pizza Hut Express restaurants), Carl’s Junior and Subway. In Brazil, we also compete with Habib’s, a Brazilian QSR chain that focuses on Middle Eastern food, and Bob’s, a primarily Brazilian QSR chain that focuses on hamburger product offerings. We also face strong competition from street vendors of limited product offerings, including hamburgers, hot dogs, pizzas and other local food items. We expect competition to increase as our competitors continue to expand their operations, introduce new products and market their brands.
If any of our competitors offers products that are better priced or more appealing to the tastes of consumers, increases its number of restaurants, obtains more desirable restaurant locations, provides more attractive financial incentives to management personnel, franchisees or hourly employees or has more effective marketing initiatives than we do in any of the markets in which we operate, this could have a material adverse effect on our results of operations.
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Increases in commodity prices or other operating costs could harm our operating results.
Food and paper costs represented 36.1% of our total sales by company-operated restaurants in 2016, and we import approximately 28.5% of our food and paper raw materials. We rely on, among other commodities, beef, chicken, produce, dairy mixes, beverages and toppings. The cost of food and supplies depends on several factors, including global supply and demand, new product offerings, weather conditions, fluctuations in energy costs and tax incentives, all of which makes us susceptible to substantial price and currency fluctuations and other increased operating costs. Our hedging strategies on the imported portion of our food and paper raw materials may not be successful in fully offsetting cost increases due to currency fluctuations. Furthermore, due to the competitive nature of the restaurant industry, we may be unable to pass increased operating costs on to our customers, which could have an adverse effect on our results of operations.
Demand for our products may decrease due to changes in consumer preferences or other factors.
Our competitive position depends on our continued ability to offer items that have a strong appeal to consumers. If consumer dining preferences change due to shifts in consumer demographics, dietary inclinations, trends in food sourcing or food preparation and our consumers begin to seek out alternative restaurant options, our financial results might be adversely affected. In addition, negative publicity surrounding our products could also materially affect our business and results of operations.
Our success in responding to consumer demands depends in part on our ability to anticipate consumer preferences and introduce new items to address these preferences in a timely fashion.
Our business activity may be negatively affected by disruptions, catastrophic events or health pandemics.
Unpredictable events beyond our control, including war, terrorist activities, political and social unrest and natural disasters, could disrupt our operations and those of our franchisees, suppliers or customers, have a negative effect on consumer spending or result in political or economic instability. These events could reduce demand for our products or make it difficult to ensure the regular supply of products through our distribution chain.
In addition, incidents of health pandemics, food-borne illnesses or food tampering could reduce sales in our restaurants. Widespread illnesses such as avian influenza, the H1N1 influenza virus, e-coli, bovine spongiform encephalopathy (or “mad cow” disease), hepatitis A or salmonella could cause customers to avoid meat or fish products. For example, the H1N1 influenza virus outbreak in Argentina and Mexico in 2009 significantly impacted our sales in those countries. Furthermore, our reliance on third-party food suppliers and distributors increases the risk of food-borne illness incidents being caused by third-party food suppliers and distributors who operate outside of our control and/or multiple locations being affected rather than a single restaurant. For example, we cannot predict whether the recent scandal relating to beef, chicken and pork production in Brazil will have any impact on our results of operations. In addition, recent events in our region related to the Dengue and Zika viruses have resulted in heightened health concerns in the region, which could reduce the visits to our restaurants if these cases are not controlled. The latest reports of the Panamerican Health Association related to Processed and Ultra Processed Foods put our products on the list of their recommendations to avoid the consumption of or to apply additional taxes or restrictions to media ads.
Food safety events involving McDonald’s outside of Latin America or other well-known QSR chains could negatively impact our business industry. Another extended issue in our region is the use of social media to post complaints against the QSR segment and the use of mobile phones to capture any deviation in our processes, products or facilities. Media reports of health pandemics or food-borne illnesses found in the general public or in any QSR could dramatically affect restaurant sales in one or several countries in which we operate, or could force us to temporarily close an undetermined number of restaurants. As a restaurant company, we depend on consumer confidence in the quality and safety of our food. Any illness or death related to food that we serve could substantially harm our operations. While we maintain extremely high standards for the quality of our food products and dedicate substantial resources to ensure that these standards are met, the spread of these illnesses is often beyond our control and we cannot assure you that new illnesses resistant to any precautions we may take will not develop in the future.
In addition, our industry has long been subject to the threat of food tampering by suppliers, employees or customers, such as the addition of foreign objects to the food that we sell. Reports, whether true or not, of injuries caused by food tampering have in the past negatively affected the reputations of QSR chains and could affect us in the future. Instances of food tampering, even those occurring solely at competitor restaurants, could, by causing negative publicity about the restaurant industry, adversely affect our sales on a local, regional, national or systemwide basis. A decrease in customer traffic as a result of public health concerns or negative publicity could materially affect our business, results of operations and financial condition.
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Restrictions on promotions and advertisements directed at families with children and regulations regarding the nutritional content of children’s meals may harm McDonald’s brand image and our results of operations.
A significant portion of our business depends on our ability to make our product offerings appealing to families with children. Argentina, Brazil, Chile, Colombia, Mexico, Peru and Uruguay are considering imposing, or have already imposed, restrictions on the ways in which we market our products, including proposals restricting our ability to advertise directly to children through the use of toys and to sell toys in conjunction with food.
In June 2012, Chile passed a law banning the inclusion of toys in children’s meals with certain nutritional characteristics. This law came into effect on June 26, 2016. The ban in Chile also restricts advertisements to children under the age of 14. Initially, we were able to continue offering toys with children’s meals without changing the contents of the children’s meals, according to the preliminary interpretation of the legislation. However, due to more recent interpretations, we were required to modify the contents of some of our products and stop selling cheeseburgers in children’s meals. We were subject to several audits by the Chilean authorities. We are in the process of evaluating alternatives for this menu, as we believe that the restrictions will become more burdensome in the near future. In addition, Chilean Law Nº 20,869, which also came into effect on June 26, 2016, restricts advertisements on television and in movie theaters between 6:00 a.m. and 10:00 p.m., and affects food products that exceed certain standards of nutritional quality set by the Chilean authorities. We currently do not expect that the law will have a material impact on our consolidated results.
Similar to law in Chile, Peru passed a law in 2013 restricting our ability to advertise our food to children under the age of 16 and banning the inclusion of toys in children’s meals. However, the law will not be enforced until the Peruvian regulatory authorities issue regulations to determine the scope of the law. Such regulations have not yet been issued. While it is difficult to predict how the Peruvian authorities will enforce or interpret this law, we currently do not expect that the law will have a material impact on our consolidated results.
Since 2014, the Mexican Ministry of Health empowered the Federal Commission for Prevention of Sanitary Risks (Comisión Federal para la Protección contra Riesgos Sanitarios or COFEPRIS) to regulate advertising directed at families with children. On April 15, 2014, COFEPRIS issued certain regulations which establish the maximum contents of fat, sodium and sugars that every meal advertised to children on television and in cinemas may contain. In February of 2015, COFEPRIS ordered us to stop advertising Happy Meals on television until we disclosed all the nutritional information for Happy Meals to COFEPRIS. We provided this information to COFEPRIS, but we have not yet received any legal authorization to advertise Happy Meals either during the general times when children may be watching television or during any programming geared towards children. Generally, we are prohibited from advertising Happy Meals from 2:30 p.m. to 7:30 p.m., Monday through Friday, and from 7:00 a.m. to 7:00 p.m. on Saturday and Sunday.
In Brazil, the Federal Prosecutor’s Office filed suit in 2009 seeking to enjoin various QSRs, including us, from including toys in our children’s meals. The Lower Federal Court in São Paulo ruled that the lawsuit was without merit. The Prosecutor’s Office filed an appeal against this decision, which will be adjudicated by the Regional Federal Court in São Paulo. As of the date of this annual report, this appeal is still pending and the outcome remains uncertain. In addition, the number of proposed laws seeking to restrict the sale of toys with meals increased significantly in Brazil at the federal, state and municipal levels. In April 2013, a consumer protection agency in Brazil fined us $1.6 million for a 2010 advertising campaign relating to our offering of meals with toys from the motion picture Avatar. We filed a lawsuit seeking to annul the fine. The lower court ruled there was no basis for the penalty and the consumer protection agency appealed this decision. The Appellate Court in São Paulo upheld the decision and the consumer protection agency filed a special appeal against this decision, which was also rejected. The consumer protection agency subsequently filed an interlocutory appeal. We presented counter-arguments and a decision on this interlocutory appeal is still pending. Although similar fines relating to our current and previous advertising campaigns involving the sale of toys may be possible in the future, as of the date of this annual report, we are unaware of any other such fines.
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On July 28, 2014, Colombia enacted Decree 975 of 2014, which sets forth certain directives regarding advertising directed at children. These directives include, (i) limiting any insinuation that the food and beverage being advertised is a substitute for any of the principal daily meals; (ii) any advertising directed at children or adolescents, during certain times of the day when children and adolescents are more likely to be consuming such advertising, must include disclosure that the advertisement is not part of the actual program; and (iii) requiring parental approval for any advertisement through a child/adolescent digital platform that requests any download or purchase.
Certain jurisdictions in the United States are also considering curtailing or have curtailed food retailers’ ability to sell meals to children including free toys if these meals do not meet certain nutritional criteria. Similar restrictions, if imposed in the Territories, may have a negative impact on our results of operations. In general, regulatory developments that adversely impact our ability to promote and advertise our business and communicate effectively with our target customers, including restrictions on the use of licensed characters, may have a negative impact on our results of operations.
Environmental laws and regulations may affect our business.
We are subject to various environmental laws and regulations. These laws and regulations govern, among other things, discharges of pollutants into the air and water and the presence, handling, release and disposal of, and exposure to, hazardous substances. These laws and regulations provide for significant fines and penalties for noncompliance. Third parties may also assert personal injury, property damage or other claims against owners or operators of properties associated with release of, or actual or alleged exposure to, hazardous substances at, on or from our properties.
Liability from environmental conditions relating to prior, existing or future restaurants or restaurant sites, including franchised restaurant sites, may have a material adverse effect on us. Moreover, the adoption of new or more stringent environmental laws or regulations could result in a material environmental liability to us.
We may be adversely affected by legal actions, claims or damaging publicity with respect to our business.
We could be adversely affected by legal actions and claims brought by consumers or regulatory authorities in relation to the quality of our products and eventual health problems or other consequences caused by our products or by any of their ingredients. We could also be affected by legal actions and claims brought against us for products made in a jurisdiction outside the jurisdictions where we are operating. An array of legal actions, claims or damaging publicity may affect our reputation as well as have a material adverse effect on our revenues and businesses.
Similarly, adverse publicity about us or our brand regarding health concerns, legal or regulatory proceedings, perceptions of the QSR category, management or suppliers whether or not deserved, could jeopardize our reputation. In recent years the use of social media as a complaint mechanism has increased substantially. Negative posts or comments about us on any social media forum could harm our reputation. Damage to our reputation or loss of consumer confidence in our products for any of these reasons could adversely affect our business, results of operations, cash flows and financial condition, as well as require resources to rebuild our reputation.
Certain Factors Relating to Latin America and the Caribbean
Our business is subject to the risks generally associated with international business operations.
We engage in business activities throughout Latin America and the Caribbean. In 2016, 73.9% of our revenues were derived from Brazil, Argentina, Mexico and Puerto Rico. As a result, our business is and will continue to be subject to the risks generally associated with international business operations, including:
| · | governmental regulations applicable to food services operations; |
| · | changes in social, political and economic conditions; |
| · | transportation delays; |
| · | power, water and other utility shutdowns or shortages; |
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| · | limitations on foreign investment; |
| · | restrictions on currency convertibility and volatility of foreign exchange markets; |
| · | inflation; |
| · | import-export quotas and restrictions on importation; |
| · | changes in local labor conditions; |
| · | changes in tax and other laws and regulations; |
| · | expropriation and nationalization of our assets in a particular jurisdiction; and |
| · | restrictions on repatriation of dividends or profits. |
Some of the Territories have been subject to social and political instability in the past, and interruptions in operations could occur in the future. Our business, financial condition and results of operations could be adversely affected by any of the foregoing factors.
Changes in governmental policies in the Territories could adversely affect our business, results of operations, financial condition and prospects.
Governments throughout Latin America and the Caribbean have exercised, and continue to exercise, significant influence over the economies of their respective countries. Accordingly, the governmental actions, political developments, regulatory and legal changes or administrative practices in the Territories concerning the economy in general and the food services industry in particular could have a significant impact on us. We cannot assure you that changes in the governmental policies of the Territories will not adversely affect our business, results of operations, financial condition and prospects.
Latin America has experienced, and may continue to experience, adverse economic conditions that have impacted, and may continue to impact, our business, financial condition and results of operations.
The success of our business is dependent on discretionary consumer spending, which is influenced by general economic conditions, consumer confidence and the availability of discretionary income in the countries in which we operate. Latin American countries have historically experienced uneven periods of economic growth, recessions, periods of high inflation and economic instability. Currently, the economic growth rates of the economies of many Latin American countries have slowed and some have entered recessions. Any prolonged economic downturn could result in a decline in discretionary consumer spending. This may reduce the number of consumers who are willing and able to dine in our restaurants, or consumers may make more value-driven and price-sensitive purchasing choices, eschewing our core menu items for our entry-level food options. We may also be unable to sufficiently increase prices of our menu items to offset cost pressures, which may negatively affect our financial condition.
In addition, a prolonged economic downturn may lead to higher interest rates, significant changes in the rate of inflation or an inability to access capital on acceptable terms. Our suppliers and service providers could experience cash flow problems, credit defaults or other financial hardships. If our franchisees cannot adequately access the financial resources required to open new restaurants, this could have a material effect on our growth strategy.
Many of our customers depend on remittances from family members living overseas. Laws, regulations or events that limit such remittances or any changes to United States immigration policy may adversely affect our financial condition and results of operations.
Many of the jurisdictions in which we operate depend on remittances as a source of revenue. Many of our customers rely on remittances from family members living overseas as a primary or secondary source of income. Any law, regulation or event that restricts, taxes or prevents those remittances may adversely affect demand for our products and our customers’ ability to repay their consumer loans, which in turn may adversely affect our financial condition and results of operations. In particular, President Trump’s administration has recently mentioned the possibility of taxing remittances to Mexico. We cannot assure you that the Trump administration will not implement similar taxing of remittances to the countries in which we operate. The implementation of any such measure may have a material adverse effect on our financial condition and results of operations.
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Inflation and government measures to curb inflation may adversely affect the economies in the countries where we operate, our business and results of operations.
Many of the countries in which we operate, including Brazil and Argentina, have experienced, or are currently experiencing, high rates of inflation. In addition, Venezuela has been considered hyperinflationary under U.S. GAAP since 2010. Although inflation rates in many of the other countries in which we operate have been relatively low in the recent past, we cannot assure you that this trend will continue. The measures taken by the governments of these countries to control inflation have often included maintaining a tight monetary policy with high interest rates, thereby restricting the availability of credit and retarding economic growth. Inflation, measures to combat inflation and public speculation about possible additional actions have also contributed materially to economic uncertainty in many of these countries and to heightened volatility in their securities markets. Periods of higher inflation may also slow the growth rate of local economies that could lead to reduced demand for our core products and decreased sales. Inflation is also likely to increase some of our costs and expenses, which we may not be able to fully pass on to our customers, which could adversely affect our operating margins and operating income.
Exchange rate fluctuations against the U.S. dollar in the countries in which we operate have negatively affected, and could continue to negatively affect, our results of operations.
We are exposed to exchange rate risk in relation to the United States dollar. While substantially all of our income is denominated in the local currencies of the countries in which we operate, our supply chain management involves the importation of various products, and some of our imports, as well as some of our capital expenditures and a significant portion of our long-term debt, are denominated in U.S. dollars. As a result, the decrease in the value of the local currencies of the countries in which we operate as compared to the U.S. dollar has increased our costs, and any further decrease in the value of such currencies will further increase our costs. Although we maintain a hedging strategy to attempt to mitigate some of our exchange rate risk, our hedging strategy may not be successful or may not fully offset our losses relating to exchange rate fluctuations.
As a result, fluctuations in the value of the U.S. dollar with respect to the various currencies of the countries in which we operate or in U.S. dollar interest rates could adversely impact our net income, results of operations and financial condition.
Price controls and other similar regulations in certain countries have affected and may continue to affect our results of operations.
Certain countries in which we conduct operations have imposed price controls that restrict our ability, and the ability of our franchisees, to adjust the prices of our products. This places downward pressure on the prices at which our products are sold and may limit the growth of our revenue. We cannot assure you that the negative effects of the previously imposed price controls will not continue in the future, or that new controls will not be imposed. Our inability to control the prices of our products could have an adverse effect on our results of operations.
For example, in September 2014, Argentina passed: (i) Law No. 26,991, the “Regulation on Production and Consumption Relationships Act,” which reformed a 1974 Act (Law on Supply of Goods and Services); and (ii) Law No. 26,992, the “Creation of the Observatory of Prices and Availability of Inputs, Goods and Services Act.”
The Regulation on Production and Consumption Relationships Act empowers the Secretary of Commerce to, among other things: (i) establish profit margins and set price levels (setting maximum, minimum and benchmark prices); (ii) issue regulations on commerce, intermediation, distribution or production of goods and services; (iii) impose the continuance of production, industrialization, commercialization, transport, distribution or rendering of services or impose the production of goods; (iv) set subsidies; (v) request any kind of documentation and correspondence related to commercial activities or the management of the businesses and impose the publication of prices and availability of goods and services and seize such documentation for up to 30 working days; (vi) impose registration and recordkeeping requirements; and (vii) impose licensing regimes for commercial activities. In addition, the Secretary of Commerce is entitled to impose certain penalties for failure to comply with the Regulation on Production and Consumption Relationships Act, including fines, temporary closure of businesses, seizure of goods and products and loss of fiscal benefits.
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The Creation of the Observatory of Prices and Availability of Inputs, Goods and Services Act created a technical agency under the Secretary of Commerce (the Observatory of Prices and Availability of Inputs, Goods and Services) to control and systematize prices and availability of inputs, goods and services produced, traded or rendered in Argentina. Currently, this agency has not had an adverse impact on us, but we cannot assure you that it will not impact our business and results of operations in the future.
We could be subject to expropriation or nationalization of our assets and government interference with our business in certain countries in which we operate.
We face a risk of expropriation or nationalization of our assets and government interference with our business in several of the countries in which we do business. These risks are particularly acute in Venezuela. The current Venezuelan government has promoted a model of increased state participation in the economy through welfare programs, exchange and price controls and the promotion of state-owned companies. We can provide no assurance that Company-operated or franchised restaurants will not be threatened with expropriation and that our operations will not be transformed into state-owned enterprises. In addition, the Venezuelan government may pass laws, rules or regulations which may directly or indirectly interfere with our ability to operate our business in Venezuela which could result in a material breach of the MFAs, in particular if we are unable to comply with McDonald’s operations system and standards. A material breach of the MFAs would trigger McDonald’s option to acquire our non-public shares or our interests in Venezuela. See “—Certain Factors Relating to Our Business—McDonald’s has the right to acquire all or portions of our business upon the occurrence of certain events and, in the case of a material breach of the MFAs, may acquire our non-public shares or our interests in one or more Territories at 80% of their fair market value.”
We are subject to significant foreign currency exchange controls and depreciation in certain countries in which we operate.
Certain Latin American economies have experienced shortages in foreign currency reserves and their respective governments have adopted restrictions on the ability to transfer funds out of the country and convert local currencies into U.S. dollars. This may increase our costs and limit our ability to convert local currency into U.S. dollars and transfer funds out of certain countries, including for the purchase of dollar-denominated inputs, the payment of dividends or the payment of interest or principal on our outstanding debt. In the event that any of our subsidiaries are unable to transfer funds to us due to currency restrictions, we are responsible for any resulting shortfall.
In 2016, our subsidiaries in Argentina represented 18.3% of our total revenues. The devaluation of the Argentine peso at the end of 2015 has led to higher inflation levels, has significantly reduced real wages and has had a negative impact on businesses whose success is dependent on domestic market demand and supplies payable in foreign currency. In addition, since 2001, and until President Mauricio Macri assumed office, Argentina tightened restrictions on capital flows and imposed exchange controls and transfer restrictions substantially limiting the ability of companies to retain foreign currency or make payments outside of Argentina. Furthermore, during the last few years, the Central Bank of Argentina had exercised a de facto prior approval power for certain foreign exchange transactions otherwise authorized to be carried out under the applicable regulations, such as dividend payments or repayment of principal of inter-company loans as well as the import of goods. Since assuming office on December 10, 2015, the Macri administration undertook significant economic and policy reforms, including certain reforms to the existing foreign exchange regulations that eased access to the local foreign exchange market.
Notwithstanding the measures recently adopted by the Macri administration, the Central Bank of Argentina and the federal government in the future may impose new, more severe exchange controls and restrictions on transfers abroad, or may tighten existing controls to prevent capital flight, counter a significant depreciation of the Argentine peso or address other unforeseen circumstances. Exchange control restrictions may impact our ability to transfer funds outside of Argentina and may prevent or delay payments that our Argentine subsidiaries are required to make outside Argentina. As a result, if we are further prohibited from transferring funds out of Argentina, or if we become subject to similar restrictions in other countries in which we operate, our results of operations and financial condition could be materially adversely affected. See “Item 3. Key Information—A. Selected Financial Data—Exchange Rates and Exchange Controls.”
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If we fail to comply with, or if we become subject to, more onerous government regulations, our business could be adversely affected.
We are subject to various federal, state and municipal laws and regulations in the countries in which we operate, including those related to the food services industry, health and safety standards, importation of goods and services, marketing and promotional activities, nutritional labeling, zoning and land use, environmental standards and consumer protection. We strive to abide by and maintain compliance with these laws and regulations. The imposition of new laws or regulations, including potential trade barriers, may increase our operating costs or impose restrictions on our operations, which could have an adverse impact on our financial condition.
For example, Argentine regulations require us to seek permission from the Argentine authorities in order to import goods and to file a statement with the Argentine authorities prior to rendering services to, or receiving services from, foreign residents if the services are valued above a threshold amount. These regulations may prevent or delay the receipt of goods or services that we require for our operations, or increase the costs associated with obtaining those goods and services, and therefore have an adverse impact on our business, results of operations or financial condition. Additionally, in 2014, Venezuela enacted a Foreign Investments Law that increases requirements and limitations for the transfer of dividends and repatriation of foreign investments.
Regulations governing the food services industry have become more restrictive. We cannot assure you that new and stricter standards will not be adopted or become applicable to us, or that stricter interpretations of existing laws and regulations will not occur. Any of these events may require us to spend additional funds to gain compliance with the new rules, if possible, and therefore increase our cost of operation.
Certain Factors Relating to Our Class A Shares
Mr. Staton, our Executive Chairman, controls all matters submitted to a shareholder vote, which will limit your ability to influence corporate activities and may adversely affect the market price of our class A shares.
Mr. Staton, our Executive Chairman, owns or controls common stock representing 41.6% and 76.8%, respectively, of our economic and voting interests. As a result, Mr. Staton is and will be able to strongly influence or effectively control the election of our directors, determine the outcome of substantially all actions requiring shareholder approval and shape our corporate and management policies. The MFAs’ requirement that Mr. Staton at all times hold at least 51% of our voting interests likely will have the effect of preventing a change in control of us and discouraging others from making tender offers for our shares, which could prevent shareholders from receiving a premium for their shares. Moreover, this concentration of share ownership may make it difficult for shareholders to replace management and may adversely affect the trading price for our class A shares because investors often perceive disadvantages in owning shares in companies with controlling shareholders. This concentration of control could be disadvantageous to other shareholders with interests different from those of Mr. Staton and the trading price of our class A shares could be adversely affected. See “Item 7. Major Shareholders and Related Party Transactions―A. Major Shareholders” for a more detailed description of our share ownership.
Furthermore, the MFAs contemplate instances where McDonald’s could be entitled to purchase the shares of Arcos Dorados Holdings Inc. held by Mr. Staton. However, our publicly held class A shares will not be similarly subject to acquisition by McDonald’s.
Sales of substantial amounts of our class A shares in the public market, or the perception that these sales may occur, could cause the market price of our class A shares to decline.
Sales of substantial amounts of our class A shares in the public market, or the perception that these sales may occur, could cause the market price of our Class A shares to decline. This could also impair our ability to raise additional capital through the sale of our equity securities. Under our articles of association, we are authorized to issue up to 420,000,000 class A shares, of which 130,711,224 class A shares were outstanding as of December 31, 2016. We cannot predict the size of future issuances of our shares or the effect, if any, that future sales and issuances of shares would have on the market price of our class A shares.
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As a foreign private issuer, we are permitted to, and we will, rely on exemptions from certain NYSE corporate governance standards applicable to U.S. issuers, including the requirement that a majority of an issuer’s directors consist of independent directors. This may afford less protection to holders of our Class A shares.
Section 303A of the New York Stock Exchange, or NYSE, Listed Company Manual requires listed companies to have, among other things, a majority of their board members be independent, and to have independent director oversight of executive compensation, nomination of directors and corporate governance matters. As a foreign private issuer, however, we are permitted to, and we will, follow home country practice in lieu of the above requirements. British Virgin Islands law, the law of our country of incorporation, does not require a majority of our board to consist of independent directors or the implementation of a nominating and corporate governance committee, and our board thus may not include, or may include fewer, independent directors than would be required if we were subject to these NYSE requirements. Since a majority of our board of directors may not consist of independent directors as long as we rely on the foreign private issuer exemption to these NYSE requirements, our board’s approach may, therefore, be different from that of a board with a majority of independent directors, and as a result, the management oversight of our Company may be more limited than if we were subject to these NYSE requirements.
Certain Risks Relating to Investing in a British Virgin Islands Company
We are a British Virgin Islands company and it may be difficult for you to obtain or enforce judgments against us or our executive officers and directors in the United States.
We are incorporated under the laws of the British Virgin Islands. Most of our assets are located outside the United States. Furthermore, most of our directors and officers reside outside the United States, and most of their assets are located outside the United States. As a result, you may find it difficult to effect service of process within the United States upon these persons or to enforce outside the United States judgments obtained against us or these persons in U.S. courts, including judgments in actions predicated upon the civil liability provisions of the U.S. federal securities laws. Likewise, it may also be difficult for you to enforce in U.S. courts judgments obtained against us or these persons in courts located in jurisdictions outside the United States, including actions predicated upon the civil liability provisions of the U.S. federal securities laws. It may also be difficult for an investor to bring an action against us or these persons in a British Virgin Islands court predicated upon the civil liability provisions of the U.S. federal securities laws.
As there is no treaty in force on the reciprocal recognition and enforcement of judgments in civil and commercial matters between the United States and the British Virgin Islands, courts in the British Virgin Islands will not automatically recognize and enforce a final judgment rendered by a U.S. court.
Any final and conclusive monetary judgment obtained against us in U.S. courts, for a definite sum, may be treated by the courts of the British Virgin Islands as a cause of action in itself so that no retrial of the issue would be necessary, provided that in respect of the U.S. judgment:
| · | the U.S. court issuing the judgment had jurisdiction in the matter and we either submitted to such jurisdiction or were resident or carrying on business within such jurisdiction and were duly served with process; |
| · | the judgment given by the U.S. court was not in respect of penalties, taxes, fines or similar fiscal or revenue obligations of ours; |
| · | in obtaining judgment there was no fraud on the part of the person in whose favor judgment was given or on the part of the court; |
| · | recognition or enforcement of the judgment in the British Virgin Islands would not be contrary to public policy; and |
| · | the proceedings pursuant to which judgment was obtained were not contrary to public policy. |
Under our articles of association, we indemnify and hold our directors harmless against all claims and suits brought against them, subject to limited exceptions.
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You may have more difficulty protecting your interests than you would as a shareholder of a U.S. corporation.
Our affairs are governed by the provisions of our memorandum of association and articles of association, as amended and restated from time to time, and by the provisions of applicable British Virgin Islands law. The rights of our shareholders and the responsibilities of our directors and officers under the British Virgin Islands law are different from those applicable to a corporation incorporated in the United States. There may be less publicly available information about us than is regularly published by or about U.S. issuers. Also, the British Virgin Islands regulations governing the securities of British Virgin Islands companies may not be as extensive as those in effect in the United States, and the British Virgin Islands law and regulations in respect of corporate governance matters may not be as protective of minority shareholders as state corporation laws in the United States. Therefore, you may have more difficulty protecting your interests in connection with actions taken by our directors and officers or our principal shareholders than you would as a shareholder of a corporation incorporated in the United States.
You may not be able to participate in future equity offerings, and you may not receive any value for rights that we may grant.
Under our memorandum and articles of association, existing shareholders are entitled to preemptive subscription rights in the event of capital increases. However, our articles of association also provide that such preemptive subscription rights do not apply to certain issuances of securities by us, including (i) pursuant to any employee compensation plans; (ii) as consideration for (a) any merger, consolidation or purchase of assets or (b) recapitalization or reorganization; (iii) in connection with a pro rata division of shares or dividend in specie or distribution; or (iv) in a bona fide public offering that has been registered with the SEC.
ITEM 4. INFORMATION ON THE COMPANY
| A. | History and Development of the Company |
Overview
We were incorporated as Arcos Dorados Holdings Inc. on December 9, 2010 under the laws of the British Virgin Islands as a direct, wholly owned subsidiary of Arcos Dorados Limited, the prior holding company for the Arcos Dorados business. On December 13, 2010, Arcos Dorados Limited effected a downstream merger into and with us, with us as the surviving entity. Following the merger, we replaced Arcos Dorados Limited in the corporate structure and replicated its governance structure.
We are a British Virgin Islands company incorporated with limited liability and our affairs are governed by the provisions of our memorandum and articles of association, as amended and restated from time to time, and by the provisions of applicable British Virgin Islands law, including the BVI Business Companies Act, 2004, or the BVI Act. Our company number in the British Virgin Islands is 1619553. As provided in sub-regulation 4.1 of our memorandum of association, subject to British Virgin Islands law, we have full capacity to carry on or undertake any business or activity, do any act or enter into any transaction and, for such purposes, full rights, powers and privileges.
Our principal executive offices are located at Dr. Luis Bonavita 1294, Office 501, WTC Free Zone, Montevideo, Uruguay (CP 11300). Our telephone number at this address is +598 2626-3000. Our registered office in the British Virgin Islands is Maples Corporate Services (BVI) Limited, Kingston Chambers, P.O. Box 173, Road Town, Tortola, British Virgin Islands.
Important Events
The Acquisition
McDonald’s Corporation has a longstanding history in Latin America and the Caribbean, dating to the opening of its first restaurant in Puerto Rico in 1967. Since then, McDonald’s expanded its presence across the region as consumer markets and opportunities arose, opening its first stores in Brazil in 1979, in Mexico and Venezuela in 1985 and in Argentina in 1986.
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We commenced operations on August 3, 2007, as a result of the Acquisition of McDonald’s LatAm business. Woods Staton, our Executive Chairman and controlling shareholder, was the joint venture partner of McDonald’s Corporation in Argentina for over 20 years prior to the Acquisition and also served as President of McDonald’s South Latin America division from 2004 until the Acquisition. Our senior management team includes executives who had previously worked in McDonald’s LatAm business or with Mr. Staton.
We hold our McDonald’s franchise rights pursuant to the MFA for all of the Territories except Brazil, executed on August 3, 2007, as amended and restated on November 10, 2008 and as further amended on August 31, 2010 and June 3, 2011, entered into by us, our wholly owned subsidiary Arcos Dorados Coöperatieve U.A., Arcos Dorados B.V. (these two entities together with us, collectively, the Owner Entities), LatAm, LLC, or the Master Franchisee, certain subsidiaries of the Master Franchisee, Los Laureles, Ltd. and McDonald’s. On August 3, 2007, our subsidiary Arcos Dourados Comercio de Alimentos Ltda., or the Brazilian Master Franchisee, and McDonald’s entered into the separate, but substantially identical, Brazilian MFA, which was amended and restated on November 10, 2008. See “Item 10. Additional Information―C. Material Contracts―The MFAs.”
The Axionlog Split-off
We used to own and operate some of the distribution centers in the Territories, which operations and related properties we refer to as Axionlog (formerly known as Axis). Axionlog operated in Argentina, Chile, Mexico and Venezuela, and its main third-party customers were Sodexho, Eurest, Sadia, WalMart, Carrefour, Subway and Dairy Queen. We effected a split-off of Axionlog to our existing shareholders in March 2011. For additional information about the split-off of Axionlog, see “Item 7. Major Shareholders and Related Party Transactions—B. Related Party Transactions—Axionlog Split-off.”
Capital Expenditures and Divestitures
Under the MFAs, we are required to agree with McDonald’s on a restaurant opening plan and a reinvestment plan for each three-year period during the term of the MFAs. The restaurant opening plan specifies the number and type of new restaurants to be opened in the Territories during the applicable three-year period, while the reinvestment plan specifies the amount we must spend reimaging or upgrading restaurants in the Territories during the applicable three-year period. Prior to the expiration of the then-applicable three-year period we must agree with McDonald’s on a subsequent restaurant opening plan and reinvestment plan. In the event that we are unable to reach an agreement on subsequent plans prior to the expiration of the then-existing plan, the MFAs provide for an automatic increase of 20% in the required amount of reinvestments as compared to the then-existing plan and a number of new restaurants no less than 210 multiplied by a factor that increases each period during the subsequent three-year restaurant opening plan. We may also propose, subject to McDonald’s prior written consent, amendments to any restaurant opening plan or reinvestment plan to adapt to changes in economic or political conditions.
Under the 2017-2019 restaurant opening and reinvestment plan, we are required to open 180 restaurants and to reinvest $292 million in existing restaurants from 2017 through 2019. Total capital expenditures for 2017 to 2019 are expected to be approximately $500 million.
As a result of our previous reinvestment and reopening plans, property and equipment expenditures were $92.3 million, $91.0 million and $169.8 million in 2016, 2015 and 2014, respectively. In 2016, we opened 33 restaurants, reimaged 81 existing restaurants and opened one McCafé location and 140 Dessert Centers (see “—B. Business Overview—Our Operations—McCafé Locations and Dessert Centers”). In 2015, we opened 36 restaurants, reimaged 53 existing restaurants and opened two McCafé locations and 153 Dessert Centers (see “—B. Business Overview—Our Operations—McCafé Locations and Dessert Centers”). In 2014, we opened 82 restaurants, reimaged 46 existing restaurants and opened nine McCafé locations and 273 Dessert Centers (see “—B. Business Overview—Our Operations—McCafé Locations and Dessert Centers”). In 2016, 2015 and 2014, we closed 18, 16 and 23 restaurants, respectively.
In addition, outflows related to purchases of restaurant businesses paid at acquisition date totaled $nil million, $1.1 million and $0.8 million in 2016, 2015 and 2014, respectively.
Proceeds from the sale of property and equipment and sales of restaurant businesses, including related advances, totaled $113.5 million, $23.6 million and $5.2 million in 2016, 2015 and 2014, respectively.
Capital expenditures for 2017 are expected to be between $150 million and $180 million (including development and non-development capital expenditures), considering between 45 and 50 gross restaurant openings.
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In March 2015, we announced a plan to monetize certain real estate assets in our portfolio that are either non-core (such as office buildings, excess properties and other facilities) or operating assets where the value significantly exceeds the operating potential of the asset. The MFAs define certain of our properties as “restricted” and our ability to transfer these properties is subject to McDonald’s prior written consent. We have many long-standing assets across our region that have appreciated due to the significant development around those properties. As of the date of this Annual Report on Form 20-F, we have closed redevelopment deals involving less than a dozen properties. Based on existing deals, we expect the cumulative redevelopment proceeds, since inception, to total approximately $150 million by the end of 2017. The main goal of the redevelopment initiative was to reduce debt levels. We have decided not to pursue additional redevelopment deals at this time, as the stated debt reduction targets have been achieved.
| B. | Business Overview |
Overview
We are the world’s largest McDonald’s franchisee in terms of systemwide sales and number of restaurants, according to McDonald’s, representing 4.5% of McDonald’s global sales in 2016. We have the exclusive right to own, operate and grant franchises of McDonald’s restaurants in 20 countries and territories in Latin America and the Caribbean, including Argentina, Aruba, Brazil, Chile, Colombia, Costa Rica, Curaçao, Ecuador, French Guiana, Guadeloupe, Martinique, Mexico, Panama, Peru, Puerto Rico, Trinidad and Tobago, Uruguay, the U.S. Virgin Islands of St. Croix and St. Thomas, and Venezuela, which we refer to collectively as the Territories. As of December 31, 2016, we operated or franchised 2,156 McDonald’s-branded restaurants, which represented 6.9% of McDonald’s total franchised restaurants worldwide. In 2016 and 2015, we accrued $142.8 million and $149.1 million, respectively, in royalties to McDonald’s (not including royalties accrued on behalf of our franchisees).
We operate in the QSR sub-segment of the fast food segment of the Latin American and Caribbean food service industry. In Latin America and the Caribbean, the fast food segment has benefited from the region’s increasing modernization, as people in more densely populated areas adopt lifestyles that increasingly seek convenience, speed and value.
We commenced operations on August 3, 2007, as a result of the Acquisition. We operate McDonald’s-branded restaurants under two different operating formats, Company-operated restaurants and franchised restaurants. As of December 31, 2016, of our 2,156 McDonald’s-branded restaurants in the Territories, 1,553 (or 72.0%) were Company-operated restaurants and 603 (or 28.0%) were franchised restaurants. We generate revenues primarily from two sources: sales by Company-operated restaurants and revenues from franchised restaurants. Revenues from franchised restaurants primarily consist of rental income, which is generally based on the greater of a flat fee or a percentage of sales reported by franchised restaurants. We own the land for 496 of our restaurants (totaling approximately 1.1 million square meters) and the buildings for all but 11 of our restaurants.
Our business has grown significantly since the Acquisition: we have increased our presence in existing and new markets in the Territories by opening a net total of 588 restaurants (744 total restaurants opened, including 510 Company-operated and 234 franchised, while 156 closed), 172 McCafé locations and 1,658 Dessert Centers (see “—Our Operations—McCafé Locations and Dessert Centers”).
We divide our operations into four geographical divisions: Brazil; the Caribbean division, consisting of Aruba, Colombia, Curaçao, French Guiana, Guadeloupe, Martinique, Puerto Rico, Trinidad and Tobago, the U.S. Virgin Islands of St. Croix and St. Thomas, and Venezuela; NOLAD, consisting of Costa Rica, Mexico and Panama; and SLAD, consisting of Argentina, Chile, Ecuador, Peru and Uruguay.
As of December 31, 2016, 41.8% of our restaurants were located in Brazil, 17.8% in SLAD, 24.0% in NOLAD and 16.4% in the Caribbean division. We believe our diversified market presence reduces our dependence on any one market and helps stabilize the impact of individual countries’ economic cycles on our revenues. We focus on our customers by managing operations at the local level, including marketing campaigns and special offers, menu management and monitoring customer satisfaction, while leveraging our size by conducting administrative and strategic functions at the divisional or corporate level, as appropriate.
See “Item 5. Operating and Financial Review and Prospects—A. Operating Results—Segment Presentation” for a description of changes we have made in the structure of our geographical divisions effective January 1, 2013.
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The following table presents a breakdown of total revenues by division:
| As of and for the Years Ended December 31, | ||||||||||||||||||||
| 2016 | 2015 | 2014 | 2013 | 2012(1) | ||||||||||||||||
| (in thousands of U.S. dollars) | ||||||||||||||||||||
| Total Revenues | ||||||||||||||||||||
| Brazil | $ | 1,333,237 | $ | 1,361,989 | $ | 1,816,046 | $ | 1,842,324 | $ | 1,797,556 | ||||||||||
| Caribbean division(2) | 409,671 | 398,144 | 594,220 | 830,447 | 754,730 | |||||||||||||||
| NOLAD | 363,965 | 367,364 | 385,114 | 407,772 | 384,041 | |||||||||||||||
| SLAD | 821,757 | 925,243 | 855,685 | 952,767 | 861,067 | |||||||||||||||
| Total | 2,928,630 | 3,052,740 | 3,651,065 | 4,033,310 | 3,797,394 | |||||||||||||||
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| (1) | Segment information as of and for the year ended December 31, 2012 has been restated based on the segment structure prevailing as of and from January 1, 2013. See “Presentation of Financial and Other Information—Operating Data.” |
| (2) | Currency devaluations in Venezuela have had a significant effect on our income statements and have impacted the comparability of our income statements in 2016 and 2015 as compared to 2014, 2013 and 2012. See “Item 5. Operating and Financial Review and Prospects—A. Operating Results—Foreign Currency Translation—Venezuela.” |
Our Operations
Company-Operated and Franchised Restaurants
We operate our McDonald’s-branded restaurants under two basic structures: (i) Company-operated restaurants operated by us and (ii) franchised restaurants operated by franchisees. Under both operating alternatives, the real estate location may either be owned or leased by us.
We own, fully manage and operate Company-operated restaurants and retain any operating profits generated by such restaurants, after paying operating expenses and the franchise and other fees owed to McDonald’s under the MFAs. In Company-operated restaurants, we assume the capital expenditures for the building and equipment of the restaurant and, if we own the real estate location, for the land as well.
In contrast to Company-operated restaurants, franchised restaurants are operated and managed by the franchisee with technical and operational support from us as master franchisee, including training programs, operations manuals, access to our supply and distribution network and marketing assistance. Under our conventional franchise arrangements, franchisees provide a portion of the capital required by initially investing in the equipment, signs, seating and decor of their restaurants, and by reinvesting in the business over time. We are required by the MFAs to own the real estate or to secure long-term leases for franchised restaurant sites. We subsequently lease or sublease the property to franchisees. This arrangement allows for long-term occupancy of the property and assists in the alignment of our franchisees’ interests with our own.
In exchange for the lease and services, franchisees pay a monthly rent to us, generally based on the greater of a fixed rent or a certain percentage of gross sales. In addition to this monthly rent, we collect the monthly continuing franchise fee, which generally is 5% of the U.S. dollar equivalent of the restaurant’s gross sales, and pay these fees to McDonald’s pursuant to the MFAs. However, if a franchisee fails to pay its monthly continuing franchise fee, we remain liable for payment in full of these fees to McDonald’s. Pursuant to the MFAs, franchisees pay an initial franchise fee in connection with the opening of a new franchised restaurant and a transfer fee upon transfer of a franchised restaurant, both of which are subsequently shared by McDonald’s and us. See “Item 10. Additional Information—C. Material Contracts—The MFAs—Franchise Fees.”
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The chart below illustrates the economics for Company-operated restaurants and franchised restaurants in the case of owned and leased real estate:
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Source: Arcos Dorados
In addition, we are the majority stakeholder in several joint ventures that collectively own 18 restaurants in Argentina and Chile. We have also granted developmental licenses to 11 restaurants. Pursuant to the developmental licenses, the developmental licensees own or lease the land on and building in which the restaurant is located and pay a franchise fee to us in addition to the continuing franchise fee due to McDonald’s. All of our joint ventures and developmental licenses were in existence at the time of the Acquisition.
Restaurant Categories
We classify our restaurants into one of four categories: (i) freestanding, (ii) food court, (iii) in-store and (iv) mall stores. Freestanding restaurants are the largest type of restaurant, have ample indoor seating and include a drive-thru area and parking lot. Food court restaurants are located in malls and consist primarily of a front counter and kitchen and do not have their own seating area. In-store restaurants are part of a larger building, but they do not have a drive-thru area or a parking lot. Mall stores are located in malls like food court restaurants, but have their own seating areas. As of December 31, 2016, 1,015 (or 47.1%) of our restaurants were freestanding, 507 (or 23.6%) were food courts, 295 (or 13.7%) were in-stores and 337 (or 15.6%) were mall stores. These percentages vary by country, and may shift as opportunities in malls and more densely populated areas become available in some of the Territories.
Below are examples of each of our restaurant categories:
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Source: Arcos Dorados
Returns on investment in each type of restaurant vary significantly due to the different capital expenditures required and their different sales potential; mall stores generally provide the highest return on investment while freestanding restaurants generally provide the lowest. Moreover, returns vary significantly on a country-by-country basis.
Reimaging
An important component of our development plan is the reimaging of existing restaurants. As of December 31, 2016, we had completed the reimaging of 672 of the 1,569 restaurants we purchased in the Acquisition, an increase of 81 restaurants as compared to December 31, 2015. Our restaurants that have undergone reimaging during the past three years have experienced an additional increase in sales per restaurant over the comparable sales growth experienced by restaurants which have not been reimaged in the same period. Both we and McDonald’s are committed to maintaining an image for our restaurants that creates a contemporary dining experience. Over the last few years, we have invested substantially in the reimaging of our restaurants, and we, pursuant to the MFAs, have committed to a significant reimaging plan. See “Item 10. Additional Information—C. Material Contracts.”
Objectives of the reimaging include elevating the customer’s perception of McDonald’s and creating a more sophisticated and highly aspirational environment. We have developed systemwide guidelines for the interior and exterior design of reimaged restaurants. When carrying out a reimaging project, we minimize the impact on the operations and sales of the restaurants by keeping the restaurants open and operating during the renovations and working in specific areas of the location at particular times.
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Below are images of the exterior of a few of our restaurants that have benefited from reimaging:
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Source: Arcos Dorados
McCafé Locations and Dessert Centers
Our brand extension efforts focus on the development of additional McCafé locations and Dessert Centers. McCafé locations are stylish, separate areas within restaurants where customers can purchase a variety of customizable beverages, including lattes, cappuccinos, mochas, hot and iced premium coffees and hot chocolate. McCafé locations have been very successful in creating a different customer experience, optimizing the use of our restaurants at all hours of operation and providing a higher profit margin than our regular restaurant operations. We believe the primary benefit of McCafé locations is that they attract new customers by increasing the variety of our product offerings and improving our image.
McCafé locations have been a key factor in adding value to our customers’ experience and represented 9.5% of the total transactions and 6.6% of total sales of the restaurants in which they were located in 2016. As of December 31, 2016, there were 316 McCafé locations in the Territories, of which 15.2% were operated by franchisees. Argentina and Brazil, with 87 and 91 locations, respectively, have the greatest number of McCafé locations. The first McCafé in Latin America was opened in Argentina in 1999. Pursuant to the MFAs, we have the right to add McCafé locations to the premises of our restaurants.
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Below are images of the interior of two of our McCafé locations:
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Source: Arcos Dorados
In addition to McCafé locations, Dessert Centers have been a very successful brand extension. Dessert Centers operate separately from existing restaurants, but depend on them for supplies and operational support. For example, a mall store restaurant can provide support for several Dessert Centers located in different locations throughout the same mall. Our Dessert Centers are conveniently located to attract customers, thereby serving as important transaction generators and providing an effective method of extending our band presence to non-traditional areas. At Dessert Centers, customers can purchase a variety of dessert items, including the McFlurry and soft-serve ice cream. Dessert Centers require low capital expenditures and provide returns on investment and operating margins that are significantly higher than our regular restaurant operations. As such, we believe they are an important driver in increasing our market penetration.
Dessert Centers represented 30.0% of our transactions and 10.5% of our total sales in 2016. As of December 31, 2016, there were 2,745 Dessert Centers in the Territories. Dessert Centers are highly successful in Brazil, where we have 1,497 locations. The first Dessert Center was created in Brazil in 1979.
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The following maps set forth our McCafé locations and Dessert Centers in each of the Territories as of December 31, 2016:
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Source: Arcos Dorados
The McDonald’s Brand
Interbrand, a brand consulting firm, ranked McDonald’s twelfth among the top twenty global brands in 2016. In addition, we believe that in Latin America and the Caribbean, the McDonald’s brand benefits from an aspirational cachet as a “destination” restaurant with a reputation for safe, fresh and good-tasting food in an attractive setting. McDonald’s strong brand equity stems from the dedicated execution of its brand promise and its ability to associate with the local community where it operates. McDonald’s sets the standard in the restaurant industry worldwide for brand stewardship and marketing leadership.
Product Offerings
A crucial part of delivering the brand to clients depends on our product offerings, or more specifically, our menu strategy and management. The key objective of our menu strategy is the development and offering of quality food choices that attract customers to our restaurants on a regular basis. The elements we utilize to achieve this goal include offering McDonald’s core menu, our product innovation initiatives and our focus on food safety.
Our menus feature three tiers of products: (i) affordable entry-level options, such as our Combo del Día (Combo of the Day), Almuerzos Imperdibles (Unmissable Lunches) and Almuerzos Colombianos (Colombian Lunches) in Colombia, (ii) core menu options, such as the Big Mac, Happy Meal and Quarter Pounder, and (iii) premium options, such as Big Tasty or Signature Line hamburgers and chicken sandwiches and low-calorie or low-sodium products that are marketed through common platforms rather than as individual items. These platforms can be based on the type of products, such as beef, chicken, salads or desserts, or on the type of customer targeted, such as the children’s menu. We have offered a new menu with fewer calories and less sugar and sodium in the majority of our Territories since 2011. Since 2013, we have offered dairy products, fresh fruits or vegetables with our Happy Meals in all of the Territories except Venezuela.
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Our core menu is the most important element of our menu strategy and includes well-recognized food choices that have global customer acceptance and are what customers repeatedly order at McDonald’s-branded restaurants worldwide. During 2016, we have made extensions of our core products, such as Grand Big Mac and Big Cheddar McMelt in Brazil and cheddar and bacon fries in Argentina.
Product Development
We have been very innovative in our product development in Latin America and the Caribbean. In key countries, our understanding of the local market has enabled us to successfully introduce new items to appeal to local tastes and to provide our customers with additional food options. Our chicken-based offerings include bone-in chicken in markets such as Colombia, Peru, Panama and Costa Rica. We also offer Signature Line hamburgers with innovative flavors and premium offerings, such as Club House, Mushroom Dijon and Crispy Barbecue Onion. Also, we carefully monitor the sales of our products and are able to quickly modify them if necessary. For instance, although we always offer the McFlurry dessert product, we include in this product platform a promotional topping that is offered for a limited period of time, followed by a new promotional topping to maintain the sales momentum (for example, Ovomaltine, Toblerone, Milka and Kit Kat).
In 2011, we began the rollout of Made For You, or MFY, a new kitchen operating platform that we believe will allow us to improve the quality and freshness of our products, provide faster service and diversify our offerings. MFY’s implementation is funded by cutting waste and productivity gains. As of December 31, 2013, we had implemented MFY in almost all of our Company-operated restaurants in Argentina, Aruba, Brazil, Curaçao, French Guiana, Mexico, Puerto Rico, Trinidad and Tobago, and the U.S. Virgin Islands. During 2014, we implemented MFY in Costa Rica, Panama, seven restaurants in Uruguay and 23 of our new restaurants in Colombia. During 2015, we completed MFY in Martinique, four restaurants in Guadalupe and 32 additional restaurants in Colombia. We plan to complete implementation of MFY in the French West Indies during 2017.
We work closely with McDonald’s to develop new product offerings and McDonald’s considers our recommendations regarding regional tastes and preferences and works with us to accommodate such tastes and preferences. We continue to benefit from McDonald’s product development efforts following the Acquisition and have access to a library of products developed globally for the McDonald’s system. In addition, we continue to benefit from the Hamburger Universities in the United States and Brazil and the food studio located in Brazil that aims to develop locally relevant products for the region. The Hamburger Universities and the food studio models have been McDonald’s main global source of people and product development. The Hamburger Universities provide restaurant managers, mid-managers and owner/operators with training on best practices in different aspects of the business, like restaurant and people management, sales and accounting, while emphasizing consistent restaurant operations procedures, service, quality and cleanliness.
Product and Pricing Strategy
Value perceptions change significantly between markets and even between areas within a single market. In order to adjust pricing to meet customers’ expectations in each market, we have developed local expertise aimed at understanding the dynamics of the local marketplace and the characteristics of its customers. We also examine trends in the pricing of raw materials, packaging, product-related operating costs as well as individual item sales volumes to fully understand profitability by item. In addition, we use international consultants with particular experience in this area to understand marketplace dynamics and consumer characteristics. These insights feed into the local markets’ menu and pricing strategy as well as the marketing plan that is disseminated to both Company-operated and franchised restaurants. Restaurants may then adjust pricing and/or item offerings as they choose in an attempt to optimize sales, profitability and local preferences. This cycle is part of an overall revenue management philosophy and is part of our business management practices utilized throughout the region.
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Advertisement & Promotion
We believe that sales in the QSR sub-segment can be significantly affected by the frequency and quality of our advertising and promotional programs. In particular, we benefit from the strength of McDonald’s global resources, including its global alliances with some of the largest multinational conglomerates and sponsorship of sporting events such as the Olympic Games and the World Cup and participation in various movie promotions, which provides us with important advertising and promotion opportunities.
We promote the McDonald’s brand and our products by advertising in all of the Territories. We create, develop and coordinate marketing plans and promotional activities throughout the Territories; however, pursuant to the MFAs, McDonald’s reserves the right to review and approve any advertising materials and related promotional activities and may request that we cease using the materials or promotional activities at any time if McDonald’s determines that they are detrimental to its brand image. We are required under the MFAs to spend at least 5% of our gross sales, and our franchisees generally are required to pay us 5% of their gross sales for the portion of advertising expenditures related to their restaurants, on advertisement and promotion activities. The only exception to this policy is in Mexico, where both we and our franchisees contribute funds to a cooperative that is responsible for advertisement and promotion activities for Mexico.
Our advertisement and promotion activities are guided by our overall marketing plan, which identifies the key strategic platforms that we aim to leverage to drive sales. The advertisement and promotion program is formulated based on the amount of advertisement and promotion support needed for each strategic platform for the year. Our key strategic platforms include menu relevance, by introducing premium products and extending core product lines, convenience and strengthening the kids and family experience. In terms of pricing, we understand that our customers seek great-tasting food at affordable prices and that their perception of value while at the restaurant is a significant factor in determining overall satisfaction and frequency of visits. For example, in 2016, in Colombia, we modified our platforms for Almuerzos Colombianos, which were created locally, to further address value expectations in our restaurants. We continue leveraging these platforms to increase penetration and grow market share.
Through the execution of these initiatives, we work to enhance the McDonald’s experience for customers throughout the Territories, and increase our sales and customer counts. We aim to position ourselves as a “forever young” brand by delivering a youthfully energetic, distinctly casual, personally engaging and delightful dining/brand experience.
Regional Operations
The Company is divided into four geographical divisions: Brazil, the Caribbean division, NOLAD and SLAD. Except for Brazil, the divisions are subsequently divided into sub-groups comprised of individual Territories. The presidents of the divisions report directly to our chief operating officer.
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The following map sets forth the number of our restaurants in each of our operating divisions as of December 31, 2016:
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Source: Arcos Dorados
We remain close to customers by managing operations at the local level, including implementing recruiting centers, conducting marketing campaigns and promotions, monitoring consumer perception and managing menu offerings. We conduct administrative and strategic activities at either the divisional level or at our headquarters, as appropriate. In addition, we have designed standardized crew recruiting manuals and have implemented an online communication platform for crew and managers. These centralized operations help us maintain consistent procedures, quality control and brand management across all of our markets.
Set forth below is a summary of our restaurant portfolio as of December 31, 2016. Due to the reorganization of our segments effective January 1, 2013, the segment information below is not directly comparable to the segment information presented in our annual report on Form 20-F for years prior to 2013. See “Presentation of Financial and Other Information—Operating Data.”
Ownership | Store Type(1) | Real Property(2) | ||||||||||||||||||||||||||||||||||||||||||||||||||
Portfolio by Division | Company- | Joint Venture | Franchised | Develop- mental License | Total | Freestanding | Food Court | In-Store | Mall Store | Dessert Centers | McCafé Locations | Owned | Leased | |||||||||||||||||||||||||||||||||||||||
| Brazil | 584 | — | 318 | — | 902 | 391 | 280 | 88 | 143 | 1,497 | 91 | 108 | 794 | |||||||||||||||||||||||||||||||||||||||
| Caribbean Division | 266 | — | 86 | 1 | 353 | 234 | 25 | 40 | 54 | 284 | 36 | 128 | 224 | |||||||||||||||||||||||||||||||||||||||
| NOLAD | 365 | — | 142 | 10 | 517 | 272 | 138 | 53 | 53 | 626 | 50 | 163 | 344 | |||||||||||||||||||||||||||||||||||||||
| SLAD | 320 | 18 | 46 | — | 384 | 118 | 64 | 114 | 87 | 338 | 139 | 97 | 287 | |||||||||||||||||||||||||||||||||||||||
| Total | 1,535 | 18 | 592 | 11 | 2,156 | 1,015 | 507 | 295 | 337 | 2,745 | 316 | 496 | 1,649 | |||||||||||||||||||||||||||||||||||||||
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| (1) | Non-traditional satellite restaurants are not included in these figures. |
| (2) | Developmental licenses and mobile stores are not included in these figures. |
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Brazil
Brazil is our largest division in terms of restaurants, with 902 restaurants as of December 31, 2016 and $1,333.2 million in revenues in 2016, representing 41.8% and 45.5% of our total restaurants and revenues, respectively. Our operations in Brazil are based in Sao Paulo and McDonald’s has been present in Brazil since opening its first restaurant in Rio de Janeiro in 1979.
Caribbean Division
The Caribbean division includes eleven territories with 353 restaurants as of December 31, 2016 and $409.7 million in revenues in 2016, representing 16.4% and 14.0% of our total restaurants and revenues, respectively. Its primary market in terms of number of restaurants is Venezuela, representing 37.7% of the Caribbean division’s restaurants. Venezuela is our fourth-largest market in terms of restaurants. McDonald’s has been present in Venezuela since opening its first restaurant in Caracas in 1985. In terms of revenues, however, our primary market in this region is Puerto Rico, accounting for 33.5% of the Caribbean division’s revenues.
NOLAD
NOLAD includes three countries with 517 restaurants as of December 31, 2016 and $364.0 million in revenues in 2016, representing 24.0% and 12.4% of our total restaurants and revenues, respectively. Its primary market is Mexico, where the division’s management is based. McDonald’s has been present in Mexico since opening its first restaurant in Mexico City in 1985. Mexico represents 75.8% of NOLAD’s restaurants and 42.9% of NOLAD’s revenues, and Mexico is our second-largest market in terms of restaurants.
Our operations in Mexico differ from those in our other Territories (with the exception of Venezuela) in that the percentage of franchised restaurants is significantly higher than our systemwide average because some of McDonald’s previous joint venture partners were converted into franchisees immediately prior to the Acquisition. Since the Acquisition, we have been adjusting our business model in Mexico as several factors had significantly eroded that market’s profitability and, as a result, we have acquired 106 franchised restaurants. As of December 31, 2016, 32.9% of our restaurants in Mexico were franchised, while 28.0% of our restaurants overall were franchised.
SLAD
SLAD includes five countries with 384 restaurants as of December 31, 2016 and $821.8 million in revenues in 2016, representing 17.8% and 28.1% of our total restaurants and revenues, respectively. Its primary market is Argentina, where the division’s management is based. McDonald’s has been present in Argentina since opening its first restaurant in Buenos Aires in 1986. As of December 31, 2016, Argentina represented 58.6% of SLAD’s restaurants and 65.3% of SLAD’s revenues in 2016. Argentina is our third-largest market in terms of restaurants.
Seasonality
Our sales and revenues are generally greater in the second half of the year than in the first half. Although the impact on our results of operations is relatively small, this impact is due to increased consumption of our products during the winter and summer holiday seasons, affecting July and December, respectively.
Supply and Distribution
Supply chain management is an important element of our success and a crucial factor in optimizing our profitability. Currently, we have an integrated and centralized supply chain management system that focuses on (i) the highest possible quality and food safety, (ii) competitive market pricing that is predictable and sustainable over time, and (iii) leveraging of local, regional and global sourcing strategies to obtain a competitive advantage. This system consists of the selection and development of suppliers that are able to comply with McDonald’s high quality standards and the establishment of the appropriate type of relationships with these suppliers. These standards, which are based on the highest industry standards, such as International Organization for Standardization (ISO) standards, British Retail Consortium (BRC) standards and others, include cleanliness, product consistency and timeliness,
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meeting or exceeding all local food regulations and compliance with our Hazard Analysis Critical Control Plan, or HACCP, a systematic approach to food safety that emphasizes protection within the processing facility, rather than detection, through analysis, inspection and follow-up. Due to our supply chain management and high quality standards, we believe our products have a competitive advantage because they have many attributes that make them appealing to our customers. For instance, our McNuggets are made of 100% white meat; our frying oil is 100% free of trans fatty acids; the dairy mix for our sundaes and the McFlurry undergo aseptic processes to rid them of bacteria; our vegetables are washed and sanitized; and our hamburger patties are made with 100% beef and do not contain additives.
Pursuant to the MFAs, we purchase core products and services, such as beef, chicken, buns, produce, cheese, dairy mixes and toppings, from approved suppliers and distributors who satisfy the above requirements. If McDonald’s determines that any product or service offered by an approved supplier is not in compliance with its standards, it may terminate the supplier’s approved status. Beyond the purchase of core products and services, we have no restrictions on which suppliers or distributors we may use. We have largely continued the supply relationships that McDonald’s had established prior to the Acquisition, and we develop relationships with new suppliers in accordance with McDonald’s Supplier Quality Management System, or SQMS.
Since the process to become an approved supplier is lengthy, expensive and requires proof of compliance with McDonald’s high quality standards, we have found that oral agreements with our approved suppliers generally are sufficient to ensure a reliable supply of quality food products, and we have developed long-term relationships with many of our suppliers. In addition, we enter into written agreements with most of our suppliers regarding the cost of such goods, which can be based on pricing protocols, formula costing, benchmarking or open bidding, as appropriate. Our 16 largest suppliers account for approximately 55.0% of our supplies, and no single supplier or group of related suppliers account for more than 7.0% of our total food and paper costs. Among our main suppliers are McCain Foods Limited, HAVI Group L.P., JBS S.A., Reyes Holdings L.L.C., BRF S.A., The Coca-Cola Company, Campo del Tesoro S.A., Polenghi Industrias Alimenticias Ltda., Bimbo S.A. and Arytza S.A.
Our integrated supply chain management optimizes value as we work with suppliers to develop pricing protocols, inventory, planning and product quality. As of December 31, 2016, approximately 28.5% of the food and paper products used in our restaurants were imported, primarily from countries within Latin America, while the remaining amount were locally sourced. This percentage varies among the Territories; for example, 35.0% of the products consumed in Mexico are imported, while 17.0% and 48.0% of the products consumed in Brazil and Colombia, respectively, are imported. This includes the toys distributed in our restaurants, which are imported from China. Certain supplies, such as beef, must often be locally sourced due to restrictions on their importation. Combined with the MFAs’ requirement to purchase certain core supplies from approved suppliers, although we maintain contingency plans to back up restaurant supplies, we may not be able to quickly find alternate or additional supplies in the event a supplier is unable to meet our orders. See “Item 3. Key Information—D. Risk Factors—Certain Factors Relating to Our Business—We depend on oral agreements with third-party suppliers and distributors for the provision of products that are necessary for our operations.” The suppliers send all of their products to distribution centers that are in charge of transportation, warehousing, financial administration, demand and inventory planning and customer service. The distribution centers interact directly with our Company-operated and franchised restaurants.
Until March 16, 2011, we owned and operated some of the distribution centers in the Territories, which operations and related properties we refer to as Axionlog (formerly known as Axis). See “—A. History and Development of the Company—Important Events—The Axionlog Split-off.” In 2011, we entered into a master commercial agreement with Axionlog on arm’s-length terms pursuant to which Axionlog provides us with distribution inventory, storage (dry, frozen and chilled) and transportation services in Argentina, Chile, Colombia, Mexico, Uruguay, Peru and Venezuela. For additional information about our transactions with Axionlog, see “Item 7. Major Shareholders and Related Party Transactions—B. Related Party Transactions—Axionlog Split-off.”
Supply Chain Management and Quality Assurance
All products that we sell meet McDonald’s specifications, including new products and promotions. We work with our suppliers to implement key standards testing at each stage of our supply chain, including raw materials, processing and distribution. With respect to raw materials, we verify that produce suppliers undergo verification audits. All protein suppliers also undergo Animal Welfare Policy, “mad cow” disease and HACCP audits. At the processing stage, we implement a supplier quality management system that encourages continuous improvement in
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each key product category. We conduct seminars annually with all key suppliers on topics such as standards calibration, product sensory evaluation and best practices, and all suppliers are audited annually by a third party for compliance with McDonalds’s SQMS. As members of the Global Food Safety Initiative (GFSI), we encourage our suppliers to adopt any norm under the umbrella of GFSI that is recognized globally. We measure compliance through visits to processing plants, supplier summits, regularly scheduled audits and sensory testing that is achieved through a combination of product, equipment and operational procedures. At the distribution stage, we have implemented the Distribution Quality Management Program, which includes a shelf-life management system, strict temperature controls for receiving and storage of food products, a sophisticated stock recovery program and a quality inspection program.
Our quality testing extends to restaurant operations. The Quality Program that includes Across The Counter Quality (ATCQ), Behind The Counter Quality (BTCQ) and Field Service Support is designed for restaurant improvement and food safety verification processes that allow us to track the implementation of changes in restaurant operations, new products, procedures and equipment. We participate in the restaurant operations improvement process designed by McDonald’s, under which Company-operated and franchised restaurants are visited at least three times in any 21-month cycle to identify system opportunities to continuously improve our operations. Visits are conducted by our operation consultants, who assess restaurants based on food quality, service and cleanliness. We also participate in the worldwide mystery shopper program designed by McDonald’s, where all restaurants are visited twice a month by a third-party vendor who provides us with feedback from a customer perspective. This feedback, called customer satisfaction opportunity reports, is sent to a centralized monitoring system that evaluates key operations indicators. Our multidisciplinary teams, which include members of our Supply Chain and Marketing and Operations teams, work to improve quality and efficiency at the restaurant level throughout the Territories.
Our Competition
We compete with international, national, regional and local retailers of food products. We compete on the basis of price, convenience, service, menu variety and product quality. Our competition in the broadest perspective includes restaurants, quick-service eating establishments, pizza parlors, coffee shops, street vendors, ice cream vendors, convenience food stores, delicatessens and supermarkets.
Our Customers
We aim to provide our customers with safe, fresh and good-tasting food at a good value and a favorable dining experience in the family friendly environment demanded by our target demographic of young adults and families with children. Based on data from the United Nations Economic Commission for Latin America and the Caribbean, the Territories represented a market of approximately 641 million people in 2015—equivalent to the combined population of the United States, Germany, France, the United Kingdom and Italy—of which approximately 26.5% are under 14 years old and 44.3% are under 25 years old. As a business focused on young adults in the 14 to 35 age range and families with children, our operations have benefited, and we expect to continue to benefit, from our Territories’ population size, age profile when compared to more developed markets and improving socio-economic conditions. In addition, our McCafé brand extension has successfully targeted a more adult customer base.
Despite ongoing risks generally associated with international business operations, the confluence of favorable factors throughout many of the Territories, including growth in our target demographic markets, offer an opportunity of profitable growth and the ability to serve an ever-increasing number of customers.
Regulation
We are subject to various multi-jurisdictional federal, regional and local laws in the countries in which we operate affecting the operation of our business, as are our franchisees and suppliers. Each restaurant is subject to licensing and regulation by a number of governmental authorities, which include zoning, health, safety, sanitation, tax, operating, building and fire agencies in the jurisdiction in which the restaurant is located. Difficulties in obtaining, or the failure to obtain, required licenses or approvals can delay or prevent the opening of a new restaurant in a particular area. Restaurant operations are also subject to federal and local laws governing matters such as wages, working conditions and overtime. We are also subject to tariffs and regulations on imported commodities and equipment and laws regulating foreign investment.
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Substantive laws that regulate the franchisor/franchisee relationship presently exist in several of the countries in which we operate, including Brazil. These laws often limit, among other things, the duration and scope of non-competition provisions, the ability of a franchisor to terminate or refuse to renew a franchise and the ability of a franchisor to designate sources of supply and regulate franchise sales communications.
Certain countries in which we conduct operations have imposed price controls that restrict our ability, and the ability of our franchisees, to adjust the prices of our products.
For example, in September 2014, Argentina passed: (i) Law No. 26,991, the “Regulation on Production and Consumption Relationships Act,” which reformed a 1974 Act (Law on Supply of Goods and Services); and (ii) Law No. 26,992, the “Creation of the Observatory of Prices and Availability of Inputs, Goods and Services Act.”
The Regulation on Production and Consumption Relationships Act empowers the Secretary of Commerce to, among other things: (i) establish profit margins and set price levels (setting maximum, minimum and benchmark prices); (ii) issue regulations on commerce, intermediation, distribution or production of goods and services; (iii) impose the continuance of production, industrialization, commercialization, transport, distribution or rendering of services or impose the production of goods; (iv) set subsidies; (v) request any kind of documentation and correspondence related to commercial activities or the management of the businesses and impose the publication of prices and availability of goods and services and seize such documentation for up to 30 working days; (vi) impose registration and recordkeeping requirements; and (vii) impose licensing regimes for commercial activities.
In order to enforce its provisions, the Secretary of Commerce is granted the power to impose penalties for non-compliance including, among others: (i) fines of AR$500 to AR$10,000,000 or up to three times the economic profit obtained by offenders (the amounts can double in case of second-time offenders); (ii) temporary shutting down of businesses for up to 90 days; (iii) seizure of goods and products and their sale to consumers in case of an administratively determined shortage of said goods and products; and (iv) loss of governmental or fiscal benefits. Under the Regulation on Production and Consumption Relationships Act, companies would be forced to pay any fine issued immediately and then litigate before the courts to have the penalty revoked and the money refunded. The Secretary of Commerce may waive the advance payment of the fine in cases in which, at its discretion, such payment may cause irreparable harm to the party challenging the fine.
The Creation of the Observatory of Prices and Availability of Inputs, Goods and Services Act created a technical agency under the Secretary of Commerce, the Observatory of Prices and Availability of Inputs, Goods and Services, to control and systematize prices and availability of inputs, goods and services produced, traded or rendered in Argentina.
We are also subject to the labor laws applicable in the countries in which we operate. The adoption of new or more stringent labor laws or regulations could result in a material liability to us. For example, during 2016, Venezuela implemented four increases in the minimum wage, a 20% increase in March, a 30% increase in May, a 50% increase in September and a 20% increase in November, resulting in a new minimum wage of Bs.$40,638.15 as of December 2016. Similarly, in 2015, the United States Virgin Islands Legislative Assembly approved a minimum wage increase, which is projected for the next three years, starting from $7.25 to $10.50, to be prorated in June 2016 to $8.35, in June 2017 to $9.50 and June 2018 to $10.50. In Argentina, a law enacted in November 2010 requires companies to pay overtime to all employees (except directors and managers). In addition, certain proposed bills have attempted to implement additional payments for weekends and mandatory employee profit-sharing, but none of those have been enacted by Congress. See “Item 3. Key Information—D. Risk Factors—Certain Factors Relating to Our Business—Labor shortages or increased labor costs could harm our results of operations.”
New interpretations or unexpected applications of existing labor laws or regulations may also affect our business practices or results of operations. In August 2012, the Labor Prosecutor’s Office of the State of Pernambuco (Ministério Público do Trabalho do Estado de Pernambuco) in Brazil filed a civil complaint against us in the Labor Court of Pernambuco (Justiça do Trabalho de Pernambuco) regarding alleged noncompliance with certain labor laws. Several of these cases have already been resolved successfully, either by a judicial decision or a cash settlement. The remaining retained cases are pending a final decision. In March and November 2015, the Labor Prosecutor’s Office requested documents in order to analyze our compliance with the labor laws and the settlement entered into with the State of Pernambuco, which we provided. All such information and documentation was reviewed by the Labor Prosecutor, who issued a preliminary report on December 1, 2016. On December 13, 2016,
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an administrative hearing was held at the Labor Prosecutor’s headquarters in São Paulo, in which the Labor Prosecutor emphasized the preliminary nature of the report and granted us the opportunity to submit information, explanations and documents relating to compliance with the settlement. On March 15, 2017, we submitted a petition and documents as evidence that we have complied with the settlement, and on March 17, 2017, we attended a meeting with the Labor Prosecutor to clarify our arguments. We delivered additional documents regarding our compliance with the settlement for the period ranging from December 2015 to April 2017 on April 20, 2017. An audit of the company’s compliance with the settlement for such period will take place between May 2 and May 5, 2017.
In August 2015, UGT (União Geral dos Trabalhadores), a labor Union, filed a complaint before the Federal Prosecutor’s Office claiming that we breached tax, labor, franchise and antitrust laws. The Prosecutor’s Office dismissed the complaint relating to labor law, as there is already an open investigation relating to the same complaint. The Prosecutor’s Office then ordered the investigation to be split between the tax and franchise and antitrust law accusations. On November 23, 2016, the Prosecutor’s Office dismissed the complaint concerning franchise and antitrust law accusations. As of the date of this annual report on Form 20-F, the dismissal of the complaint is pending ratification by the Superior Council.
See “Item 8. Financial Information—A. Consolidated Statements and Other Financial Information—Legal Proceedings—Retained Lawsuits and Contingent Liabilities.”
In September 2014, Argentina enacted Law No. 26,993 (the “Prior Conciliation Service in Consumer Relations”). The Prior Conciliation Service in Consumer Relations is an administrative dispute resolution service within the Argentine Ministry of Production, by which consumers may freely submit their claims, with the purpose of reaching a settlement before a mediator within 30 days from the filing of the relevant claim. Consumers may only carry out proceedings before this administrative entity when the claims do not exceed a value equivalent to 55 times the minimum wage. Pursuant to Law No. 26,993, companies that are summoned to, but do not appear before, the Prior Conciliation Service in Consumer Relations may be subject to a fine equivalent to one minimum wage.
In addition, we may become subject to legislation or regulation seeking to regulate high-fat and/or high-sodium foods, particularly in Argentina, Brazil, Chile, Puerto Rico and Uruguay. Moreover, restrictions on advertising by food retailers and QSRs have been proposed or adopted in Argentina, Brazil, Chile, Colombia, Mexico, Peru and Uruguay, including proposals to restrict our ability to sell toys in conjunction with food. Certain jurisdictions in the United States are considering curtailing or have curtailed McDonald’s ability to sell children’s meals including free toys if these meals do not meet certain nutritional criteria. Similar restrictions, if imposed in the Latin American countries where we do business, may have a negative impact on our results of operations. We will comply with any laws or regulations that may be enacted, and we can provide no assurance of the effect that any possible future laws and regulations will have on our operating results. See “Item 3. Key Information—D. Risk Factors—Certain Factors Relating to Our Industry—Restrictions on promotions and advertisements directed at families with children and regulations regarding the nutritional content of children’s meals may harm McDonald’s brand image and our results of operations.”
Environmental Issues
To the best of our knowledge, there are currently no international, federal, state or local environmental laws, rules or regulations that we expect will materially affect our results of operations or our position with respect to our competitors. However, we can provide no assurance of the effect that any possible future environmental laws will have on our operating results.
Insurance
We maintain insurance policies in accordance with the requirements of the MFAs and as appropriate beyond those requirements, to the extent we believe additional coverage is necessary. Our insurance policies include commercial general liability, workers compensation, “all risk” property and business interruption insurance, among others. See “Item 10. Additional Information—C. Material Contracts—The MFAs—Insurance.”
Social Initiatives and Charitable Activities
The well-being of the communities where we operate is of considerable importance to us and we are engaged in a wide range of programs focused on positively impacting those communities. In addition to the current support we give to Ronald McDonald House Charities, we intend to expand our social reach in 2017 by strengthening our initiatives in the areas of Youth Employment and Sustainability.
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We have made many positive strides with respect to our social responsibility initiatives in 2016, including publishing our first Regional Social Impact and Sustainability Report in order to better communicate the broader portfolio of social initiatives we are implementing.
The following paragraphs summarize some of our principal programs and contributions.
Youth Employment
Youth unemployment is one of the most critical issues facing countries in Latin America. Through our Youth Employment initiative, we promote social mobility by providing employment opportunities to young people in Latin America that help them develop valuable customer service and leadership skills that can be applied to a wide range of career paths in the future. We are implementing this initiative through strategic alliances and by leveraging our trajectory and experience in this field. We are also developing projects for labor participation that promote gender equality and include technical training and programs to support the employment of people with disabilities. For instance, we recently partnered with the Ministries of Labor of Mexico and Argentina to promote employment participation of certain minority groups.
Another initiative is Empleo con Apoyo, which aims to provide employment opportunities to youth with disabilities, encouraging the development of their skills and raise awareness with respect to the needs of individuals with disabilities. During 2016 more than 1,300 employees were part of this program.
In addition, in April 2012, we became one of the founders and partners of the New Employment Opportunities (NEO) Program developed by the Inter-American Development Bank and the International Youth Foundation, which promotes the employability of the region’s youth. As of December 2016, NEO has reached 147,152 youth in 12 countries within the region.
Additionally, we have continued to strengthen our partnerships with other organizations, such as Forge Foundation, Kuepa and the Global Fairness Initiative.
We are an important employer in Latin America for youth and employed more than 70,000 young people during 2016. With our expanded initiatives, we see tremendous potential to have a positive social impact on the region.
Community
We primarily contribute to the communities in which we operate through the Ronald McDonald House Charities, which is dedicated to creating, finding and supporting programs that directly improve the health and well-being of children by providing “a home away from home” to children undergoing medical treatment in hospitals and their families. As of December 31, 2016, there were 49 Ronald McDonald House Charities programs in 13 countries in Latin America and the Caribbean, including 24 Ronald McDonald Houses, 24 Ronald McDonald Family Rooms and one Ronald McDonald Care Mobile, which was built to deliver pediatric care services to remote locations.
One of our biggest charitable events is the McHappy Day, when McDonald’s restaurants across Latin America raise money for various community causes by donating the proceeds from the sales of Big Macs on that day. In 2016, McHappy Day involved more than 35,000 community volunteers and our franchisees and suppliers. We raised over $9.6 million.
We also spearheaded a local community farming program involving 21 farms with the Qorichacra lettuce growing venture in Cusco, which we launched together with the Syngenta Foundation. Through this program, we provide training and support in production standards to local farmers so that the vegetables they produce meet our standards and the standards of several hotels and restaurants in Cusco. This support enabled 146 families to increase their income and improve their living standards. Furthermore, 468 families have replicated this methodology in 11 districts in the Cusco and Apurimac regions. The learnings from Qorichacra have encouraged us to develop more local farming initiatives to supply our lettuce locally in a few cities in Brazil and Puerto Rico. Our hope is that more such initiatives will flourish with our leadership as a provider of training, quality control and standards, and as a significant local buyer of vegetables. As another example, in Brazil we work with suppliers to educate local farmers about sustainable agriculture. To date, 26 farms have been created in Brazil and/or expanded to produce lettuce, tomatoes and other produce for McDonald’s restaurants in the region. This enables us contribute to the local economy through the creation of jobs while also sourcing produce sustainably.
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Nutrition and Well-Being
As part of our commitment to offering nutritious and high quality products to our customers, we are dedicated to actively promoting a balanced lifestyle. This includes providing reliable, accessible information to guide educated nutritional decisions. We were the first restaurant chain in Latin America to provide full nutritional and calorie information about our menu on our websites in every country, as well as giving consumers within the restaurants full printed nutritional information on every tray liner. In 2014 we added a nutritional calculator on our websites to complement nutritional transparency with a personalized tool to enable our customers to make the right nutritional choices for their lifestyle.
From a safety and quality perspective, we only use products that have passed strict quality and hygiene controls throughout the production chain, inside our restaurants and up to the moment they are served to our customers. These products are sourced from our approved supplier network for all McDonald’s restaurants.
We participate in several educational, sports and well-being programs throughout Latin America and the Caribbean, promoting our brand and encouraging our employees and customers to participate. One such event is the McDonald’s 5K Women’s Run (Las Mujeres Corremos), a regional race held annually since 2010 that brought together nearly 44,600 women in 2016, running in 13 cities in Latin America.
Sustainability
We strive to be an environmental steward dedicated to conserving natural resources and minimizing waste. We have developed sustainability initiatives with a focus on sustainable supplies, and energy and water efficiency. To carry out these initiatives, we have developed strategic partnerships with prestigious organizations such as the World Wildlife Fund (“WWF”), the Nature Conservancy, the Rainforest Alliance and the Forest Stewardship Council.
To improve the sustainability of our supplies, we defined six priority items for our business with WWF’s support: beef, chicken, fish, palm oil, coffee and the packaging we use. Today, coffee, fish and packaging are certified as 100% sustainable in Brazil, and we continue to work with the certification plans in order to achieve sustainability certifications for our supplies in all our markets in Latin America.
We strive to work with suppliers that have strong standards of animal welfare and that meet McDonald’s standards and policies. We have committed to ensuring that all pork used in our restaurants will be sourced by producers that can demonstrate plans to promote group housing for their sows. We are actively working with our pork suppliers, producers and other stakeholders to transition over time to this standard. The responsible use of antibiotics is important for animal health, as well as to ensure the future effectiveness of antimicrobial medicines. In March 2015, we announced that we will only source from suppliers who can guarantee that their animals (i) are raised without growth-stimulating antibiotics; (ii) have only received antibiotics to cure or prevent disease under veterinary supervision; (iii) are only administered antibiotics approved for veterinary use; and (iv) are raised in environments that encourage healthy animal welfare and husbandry conditions to help reduce the need for antibiotic use. We are continuously working with our suppliers and producers to achieve this goal for the responsible use of antibiotics.
Protecting the Amazon—one of Latin America’s greatest environmental treasures—is a top priority. All of our suppliers have committed to ending procurement of any supplies from the Amazon. In October 2011, McDonald’s signed a global moratorium against harvesting soy from the Amazon region and has maintained this commitment every year since, including actively supporting the 2014 renewal of the Brazilian Soy Moratorium. In August 2016, we sourced the first sustainable beef in Latin America from the Novo Campo Project, an initiative that complies with the standards of the Brazilian Roundtable for Sustainable Beef.
By working very closely and sharing best practices across Latin America, we are reducing our carbon footprint and greenhouse gas (GHG) emissions in our operations.
We are also committed to increasing our energy efficiency in restaurants by 20.0% by 2020 (using 2012 as the baseline) and we promote paper and waste recycling campaigns at our restaurants, whenever possible.
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As of December 31, 2016, we had four LEED-certified restaurants and one LEED-certified corporate university. Leadership in Energy & Environmental Design, or LEED-certified buildings are more environmentally responsible and resource-efficient buildings throughout their life-cycle. In December 2008, we opened the first LEED-certified restaurant in Latin America in Bertioga on the coast of São Paulo, Brazil. This restaurant received its LEED certification in September 2009, becoming the first McDonald’s restaurant in Latin America to receive such certification. In August 2010, we opened our second LEED-certified restaurant in Pilar, Argentina. In July 2011, we re-inaugurated the McDonald’s at Parque Hundido, in Mexico DF, as our third LEED-certified restaurant. In January 2013, we opened the fourth LEED-certified restaurant in Guaynabo, Puerto Rico, which obtained its LEED certification in November 2013. The McDonald’s University in São Paulo, Brazil, was remodeled and reopened in April 2011 as a LEED-certified building. This McDonald’s University, one of seven such units in the world, is the corporate education center for employees from all over Latin America and the Caribbean. Among the programs offered at the McDonald’s University in São Paulo is an MBA in Strategies for Sustainable Development.
The know-how accumulated in the construction of these ecological buildings is being used for the development of new McDonald’s restaurants, such as our High Efficiency Restaurants, developed in Brazil in compliance with McDonald’s standards as required by the MFAs, at which efficiencies have been achieved by implementing sustainability measures for, among others, the reuse of water and the use of more efficient lightning technics and using a more efficient architectural design with regard to the amount of equipment, kitchen and support areas. These architectural changes allow a reduction in carbon footprint associated to building process.
Finally, we survey our key suppliers in Latin America and the Caribbean to ensure their operations meet the highest standards possible and partner with them in reducing our impact on the environment. This includes implementing and sharing best practices throughout the supply chain for sustainable sourcing, transportation, resource use, residue disposal and energy consumption, among other matters, using CDP as our strategic partner.
| C. | Organizational Structure |
We conduct substantially all of our business through our indirect, wholly owned Dutch subsidiary Arcos Dorados B.V. Our controlling shareholder is Los Laureles Ltd., a British Virgin Islands company, which is beneficially owned by Mr. Staton, our Executive Chairman. Under the MFAs, Los Laureles Ltd. is required to hold at all times at least 51% of our voting interests, which is accomplished through its ownership of 100% of the class B shares of Arcos Dorados Holdings Inc., each having five votes per share. Los Laureles Ltd. has established a voting trust with respect to the voting interests in us held by Los Laureles Ltd. Los Laureles Ltd. is the beneficiary of the voting trust. See “Item 7. Major Shareholders and Related Party Transactions—A. Major Shareholders—Los Laureles Ltd.” Arcos Dorados B.V. owns all the equity interests of LatAm, LLC, the master franchisee, and owns, directly or indirectly, all the equity interests of the subsidiaries operating our restaurants in the Territories.
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The following chart shows our corporate structure as of April 2017.
____________________
| (1) | Includes class A shares and class B shares beneficially owned by Mr. Staton, our Executive Chairman. Los Laureles Ltd. is beneficially owned by Mr. Staton. See “Item 7. Major Shareholders and Related Party Transactions—A. Major Shareholders—Los Laureles Ltd.” Mr. Staton directly owns 0.001% of the shares of Arcos Dorados Coöperatieve U.A. |
| (2) | Includes operating subsidiaries held directly and, in some cases, indirectly through certain intermediate subsidiaries. |
Other than as described above, all of our significant subsidiaries are wholly owned by us, except Arcos Dorados Argentina S.A., of which Mr. Staton owns 0.003%.
| D. | Property, Plants and Equipment |
Property Operations
Our long-standing presence in Latin America and the Caribbean has allowed us to build a significant property portfolio with hard-to-replicate locations in key markets across the region that enhance our customers’ experience and ultimately support our brand and market position. As of December 31, 2016, we owned the land for 496 of our 2,156 restaurants (totaling approximately 1.1 million square meters). We owned the buildings for all but 11 of our stand-alone restaurants, all of which are under developmental licenses, whereby the licensees own or lease the land on and buildings in which the restaurants are located. We lease the remaining real estate property where we operate. Accordingly, we are able to charge rent on the real estate that we own and lease to our franchisees. The rental payments generally are based on the greater of a flat fee or a percentage of sales reported by franchised restaurants. When we lease land, we match the term of our sublease to the term of the franchise. We may charge a higher rent to franchisees than that which we pay on our leases, therefore deriving additional rental income.
The selection, construction and maintenance of restaurant locations and other related real estate assets, which is a key element of our performance, is determined based on an evaluation of expected returns on investment and the most efficient allocation of our capital expenditures. In addition to our restaurant property, we have (i) corporate offices in Montevideo, Uruguay; Buenos Aires, Argentina; and Sao Paulo, Brazil; and regional offices in Mexico City, Mexico and Bogota, Colombia; (ii) manufacturing and logistics centers in Sao Paulo, Brazil; and (iii) training centers in Sao Paulo, Brazil and Buenos Aires, Argentina.
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ITEM 4A. UNRESOLVED STAFF COMMENTS
None.
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
The following discussion of our financial condition and results of operations should be read in conjunction with the audited consolidated financial statements as of December 31, 2016 and 2015 and for the years ended December 31, 2016, 2015 and 2014, and the notes thereto, included elsewhere in this annual report, as well as the information presented under “Presentation of Financial and Other Information” and “Item 3. Key Information—A. Selected Financial Data.”
The following discussion contains forward-looking statements that involve risks and uncertainties. Our actual results may differ materially from those discussed in the forward-looking statements as a result of various factors, including those set forth in “Forward-Looking Statements” and “Item 3. Key Information—D. Risk Factors.”
Segment Presentation
We divide our operations into four geographical divisions: Brazil; the Caribbean division, consisting of Aruba, Colombia, Curaçao, French Guiana, Guadeloupe, Martinique, Puerto Rico, Trinidad and Tobago, the U.S. Virgin Islands of St. Croix and St. Thomas and Venezuela; the North Latin America division, or NOLAD, consisting of Costa Rica, Mexico and Panama; and the South Latin America division, or SLAD, consisting of Argentina, Chile, Ecuador, Peru and Uruguay. As of December 31, 2016, 41.8% of our restaurants were located in Brazil, 17.8% in SLAD, 24.0% in NOLAD and 16.4% in the Caribbean division. We focus on our customers by managing operations at the local level, including marketing campaigns and special offers, menu management and monitoring customer satisfaction, while leveraging our size by conducting administrative and strategic functions at the divisional or corporate level, as appropriate.
We are required to report information about operating segments in our financial statements in accordance with ASC 280. Operating segments are components of a company about which separate financial information is available that is regularly evaluated by the chief operating decision maker(s) in deciding how to allocate resources and assess performance. We have determined that our reportable segments are those that are based on our method of internal reporting, and we manage our business and operations through our four geographical divisions (Brazil, the Caribbean division, NOLAD and SLAD). The accounting policies of the segments are the same as those for the Company on a consolidated basis.
Principal Income Statement Line Items
Revenues
We generate revenues primarily from two sources: sales by Company-operated restaurants and revenue from franchised restaurants, which primarily consists of rental income, typically based on the greater of a flat fee or a percentage of sales reported by our franchised restaurants. This rent, along with occupancy and operating rights, is stipulated in our franchise agreements. These agreements typically have a 20-year term but may be shorter if necessary to mirror the term of the real estate lease. In 2016, sales by Company-operated restaurants and revenues from franchised restaurants represented 95.7% and 4.3% of our total revenues, respectively. In 2015 and 2014, sales by Company-operated restaurants and revenues from franchised restaurants represented 96.0% and 4.0% of our total revenues, respectively.
Operating Costs & Expenses
Our sales are heavily influenced by brand advertising, menu selection and initiatives to improve restaurant operations. Sales are also affected by the timing of restaurant openings and closures. We do not record sales from our franchised restaurants as revenues.
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Company-operated restaurants incur four types of operating costs and expenses:
| • | food and paper costs, which represent the costs of the products that we sell to customers in Company-operated restaurants; |
| • | payroll and employee benefit costs, which represent the wages paid to Company-operated restaurant managers and crew, as well as the costs of benefits and training, and which tend to increase as we increase sales; |
| • | occupancy and other operating expenses, which represent all other direct costs of our Company-operated restaurants, including advertising and promotional expenses, the costs of outside rent, which are generally tied to sales and therefore increase as we increase our sales, outside services, such as security and cash collection, building and leasehold improvement depreciation, depreciation on equipment, repairs and maintenance, insurance, restaurant operating supplies and utilities; and |
| • | royalty fees, representing the continuing franchise fees we pay to McDonald’s pursuant to the MFAs, which are determined as a percentage of gross product sales. |
Franchised restaurant occupancy expenses include, mainly, as applicable, the costs of depreciating and maintaining the land and buildings upon which franchised restaurants are situated or the cost of leasing that property. A significant portion of our leases establish that rent payments are based on the greater of a flat fee or a specified percentage of the restaurant’s sales.
We promote the McDonald’s brand and our products by advertising in all of the Territories. Pursuant to the MFAs, we are required to spend at least 5% of our sales on advertisement and promotion activities annually. These activities are guided by our overall marketing plan, which identifies the key strategic platforms that we leverage to drive sales. Our franchisees are generally required to pay us 5% of their sales to cover advertising expenditures related to their restaurants. We account for these payments as a deduction to our advertising expenses. As a result, our advertising expenses only reflect the expenditures related to Company-operated restaurants. Advertising expenses are recorded within the “Occupancy and other operating expenses” line item in our consolidated income statement. The only exception to this policy is in Mexico, where both we and our franchisees contribute funds to a cooperative that is responsible for advertisement and promotion activities for Mexico.
General and administrative expenses include the cost of overhead, including salaries and facilities, travel expenses, depreciation of office equipment, buildings and vehicles, amortization of intangible assets, occupancy costs, professional services and the cost of field management for Company-operated and franchised restaurants, among others.
Other operating income (expenses), net, include gains and losses on asset acquisitions and dispositions, gains related to sales of restaurant businesses, write-offs and related contingencies of property and equipment, insurance recovery, impairment charges, rental income and depreciation expenses of excess properties, accrual for contingencies, write-offs and write-downs of inventory, recovery of taxes and other miscellaneous items.
Other Line Items
Net interest expense primarily includes interest expense on our short-term and long-term debt as well as the amortization of deferred financing costs. Loss from derivative instruments relates primarily to the ineffective portion of derivative instruments.
Foreign currency exchange results relate to the impact of remeasuring monetary assets and liabilities denominated in currencies other than our functional currencies. See “—Foreign Currency Translation.”
Other non-operating income (expenses), net, primarily include certain results related to tax credits, asset taxes and income tax adjustments related to prior years that we are required to pay in certain countries and other non-operating charges.
Income tax expense includes both current and deferred income taxes. Current income taxes represent the amount accrued during the period to be paid to the tax authorities while deferred income taxes represent the earnings impact of the change in deferred tax assets and liabilities that are recognized in our balance sheet for future income tax consequences.
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Net income attributable to non-controlling interests relate to the participation of non-controlling interests in the net income of certain subsidiaries that collectively owned 18 restaurants at December 31, 2016 (18 restaurants at December 31, 2015).
Impact of Inflation and Changing Prices
Some of the countries in which we operate have experienced, or are currently experiencing, high rates of inflation. In general, we believe that, over time, we have demonstrated the ability to manage inflationary environments effectively. During 2015 and 2016, our revenues were favorably impacted by our pricing strategy in many of these inflationary environments, as we were able to increase average check to keep pace with inflation.
The Venezuelan market is also subject to price controls, which limit our ability to increase prices to offset the impact of continuing high inflation on our operating costs. Although we managed to navigate the negative impact of the price controls on our operations during 2014, 2015 and 2016, the existence of such laws and regulations continues to present a risk to our business. We continue to closely monitor developments in this dynamic environment.
Key Business Measures
We track our results of operations and manage our business by using three key business measures: comparable sales growth, average restaurant sales and sales growth.
In analyzing business trends, management considers a variety of performance and financial measures which are considered to be non-GAAP including: Adjusted EBITDA, comparable sales growth, systemwide data and constant currency measures.
Comparable Sales
Comparable sales is a key performance indicator used within the retail industry and is indicative of the success of our initiatives as well as local economic, competitive and consumer trends. Comparable sales are driven by changes in traffic and average check, which is affected by changes in pricing and product mix. Increases or decreases in comparable sales represent the percent change in sales from the prior year for all restaurants in operation for at least thirteen months, including those temporarily closed. Some of the reasons restaurants may close temporarily include reimaging or remodeling, rebuilding, road construction and natural disasters. With respect to restaurants where there are changes in ownership, all previous months’ sales are reclassified according to the new ownership category when reporting comparable sales. As a result, there will be discrepancies between the sales figures used to calculate comparable sales and our results of operations. We report on a calendar basis, and therefore the comparability of the same month, quarter and year with the corresponding period for the prior year is impacted by the mix of days. The number of weekdays, weekend days and timing of holidays in a period can impact comparable sales positively or negatively. We refer to these impacts as calendar shift/trading day adjustments. These impacts vary geographically due to consumer spending patterns and have the greatest effect on monthly comparable sales while annual impacts are typically minimal.
We calculate and analyze comparable sales and average check in our divisions and systemwide on a constant currency basis, which means they are calculated using the same exchange rate in the applicable division or systemwide, as applicable, over the periods under comparison to remove the effects of currency fluctuations from the analysis. We believe these constant currency measures, which are considered to be non-GAAP measures, provide a more meaningful analysis of our business by identifying the underlying business trend, without distortion from the effect of foreign currency fluctuations
Company-operated comparable sales growth refers to comparable sales growth for Company-operated restaurants and franchised comparable sales growth refers to comparable sales growth for franchised restaurants. We believe comparable sales growth is a key indicator of our performance, as influenced by our strategic initiatives and those of our competitors.
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Average Restaurant Sales
Average restaurant sales, or ARS, is an important measure of the financial performance of our systemwide restaurants and changes in the overall direction and trends of sales. ARS is calculated by dividing the sales for the relevant period by the arithmetic mean of the number of restaurants at the beginning and end of such period. ARS is influenced mostly by comparable sales performance and restaurant openings and closures. As ARS is provided in nominal terms, it is affected by movements in foreign currency exchange rates.
Sales Growth
Sales growth refers to the change in sales by all restaurants, whether operated by us or by franchisees, from one period to another. We present sales growth both in nominal terms and on a constant currency basis, which means the latter is calculated using the same exchange rate over the periods under comparison to remove the effects of currency fluctuations from the analysis.
Adjusted EBITDA
We use Adjusted EBITDA to facilitate operating performance comparisons from period to period. Adjusted EBITDA is defined as our operating income plus depreciation and amortization plus/minus the following losses/gains included within other operating income (expenses), net, and within general and administrative expenses in our statement of income: gains from sale or insurance recovery of property and equipment; write-offs and related contingencies of property and equipment; impairment of long-lived assets and goodwill; stock-based compensation related to the special awards in connection with the initial public offering, under the 2011 Equity Incentive Plan; reorganization and optimization plan expenses; and incremental compensation related to the modification of our 2008 long-term incentive plan. See “Item 3. Key Information—A. Selected Financial Data.”
We believe Adjusted EBITDA facilitates company-to-company operating performance comparisons by backing out potential differences caused by variations such as capital structures (affecting net interest expense and other financial charges), taxation (affecting income tax expense) and the age and book depreciation of facilities and equipment (affecting relative depreciation expense), which may vary for different companies for reasons unrelated to operating performance. In addition, we exclude gains from sale or insurance recovery of property and equipment not related to our core business; write-offs and related contingencies of property and equipment and impairment of long-lived assets and goodwill that do not result in cash payments; stock-based compensation related to the special awards under the 2011 Equity Incentive Plan; reorganization and optimization plan expenses; bonuses granted in connection with our initial public offering due to its special nature; and incremental compensation expense related to the modification of our 2008 long-term incentive plan. While a GAAP measure for purposes of our segment reporting, Adjusted EBITDA is a non-GAAP measure for reporting our total Company performance. Our management believes, however, that disclosure of Adjusted EBITDA provides useful information to investors, financial analysts and the public in their evaluation of our operating performance.
Systemwide data
Systemwide data represents measures for both Company-operated and franchised restaurants. While sales by franchisees are not recorded as revenues by us, management believes the information is important in understanding our financial performance because these sales are the basis on which we calculate and record franchised restaurant revenues and are indicative of the financial health of our franchisee base. Systemwide results are driven primarily by our Company-operated restaurants, as 72.0% of our systemwide restaurants are Company-operated as of December 31, 2016.
Foreign Currency Translation
The financial statements of our foreign operating subsidiaries are translated in accordance with guidance in ASC 830, Foreign Currency Matters. Except for our Venezuelan operations, the functional currencies of our foreign operating subsidiaries are the local currencies of the countries in which we conduct our operations. Therefore, the assets and liabilities of these subsidiaries are translated into U.S. dollars at the exchange rates as of the balance sheet date, and revenues and expenses are translated at the average exchange rates prevailing during the period. Translation adjustments are included in the “Accumulated other comprehensive loss” component of shareholders’ equity. We record foreign currency exchange results related to monetary assets and liabilities transactions, including intercompany transactions, denominated in currencies other than our functional currencies in our consolidated income statement.
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Venezuela
Effective January 1, 2010, Venezuela is considered to be highly inflationary. Under U.S. GAAP, an economy is considered to be highly inflationary when its three-year cumulative rate of inflation meets or exceeds 100%. Under the highly inflationary basis of accounting, the financial statements of our Venezuelan subsidiaries are remeasured as if their functional currency were our reporting currency (U.S. dollars), with remeasurement gains and losses recognized in earnings, rather than in the cumulative translation adjustment component of other comprehensive loss within shareholders’ equity.
In February 2003, Venezuela’s government implemented an exchange control regime to restrict the conversion of local currency into foreign currency, which is still in force. Since its implementation, multiple exchange rate systems have been implemented. The administration of Venezuela’s exchange rate system is the responsibility of the National Center of Foreign Trade (Centro Nacional de Comercio Exterior) or CENCOEX, which was established in November 2013.
On February 10, 2015, Exchange Agreement N°33 established a new open-market foreign exchange system called SIMADI (Sistema Marginal de Divisas). SIMADI functioned on free-market principles with foreign currency offered either by PDVSA (Petróleos de Venezuela), the Central Bank of Venezuela or the private sector.
During February and March of 2016, the Venezuelan government announced new changes to the official exchange control system, which were published in the Official Gazette number 40,865 dated March 9, 2016 and through which the Venezuelan Central Bank and the Ministry for Banking and Finance issued Exchange Agreement N° 35, effective March 10, 2016. The Exchange Agreement set forth the rules that govern foreign exchange transactions carried out by public and private entities and individuals in Venezuela, eliminated SIMADI, and created a dual exchange system consisting of two exchange rates for the purchase and sale of foreign currency: the protected rate, or DIPRO, for priority goods (food and medicines) and services, and the supplementary floating market rate, or DICOM, for other transactions, including the settlement of transactions for the purchase and sale of foreign currency. The DICOM is not yet fully operational. Until the DICOM rate is fully operational, SIMADI will remain in operation.
As a result of the foregoing, the acquisition of foreign currency at the official exchange rate by Venezuelan companies to honor foreign debt, pay dividends or otherwise move capital out of Venezuela is subject to the approval of CENCOEX and to the availability of foreign currency within the SIMADI (or DICOM).
During 2016, the DIPRO remained unchanged at Bs.10.00 per U.S. dollar. As of January 2016, the SIMADI rate was at Bs.200 per dollar; however, such rate began depreciating constantly throughout the year. For example, on April 29, the SIMADI rate was at Bs.378.37 per dollar, on June 1 was at Bs.543.30 per dollar and on July 29 it was at Bs.645.09 per dollar. Following this devaluation, the SIMADI rate remained stable during the second semester of 2016. For instance, on December 29 such rate was at Bs.673.83 per dollar. In early 2017, the SIMADI rate began depreciating again. For example, on January 13, 2017, the SIMADI rate was at 676.2 per U.S. dollar and on February 8, 2017 was at 690.98 per U.S. dollar.
Currency devaluations in Venezuela have had a significant effect on our income statements and have impacted the comparability of our income statements in 2016, 2015 and 2014 as compared to 2013 and 2012. For more details about the Venezuelan exchange rate used for financial reporting, see Note 22 to our consolidated financial statements.
Factors Affecting Comparability of Results
Seasonality
Our sales and revenues are generally greater in the second half of the year than in the first half. Although the impact on our results of operations is relatively small, this impact is due to increased consumption of our products during the winter and summer holiday seasons, affecting July and December, respectively.
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Critical Accounting Policies and Estimates
This management’s discussion and analysis of financial condition and results of operations is based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses as well as related disclosures. On an ongoing basis, we evaluate our estimates and judgments based on historical experience and various other factors that we believe to be reasonable under the circumstances. Actual results may differ from these estimates under varying assumptions or conditions.
We consider an accounting estimate to be critical if:
| • | the nature of the estimates or assumptions is material due to the levels of subjectivity and judgment necessary to account for highly uncertain matters or the susceptibility of such matters to change; and |
| • | the impact of the estimates and assumptions on our financial condition or operating performance is material. |
We believe that of our significant accounting policies, the following encompass a higher degree of judgment and/or complexity.
Depreciation of Property and Equipment
Accounting for property and equipment involves the use of estimates for determining the useful lives of the assets over which they are to be depreciated. We believe that the estimates we make to determine an asset’s useful life are critical accounting estimates because they require our management to make estimates about technological evolution and competitive uses of assets. We depreciate property and equipment on a straight-line basis over their useful lives based on management’s estimates of the period over which these assets will generate revenue (not to exceed the lease term plus renewal options for leased property). The useful lives are estimated based on historical experience with similar assets, taking into account anticipated technological or other changes. We periodically review these lives relative to physical factors, economic considerations and industry trends. If there are changes in the planned use of property and equipment, or if technological changes occur more rapidly than anticipated, the useful lives assigned to these assets may need to be shortened, resulting in the recognition of increased depreciation and amortization expense or write-offs in future periods. No significant changes to useful lives have been recorded in the past. A significant change in the facts and circumstances that we relied upon in making our estimates may have a material impact on our operating results and financial condition.
Impairment of Long-Lived Assets and Goodwill
We review long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. We review goodwill for impairment annually, primarily during the fourth quarter. In assessing the recoverability of our long-lived assets and goodwill, we consider changes in economic conditions and make assumptions regarding, among other factors, estimated future cash flows by market and by restaurant, discount rates by country and the fair value of the assets. Estimates of future cash flows are highly subjective judgments based on our experience and knowledge of our operations. These estimates can be significantly impacted by many factors, including changes in global and local business and economic conditions, operating costs, inflation, competition, and consumer and demographic trends. A key assumption impacting estimated future cash flows is the estimated change in comparable sales.
See Note 3 to our consolidated financial statements for a detail of markets for which we performed impairment tests of our long-lived assets and goodwill, as well as impairment charges recorded.
If our estimates or underlying assumptions change in the future, we may be required to record additional impairment charges.
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Share-Based Compensation
We have share-based compensation plans outstanding pursuant to which we granted, until 2011, liability awards to certain employees under a long-term incentive plan. The accrued liability is remeasured at the end of each reporting period until settlement. As of December 31, 2016, the accrued liability amounting to $0.5 million. The fair value of our liability awards is estimated using the Black-Scholes model. Accounting for our share-based compensation plans involves the use of estimates for determining: (a) the number of units that will vest based on the estimated completion of the requisite service period, and (b) the assumptions required by the closed-form pricing model (expected volatility, dividend yield, risk-free interest rate and expected term). These assumptions are estimated as follows:
| • | Expected volatility: based on implied volatility of our class A shares. |
| • | Dividend yield: based on estimated annual dividends over the Company’s market capitalization. |
| • | Risk-free interest: prevailing implied interest rate of the U.S. Treasury zero-coupon strips with a remaining time to maturity similar to the expected term of the plan. |
| • | Expected term: estimated as an average of the vesting term and the original contractual term of the plan. |
All of these assumptions significantly impact the estimated fair value of the awards. We use historical data and estimates to determine these assumptions, and if these assumptions and/or the stock price change significantly in the future, our operating results and financial condition could be significantly impacted.
In March 2011, we adopted our Equity Incentive Plan, or 2011 Plan, to attract and retain the most highly qualified and capable professionals and to promote the success of our business through an annual award program. The 2011 Plan permits grants of awards relating to our class A shares, including awards in the form of share (also referred to as stock) options, restricted shares, restricted share units, share appreciation rights, performance awards and other share-based awards as will be determined by our Board of Directors. The maximum number of shares that may be issued under the 2011 Plan is 5,238,235 class A shares, equal to 2.5% of our total outstanding class A and class B shares immediately following our initial public offering on April 14, 2011.
Restricted share units are measured at the grant-date market price of our class A shares. Stock options are accounted for at their grant-date fair value. Fair value of stock options is calculated using the Black-Scholes option pricing model. This calculation is affected by our stock price as well as assumptions regarding a number of highly complex and subjective variables (expected volatility, dividend yield, risk-free interest rate and expected term). These assumptions are estimated as was previously described for our liability awards.
On June 28, 2016, 1,117,380 stock options were converted to a liability award. 104 employees were affected by this modification. There were no incremental compensation costs resulting from this modification. The accrued liability is remeasured on a monthly basis until settlement, using the Black-Scholes model.
See Note 17 to our consolidated financial statements for additional detail on the assumptions used in our estimates and the amounts involved.
Accounting for Taxes
We record a valuation allowance to reduce the carrying value of deferred tax assets if it is more likely than not that some portion or all of our deferred assets will not be realized. Our valuation allowance as of December 31, 2016, 2015 and 2014 amounted to $290.6 million, $297.9 million and $301.0 million, respectively. We have considered future taxable income and ongoing prudent and feasible tax strategies in assessing the need for the valuation allowance. This assessment is carried out on the basis of internal projections, which are updated to reflect our most recent operating trends, such as the expiration date for tax loss carryforwards. Because of the imprecision inherent in any forward-looking data, the further into the future our estimates project, the less objectively verifiable they become. Therefore, we apply judgment to define the period of time to include projected future income to support the future realization of the tax benefit of an existing deductible temporary difference or carryforward and whether there is sufficient evidence to support the projections at a more-likely-than-not level for this period of time. Determining whether a valuation allowance for deferred tax assets is necessary often requires an extensive analysis of positive (e.g., a history of accurately projecting income) and negative evidence (e.g., historic operating losses) regarding realization of the deferred tax assets and inherent in that, an assessment of the likelihood of sufficient future taxable income. In 2016, 2015 and 2014, we recognized losses amounting to $11.8 million, $49.5 million and $71.7 million, respectively, related to tax loss carryforwards for which realization is not expected to occur. If these estimates and assumptions change in the future, we may be required to adjust the valuation allowance. This could result in a charge to, or an increase in, income in the period this determination is made.
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In addition, the Company operates within multiple taxing jurisdictions and is subject to audit in these jurisdictions. The Company assesses the likelihood of any adverse judgments or outcomes on its tax positions, including income tax and other taxes, based on the technical merits of a tax position derived from authorities such as legislation and statutes, legislative intent, regulations, rulings and case law and their applicability to the facts and circumstances of the tax position. Such outcomes may change in the future due to new developments in each matter.
As of December 31, 2016, in accordance with ASC 740, there are certain matters related to the interpretation of income tax laws for which there is a possibility that a loss may have been incurred, in an amount of $20 million, related to assessments for the fiscal years 2010 and 2011. No formal claim has been made for fiscal years from 2012 to 2016 by taxing authorities in any of the mentioned matters. However, those years are still subject to audit and claims may be asserted in the future.
Provision for Contingencies
We have certain contingent liabilities with respect to existing or potential claims, lawsuits and other proceedings, including those involving labor, tax and other matters. Accounting for contingencies involves the use of estimates for determining the probability of each contingency and the estimated amount to settle the obligation, including related costs. We accrue liabilities when it is probable that future costs will be incurred and the costs can be reasonably estimated. The accruals are based on all the information available at the issuance date of the financial statements, including our estimates of the outcomes of these matters and our lawyers’ experience in contesting, litigating and settling similar matters. If we are unable to reliably measure the obligation, no provision is recorded and information is then presented in the notes to our consolidated financial statements. As the scope of the liabilities becomes better defined, there may be changes in the estimates of future costs. Because of the inherent uncertainties in this estimation, actual expenditures may be different from the originally estimated amount recognized. See “Item 8. Financial Information—A. Consolidated Statements and Other Financial Information—Legal Proceedings” for a description of significant claims, lawsuits and other proceedings.
See Note 18 to our consolidated financial statements.
Results of Operations
We have based the following discussion on our consolidated financial statements. You should read it along with these financial statements, and it is qualified in its entirety by reference to them.
In a number of places in this annual report, in order to analyze changes in our business from period to period, we present our results of operations and financial condition on a constant currency basis, which is considered to be a non-GAAP measure. Constant currency results isolate the effects of foreign exchange rates on our results of operations and financial condition. In particular, we have isolated the effects of appreciation and depreciation of local currencies in the Territories against the U.S. dollar because we believe that doing so is useful in understanding the development of our business. For these purposes, we eliminate the effect of movements in the exchange rates by converting the balances for both periods being compared from their local currencies to the U.S. dollar using the same exchange rate.
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Key Business Measures
The following tables present sales, sales growth, sales growth on a constant currency basis, comparable sales growth and average restaurant sales increases/(decreases):
| Sales | Sales growth | Sales
growth in constant currency | Comparable sales growth | |||||||||||||||||||||||||||||||||
| For
the Years Ended December 31, | For the Years Ended December 31, | For the Years Ended December 31, | For the Years Ended December 31, | |||||||||||||||||||||||||||||||||
| 2016 | 2015 | 2014 | 2016(1) | 2015(3) | 2016(1) | 2015(3) | 2016(2) | 2015(4) | ||||||||||||||||||||||||||||
| (in thousands of U.S. dollars, except percentages) | ||||||||||||||||||||||||||||||||||||
| Sales by Company-operated restaurants | $ | 2,803,334 | $ | 2,930,379 | $ | 3,504,302 | (4.3 | )% | (16.4 | )% | 13.5 | % | 10.9 | % | 13.9 | % | 8.8 | % | ||||||||||||||||||
| Franchised sales(5) | 990,220 | 973,708 | 1,238,326 | 1.7 | (21.4 | ) | 21.2 | 17.1 | 15.8 | 12.9 | ||||||||||||||||||||||||||
| Systemwide sales | 3,793,554 | 3,904,087 | 4,742,628 | (2.8 | ) | (17.7 | ) | 15.4 | 12.5 | 14.4 | 9.9 | |||||||||||||||||||||||||
____________________
| (1) | In nominal terms, sales decreased during 2016 due to the negative impact of the depreciation of most currencies in the Territories against the U.S. dollar. This was partially offset by comparable sales growth of 14.4% and the net addition of 35 restaurants systemwide since January 1, 2015. We had 1,553 Company-operated restaurants and 603 franchised restaurants as of December 31, 2016, compared to 1,588 Company-operated restaurants and 553 franchised restaurants as of December 31, 2015. |
| (2) | Our comparable sales growth on a systemwide basis in 2016 was driven by the increase in average check, which resulted mainly from price increases. |
| (3) | In nominal terms, sales decreased during 2015 due to the negative impact of the depreciation of most currencies in the Territories against the U.S. dollar. This was partially offset by comparable sales growth of 9.9% and the net addition of 79 restaurants systemwide since January 1, 2014. We had 1,588 Company-operated restaurants and 553 franchised restaurants as of December 31, 2015, compared to 1,577 Company-operated restaurants and 544 franchised restaurants as of December 31, 2014. |
| (4) | Our comparable sales growth on a systemwide basis in 2015 was driven by the increase in average check, which resulted mainly from price increases. |
| (5) | Franchised sales correspond to sales generated by franchised restaurants, which we do not collect. Revenues from franchised restaurants primarily consist of rental income. |
By division
| Sales | Sales growth | Sales growth in constant currency | Comparable sales growth | |||||||||||||||||||||||||||||||||
| For the Years Ended December 31, | For the Years Ended December 31, | For the Years Ended December 31, | For the Years Ended December 31, | |||||||||||||||||||||||||||||||||
| 2016 | 2015 | 2014 | 2016 | 2015 | 2016 | 2015 | 2016 | 2015 | ||||||||||||||||||||||||||||
| (in thousands of U.S. dollars, except percentages) | ||||||||||||||||||||||||||||||||||||
| Sales by Company-operated restaurants: | ||||||||||||||||||||||||||||||||||||
| Brazil | $ | 1,254,684 | $ | 1,289,543 | $ | 1,724,889 | (2.7 | )% | (25.2 | )% | 2.4 | % | 4.8 | % | 3.6 | % | 1.5 | % | ||||||||||||||||||
| Caribbean division | 396,807 | 386,512 | 574,540 | 2.7 | (32.7 | ) | 29.5 | 16.5 | 29.6 | 16.1 | ||||||||||||||||||||||||||
| NOLAD | 349,190 | 351,122 | 367,075 | (0.6 | ) | (4.3 | ) | 7.5 | 4.2 | 4.7 | 1.2 | |||||||||||||||||||||||||
| SLAD | 802,653 | 903,202 | 837,798 | (11.1 | ) | 7.8 | 24.8 | 22.6 | 24.8 | 22.0 | ||||||||||||||||||||||||||
| Total Sales by Company-operated restaurants | 2,803,334 | 2,930,379 | 3,504,302 | (4.3 | ) | (16.4 | ) | 13.5 | 10.9 | 13.9 | 8.8 | |||||||||||||||||||||||||
| Franchised sales:(3) | ||||||||||||||||||||||||||||||||||||
| Brazil | 630,706 | 589,994 | 756,211 | 6.9 | (22.0 | ) | 11.8 | 9.3 | 3.7 | 2.7 | ||||||||||||||||||||||||||
| Caribbean division | 96,646 | 91,411 | 199,864 | 5.7 | (54.3 | ) | 94.7 | 46.4 | 97.9 | 51.2 | ||||||||||||||||||||||||||
| NOLAD | 132,745 | 145,951 | 164,511 | (9.0 | ) | (11.3 | ) | 0.8 | (0.2 | ) | 2.7 | 1.0 | ||||||||||||||||||||||||
| SLAD | 130,123 | 146,352 | 117,740 | (11.1 | ) | 24.3 | 33.5 | 41.8 | 30.5 | 31.1 | ||||||||||||||||||||||||||
| Total Franchised sales | 990,220 | 973,708 | 1,238,326 | 1.7 | (21.4 | ) | 21.2 | 17.1 | 15.8 | 12.9 | ||||||||||||||||||||||||||
| Systemwide sales: | ||||||||||||||||||||||||||||||||||||
| Brazil | 1,885,390 | 1,879,537 | 2,481,100 | 0.3 | (24.2 | ) | 5.4 | 6.1 | 3.6 | 1.9 | ||||||||||||||||||||||||||
| Caribbean division | 493,453 | 477,923 | 774,404 | 3.2 | (38.3 | ) | 42.0 | 24.2 | 42.5 | 25.0 | ||||||||||||||||||||||||||
| NOLAD | 481,935 | 497,073 | 531,586 | (3.0 | ) | (6.5 | ) | 5.6 | 2.8 | 4.1 | 1.2 | |||||||||||||||||||||||||
| SLAD | 932,776 | 1,049,554 | 955,538 | (11.1 | ) | 9.8 | 26.0 | 25.0 | 25.6 | 23.2 | ||||||||||||||||||||||||||
| Total Systemwide sales | 3,793,554 | 3,904,087 | 4,742,628 | (2.8 | ) | (17.7 | ) | 15.4 | 12.5 | 14.4 | 9.9 | |||||||||||||||||||||||||
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| Sales | Number of restaurants | Average restaurant sales | ||||||||||||||||||||||||||||||||||||||
| For the Years Ended December 31, | For the Years Ended December 31, | For the Years Ended December 31, | ||||||||||||||||||||||||||||||||||||||
| 2016 | 2015 | 2014 | 2016 | 2015 | 2014 | 2013 | 2016(1) | 2015(2) | 2014 | |||||||||||||||||||||||||||||||
| (in thousands of U.S. dollars, except for number of restaurants) | ||||||||||||||||||||||||||||||||||||||||
| Sales by Company-operated restaurants | $ | 2,803,334 | $ | 2,930,379 | $ | 3,504,302 | 1,553 | 1,588 | 1,577 | 1,538 | $ | 1,785 | $ | 1,852 | $ | 2,250 | ||||||||||||||||||||||||
| Franchised sales(3) | 990,220 | 973,708 | 1,238,326 | 603 | 553 | 544 | 524 | 1,713 | 1,775 | 2,319 | ||||||||||||||||||||||||||||||
| Systemwide sales | 3,793,554 | 3,904,087 | 4,742,628 | 2,156 | 2,141 | 2,121 | 2,062 | 1,766 | 1,832 | 2,268 | ||||||||||||||||||||||||||||||
____________________
| (1) | Our ARS decreased in 2016 because of the depreciation of most currencies in the Territories against the U.S. dollar, partially offset by comparable sales growth of 14.4%. |
| (2) | Our ARS decreased in 2015 because of the depreciation of most currencies in the Territories against the U.S. dollar, partially offset by comparable sales growth of 9.9%. |
| (3) | Franchised sales correspond to sales generated by franchised restaurants, which we do not collect. Revenues from franchised restaurants primarily consist of rental income. |
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Year Ended December 31, 2016 Compared to Year Ended December 31, 2015
Set forth below are our results of operations for the years ended December 31, 2016 and 2015.
| For the Years Ended December 31, |
% Increase (Decrease) | ||||||||||
| 2016 | 2015(1) | ||||||||||
| (in thousands of U.S. dollars) | |||||||||||
| Sales by Company-operated restaurants | $ | 2,803,334 | $ | 2,930,379 | (4.3 | )% | |||||
| Revenues from franchised restaurants | 125,296 | 122,361 | 2.4 | ||||||||
| Total revenues | 2,928,630 | 3,052,740 | (4.1 | ) | |||||||
| Company-operated restaurant expenses: | |||||||||||
| Food and paper | (1,012,976 | ) | (1,037,487 | ) | (2.4 | ) | |||||
| Payroll and employee benefits | (607,082 | ) | (660,773 | ) | (8.1 | ) | |||||
| Occupancy and other operating expenses | (752,428 | ) | (793,622 | ) | (5.2 | ) | |||||
| Royalty fees | (142,777 | ) | (149,089 | ) | (4.2 | ) | |||||
| Franchised restaurants – occupancy expenses | (55,098 | ) | (54,242 | ) | 1.6 | ||||||
| General and administrative expenses | (221,075 | ) | (270,680 | ) | (18.3 | ) | |||||
| Other operating income, net | 41,386 | 6,560 | 530.9 | ||||||||
| Total operating costs and expenses | (2,750,050 | ) | (2,959,333 | ) | (7.1 | ) | |||||
| Operating income | 178,580 | 93,407 | 91.2 | ||||||||
| Net interest expense | (66,880 | ) | (64,407 | ) | 3.8 | ||||||
| Loss from derivative instruments | (3,065 | ) | (2,894 | ) | 5.9 | ||||||
| Foreign currency exchange results | 32,354 | (54,032 | ) | (159.9 | ) | ||||||
| Other non-operating expenses, net | (2,360 | ) | (627 | ) | 276.4 | ||||||
| Income (loss) before income taxes | 138,629 | (28,553 | ) | (585.5 | ) | ||||||
| Income tax expense | (59,641 | ) | (22,816 | ) | 161.4 | ||||||
| Net income (loss) | 78,988 | (51,369 | ) | (253.8 | ) | ||||||
| Less: Net income attributable to non-controlling interests | (178 | ) | (264 | ) | (32.6 | ) | |||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc | 78,810 | (51,633 | ) | (252.6 | ) | ||||||
____________________
| (1) | Due to certain changes in accounting for expenses in 2016, certain reclassifications have been made from “Occupancy and other operating expenses” to “Payroll and employee benefits” in the Income Statement Data for the fiscal year ended December 31, 2015 in order to ensure comparability with our results for the fiscal year ended December 31, 2016. See Note 2 to our consolidated financial statements for additional information. |
Set forth below is a summary of changes to our systemwide, Company-operated and franchised restaurant portfolios in 2016 and 2015.
|
Systemwide Restaurants |
For the Years Ended December 31, | |||||
| 2016 | 2015 | |||||
| Systemwide restaurants at beginning of period | 2,141 | 2,121 | ||||
| Restaurant openings | 33 | 36 | ||||
| Restaurant closings | (18 | ) | (16 | ) | ||
| Systemwide restaurants at end of period | 2,156 | 2,141 | ||||
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| Company-Operated Restaurants |
For the Years Ended December 31, | |||||
| 2016 | 2015 | |||||
| Company-operated restaurants at beginning of period | 1,588 | 1,577 | ||||
| Restaurant openings | 17 | 18 | ||||
| Restaurant closings | (11 | ) | (12 | ) | ||
| Net conversions of franchised restaurants to Company-operated restaurants | (41 | ) | 5 | |||
| Company-operated restaurants at end of period | 1,553 | 1,588 | ||||
|
Franchised Restaurants |
For the Years Ended December 31, | |||||
| 2016 | 2015 | |||||
| Franchised restaurants at beginning of period | 553 | 544 | ||||
| Restaurant openings | 16 | 18 | ||||
| Restaurant closings | (7 | ) | (4 | ) | ||
| Net conversions of franchised restaurants to Company-operated restaurants | 41 | (5 | ) | |||
| Franchised restaurants at end of period | 603 | 553 | ||||
Revenues
|
For the Years Ended December 31, |
% Decrease | ||||||||||
| 2016 | 2015 | ||||||||||
| (in thousands of U.S. dollars) | |||||||||||
| Sales by company-operated restaurants | |||||||||||
| Brazil | $ | 1,254,684 | $ | 1,289,543 | (2.7 | )% | |||||
| Caribbean division | 396,807 | 386,512 | 2.7 | ||||||||
| NOLAD | 349,190 | 351,122 | (0.6 | ) | |||||||
| SLAD | 802,653 | 903,202 | (11.1 | ) | |||||||
| Total | 2,803,334 | 2,930,379 | (4.3 | ) | |||||||
| Revenues from franchised restaurants | |||||||||||
| Brazil | 78,553 | 72,446 | 8.4 | % | |||||||
| Caribbean division | 12,864 | 11,632 | 10.6 | ||||||||
| NOLAD | 14,775 | 16,242 | (9.0 | ) | |||||||
| SLAD | 19,104 | 22,041 | (13.3 | ) | |||||||
| Total | 125,296 | 122,361 | 2.4 | ||||||||
| Total revenues | |||||||||||
| Brazil | 1,333,237 | 1,361,989 | (2.1 | )% | |||||||
| Caribbean division | 409,671 | 398,144 | 2.9 | ||||||||
| NOLAD | 363,965 | 367,364 | (0.9 | ) | |||||||
| SLAD | 821,757 | 925,243 | (11.2 | ) | |||||||
| Total | 2,928,630 | 3,052,740 | (4.1 | ) | |||||||
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Sales by Company-operated Restaurants
Total sales by Company-operated restaurants decreased by $127.0 million, or 4.3%, from $2,930.4 million in 2015 to $2,803.3 million in 2016, mainly as a result of the depreciation of most currencies in the Territories against the U.S. dollar ($523.3 million). Additionally, the net conversion of 36 Company-operated restaurants into franchised restaurants, partially offset by 12 net restaurant openings since January 1, 2015, caused sales to decrease by $0.9 million. This was partially offset by 13.9% growth in comparable sales, mainly due to a higher average check, which caused sales to increase by $397.2 million. However, this increase in comparable sales was negatively affected by a worsening macroeconomic environment in our main countries.
In Brazil, sales by Company-operated restaurants decreased by $34.9 million, or 2.7%, to $1,254.7 million. This was a consequence of the depreciation of the real against the U.S. dollar, which caused sales to decrease by $66.2 million, and the conversion of 42 Company-operated restaurants into franchised restaurants, partially offset by 12 net restaurant openings, since January 1, 2015, which caused sales to decrease by $13.0 million. This was partially offset by comparable sales growth of 3.6%, which contributed $44.4 million to sales increase.
In the Caribbean division, sales by Company-operated restaurants increased by $10.3 million, or 2.7%, to $396.8 million. This was a consequence of 29.6% growth in comparable sales, mainly resulting from a higher average check related to Venezuela´s inflation, which caused sales to increase by $114.0 million. Additionally, the opening of 2 restaurants, partially offset by the closing of 6 restaurants since January 1, 2015, contributed $0.2 million to sales increase. This increase was partially offset by the depreciation of most currencies in the region against the U.S. dollar, which caused sales to decrease by $103.9 million.
In NOLAD, sales by Company-operated restaurants decreased by $1.9 million, or 0.6%, to $349.2 million. This was a consequence of the depreciation of local currencies, which caused sales to decrease by $28.4 million. This was partially offset by comparable sales growth by 4.7%, driven by average check growth, which contributed $16.7 million to the increase in sales, and 5 net restaurant openings, which coupled with the conversion of 8 franchised restaurants into Company-operated restaurants since January 1, 2015 contributed $9.8 million to sales increase.
In SLAD, sales by Company-operated restaurants decreased by $100.5 million, or 11.1%, to $802.7 million. This was a consequence of the depreciation of the Argentine peso against the U.S. dollar, which caused sales to decrease by $310.1 million, which coupled with the depreciation of other currencies in the division accounted for $14.6 million of sales decrease. This was partially offset by a 24.8% growth in comparable sales, resulting mainly from a higher average check due to price increases, which caused sales to increase by $222.2 million, coupled with the opening of 3 restaurants, partially offset by the conversion of two Company-operated restaurants into franchised restaurants and the closing of 4 restaurants since January 1, 2015, contributing $2.1 million to the increase in sales.
Revenues from Franchised Restaurants
Our total revenues from franchised restaurants increased by $2.9 million, or 2.4%, from $122.4 million in 2015 to $125.3 million in 2016. The main contributor to this increase was comparable sales growth of 15.8%, which resulted in an increase in revenues of $21.3 million, coupled with the net conversion of 36 Company-operated restaurants into franchised restaurants and the net opening of 23 franchised restaurants since January 1, 2015, which caused revenues from franchised restaurants to increase by $5.7 million. Additionally, higher rental income as a percentage of sales which increased from 12.6% in 2015 to 12.7% in 2016, contributed $1.5 million to the increase in revenues. This was partially offset by the depreciation of most currencies in the Territories against the U.S. dollar by $25.6 million. In 2016, 82.8% and 17.2% of revenues from franchised restaurants were earned on the basis of a percentage of sales and on a flat fee basis, respectively. In 2015, 82.7% and 17.3% of revenues from franchised restaurants were earned on the basis of a percentage of sales and on a flat fee basis, respectively.
In Brazil, revenues from franchised restaurants increased by $6.1 million, or 8.4%, to $78.6 million primarily as a result of the conversion of 42 Company-operated restaurants into franchised restaurants and the net opening of 24 franchised restaurants, since January 1, 2015, which caused revenues from franchised restaurants to increase by $5.7 million, and comparable sales growth of 3.7%, which contributed with $2.9 million of the increase. In addition, increased rental income, resulted in increased revenues from franchised restaurants of $1.2 million. This was partially offset by the depreciation of the real against the U.S. dollar, which a negative impacted revenues in the region by $3.6 million.
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In the Caribbean division, revenues from franchised restaurants increased by $1.2 million, or 10.6%, to $12.9 million. This increase was driven by comparable sales growth of 97.9%, resulting in $11.1 million increase in revenues, and an increase in rental income which contributed in $1.0 million. This was partially offset by the depreciation of the Venezuelan bolivar against the U.S. dollar and the net closing of 2 restaurants since January 1, 2015, negatively affecting revenues by $10.8 million and $0.1 million, respectively.
In NOLAD, revenues from franchised restaurants decreased by $1.5 million, or 9.0%, to $14.8 million. This decrease was a result of the depreciation of the Mexican peso against the U.S. dollar, contributing $1.6 million, coupled with the conversion of 8 franchised restaurants into Company-operated restaurants and the net closing of 1 restaurant since January 1, 2015, which caused revenues from franchised restaurants to decrease by $0.3 million. These effects were partially offset by a 2.7% increase in comparable sales, which resulted in a $0.4 million increase in revenue.
In SLAD, revenues from franchised restaurants decreased by $2.9 million, or 13.3%, to $19.1 million. This decrease resulted mainly from the depreciation of the local currencies in Argentina and Chile against the U.S. dollar and lower rental income, which represented a decrease in revenues of $9.6 million and $0.7 million, respectively. This was partially offset by comparable sales growth of 30.5%, which accounted for a $6.9 million increase in revenues, coupled with the net opening of 2 restaurants and the conversion of 2 Company-operated restaurants into franchised restaurants since January 1, 2015, which caused revenues to increase by $0.5 million.
Operating Costs and Expenses
Food and Paper
Our total food and paper costs decreased by $24.5 million, or 2.4%, to $1,013.0 million in 2016, as compared to 2015. As a percentage of our total sales by Company-operated restaurants, food and paper costs increased by 0.7 percentage points to 36.1%, primarily due to the higher exchange rate at which the Company hedged its exposure to imported goods in Brazil, coupled with a negative change in product mix related to the Company’s focus on promotional activities in Brazil and Argentina.
In Brazil, food and paper costs increased by $0.2 million, to $433.6 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs increased by 1.0 percentage point to 34.6%, primarily as a result of the higher exchange rate at which the Company hedged its exposure to imported goods, coupled with an unfavorable change in product mix, derived from promotional activities carried out in an attempt to offset the unfavorable macroeconomic environment.
In the Caribbean division, food and paper costs increased by $0.6 million, or 0.4%, to $148.8 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs decreased by 0.8 percentage points to 37.5%, primarily due to lower cost increases as compared to price increases, and a positive change in the product mix in Colombia and Puerto Rico.
In NOLAD, food and paper costs decreased by $1.4 million, or 1.0%, to $134.0 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs decreased by 0.2 percentage points to 38.4%, resulting primarily from a decline in raw material costs in Costa Rica and Panama, partially offset by the negative impact of the depreciation of the Mexican peso on imported goods.
In SLAD, food and paper costs decreased by $24.0 million, or 7.5%, to $296.7 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs increased by 1.5 percentage points to 37.0%, mostly as a result of lower price increases as compared to cost increases, and a negative shift in the product mix, both related to the Company’s focus on promotional activities in order to sustain traffic in Argentina’s unfavorable consumer environment.
Payroll and Employee Benefits
Our total payroll and employee benefits costs decreased by $53.7 million, or 8.1%, to $607.1 million in 2016, as compared to 2015. As a percentage of our total sales by Company-operated restaurants, payroll and employee benefits costs decreased 0.9 percentage points to 21.7%. The decrease is mostly attributable to operational efficiencies in Brazil and SLAD, as well as higher sales increases as compared to salary increases in Venezuela and government incentives for employers in Puerto Rico.
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In Brazil, payroll and employee benefits costs decreased by $26.5 million, or 8.5%, to $286.6 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits costs decreased by 1.4 percentage points to 22.8% mainly as a result of operational efficiencies.
In the Caribbean division, payroll and employee benefits costs decreased by $1.7 million, or 1.9%, to $85.6 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits costs decreased by 1.0 percentage points to 21.6%, as a result of government incentives for employers in Puerto Rico, coupled with higher sales increases as compared to salary increases and lower restaurant managers staff, both in Venezuela.
In NOLAD, payroll and employee benefits costs decreased by $0.2 million, or 0.3%, to $56.7 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits costs remained unchanged at 16.2%.
In SLAD, payroll and employee benefits costs decreased by $25.3 million, or 12.4%, to $178.2 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits decreased by 0.3 percentage points to 22.2% as a result of a decline in Argentina’s relative weight in the SLAD division’s payroll and employee benefits structure, coupled with operational efficiencies and higher sales increases as compared to salary increases in Chile and Uruguay.
Occupancy and Other Operating Expenses
Our total occupancy and other operating expenses decreased by $41.2 million, or 5.2%, to $752.4 million in 2016, as compared to 2015. As a percentage of our total sales by Company-operated restaurants, occupancy and other operating expenses decreased 0.2 percentage points to 26.8%, mainly due to lower outside services in Brazil and utilities in NOLAD and Puerto Rico.
In Brazil, occupancy and other operating expenses decreased by $10.4 million, or 3.1%, to $330.3 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses decreased by 0.1 percentage points to 26.3%, mainly due to lower outside services related with operational efficiencies.
In the Caribbean division, occupancy and other operating expenses decreased by $4.4 million, or 3.5%, to $120.4 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses decreased 2.0 percentage points to 30.3% due to lower utility rates in Puerto Rico and the positive impact of higher sales growth as compared to inflation in Colombia, coupled with lower outside services and IT services and depreciation and amortization expenses in Venezuela.
In NOLAD, occupancy and other operating expenses decreased by $5.0 million, or 4.3%, to $111.2 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses decreased 1.2 percentage points to 31.9%, mainly due to lower utility expenses and lower depreciation and amortization expenses.
In SLAD, occupancy and other operating expenses increased by $22.1 million, or 9.7%, to $206.2 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses increased by 0.4 percentage points to 25.7% mainly due to higher utility costs related to an increase in rates and a reduction in government subsidies, coupled with higher outside services related to high inflation in Argentina.
Royalty Fees
Our total royalty fees decreased by $6.3 million, or 4.2%, to $142.8 million in 2016, as compared to 2015. As a percentage of sales, royalty fees remain unchanged at 5.1%.
In Brazil, royalty fees decreased by $2.0 million, or 2.8%, to $67.1 million in 2016, as compared to 2015, in line with the decrease in sales by Company-operated restaurants.
In the Caribbean division, royalty fees increased by $0.7 million, or 3.5%, to $19.6 million in 2016, as compared to 2015. As a percentage of sales by Company-operated restaurants, royalty fees remain unchanged at 4.9%.
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In NOLAD, royalty fees decreased by $0.1 million, or 0.4%, to $16.9 million in 2016, as compared to 2015, in line with the decrease in sales by Company-operated restaurants.
In SLAD, royalty fees decreased by $5.0 million, or 11.2%, to $39.1 million in 2016, as compared to 2015. As a percentage of sales by Company-operated restaurants, royalty fees remained unchanged at 4.9%.
Franchised Restaurants—Occupancy Expenses
Occupancy expenses from franchised restaurants increased by $0.9 million or 1.6%, to $55.1 million in 2016, as compared to 2015, mainly due to higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants, the conversion of Company-operated restaurants into franchised restaurants and store openings. This was partially offset by the depreciation of a number of local currencies in the Territories against the U.S. dollar.
In Brazil, occupancy expenses from franchised restaurants increased by $3.3 million, or 10.0%, to $36.8 million in 2016, as compared to 2015, primarily due to higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants, the conversion of Company-operated restaurants into franchised restaurants and store openings. This was partially offset by the depreciation of the Brazilian real against de U.S. dollar.
In the Caribbean division, occupancy expenses from franchised restaurants decreased by $0.3 million, or 4.1% to $7.9 million. This was mainly due to the depreciation of the Venezuelan bolívar against the U.S. dollar, coupled with lower depreciation and amortization expenses in Venezuela. This was partially offset by higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants.
In NOLAD, occupancy expenses from franchised restaurants decreased by $1.4 million, or 15.4%, to $7.8 million in 2016, as compared to 2015, mainly due to the depreciation of the Mexican peso against the U.S. dollar, coupled with lower rent expenses for leased properties, as a consequence of the conversion of franchised restaurants into Company-operated restaurants and net closings.
In SLAD, occupancy expenses from franchised restaurants decreased by $0.7 million, or 13.3%, to $4.5 million in 2016, as compared to 2015, mainly due to the depreciation of local currencies against the U.S. dollar in Argentina and Chile and the reversal of allowances for doubtful accounts in Argentina in 2016. This was partially offset by higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants, the conversion of Company-operated restaurants into franchised restaurants and store openings.
Set forth below are the margins for our franchised restaurants in 2016, as compared to 2015. The margin for our franchised restaurants is expressed as a percentage and is equal to the difference between revenues from franchised restaurants and occupancy expenses from franchised restaurants, divided by revenues from franchised restaurants.
For the Years Ended December 31, | ||||||||
| 2016 | 2015 | |||||||
| Brazil | 53.2 | % | 53.8 | % | ||||
| Caribbean Division | 38.7 | 29.2 | ||||||
| NOLAD | 47.5 | 43.6 | ||||||
| SLAD | 76.4 | 76.5 | ||||||
| Total | 56.0 | 55.7 | ||||||
General and Administrative Expenses
General and administrative expenses decreased by $49.6 million, or 18.3%, to $221.1 million in 2016, as compared to 2015. This decrease was mostly due to the depreciation of most currencies in the Territories against the U.S. dollar, amounting to $40.9 million, and lower payroll expenses due to the reorganization and optimization plans carried out during the last quarter of 2015 amounting to $17.7 million, coupled with lower severance payment and lower outside services, amounting to $9.0 million and $8.3 million, respectively. Decreases of $2.6 million and $1.4
63
million in software amortization expenses and telecommunications expenses, respectively, also contributed. This was partially offset by salary increases, mainly linked to the inflation in Argentina and Venezuela, amounting to $20.5 million and higher variable compensation provisions amounting to $4.5 million, coupled with a decrease of management fees charged to McDonald’s Corporation for services rendered to other markets that do not involve Arcos Dorados and higher travel expenses, amounting to $3.7 million and $1.0 million, respectively.
In Brazil, general and administrative expenses decreased by $14.6 million, or 17.8%, to $67.5 million in 2016, as compared to 2015. The decrease resulted from lower payroll costs due to the reorganization and optimization plans carried out during the last quarter of 2015 amounting to $8.0 million, the depreciation of the Brazilian real against the U.S. dollar amounting to $3.3 million and a decrease in outside services amounting to $2.8 million. Lower software amortization expenses amounting to $2.8 million, lower severance payments amounting to $2.4 million, and a decrease in telecommunications expense amounting to $1.0 million also contributed to the decrease. This was partially offset by higher payroll costs as a result of salary increases and the hiring of employees to fill new positions amounting to $5.8 million and higher variable compensation provisions amounting to $0.3 million.
In the Caribbean division, general and administrative expenses decreased by $3.3 million, or 9.3%, to $32.3 million in 2016, as compared to 2015. This decrease is a result of depreciation of the Venezuelan bolívar and other currencies in the division against the U.S. dollar amounting to $4.1 million, lower severance payments amounting to $1.9 million, and lower payroll costs due to the reorganization and optimization plans carried out in the last quarter of 2015 amounting to $0.8 million. This was partially offset by salary increases mainly due to Venezuela’s inflation amounting to $2.7 million, a decrease in management fees charged to McDonald’s Corporation for services rendered to other markets that do not involve Arcos Dorados amounting to $0.7 million and higher variable compensation provisions amounting to $0.5 million.
In NOLAD, general and administrative expenses decreased by $6.7 million, or 23.5%, to $21.7 million in 2016, as compared to 2015. The decrease is a result of the depreciation of the Mexican peso against the U.S. dollar amounting to $2.5 million, a decrease in payroll due to lower variable compensation provisions amounting to $2.3 million and savings related to the reorganization and optimization plans carried out in the last quarter of 2015 amounting to $2.0 million. A decrease in outside services amounting to $1.2 million, lower severance payments amounting to $1.1 million and lower travel expenses amounting to $0.3 million, coupled with lower telecommunications expenses amounting to $0.2 million also contributed to the decrease. This was partially offset by a decrease in management fees charged to McDonald’s Corporation for services rendered to other markets that do not involve Arcos Dorados, amounting to $2.6 million, and salary increases amounting to $0.5 million.
In SLAD, general and administrative expenses decreased by $9.7 million, or 23.8%, to $31.0 million in 2016, as compared to 2015. This decrease is a result of the depreciation of the Argentine peso and other currencies in the division against the U.S. dollar amounting to $10.4 million and lower severance payments amounting to $3.7 million, coupled with lower payroll costs due to reorganization and optimization plans carried out during the last quarter of 2015 amounting to $2.7 million. This decrease was partially offset by salary increases and higher outside services, both linked to Argentina’s inflation, amounting to $4.5 million and $1.7 million, respectively. In addition, there was a decrease in management fees charged to McDonald’s Corporation for services rendered to other markets that do not involve Arcos Dorados amounting to $0.4 million and an increase in travel expenses amounting to $0.3 million.
General and administrative expenses for Corporate and others decreased by $15.4 million, or 18.3%, to $68.6 million in 2016, as compared to 2015. This decrease was mostly due to the depreciation of the Argentine peso against the U.S. dollar amounting to $20.6 million and lower outside services amounting to $6.0 million, coupled with lower payroll expenses due to reorganization and optimization plans carried out during the last quarter of 2015 amounting to $4.2 million. This was partially offset by salary increases linked to Argentina’s inflation, as a portion of our corporate expenses are located in Argentina, amounting to $7.0 million, coupled with higher variable compensation provisions, amounting to $6.1 million. In addition, increases in building and equipment depreciation and increases in travel expenses amounting to $1.5 million and $1.1 million, respectively, also contributed.
Other Operating Income, net
Other operating income, net increased by $34.8 million, to $41.4 million in 2016, as compared to $6.6 million in 2015. This increase was primarily attributable to $56.4 million related to our asset monetization plan, offset by net tax recoveries in Brazil of $3.8 million in 2016 and $32.6 million in 2015.
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Operating Income
|
For the Years Ended December 31, |
% Increase (Decrease) | ||||||||||
| 2016 | 2015 | ||||||||||
| (in thousands of U.S. dollars) | |||||||||||
| Brazil | $ | 122,636 | $ | 116,820 | 5.0 | % | |||||
| Caribbean division | (12,392 | ) | (40,102 | ) | (69.1 | ) | |||||
| NOLAD | 45,145 | 8,710 | 418.3 | ||||||||
| SLAD | 66,359 | 78,022 | (14.9 | ) | |||||||
| Corporate and other and purchase price allocation | (43,168 | ) | (70,043 | ) | (38.4 | ) | |||||
| Total | 178,580 | 93,407 | 91.2 | ||||||||
Operating income increased by $85.2 million, or 91.2%, to $178.6 million in 2016, as compared to 2015.
Net Interest Expense
Net interest expense increased by $2.5 million, or 3.8%, to $66.9 million in 2016, as compared to 2015. The increase was primarily explained by higher interest rates on the 2016 Secured Loan Agreement, which offset the lower interest expenses related to the 2016 notes ($24.7 million and $14.3 million, respectively). In addition, there was $5.1 million of interest income related to short-term investments in Brazil.
Loss from Derivative Instruments
Loss from derivative instruments increased by $0.2 million to $3.1 million in 2016, as compared to $2.9 million in 2015, primarily attributable to higher losses related to the ineffective portion of derivative instruments.
Foreign Currency Exchange Results
Foreign currency exchange results increased by $86.4 million, from a loss of $54.0 million in 2015 to a gain of $32.4 million in 2016, mainly due to the appreciation of the Brazilian real combined with a lower exposure to that currency in comparison with 2015 ($90.0 million) and a lower impact of exchange losses in Venezuela related to the reassessment of the exchange rate used for remeasurement purposes ($7.9 million). Those results were partially offset by negative results related to derivative instruments, amounting to $20.6 million.
Other Non-operating Expenses, Net
Other non-operating expenses, net increased by $1.7 million to a $2.4 million loss in 2016, as compared to a $0.6 million loss in 2015, primarily related to asset tax results amounting to $2.3 million.
Income Tax Expense
Income tax expense increased by $36.8 million, from $22.8 million in 2015 to $59.6 million in 2016, mainly explained by an improvement in Brazil’s taxable results as compared to 2015, and certain withholding tax expenses related to intercompany transactions. The resulting consolidated effective tax rate was 43.0% in 2016, as compared to (79.9)% in 2015.
Net Income Attributable to Non-controlling Interests
Net income attributable to non-controlling interests for 2016 decreased by $0.1 million to $0.2 million.
Net Income Attributable to Arcos Dorados Holdings Inc.
As a result of the foregoing, net income attributable to Arcos Dorados Holdings Inc. increased by $130.4 million, or 252.6%, to a gain of $78.8 million in 2016, from a loss of $51.6 million in 2015.
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Year Ended December 31, 2015 Compared to Year Ended December 31, 2014
Set forth below are our results of operations for the years ended December 31, 2015 and 2014.
|
For the Years Ended December 31, |
% Increase (Decrease) | ||||||||||
| 2015(1) | 2014(1) | ||||||||||
| (in thousands of U.S. dollars) | |||||||||||
| Sales by Company-operated restaurants | $ | 2,930,379 | $ | 3,504,302 | (16.4 | )% | |||||
| Revenues from franchised restaurants | 122,361 | 146,763 | (16.6 | ) | |||||||
| Total revenues | 3,052,740 | 3,651,065 | (16.4 | ) | |||||||
| Company-operated restaurant expenses: | |||||||||||
| Food and paper | (1,037,487 | ) | (1,243,907 | ) | (16.6 | ) | |||||
| Payroll and employee benefits | (660,773 | ) | (791,677 | ) | (16.5 | ) | |||||
| Occupancy and other operating expenses | (793,622 | ) | (939,481 | ) | (15.5 | ) | |||||
| Royalty fees | (149,089 | ) | (173,663 | ) | (14.2 | ) | |||||
| Franchised restaurants – occupancy expenses | (54,242 | ) | (63,939 | ) | (15.2 | ) | |||||
| General and administrative expenses | (270,680 | ) | (272,065 | ) | (0.5 | ) | |||||
| Other operating income (expenses), net | 6,560 | (95,476 | ) | (106.9 | ) | ||||||
| Total operating costs and expenses | (2,959,333 | ) | (3,580,208 | ) | (17.3 | ) | |||||
| Operating income | 93,407 | 70,857 | 31.8 | ||||||||
| Net interest expense | (64,407 | ) | (72,750 | ) | (11.5 | ) | |||||
| Loss from derivative instruments | (2,894 | ) | (685 | ) | 322.5 | ||||||
| Foreign currency exchange results | (54,032 | ) | (74,117 | ) | (27.1 | ) | |||||
| Other non-operating (expenses) income, net | (627 | ) | 146 | (529.5 | ) | ||||||
| Loss before income taxes | (28,553 | ) | (76,549 | ) | (62.7 | ) | |||||
| Income tax expense | (22,816 | ) | (32,479 | ) | (29.8 | ) | |||||
| Net loss | (51,369 | ) | (109,028 | ) | (52.9 | ) | |||||
| Less: Net income attributable to non-controlling interests | (264 | ) | (305 | ) | (13.4 | ) | |||||
| Net loss attributable to Arcos Dorados Holdings Inc | (51,633 | ) | (109,333 | ) | (52.8 | ) | |||||
____________________
| (1) | Due to certain changes in accounting for expenses in 2016, certain reclassifications have been made from “Occupancy and other operating expenses” to “Payroll and employee benefits” in the Income Statement Data for the fiscal years ended December 31, 2015 and 2014. See Note 2 to our consolidated financial statements for additional information. |
Set forth below is a summary of changes to our systemwide, Company-operated and franchised restaurant portfolios in 2015 and 2014.
Systemwide Restaurants | For the Years Ended December 31, | |||||||
| 2015 | 2014 | |||||||
| Systemwide restaurants at beginning of period | 2,121 | 2,062 | ||||||
| Restaurant openings | 36 | 82 | ||||||
| Restaurant closings | (16 | ) | (23 | ) | ||||
| Systemwide restaurants at end of period | 2,141 | 2,121 | ||||||
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Company-Operated Restaurants | For the Years Ended December 31, | |||||||
| 2015 | 2014 | |||||||
| Company-operated restaurants at beginning of period | 1,577 | 1,538 | ||||||
| Restaurant openings | 18 | 56 | ||||||
| Restaurant closings | (12 | ) | (19 | ) | ||||
| Net conversions of franchised restaurants to Company-operated restaurants | 5 | 2 | ||||||
| Company-operated restaurants at end of period | 1,588 | 1,577 | ||||||
Franchised Restaurants | For the Years Ended December 31, | |||||||
| 2015 | 2014 | |||||||
| Franchised restaurants at beginning of period | 544 | 524 | ||||||
| Restaurant openings | 18 | 26 | ||||||
| Restaurant closings | (4 | ) | (4 | ) | ||||
| Net conversions of franchised restaurants to Company-operated restaurants | (5 | ) | (2 | ) | ||||
| Franchised restaurants at end of period | 553 | 544 | ||||||
Revenues
|
For the Years Ended December 31, |
% Increase (Decrease) | ||||||||||
| 2015 | 2014 | ||||||||||
| (in thousands of U.S. dollars) | |||||||||||
| Sales by company-operated restaurants | |||||||||||
| Brazil | $ | 1,289,543 | $ | 1,724,889 | (25.2 | )% | |||||
| Caribbean division | 386,512 | 574,540 | (32.7 | ) | |||||||
| NOLAD | 351,122 | 367,075 | (4.3 | ) | |||||||
| SLAD | 903,202 | 837,798 | 7.8 | ||||||||
| Total | 2,930,379 | 3,504,302 | (16.4 | ) | |||||||
| Revenues from franchised restaurants | |||||||||||
| Brazil | 72,446 | 91,157 | (20.5 | ) | |||||||
| Caribbean division | 11,632 | 19,680 | (40.9 | ) | |||||||
| NOLAD | 16,242 | 18,039 | (10.0 | ) | |||||||
| SLAD | 22,041 | 17,887 | 23.2 | ||||||||
| Total | 122,361 | 146,763 | (16.6 | ) | |||||||
| Total revenues | |||||||||||
| Brazil | 1,361,989 | 1,816,046 | (25.0 | ) | |||||||
| Caribbean division | 398,144 | 594,220 | (33.0 | ) | |||||||
| NOLAD | 367,364 | 385,114 | (4.6 | ) | |||||||
| SLAD | 925,243 | 855,685 | 8.1 | ||||||||
| Total | 3,052,740 | 3,651,065 | (16.4 | ) | |||||||
Sales by Company-operated Restaurants
Total sales by Company-operated restaurants decreased by $573.9 million, or 16.4%, from $3,504.3 million in 2014 to $2,930.4 million in 2015, mainly as a result of the depreciation of most currencies in the Territories against the U.S. dollar ($955.0 million). This was partially offset by 8.8% growth in comparable sales, due to a higher average check, which caused sales to increase by $305.0 million, coupled with a $76.1 million increase as a result of 44 net restaurant openings and the conversion of seven franchised restaurants into Company-operated restaurants since January 1, 2014. Sales were negatively affected by a worsening macroeconomic environment in our main countries.
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In Brazil, sales by Company-operated restaurants decreased by $435.3 million, or 25.2%, to $1,289.5 million. This was a consequence of the depreciation of the real against the U.S. dollar, which caused sales to decrease by $517.3 million. This was partially offset by 36 net restaurant openings since January 1, 2014 which contributed $56.6 million to sales, even considering the conversion of four Company-operated restaurants into franchised restaurants since January 1, 2014. Comparable sales were affected by a worsening macroeconomic environment, nevertheless, growth of 1.5% contributed $25.4 million to sales increase.
In the Caribbean division, sales by Company-operated restaurants decreased by $188.0 million, or 32.7%, to $386.5 million. The main driver of this decrease was the adoption of SIMADI as the reporting exchange rate in Venezuela, which caused sales to decrease by $230.5 million. Depreciation of other currencies in the division, accounted for $52.1 million in sales decrease. This was partially offset by 16.1% growth in comparable sales, which contributed $92.2 million to increase in sales. Average check growth was the driver of comparable sales growth and resulted from price increases. In addition, the conversion of three franchised restaurants into Company-operated restaurants, partially offset by the net closing of six restaurants since January 1, 2014 contributed $2.3 million to sales increase.
In NOLAD, sales by Company-operated restaurants decreased by $16.0 million, or 4.3%, to $351.1 million. This was a consequence of the depreciation of local currencies, which caused sales to decrease by $31.3 million. This was partially offset by nine net restaurant openings and the conversion of 11 franchised restaurants into Company-operated restaurants since January 1, 2014, which resulted in a sales increase of $10.7 million. Average check growth was the driver of comparable sales growth by 1.5%, which contributed $4.6 million to the increase in sales.
In SLAD, sales by Company-operated restaurants increased by $65.4 million, or 7.8%, to $903.2 million. This was a consequence of a 22.0% growth in comparable sales, resulting from a higher average check due to price increases, which caused sales to increase by $182.8 million, coupled with the net opening of four restaurants, partially offset by the conversion of three Company-operated restaurants into franchised restaurants, since January 1, 2014, contributing $6.5 million to the increase in sales. The depreciation of most currencies in the region against the U.S. dollar caused sales to decrease by $123.8 million.
Revenues from Franchised Restaurants
Our total revenues from franchised restaurants decreased by $24.4 million, or 16.6%, from $146.8 million in 2014 to $122.4 million in 2015. The main contributor to this decrease was the depreciation of most currencies in the Territories against the U.S. dollar by $59.8 million. This was partially offset by comparable sales growth of 12.8%, which resulted in an increase in revenues of $18.0 million, higher rental income as a percentage of sales which increased from 11.9% in 2014 to 12.6% in 2015, amounting to $10.3 million, and the net opening of 36 franchised restaurants (partially offset by the conversion of 7 franchised restaurants into Company-operated restaurants) since January 1, 2014, which caused revenues from franchised restaurants to increase by $7.0 million. In 2015, 82.7% and 17.3% of revenues from franchised restaurants were earned on the basis of a percentage of sales and on a flat-fee basis, respectively. In 2014, 84.5% and 15.5% of revenues from franchised restaurants were earned on the basis of a percentage of sales and on a flat fee basis, respectively.
In Brazil, revenues from franchised restaurants decreased by $18.7 million, or 20.5%, to $72.4 million primarily as a result of the depreciation of the real against the U.S. dollar by $29.0 million, partially offset by the net opening of 35 franchised restaurants and the conversion of four Company-operated restaurants into franchised restaurants, since January 1, 2014, coupled with comparable sales growth of 2.7%, which explained $6.0 million and $2.5 million of the increase, respectively. In addition, increased rental income, resulted in increased revenues from franchised restaurants of $1.9 million.
In the Caribbean division, revenues from franchised restaurants decreased by $8.0 million, or 40.9%, to $11.6 million. This decrease was driven by the adoption of SIMADI as the reporting exchange rate in Venezuela and the net closing of three restaurants as well as the conversion of three franchised restaurants into Company-operated restaurants since January 1, 2014, negatively impacting revenues by $25.6 million and $0.6 million, respectively. This was partially offset by comparable sales growth of 51.2%, resulting in an $9.8 million increase in revenues. Rental income was negatively affected in 2014 by Venezuelan governmental regulations on rental contracts, which imposed a limit on the rent that we can charge to lessees since December 2013. Such restrictions were relaxed in 2015, positively impacting revenues by $8.4 million.
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In NOLAD, revenues from franchised restaurants decreased by $1.8 million, or 10.0%, to $16.2 million. This decrease was a result of the depreciation of the Mexican peso against the U.S. dollar, contributing $2.0 million. In addition, the conversion of 11 franchised restaurants into Company-operated restaurants since January 1, 2014, partially offset by the net opening of two restaurants, caused revenues from franchised restaurants to decrease by $0.1 million. These effects were offset in part by higher rental income and a 0.5% increase in comparable sales, which resulted in a $0.3 million and $0.1 million increase in revenues, respectively.
In SLAD, revenues from franchised restaurants increased by $4.2 million, or 23.2%, to $22.0 million. This growth resulted mainly from comparable sales growth of 31.1%, which accounted for $5.7 million. In addition, coupled with the net openings of two restaurants, and the conversion of 3 Company-operated restaurants into franchised restaurants since January 1, 2014, caused revenues to increase by $1.8 million. This was partially offset by the depreciation of the local currencies in Argentina and Chile against the U.S. dollar and lower rental income, representing a decrease in revenues of $3.1 million and $0.2, respectively.
Operating Costs and Expenses
Food and Paper
Our total food and paper costs decreased by $206.4 million, or 16.6%, to $1,037.5 million in 2015, as compared to 2014. As a percentage of our total sales by Company-operated restaurants, food and paper costs decreased by 0.1 percentage points to 35.4%, primarily due to a higher level of inventories and higher currency depreciation in Venezuela in 2014 that, considering inventories are measured at their historical cost in U.S. dollars, generated a higher food and paper expense as a percentage of sales in 2014. In addition, higher price increases than cost increases in SLAD contributed to a decrease in food and paper costs as percentage of sales. This was partially offset by the impact of the depreciation of currencies over imported input costs, coupled with an unfavorable change in product mix in Brazil.
In Brazil, food and paper costs decreased by $130.5 million, to $433.4 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs increased by 0.9 percentage points to 33.6%, primarily as a result of an unfavorable change in product mix, derived from promotional activities carried out in an attempt to offset the unfavorable macroeconomic environment.
In the Caribbean division, food and paper costs decreased by $85.2 million, or 36.5%, to $148.2 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs decreased by 2.3 percentage points to 38.3%, primarily due to a higher level of inventories and higher currency depreciation in Venezuela in 2014 that, considering inventories are measured at their historical cost in U.S. dollars, generated a higher food and paper expense as a percentage of sales in 2014, partially offset by higher costs resulting from the depreciation of the Colombian Peso.
In NOLAD, food and paper costs decreased by $4.1 million, or 3.0%, to $135.3 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs increased by 0.5 percentage points to 38.5%, resulting primarily from higher input costs resulting from the devaluation of the Mexican peso.
In SLAD, food and paper costs increased by $13.4 million, or 4.4%, to $320.6 million. As a percentage of the division’s sales by Company-operated restaurants, food and paper costs decreased by 1.2 percentage points to 35.5%, mostly as a result of higher price increases than costs increases in Argentina.
Payroll and Employee Benefits
Our total payroll and employee benefits costs decreased by $130.9 million, or 16.5%, to $660.8 million in 2015, as compared to 2014. As a percentage of our total sales by Company-operated restaurants, payroll and employee benefits costs remained unchanged at 22.5%. Operational efficiencies in NOLAD and SLAD and lower insurance expenses in the Caribbean, were offset by a tax credit related to salaries in Brazil in 2014 and severances related with a reorganization plan in Brazil.
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In Brazil, payroll and employee benefits costs decreased by $94.1 million, or 23.1%, to $313.1 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits costs increased by 0.7 percentage points to 24.3% as a result of a tax over salaries credit in 2014, severances related with headcount optimization in 2015 and higher contingencies related to the increased efficiency of Brazilian courts in managing certain labor claims.
In the Caribbean division, payroll and employee benefits costs decreased by $43.3 million, or 33.2%, to $87.3 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits costs decreased by 0.2 percentage points to 22.6%, mainly due to lower insurance expenses, partially offset by a change in Venezuela’s relative weight in the Caribbean division´s payroll and employee benefits structure, related to the adoption of SIMADI as the reporting exchange rate, as Venezuela’s payroll and employee benefit costs as percentage of sales is lower than the rest of the countries in the Caribbean division.
In NOLAD, payroll and employee benefits costs decreased by $7.1 million, or 11.1%, to $56.9 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits costs decreased 1.2 percentage points to 16.2%, resulting from an increase in operational efficiency.
In SLAD, payroll and employee benefits costs increased by $13.6 million, or 7.2%, to $203.5 million. As a percentage of the division’s sales by Company-operated restaurants, payroll and employee benefits decreased by 0.1 percentage points to 22.5% as a result of a reduced number of restaurant managers as compared to the prior year.
Occupancy and Other Operating Expenses
Our total occupancy and other operating expenses decreased by $145.9 million, or 15.5%, to $793.6 million in 2015, as compared to 2014. As a percentage of our total sales by Company-operated restaurants, occupancy and other operating expenses increased 0.3 percentage points to 27.1%, mainly due to the adoption of SIMADI as reporting exchange rate in Venezuela, since certain costs are measured in U.S. dollars at historical exchange rates while sales are translated at the applicable SIMADI exchange rate; coupled with higher rents paid to third parties, mainly in Brazil.
In Brazil, occupancy and other operating expenses decreased by $108.3 million, or 24.1%, to $340.8 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses increased by 0.4 percentage points to 26.4%, mainly as a result of higher rent expenses, due to a higher number of contracts paid based on the minimum value.
In the Caribbean division, occupancy and other operating expenses decreased by $48.2 million, or 27.9%, to $124.8 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses increased 2.2 percentage points to 32.3% due to the adoption of SIMADI as the reporting exchange rate in Venezuela, since sales are translated at the applicable SIMADI exchange rate, while depreciation and amortization and certain operational inventories are valued at historical U.S. dollar cost. This was partially offset by lower cost of outside services in Colombia and lower cost of utilities in Puerto Rico.
In NOLAD, occupancy and other operating expenses decreased by $11.0 million, or 8.7%, to $116.2 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses decreased 1.6 percentage points to 33.1%, mainly due to savings in electricity consumption and other cost efficiencies related to utilities.
In SLAD, occupancy and other operating expenses increased by $16.0 million, or 7.5%, to $228.3 million. As a percentage of the division’s sales by Company-operated restaurants, occupancy and other operating expenses decreased 0.1 percentage points to 25.3%, mainly due to lower depreciation and amortization expenses as percentage of sales by Company-operated restaurants.
Royalty Fees
Our total royalty fees decreased by $24.6 million, or 14.2%, to $149.1 million in 2015, as compared to 2014. As a percentage of sales, royalty fees increased by 0.1 percentage points to 5.1% due to a relief granted by McDonald’s corporation in 2014 in Venezuela due to the economic environment prevailing in that country.
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In Brazil, royalty fees decreased by $23.6 million, or 25.5%, to $69.1 million in 2015, as compared to 2014, in line with the increase in sales by Company-operated restaurants.
In the Caribbean division, royalty fees decreased by $3.2 million, or 14.6%, to $19.0 million in 2015, as compared to 2014. As a percentage of sales by Company-operated restaurants, royalty fees increased by 1.0 percentage point to 4.9% due to a relief granted by McDonald’s Corporation in Venezuela during 2014 due to the economic environment prevailing in that country.
In NOLAD, royalty fees decreased by $0.8 million, or 4.7%, to $17.0 million in 2015, as compared to 2014, in line with the increase in sales by Company-operated restaurants.
In SLAD, royalty fees increased by $3.1 million, or 7.7%, to $44.1 million in 2015, as compared to 2014. As a percentage of sales by Company-operated restaurants, royalty fees remained unchanged at 4.9%.
Franchised Restaurants—Occupancy Expenses
Occupancy expenses from franchised restaurants decreased by $9.7 million or 15.2%, to $54.2 million in 2015, as compared to 2014, mainly due to the depreciation of the Brazilian real, Mexican peso and the adoption of SIMADI as the reporting exchange rate in Venezuela. This was partially offset by higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants and store openings, coupled with higher depreciation and amortization expenses for owned properties.
In Brazil, occupancy expenses from franchised restaurants increased by $7.3 million, or 18.0%, to $33.4 million in 2015, as compared to 2014, primarily due to the depreciation of the Brazilian real. This was partially offset by higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants and store openings, coupled with higher depreciation and amortization expenses for owned properties.
In the Caribbean division, occupancy expenses from franchised restaurants decreased by $2.2 million, or 21.2% to $8.2 million. This was mainly due to the adoption of SIMADI as the reporting exchange rate in Venezuela, partially offset by higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants.
In NOLAD, occupancy expenses from franchised restaurants decreased by $1.9 million, or 16.9%, to $9.2 million in 2015, as compared to 2014, mainly due to the depreciation of the Mexican peso against the U.S. dollar, coupled with a reversal of allowances for doubtful accounts in Mexico in 2015.
In SLAD, occupancy expenses from franchised restaurants decreased by $1.1 million, or 27.7%, to $5.2 million in 2015, as compared to 2014, mainly due to higher rent expenses for leased properties, as a consequence of the increase in sales from franchised restaurants and store openings. This was partially offset the depreciation of local currencies against the U.S. dollar in Argentina and Chile.
Set forth below are the margins for our franchised restaurants in 2015, as compared to 2014. The margin for our franchised restaurants is expressed as a percentage and is equal to the difference between revenues from franchised restaurants and occupancy expenses from franchised restaurants, divided by revenues from franchised restaurants.
| For the Years Ended December 31, | ||||||||
| 2015 | 2014 | |||||||
| Brazil | 53.8 | % | 55.3 | % | ||||
| Caribbean Division | 29.2 | 46.9 | ||||||
| NOLAD | 43.6 | 38.9 | ||||||
| SLAD | 76.5 | 77.3 | ||||||
| Total | 55.7 | % | 56.4 | % | ||||
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General and Administrative Expenses
General and administrative expenses decreased by $1.4 million, or 0.5%, to $270.7 million in 2015, as compared to 2014. This decrease was mostly due to the depreciation of most currencies in the Territories against the U.S. dollar, amounting to $69.4 million, and a decrease in payroll due to the reorganization and optimization plans carried out during the second quarter of 2014 and the last quarter of 2015, amounting to $8.2 million. This was partially offset by salary increases amounting to $28.0 million, mainly linked to the inflation in Argentina and Venezuela, increases in outside services amounting to $20.0 million, higher bonuses and other variable compensation provisions amounting to $14.7 million, and increases in severance payments as a consequence of the staff reorganization amounting to $13.3 million.
In Brazil, general and administrative expenses decreased by $10.5 million, or 11.4%, to $82.0 million in 2015, as compared to 2014. The decrease resulted primarily from the depreciation of the real against the U.S. dollar amounting to $33.4 million, coupled with a decrease in payroll due to the reorganization and optimization plans carried out during second quarter of 2014 and last quarter of 2015 amounting to $1.3 million. This was partially offset by salary increases amounting to $8.4 million, increases in outside services amounting to $6.3 million, and bonuses and other variable compensation provisions amounting to $4.4 million, coupled with severance payment which amounted to $3.2 million. In addition, this decrease was partially offset by an increase in software amortization amounting to $2.3 million.
In the Caribbean division, general and administrative expenses decreased by $10.7 million, or 23.2%, to $35.6 million in 2015, as compared to 2014. This decrease was mainly due to the adoption of SIMADI as the reporting exchange rate in Venezuela and to the depreciation of other currencies in the Caribbean division, amounting to $16.8 million, coupled with a decrease in payroll cost due to the reorganization and optimization plans carried out in the second quarter of 2014 and the last quarter of 2015 amounting to $2.3 million. In addition, increases in occupancy expenses, amounting to $1.8 million. This was partially offset by salary increases mainly due to Venezuela’s inflation amounting to $3.7 million and higher bonuses and other variable compensation provisions amounting to $2.7 million, coupled with an increase in outside services amounting to $2.2 million and severance payments amounting to $1.2 million.
In NOLAD, general and administrative expenses decreased by $1.2 million, or 4.1%, to $28.3 million in 2015, as compared to 2014. The decrease was mostly due to the depreciation of the Mexican peso against the U.S. dollar amounting to $3.9 million, coupled with a decrease in payroll due to staff reorganizations carried out during the second quarter of 2014 and the last quarter of 2015 amounting to $ 0.9 million. This was partially offset by higher bonuses and other variable compensation provisions amounting to $1.8 million and an increase in outside services amounting to $1.1 million, coupled with salary increases and severance payments amounting to $0.6 million and $0.5 million, respectively.
In SLAD, general and administrative expenses increased by $4.9 million, or 13.8%, to $40.7 million in 2015, as compared to 2014. This increase is a result of salary increases linked to Argentina’s inflation amounting to $4.5 million, increases in severance payments amounting to $2.9 million and bonus and other variable compensation provisions amounting to $1.4 million, coupled with increases in occupancy expenses and outside services amounting to $2.6 million and increase in other payroll-related expenses amounting to $0.5 million. In addition, the increase was due to the increases in travel expenses and employee meals to $0.3 million and $0.1 million, respectively. This increase was partially offset mainly by the depreciation of the Argentine peso and other currencies in the division against the U.S. dollar amounting to $5.0 million, coupled with a decrease in payroll costs due to staff reorganizations carried out during the second quarter of 2014 and the last quarter of 2015 amounting to $2.6 million.
General and administrative expenses for Corporate and others increased by $16.1 million, or 23.8%, to $84.0 million in 2015, as compared to 2014. This increase was mostly due to salary increases linked to Argentina’s inflation, as a portion of our corporate expenses are located in Argentina, amounting to $10.9 million and an increase in outside services amounting to $8.0 million, coupled with an increase in severance payments amounting to $5.6 million and bonuses and other variable compensation provisions amounting to $4.4 million. This was partially offset by the depreciation of the Argentine peso against the U.S. dollar, amounting to $10.3 million, coupled with a decrease in payroll due to staff reorganizations carried out during the second quarter of 2014 and the last quarter of 2015 amounting to $1.0 million. In addition, this increase was partially offset by a decrease in travel expenses and meeting expenses amounting to $0.3 million and $0.2 million, respectively.
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Other Operating Income (Expenses), Net
Other operating income (expenses), net increased by $102.0 million, to $6.6 million in 2015, as compared to an expense of $95.5 million in 2014. This increase was primarily attributable to lower impairment of long-lived assets and write-down of certain inventories in Venezuela ($37.4 million and $15.8 million, respectively), a net tax recovery in Brazil amounting to $32.6 million and higher gain from sale and insurance recovery of property and equipment ($8.9 million).
Operating Income
|
For the Years Ended December 31, |
% Increase (Decrease) | ||||||||||
| 2015 | 2014 | ||||||||||
| (in thousands of U.S. dollars) | |||||||||||
| Brazil | $ | 116,820 | $ | 155,799 | (25.0 | )% | |||||
| Caribbean division | (40,102 | ) | (91,859 | ) | (56.3 | ) | |||||
| NOLAD | 8,710 | (9,150 | ) | (195.2 | ) | ||||||
| SLAD | 78,022 | 62,768 | 24.3 | ||||||||
| Corporate and others and purchase price allocation | (70,043 | ) | (46,701 | ) | 50.0 | ||||||
| Total | 93,407 | 70,857 | 31.8 | ||||||||
Operating income increased by $22.6 million, or 31.8%, to $93.4 million in 2015, as compared to 2014.
Net Interest Expense
Net interest expense decreased by $8.3 million, or 11.5%, to $64.4 million in 2015, as compared to 2014. The decrease was primarily attributable to lower interest on the 2016 notes ($8.3 million), due to the depreciation of the Brazilian real.
Loss from Derivative Instruments
Loss from derivative instruments increased by $2.2 million to $2.9 million in 2015, as compared to $0.7 million in 2014, primarily due to the amendment of the cross-currency interest rate swap agreement ($2.6 million).
Foreign Currency Exchange Results
Foreign currency exchange results decreased by $20.1 million, to a $54.0 million loss in 2015, from $74.1 million in 2014, mainly due to lower foreign currency exchange loss in Venezuela related to the reassessment of the exchange rate used for remeasurement purposes for $50.6 million, partially offset by the net impact of the Brazilian real depreciation in intercompany balances and long-term debt ($25.8 million).
Other Non-operating Expenses, Net
Other non-operating expenses, net decreased by $0.8 million to a $0.6 million loss in 2015, as compared to a $0.1 million loss in 2014
Income Tax Expense
Income tax expense decreased by $9.7 million, from $32.5 million in 2014 to $22.8 million in 2015, mainly explained by an increase in deferred income tax benefit. The resulting consolidated effective tax rate was (79.9)% in 2015, as compared to (42.4)% in 2014. See Note 16 to our consolidated financial statements for a reconciliation of income tax expense for fiscal years 2015 and 2014.
Net Income Attributable to Non-controlling Interests
Net income attributable to non-controlling interests for 2015 remained unchanged from 2014.
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Net Loss Attributable to Arcos Dorados Holdings Inc.
As a result of the foregoing, net loss attributable to Arcos Dorados Holdings Inc. decreased by $57.7 million in 2015, or 52.8%, to a loss of $51.6 million, as compared to a loss of $109.3 million in 2014.
| B. | Liquidity and Capital Resources |
Our financial condition and liquidity are and will continue to be influenced by a variety of factors, including:
| · | our ability to generate cash flows from our operations; |
| · | the level of our outstanding indebtedness and the interest we pay on this indebtedness; |
| · | our dividend policy; |
| · | changes in exchange rates which will impact our generation of cash flows from operations when measured in U.S. dollars; and |
| · | our capital expenditure requirements. |
Under the MFAs, we are required to agree with McDonald’s on a restaurant opening plan and a reinvestment plan for each three-year period during the term of the MFAs. The restaurant opening plan specifies the number and type of new restaurants to be opened in the Territories during the applicable three-year period, while the reinvestment plan specifies the amount we must spend reimaging or upgrading restaurants during the applicable three-year period. Under the 2017-2019 restaurant opening and reinvestment plan, we are required to open 180 restaurants and to reinvest $292 million in existing restaurants. We expect to fund these commitments using cash flow from operations. However, we cannot assure you that we will generate enough cash flow from operations to fund these commitments, and their satisfaction may require us to incur future debt and/or equity financing.
Our management believes in our ability to obtain the sources of liquidity and capital resources that are necessary in this challenging economic environment and also believes that our liquidity and capital resources, including working capital, are adequate for our present requirements and business operations and will be adequate to satisfy our currently anticipated requirements during at least the next twelve months for working capital, capital expenditures and other corporate needs.
Overview
Net cash provided by operations was $164.2 million in 2016, compared to $112.7 million in 2015. Our investing activities provided $23.0 million in comparison with an expenditure of $60.1 in 2015. Cash used in financing activities increased by $70.7 million, from $42.3 million in 2015 to $113.0 million in 2016. This was mainly as a result of the purchase of the 2016 notes and payments in connection with the final maturity of the 2016 notes amounting $169.4 million, the purchase of 2023 notes in 2016 for $80.8 million and higher payments on derivative instruments amounting to $26.1 million. This was partially offset by the proceeds from the 2016 Secured Loan Agreement which was entered into on March 29, 2016 amounting to $167.3 million, lower short term borrowings amounting to $26.6 million and the impact of no dividend payments during 2016.
Net cash provided by operations was $112.7 million in 2015, compared to $193.1 million in 2014. Our investing activities program decreased by $108.8 million in 2015 to $60.1 million. Cash provided by financing activities decreased by $43.4 million, from an inflow of $1.2 million in 2014 to an outflow of $42.3 million in 2015. This was mainly as a result of the decrease in short-term borrowings and other long-term debt for $55.3 million and $33.3 million, respectively, and, the purchase of the 2016 notes in 2015 for $11.7 million. This was partially offset by lower dividend payments in 2015, amounting to $37.5 million, and the net collection of derivative instruments for $19.8 million.
At December 31, 2016, our total financial debt was $610.2 million, consisting of $579.7 million in long-term debt, of which $390.6 million related to the 2023 notes (including the original issue discount) and $164.4 million related to the 2016 Secured Loan Agreement (including the fair value adjustment), $25.6 million in other long-term borrowings and $4.7 million in capital lease obligations. The amount of long-term debt was offset by $5.6 million related to deferred financing costs and $30.5 million related to the fair market value of our outstanding derivative instruments.
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At December 31, 2015, our total financial debt was $650.5 million, consisting of $652.6 million in long-term debt, of which $469.5 million related to the 2023 notes (including the original issue discount) and $158.8 million related to the 2016 notes, $22.5 million in other long-term borrowings and $5.6 million in capital lease obligations. The amount of long-term debt was offset by $3.8 million related to deferred financing costs and $2.5 million in short-term debt, partially offset by $4.6 million related to the fair market value of our outstanding derivative instruments (net of the liability portion amounting to $2.1 million).
Cash and cash equivalents were $194.8 million at December 31, 2016 and $112.5 million at December 31, 2015.
Comparative Cash Flows
The following table sets forth our cash flows for the periods indicated:
| For the Years Ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| (in thousands of U.S. dollars) | ||||||||||||
| Net cash provided by operating activities | $ | 164,189 | $ | 112,689 | $ | 193,091 | ||||||
| Net cash provided by (used in) investing activities | 23,018 | (60,115 | ) | (168,964 | ) | |||||||
| Net cash (used in) provided by financing activities | (112,995 | ) | (42,263 | ) | 1,184 | |||||||
| Effect of exchange rate changes on cash and cash equivalents | 8,072 | (36,822 | ) | (61,929 | ) | |||||||
| Increase (decrease) in cash and cash equivalents | 82,284 | (26,511 | ) | (36,618 | ) | |||||||
Operating Activities
For the Years Ended December 31, | ||||||||||||
2016 | 2015 | 2014 | ||||||||||
| (in thousands of U.S. dollars) | ||||||||||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc. | $ | 78,810 | $ | (51,633 | ) | $ | (109,333 | ) | ||||
| Non-cash charges and credits | 29,160 | 147,739 | 260,036 | |||||||||
| Changes in assets and liabilities | 56,219 | 16,583 | 42,388 | |||||||||
| Net cash provided by operating activities | 164,189 | 112,689 | 193,091 | |||||||||
For the year ended December 31, 2016, net cash provided by operating activities was $164.2 million, compared to $112.7 million in 2015. The $51.5 million increase is mainly attributable to the increase in net income adjusted for non-cash charges of $11.9 million and the positive change in assets and liabilities of $39.6 million.
For the year ended December 31, 2015, net cash provided by operating activities was $112.7 million, compared to $193.1 million in 2014. The $80.4 million decrease is mainly attributable to lower net income adjusted for non-cash charges of $54.6 million and the negative change in assets and liabilities of $25.8 million.
Investing Activities
New restaurant investments are primarily concentrated in markets with opportunities for long-term growth and returns on investment above a pre-defined threshold that is significantly above our cost of capital. Average development costs vary widely by market depending on the types of restaurants built and the real estate and construction costs within each market and are affected by foreign currency fluctuations. These costs, which include land, buildings and equipment, are managed through the use of optimally sized restaurants, construction and design efficiencies and the leveraging of best practices.
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The following table presents our cash provided by (used in) investing activities by type:
| For the Years Ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| (in thousands of U.S. dollars) | ||||||||||||
| Property and equipment expenditures | $ | (92,282 | ) | $ | (90,964 | ) | $ | (169,813 | ) | |||
| Purchases of restaurant businesses paid at acquisition date | — | (1,091 | ) | (825 | ) | |||||||
| Proceeds from sales of property and equipment and related advances | 88,380 | 19,738 | 3,237 | |||||||||
| Proceeds from sale of restaurant businesses and related advances | 25,090 | 3,861 | 1,938 | |||||||||
| Loans collected from / (granted to) to related parties | 1,800 | 9,702 | (2,500 | ) | ||||||||
| Others, net | 30 | (1,361 | ) | (1,001 | ) | |||||||
| Net cash provided by (used in) investing activities | 23,018 | (60,115 | ) | (168,964 | ) | |||||||
The following table presents our property and equipment expenditures by type:
| For the Years Ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| (in thousands of U.S. dollars) | ||||||||||||
| New restaurant | $ | 27,756 | $ | 26,376 | $ | 96,798 | ||||||
| Existing restaurants | 47,198 | 38,714 | 53,887 | |||||||||
| Other(1) | 17,328 | 25,874 | 19,128 | |||||||||
| Total property and equipment expenditures | 92,282 | 90,964 | 169,813 | |||||||||
____________________
| (1) | Primarily corporate equipment and other office expenditures. |
In 2016, net cash provided by investing activities was $23.0 million, compared to an expenditure of $60.1 million in 2015. This variation of $83.1 million was primarily attributable to higher proceeds from sales of property and equipment and related advances ($68.6 million) and from sale of restaurant businesses and related advances ($21.2 million) associated with our asset monetization plan. This was partially offset by higher property and equipment expenditures ($1.3 million) and lower collections of loans granted to our related parties ($7.9 million).
Property and equipment expenditures increased by $1.3 million, from $91.0 million in 2015 to $92.3 million in 2016. The increase in property and equipment expenditures is explained by a higher investment in new restaurants ($1.4 million), as well as in existing restaurants ($8.5 million). In 2016, we opened 33 restaurants and closed 18 restaurants.
Proceeds from sales of property and equipment and related advances increased by $68.6 million to $88.4 million in 2016, as compared to 2015, primarily as a consequence of sales in Mexico and Argentina, as part of the Company’s asset monetization plans.
Proceeds from sales of restaurant businesses and related advances increased $21.2 million, mainly as a result of the conversion of company-operated restaurants into franchised restaurants mainly in Brazil, as part of the Company’s asset monetization plans.
In 2015, net cash used in investing activities was $60.1 million, compared to $169.0 million in 2014. This $108.9 million decrease in net cash used was primarily attributable to lower property and equipment expenditures ($78.8 million), higher proceeds from sales of property and equipment and related advances ($16.5 million), higher proceeds from sale of restaurant businesses ($1.9 million) and the collection of loans of related parties ($12.2 million). This was partially offset by lower other investing activities ($0.4 million) and lower purchases of restaurant businesses ($0.3 million).
Property and equipment expenditures decreased by $78.8 million, from $169.8 million in 2014 to $91.0 million in 2015. The decrease in property and equipment expenditures is explained by a lower investment in new restaurants ($70.4 million), mainly due to the decrease in restaurants openings, as well as in existing restaurants ($15.2 million). In 2015, we opened 36 restaurants and closed 16 restaurants.
Proceeds from sales of restaurant businesses increased $1.9 million, mainly as a result of the conversion of company-operated restaurants into franchised restaurants in Brazil, Chile and Argentina.
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Proceeds from sales of property and equipment and related advances increased by $16.5 million to $19.7 million in 2015, as compared to 2014, primarily as a consequence of advances received on property sales in Mexico, as part of the Company’s asset monetization plans.
In addition, in 2015 and 2014 we used $1.1 million and $0.8 million, respectively, to convert franchised restaurants into Company-operated restaurants. We paid for purchases in Mexico ($0.5 million) and in Argentina ($0.6 million) in 2015 and a purchase in Puerto Rico in 2014 ($0.8 million). Payments were also made in 2015 and 2016 in connection with this sale.
Financing Activities
| For the Years Ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| (in thousands of U.S. dollars) | ||||||||||||
| Proceeds from secured loan agreement | $ | 167,262 | $ | — | $ | — | ||||||
| Dividend payments to Arcos Dorados Holdings Inc.’ shareholders | — | (12,509 | ) | (50,036 | ) | |||||||
| Net collections (payments) of derivative instruments | (6,268 | ) | 19,817 | — | ||||||||
| Purchase of 2023 Notes | (80,800 | ) | — | — | ||||||||
| Purchase and repayment of 2016 Notes | (181,156 | ) | (11,710 | ) | — | |||||||
| Issuance of other long-term debt | — | — | 33,267 | |||||||||
| Net short-term borrowings | (2,488 | ) | (29,043 | ) | 26,296 | |||||||
| Other financing activities | (9,545 | ) | (8,818 | ) | (8,343 | ) | ||||||
| Net cash (used in) provided by financing activities | (112,995 | ) | (42,263 | ) | 1,184 | |||||||
Net cash used in financing activities was $113.0 million in 2016, compared to $42.3 million provided in 2015. The $70.7 million increase in the amount of cash used in financing activities was primarily attributable to the purchase of 2016 notes and payments in connection with the final maturity of the 2016 notes amounting to $169.4 million, the purchase of 2023 notes in 2016 for $80.8 million and higher payments on derivative instruments amounting to $26.1 million. This was partially offset by the proceeds from the 2016 Secured Loan Agreement amounting to $167.3 million, lower short term borrowings amounting to $26.6 million and the impact of no dividend payments during 2016.
Net cash used in financing activities was $42.3 million in 2015, compared to $1.2 million provided in 2014. The $43.4 million decrease in the amount of cash provided by financing activities was primarily attributable to the decrease in short-term borrowings and other long-term debt for $55.3 million and $33.3 million, respectively, and the purchase of the 2016 notes in 2015 for $11.7 million. This was partially offset by lower dividend payments in 2015 amounting to $37.5 million and the net collection of derivative instruments for $19.8 million.
The 2016 Secured Loan Agreement
On March 29, 2016, our Brazilian subsidiary, Arcos Dourados Comércio de Alimentos Ltda. (“Arcos Comércio”), entered into a secured loan agreement with Citibank N.A., Bank of America N.A., Itau BBA International plc, JPMorgan Chase Bank, N.A. and Banco Santander (Brasil) S.A., Cayman Islands Branch, as initial lenders, under which Arcos Comércio received total proceeds of $167.3 million (R$613.9 million as of the signing date). Each loan under the 2016 Secured Loan Agreement bore interest at the following annual interest rates:
| Lender | Annual Interest Rate |
| Citibank N.A. | 3M LIBOR + 2.439% |
| Itau BBA International plc | 5.26% |
| Banco Santander (Brasil) S.A., Cayman Islands Branch | 4.7863% |
| Bank of America N.A. | 3M LIBOR + 4.00% |
| JPMorgan Chase Bank, N.A. | 3M LIBOR + 3.92% |
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In order to fully convert each loan under the second loan agreement into Brazilian reais, Arcos Comércio entered into five cross-currency interest rate swap agreements with the local subsidiaries of the same lenders, to fully hedge the principal and interest cash flows of each of the loans under the secured loan agreement. Consequently, the loan was fully converted into Brazilian reais at a rate of 3.67 reais per U.S. dollar, amounting to R$613.9 million. All the terms of the cross-currency interest rate swap agreements matched the terms of the secured loan agreement. Considering the cross currency interest rate swap agreements, the final interest rate of the secured loan agreement was the Interbank Market reference interest rate (or “CDI” in Brazil), plus 4.50% per year. Interest payments were made quarterly, beginning June 2016.
The loan was fully and unconditionally guaranteed on a senior secured basis by certain subsidiaries, and secured by (i) certain credit and debit card receivables arising from sales in certain Brazilian restaurants operated by Arcos Comércio; and (ii) the positive mark to market of the cross currency interest rate swap agreements.
The loan proceeds were primarily used to repay the Company’s 2016 notes. We incurred $3.2 million of financing costs related to the 2016 Secured Loan Agreement, which were capitalized as deferred financing costs and are being amortized over the life of the loan. For more information on the 2016 notes, see “—The 2016 Notes”.
On April 11, 2017, we repaid the Secured Loan Agreement, plus accrued and unpaid interest and certain transaction costs for a total of $169.7 million. In addition, on April 13, 2017 and April 17, 2017, we unwound the related derivative instruments for a total of R$122.7 million. These payments were made using the proceeds of the offering of the 2027 notes. For more information on the 2027 notes, see “—The 2027 Notes”.
Revolving Credit Facilities
On August 3, 2011, our subsidiary, Arcos Dorados B.V., entered into a committed revolving credit facility with Bank of America, N.A., as lender, for $50 million. On August 31, 2013, Arcos Dorados B.V. renewed the revolving credit facility for $75 million maturing on August 3, 2015. On July 30, 2015, we renewed this facility for $50 million maturing on August 3, 2016. On August 1, 2016, we renewed this revolving credit facility for up to $25 million maturing on August 3, 2017. This revolving credit facility will permit us to borrow money from time to time to cover our working capital needs and for other lawful general corporate purposes.
As a result of the Company’s decision to change the exchange rates used for remeasurement of its bolivar-denominated assets and liabilities and operating results in Venezuela, we were not in compliance with the indebtedness to EBITDA ratio under the revolving credit facility as of June 30, 2014. At such date our consolidated indebtedness to EBITDA ratio was 2.73. However, on July 28, 2014, we reached an agreement with Bank of America, N.A. to change the consolidated net indebtedness to EBITDA ratio from 2.5 to 1 to 3.0 to 1. On July 30, 2015, we further amended the Revolving Credit Facility to change such ratio from 3.0 to 1 to 3.5 to 1.
On August 31, 2015, the Company entered into a revolving credit facility with JPMorgan Chase Bank, N.A., for up to $25 million, which matured on October 1, 2016. On November 10, 2016, Arcos Dorados B.V. entered into a new revolving credit facility with JPMorgan Chase Bank, N.A. for up to $25 million maturing on November 10, 2017. Each loan made to Arcos Dorados B.V. under the revolving credit facility will bear interest at an annual rate equal to LIBOR plus 2.50%. Interest on each loan will be payable on the date of any prepayment, at maturity and on a quarterly basis, beginning with the date that is three calendar months following the date the loan is made.
The obligations of Arcos Dorados B.V. under the revolving credit facilities are jointly and severally guaranteed by certain of the Company’s subsidiaries on an unconditional basis. Furthermore, the agreements include customary covenants including, among others, restrictions on the ability of Arcos Dorados B.V., the guarantors and certain material subsidiaries to: (i) incur liens, (ii) enter into any merger, consolidation or amalgamation; (iii) sell, assign, lease or transfer all or substantially all of the borrower’s or guarantor’s business or property; (iv) enter into transactions with affiliates; (v) engage in substantially different lines of business; (vi) engage in transactions that violate certain anti-terrorism laws; and (vii) permit the consolidated net indebtedness to EBITDA ratio to be greater than 3.0 to 1 as of the last day of the fiscal quarter ended December 31, 2016 and thereafter. The revolving credit facilities provide for customary events of default, which, if any of them occurs, would permit or require the relevant lender to terminate its obligation to provide loans under the relevant revolving credit facility and/or to declare all sums outstanding under the loan documents immediately due and payable.
As of December 31, 2016, the mentioned ratio was 1.64 and thus we are currently in compliance with the ratio under both revolving credit facilities.
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2016 Notes
In July 2011, we issued R$400 million aggregate principal amount of notes due 2016 bearing interest of 10.25% per year, payable in U.S. dollars, which we refer to as the 2016 notes. In addition, on April 24, 2012, we issued an additional R$275 million aggregate principal amount of the 2016 notes at a price of 102.529%. The 2016 notes are denominated in reais, but payment of principal and interest will be made in U.S. dollars. The 2016 notes matured on July 13, 2016. Interest was paid semiannually in arrears on January 13 and July 13 of each year.
The 2016 notes were listed on the Luxembourg Stock Exchange and traded on the Euro MTF Market.
During November 2015 and January 2016, we redeemed a portion of the outstanding principal amount of its 2016 notes. Furthermore, on April 8, 2016, we launched a cash tender offer for any and all of the outstanding 2016 notes at a redemption price equal to 97%, which expired on May 5, 2016. The holders who tendered their 2016 notes prior to April 21, 2016 received a redemption price equal to 100%. The results related to the cash tender offer and the accelerated amortization of the related to deferred financing cost were recognized as interest expense in the income statement. On July 13, 2016, the remaining 2016 notes matured and we paid the outstanding principal amount of R$200,991 (equivalent to $60,965) plus accrued and unpaid interest amounting to R$10,301 (equivalent to $3,124) related to the Notes.
The following table presents information related to the purchase and repayments of the principal of the 2016 Notes:
| Amount | ||||||||||||||
| Date | Redemption price | R$ | $ | |||||||||||
| November 25, 2015 | 93.75 | % | 40,000 | 9,995 | ||||||||||
| November 30, 2015 | 93.75 | % | 7,039 | 1,715 | ||||||||||
| January 29, 2016 | 97.75 | % | 1,180 | 288 | ||||||||||
| April 21, 2016 | 100.00 | % | 421,765 | 118,797 | ||||||||||
| May 5, 2016 | 97.00 | % | 4,025 | 1,106 | ||||||||||
| July 13, 2016 | 100.00 | % | 200,991 | 60,965 | ||||||||||
| Total | 675,000 | 192,866 | ||||||||||||
2023 Notes
In September 2013, we issued senior notes for an aggregate principal amount of $473.8 million under an indenture dated September 27, 2013, which we refer to as the 2023 notes. The total aggregate principal amount of the 2023 notes consists of $375 million issued for cash and $98.8 million issued in exchange for the 7.5% senior notes due 2019 issued by Arcos Dorados B.V. in October 2009 (the “2019 notes”) that were properly tendered (and not validly withdrawn) pursuant to a tender offer, exchange offer and consent solicitation we launched in September 2013 (the “2013 Tender and Exchange Offer). The 2023 notes mature on September 27, 2023 and bear interest of 6.625% per year. Interest is paid semiannually on March 27 and September 27. The proceeds from the issuance of the 2023 notes were used to pay the principal and premium on the 2019 notes in connection with the 2013 Tender and Exchange Offer, to repay certain of the short-term indebtedness we had with Banco Itaú BBA S.A., to unwind a cross-currency interest rate swap with Bank of America, N.A. and for general corporate purposes.
The 2023 notes are redeemable at our option at any time at the applicable redemption price set forth in the indenture.
The 2023 notes are fully and unconditionally guaranteed on a senior unsecured basis by certain of our subsidiaries. The 2023 notes and guarantees (i) are senior unsecured obligations and rank equal in right of payment with all of our and the guarantors’ existing and future senior unsecured indebtedness; (ii) will be effectively junior to all of our and the guarantors' existing and future secured indebtedness to the extent of the assets securing that indebtedness; and (iii) are structurally subordinated to all obligations of our subsidiaries that are not guarantors.
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The indenture governing the 2023 notes limits our and our subsidiaries’ ability to, among other things, (i) create certain liens; (ii) enter into sale and lease-back transactions; and (iii) consolidate, merge or transfer assets. These covenants are subject to important qualifications and exceptions. The indenture governing the 2023 notes also provides for events of default, which, if any of them occurs, would permit or require the principal, premium, if any, and interest on all of the then-outstanding 2023 notes to be due and payable immediately.
On June 1, 2016, we launched a cash tender offer to purchase up to $80 million of the outstanding 2023 notes at a redemption price equal to 98%, which expired on June 28, 2016. The holders who tendered their 2023 notes prior to June 14, 2016 received a redemption price equal to 101%. As a result of this transaction, we redeemed 16.89% of the outstanding principal amount of the 2023 notes. The total payment was $80.8 million (including $0.8 million of early tender payment) plus accrued and unpaid interest. The results related to the cash tender offer and the accelerated amortization of the related deferred financing cost were recognized as interest expense in the income statement.
On March 16, 2017, we announced the commencement of a second tender offer to purchase for cash up to $80 million aggregate principal amount of the properly tendered (and not validly withdrawn) outstanding 2023 notes (the “2017 Tender Offer”). As a result of the early settlement of the 2017 Tender Offer, we repurchased $45.3 million of the 2023 notes on April 5, 2017. The 2017 Tender Offer expired on April 12, 2017. As a result of the final settlement of the 2017 Tender Offer, we repurchased an additional $0.4 million of the 2023 notes on April 19, 2017. As of April 19, 2017, $348.1 million aggregate principal amount of the 2023 notes was outstanding after giving effect to the 2017 Tender Offer.
The 2023 notes are listed on the Luxembourg Stock Exchange and trade on the Euro MTF Market.
We may issue additional 2023 notes from time to time pursuant to the indenture governing the 2023 notes.
2027 Notes
In April 2017, we issued senior notes for an aggregate principal amount of $265.0 million under an indenture dated April 4, 2017, which we refer to as the 2027 notes. The 2027 notes mature on April 4, 2027 and bear interest of 5.875% per year. Interest is paid semiannually on April 4 and October 4, commencing on October 4, 2017. The proceeds from the issuance of the 2027 notes were used to repay the 2016 Secured Loan Agreement and unwind the related derivative instruments, to pay the principal and premium on the 2023 notes in connection with the 2017 Tender Offer and for general corporate purposes.
The 2027 notes are redeemable at our option under certain circumstances as set forth in the indenture at the applicable redemption prices set forth therein.
The 2027 notes are fully and unconditionally guaranteed on a senior unsecured basis by certain of our subsidiaries. The 2027 notes and guarantees (i) are senior unsecured obligations and rank equal in right of payment with all of our and the guarantors’ existing and future senior unsecured indebtedness; (ii) will be effectively junior to all of our and the guarantors' existing and future secured indebtedness to the extent of the assets securing that indebtedness; and (iii) are structurally subordinated to all obligations of our subsidiaries that are not guarantors.
The indenture governing the 2027 notes limits our and our subsidiaries’ ability to, among other things, (i) incur additional indebtedness; (ii) make certain restricted payments; (iii) create certain liens; (iv) enter into sale and lease-back transactions; and (v) consolidate, merge or transfer assets. These covenants are subject to important qualifications and exceptions. The indenture governing the 2027 notes also provides for events of default, which, if any of them occurs, would permit or require the principal, premium, if any, and interest on all of the then-outstanding 2027 notes to be due and payable immediately.
| C. | Research and Development, Patents and Licenses, etc. |
We have not had significant research and development activities for the past three years because we rely primarily on McDonald’s research and development. McDonald’s operates research and development facilities in the United States, Europe and Asia, and independent suppliers also conduct research activities that benefit McDonald’s and us. Nevertheless, we have developed certain menu items, such as Almuerzos Colombianos in Colombia, to better tailor our product offerings to local tastes and to provide our customers with additional food options.
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| D. | Trend Information |
Our business and results of operations have recently experienced the following trends, which we expect will continue in the near term:
| · | Social upward mobility in Latin America and the Caribbean: Historically, our sales have benefited, and we expect to continue to benefit, from our Territories’ population size, younger age profile and improving socio-economic conditions when compared to more developed markets. This has led to a modernization of consumption patterns and increased affordability of our products across socio-economic segments, leading to greater demand for our products. While consumer behavior will continue to be cyclical and dependent on macroeconomic activity, we expect to continue to benefit from this trend in the long term. |
| · | Decline in free time: More single-parent and dual-earner households have increased the demand for the convenience offered by eating out and takeout food. |
| · | Product offerings: Our beverages, core meals, desserts, breakfast, reduced calorie and sodium products, and value menu item offerings have been popular among customers and—combined with our revenue management—have helped us remain relevant with our customers. |
| · | Increased competition in some markets: The popularity of the QSR concept in Latin America has attracted new competitors. Even though we have been able to protect our market share in many of these markets, we have seen a reduction in pricing flexibility and have increased the focus of our marketing efforts on value offerings. |
| · | Macroeconomic deterioration and increasing uncertainty in Latin America and the Caribbean: Our business and results of operations have been impacted by increasingly negative macroeconomic and consumer trends in some of our main markets. The lower rate of economic growth and reduced rates of consumption are expected to continue in the short term. |
| · | Inflationary environment: Over the last few years, we have been able through our revenue management strategy to partially mitigate cost increase tied to inflation. However, inflation has been, and will continue to be, an important factor affecting our results of operations, specifically impacting our labor costs, food and paper costs, occupancy and other operating expenses and general administrative expenses. |
| · | Increased volatility of foreign exchange rates and impact of currency controls: Our results of operations have been impacted by increased volatility in foreign exchange rates in many of the Territories, particularly the significant devaluation of local currencies against the U.S. dollar. We expect that foreign exchange rates will continue to be an important factor affecting our foreign currency exchange results and the “Accumulated other comprehensive loss” component of shareholders’ equity and, consequently, our results of operations and financial condition. |
| E. | Off-Balance Sheet Arrangements |
We do not have any off-balance sheet arrangements.
| F. | Tabular Disclosure of Contractual Obligations |
The following table presents information relating to our contractual obligations as of December 31, 2016.
| Payment Due by Period | ||||||||||||||||||||||||||||
| Contractual Obligations | Total | 2017 | 2018 | 2019 | 2020 | 2021 | Thereafter | |||||||||||||||||||||
| (in thousands of U.S. dollars) | ||||||||||||||||||||||||||||
| Capital lease obligations(1) | $ | 6,214 | $ | 1,098 | $ | 1,047 | $ | 1,047 | $ | 556 | $ | 513 | $ | 1,953 | ||||||||||||||
| Operating lease obligations | 953,523 | 142,152 | 126,708 | 112,017 | 100,577 | 85,686 | 386,383 | |||||||||||||||||||||
| Contractual purchase obligations(2) | 134,098 | 111,208 | 14,054 | 6,941 | 1,795 | 62 | 38 | |||||||||||||||||||||
| 2023 notes(1)(3) | 576,376 | 26,087 | 26,087 | 26,087 | 26,087 | 26,087 | 445,941 | |||||||||||||||||||||
| Secured loan agreement(1)(3 | 186,592 | 25,394 | 56,823 | 70,480 | 33,895 | — | — | |||||||||||||||||||||
| Other long-term borrowings(1) | 34,889 | 4,595 | 5,238 | 5,074 | 4,772 | 4,449 | 10,761 | |||||||||||||||||||||
| Derivative instruments | 30,491 | 19,876 | 13,038 | 4,088 | (875 | ) | 1,581 | (7,217 | ) | |||||||||||||||||||
| Total | $ | 1,922,183 | $ | 330,410 | $ | 242,995 | $ | 225,734 | $ | 166,807 | $ | 118,378 | $ | 837,859 | ||||||||||||||
____________________
| (1) | Includes interest payments. |
| (2) | Includes automatic annual renewals, which contains only enforceable and legally binding unconditional obligations corresponding to prevailing agreements without considering future undefined renewals when the agreement is cancellable by us. This type of purchase obligation represents $68.5 million of contractual obligations for 2017 only. |
| (3) | Does not include the impact of the deferred financing costs, the fair value adjustment related to the 2016 Secured Loan Agreement and the net discount related to the issue of the 2023 notes. |
The table set forth above excludes projected payments on our restaurant opening and reinvestment plans pursuant to the MFAs in respect of which we do not yet have any contractual commitments.
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| G. | Safe Harbor |
See “Forward-Looking Statements.”
ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
| A. | Directors and Senior Management |
Board of Directors
Our Board of Directors currently consists of eight members, three of whom are independent directors. We have two additional seats on the Board of Directors which are currently vacant, as further described below. In case of a tie vote by the Board of Directors, the Executive Chairman will have the deciding vote. Our memorandum and articles of association authorize us to have eight members, and the number of authorized members may be increased or decreased by a resolution of shareholders or by a resolution of directors. On November 1, 2012 and August 2, 2013, respectively, our Board of Directors passed resolutions increasing the number of authorized members of our Board of Directors to nine and ten, respectively.
Pursuant to our articles of association, our Board of Directors is divided into three classes. There is no distinction in the voting or other powers and authorities of directors of different classes. The members of each class serve staggered, three-year terms. Upon the expiration of the term of a class of directors, directors in that class will be elected for three-year terms at the annual meeting of shareholders in the year in which their term expires. At our most recent annual general meeting of shareholders, held on April 24, 2017, our shareholders re-elected Mr. Michael Chu, Mr. José Alberto Vélez and Mr. José Fernández to serve as Class III directors, and in order to divide the current composition of the Board of directors of the Company as nearly equal as possible, Mr. Sergio Alonso was re-elected to serve as Class I director.
The classes are currently composed as follows:
| · | Mr. Staton, Mr. Gutiérrez and Mr. Alonso are Class I directors, whose term will expire at the annual meeting of shareholders to be held in 2018; |
| · | Mr. Hernández-Artigas and Mrs. Franqui are Class II directors, whose term will expire at the annual meeting of shareholders to be held in 2019; and |
| · | Mr. Chu, Mr. Vélez and Mr. Fernández are Class III directors, whose term will expire at the annual meeting of shareholders to be held in 2020. |
Any additional directorships resulting from an increase in the number of directors and any directors elected to fill vacancies on the board will be distributed among the three classes so that, as nearly as possible, each class will consist of one third of our directors. This classification of our Board of Directors may have the effect of delaying or preventing changes in control of our company. Any director may be removed, with or without cause, by a resolution of shareholders or a resolution of directors. Our directors do not have a retirement age requirement under our memorandum and articles of association.
The following table presents the names of the members of our Board of Directors:
|
Name |
Position |
Age |
| Woods Staton | Executive Chairman | 66 |
| Sergio Alonso | CEO | 53 |
| Annette Franqui | Director | 54 |
| Carlos Hernández-Artigas | Director | 52 |
| Michael Chu | Director | 67 |
| José Alberto Vélez | Director | 66 |
| José Fernández | Director | 54 |
| Ricardo Gutiérrez Muñoz* | Director | 73 |
____________________
| (*) | Joined the Board of Directors on July 1, 2016 as an independent director. |
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The following is a brief summary of the business experience of our directors. Unless otherwise indicated, the current business addresses for our directors is Dr. Luis Bonavita 1294, Office 501, WTC Free Zone, Montevideo, Uruguay (CP 11300) and Roque Saenz Peña 432, Olivos, Buenos Aires, Argentina (B1636 FFB).
Woods Staton. Mr. Staton is the Executive Chairman of the Board. Mr. Staton was our Chief Executive Officer from 2007 through October 2015. Mr. Staton holds an MBA from IMD in Switzerland and a Bachelor´s degree in economics from Emory University. He was McDonald’s joint venture partner in Argentina for over 20 years and served as the President of SLAD beginning in 2004. Mr. Staton is also a member of the founding family and served as the CEO and Chairman of the board of directors of Panamerican Beverages, Inc., or Panamco, which was Coca-Cola’s largest bottler in Latin America. Mr. Staton is cofounder of Endeavor Argentina, an organization for promoting entrepreneurship, as well as a founding partner of Ashoka Argentina, a global organization committed to investing in innovative solutions through social entrepreneurship. He was recently elected as a Board Member of the IMD Foundation in Lausanne, Switzerland. He is on the Global Board of Advisors of the Council on Foreign Relations in Washington D.C., serves as Chair of the Advisory Board of the Latin American Program at the Woodrow Wilson International Center for Scholars, as well as on the Chairman’s International Advisory Council of the Americas Society/Council of the Americas.
Sergio Alonso. Mr. Alonso is our Chief Executive Officer since 2015 and was, prior to his appointment as such, our Chief Operating Officer. Prior to that, he was McDonald’s Divisional President in Brazil. He graduated with a degree in Accounting from Universidad de Buenos Aires in 1986. He began his career at McDonald’s as Accounting Manager and subsequently moved to the operations area, eventually being promoted to Vice President of Operations in six years. From 1999 until 2003, Mr. Alonso was involved in the development of the Aroma Café brand in Argentina.
Annette Franqui. Mrs. Franqui has been a member of our board of directors since 2007 and is a member of the Compensation and Nomination Committee. She graduated with a Bachelor of Science degree in Economics from the Wharton School of the University of Pennsylvania in 1984 and an MBA from the Stanford Graduate School of Business in 1986. She is also a Chartered Financial Analyst. Mrs. Franqui began her career in 1986 with J.P. Morgan and joined Goldman Sachs in 1989. In 1994, she returned to J.P. Morgan where she became a Managing Director and the Head of the Latin America Research Department. Mrs. Franqui joined Panamco in 2001 as Vice President of Corporate Finance and became the Chief Financial Officer in 2002. She is one of the founding partners of Forrestal Capital and is currently a board member of Latam LLC, and, on a volunteer basis, AARP.
Carlos Hernández-Artigas. Mr. Hernández-Artigas has been a member of our board of directors since 2007 and is a member of the Compensation and Nomination Committee. He graduated from Universidad Panamericana, Escuela de Derecho in 1987 and University of Texas at Austin, School of Law in 1988. He received an MBA from IPADE in Mexico City in 1996. Mr. Hernández-Artigas worked as a lawyer for several years in Mexico and as a foreign attorney in Dallas, Texas and New York. He served as the General Counsel, Chief Legal Officer and Secretary of Panamco for ten years. He is an advisor at Big Sir Partners in Miami, Florida and is currently a board member of Wireless WERX Inc., and dba inside, a technology company in Anaheim, California.
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Michael Chu. Mr. Chu has been an independent member of our board of directors since April 2011 and is a member of our Audit Committee. He graduated with honors from Dartmouth College in 1968 and received an MBA with highest distinction from the Harvard Business School in 1976. From 1989 to 1993, Mr. Chu served as an executive and limited partner in the New York office of the private equity fund Kohlberg Kravis Roberts & Co. From 1993 to 2000, Mr. Chu was with ACCION International, a nonprofit corporation dedicated to microfinance, where he served as President and CEO. Mr. Chu currently holds an appointment as Senior Lecturer at the Harvard Business School and is Managing Director and cofounder of the IGNIA Fund, an investment firm dedicated to investing in commercial enterprises serving low-income populations in Mexico. He was a founding partner of, and continues to serve as Senior Advisor to, Pegasus Group, a private equity firm in Buenos Aires.
José Alberto Vélez. Mr. Vélez has been an independent member of our board of directors since June 2011 and is a member of our Audit Committee. Mr. Vélez received a Master of Science in Engineering degree from the University of California, Los Angeles, and a degree in Administrative Engineering from Universidad Nacional de Colombia. Mr. Vélez previously served as the CEO of Suramericana de Seguros, the leading insurance company in Colombia, and also as the CEO of Inversura, a holding company that integrates the leading insurance and social security companies in Colombia. He was the Chief Executive Officer of Cementos Argos S.A. between 2003 and 2012. From 2012 until March, 2016, he was the President of Grupo Argos, a holding group with investments in cement, energy, mining, ports and real estate. He is currently a member of the Boards of Directors of Grupo Crystal and Grupo Daabon in Colombia He also is Chairman of the Board of Trustees of the Universidad EAFIT. In addition, he sits on the advisory board of the Council of the Americas, based in New York and he is member of the Latin American Chapter of the Wilson Center in Washington D.C.
José Fernández. Mr. Fernandez has been a member of our board of directors since October 1, 2013. Mr. Fernández was the Divisional President of operations for SLAD until 2013. Mr. Fernández is a Mechanical Engineer from Instituto Tecnológico Buenos Aires and began his career at McDonald’s in 1986. He held the positions of Development Director, Development Vice President and Managing Director of McDonald’s Argentina before becoming the Divisional President of operations of SLAD.
Ricardo Gutiérrez Muñoz. Mr. Gutiérrez Muñoz is an independent member of our board of directors since July 1, 2016 and is a member of our Audit Committee. He graduated with a Bachelor’s Degree in Accounting from the Instituto Politécnico Nacional (Mexico City) and a Master’s Degree in Financing from the Universidad Lasalle (Mexico City). He also pursued postgraduate studies in Mexico and in the USA and has an extensive background in financing, restructuring and expanding companies. Mr. Gutiérrez Muñoz was CEO of Mexichem from 1994 to 2010 where he was responsible for managing 75 companies in México, the Americas, Europe, Japan and Taiwan. Before joining Mexichem, he was Vice-President of Empresas Lanzagorta, CEO and board member of Industrias Synkro and CFO of the Indetel/Alcatel Company. Currently he is the CEO of the CP Latina Company, a drilling contractor, and Chairman of the board of Grupo Pochteca. In addition, he is also board member of Grupo Kaluz, Bolsa Mexicana de Valores (Mexican Stock Exchange), Promotora de Empresas Zano (Proeza), Cinépolis (Organización Ramírez), Empresas ICA, Grupo Aeroportuario del Centro Norte OMA, Genommalab e Industria Mexicana del Aluminio (IMASA).
Executive Officers
Our executive officers are responsible for the management and representation of our company. We have a strong centralized management team led by Mr. Alonso, our CEO, with broad experience in development, revenue, supply chain management, operations, finance, marketing, legal affairs, human resources, communications and training. Most of our executive officers have worked in the food service industry for several years. Many of the members of the management team have a long history with McDonald’s operations in Latin America and the Caribbean and with Mr. Alonso, and have worked together as a team for many years. Our executive officers were appointed by our Board of Directors for an indefinite term.
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The following table lists our current executive officers:
|
Name |
Position |
Initial Year of Appointment |
At Arcos Dorados Since |
| Sergio Alonso | Chief Executive Officer | 2015 | 1987 |
| Marcelo Rabach | Chief Operating Officer | 2015 | 1990 |
| Mariano Tannenbaum | Chief Financial Officer | 2017 | 2008 |
| Juan David Bastidas | Chief Legal Counsel | 2010 | 2010 |
| Paulo Camargo | Divisional President—Brazil | 2015 | 2011 |
| Alejandro Yapur | Divisional President—SLAD | 2013 | 1986 |
| Rogério Barreira | Divisional President—NOLAD | 2015 | 1984 |
| Luis Raganato | Divisional President—Caribbean | 2014 | 1991 |
| Sebastian Magnasco | Vice President of Development | 2007 | 1994 |
| Dan Gertsacov | Chief Marketing and Digital Officer | 2017 | 2014 |
| Diego Benenzon | Vice President of Human Resources | 2014 | 2009 |
| José Valledor Rojo | Vice President of Supply Chain | 2015 | 1990 |
| Marlene Fernandez del Granado | Vice President of Government Relations | 2011 | 2009 |
| Daniel Schleiniger |
Vice President of Corporate Communications and Investor Relations |
2017 | 2014 |
The following is a brief summary of the business experience of our executive officers who are not also directors. Unless otherwise indicated, the current business addresses for our executive officers is Roque Saenz Peña 432, Olivos, Buenos Aires, Argentina (B1636 FFB) and Dr. Luis Bonavita 1294, Office 501, WTC Free Zone, Montevideo, Uruguay.
Marcelo Rabach. Mr. Rabach, 47, is our Chief Operating Officer, and prior to his appointment as such in August 2015, Divisional President for NOLAD since 2013, Vice President of Operations Development since 2012 and Divisional President in Brazil since 2008. He graduated with a degree in Business Administration from Universidad Argentina de la Empresa in 2002. He began his career at McDonald’s Argentina in 1990 and has over 17 years of line operations experience, starting as a crew employee and steadily advancing into larger operational roles. From 1999 until his appointment as McDonald’s Chief Operating Officer in Venezuela in 2005, Mr. Rabach was responsible for the operations, real estate, construction, human resources, local store marketing, and training and franchising of a region within Argentina, holding the positions of Operations Manager and Operations Director. He was the Chief Operating Officer in Venezuela from 2005 until 2008.
Mariano Tannenbaum. Mr. Tannenbaum, 43, is our Chief Financial Officer. He joined Arcos Dorados in 2008 and has held several positions at the corporate level, with his last position being Senior Director of Corporate Finance. Previously, Mr. Tannenbaum had a long international career in Europe and the United States. He worked for the IFG Group, a Swiss private bank, for Tyco International in Switzerland and Princeton, New Jersey and for Sabre Holdings in London. He began his career working for an economic consulting firm in Argentina as well as for the Argentine government, as part of the Ministry of Treasury and Public Finances. Mr. Tannenbaum has an economics degree from the Universidad de Buenos Aires, a Master’s in finance from the Universidad Torcuato Di Tella and an MBA with a concentration in finance from the London Business School.
Juan David Bastidas. Mr. Bastidas, 49, is our Chief Legal Counsel. He attended Universidad Pontificia Bolivariana in Colombia, where he received a Law Degree. He graduated as a Business Law Specialist from the same university. He has post-graduate studies in International Business, Business Administration and Senior Management. Mr. Bastidas worked from 1994 to 1995 as an international operations lawyer for Banco Industrial Colombiano (Bancolombia). He served as Chief Legal Counsel and Secretary of the board of directors of Interconexión Electrica S.A. E.S.P.–ISA from 1995 to 2010 before joining us in July 2010.
Paulo Camargo. Mr. Camargo, 48, was appointed Divisional President for Brazil in October 2015. Prior to Mr. Camargo’s promotion, he served as Vice President of Operations for the Brazil Division for four years. Mr. Camargo has over 20 years of experience in the consumer, retail and services industry. He has worked for companies such as PepsiCo, FASA Corporation and Iron Mountain across a variety of geographies. Before joining Arcos Dorados in 2011, he was President of the Spain Division at Iron Mountain. Mr. Camargo has a postgraduate degree in Business Administration from Mackenzie University in São Paulo, and also holds an MBA from IEDE Business School in Spain. He has undertaken executive training at Harvard Business School in the United States, Henley Business School in England and the IESE Business School in Spain.
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Alejandro Yapur. Mr. Yapur, 48, was appointed Divisional President of SLAD in July 2013. He began his career in 1986 as a crew member at the first McDonald’s restaurant in Argentina and had the opportunity to serve as Manager in the Marketing, Operations and Corporate Communications areas of Arcos Dorados in Argentina. In 2005 he was promoted to Managing Director of Uruguay and in 2007 became responsible for the Company’s Chilean operations. In 2011, Mr. Yapur became Regional Managing Director for the Southern Cone Region (Argentina, Chile and Uruguay) until 2013 when he was promoted to his current position. He graduated from the Universidad de Estudios Empresariales in Buenos Aires and subsequently went on to earn a Master’s degree in Communications from Universidad Austral.
Rogério Barreira. Mr. Barreira, 48, was appointed Divisional President for NOLAD in October 2015. Prior to Mr. Barreira’s promotion, he served as Vice President of Operations for the Brazil Division for four years. Mr. Barreira has over 32 years of experience in Arcos Dorados, acting in different key positions role in Brazil. Mr. Barreira has a Master in Business Administration from Foundation Getulio Vargas in Brazil and, and also holds a degree in Marketing and Business Planning from Anhembi-Morumbi University in Brazil.
Luis Raganato. Mr. Raganato, 51, is our Divisional President for the Caribbean. Prior to his appointment as such, he was the General Director of Arcos Dorados in Peru. Mr. Raganato began his career at Arcos Dorados in 1991 as a Trainee in the Nuevocentro Shopping location in the province of Córdoba, Argentina and has held various positions in Operations Management over the years. Mr. Raganato holds a Bachelor’s degree in Business Administration from Instituto Aeronáutico de Argentina and a Master’s degree in Marketing and Business Development from Escuela Superior de Estudios de Marketing de Madrid.
Sebastian Magnasco. Mr. Magnasco, 47, is our Vice President of Development and served, prior to his appointment as such, in the same capacity in SLAD. He graduated with a degree in Engineering from Instituto Tecnológico Buenos Aires, in 1990. He began his career at McDonald’s in 1994 and held the positions of Real Estate & Equipment Director of Argentina and IT, Real Estate and Equipment Director of Argentina until his appointment as Vice President of Development of SLAD in 2005.
Dan Gertsacov. Mr. Gertsacov, 42, is our Chief Marketing and Digital Officer. He joined the company in 2014 as Chief Digital Officer and is responsible for designing and implementing the digital strategy. Prior to joining Arcos Dorados, he served as head of new markets for Latin America and the Caribbean at Google and Vice President of business development for Univision Networks, among other positions in leading companies. Mr. Gertsacov holds a Bachelor’s degree in Economics and International Development from the University of Richmond and an MBA from Harvard Business School.
Diego Benenzon. Mr. Benenzon, 50, is our Vice President for Human Resources. He joined the Company in April 2008 as a SLAD HR Talent and Development Director and has over ten years’ experience in leadership positions at Citibank where he was Vice President of Human Resources before joining the Company. Prior to Citibank Mr. Benenzon was a human resources consultant at Roland Berger International. He has also served as a senior consultant to various large companies and NGOs and has teaching experience. Mr. Benenzon graduated with a degree in psychology from Universidad John F. Kennedy and holds a postgraduate degree from the Universidad de Buenos Aires.
José Valledor. Mr. Valledor, 50, is our Vice President of Supply Chain. Prior to his appointment as such, he was Divisional President in Brazil. He joined us in 1990 as an assistant in the accounting department, and four years later he became Manager of that department. In 2005, he became Regional Operations Director, responsible for the markets of Uruguay, Paraguay and Argentina. Two years later, he became Argentina’s General Director while continuing to supervise the market operations in Uruguay, Chile and Paraguay. Mr. Valledor Rojo has a degree in Business Administration and a postgraduate degree from the Instituto de Altos Estudios (IAE) in Buenos Aires, Argentina.
Marlene Fernandez. Ms. Fernandez, 55, is Vice President of Government Relations. Prior to joining us in 2009, she served as Executive Director of the Gallup Organization in Latin America and held various governmental positions, including member of Bolivia’s Chamber of Deputies, Bolivian Ambassador to the United States and Permanent Representative to the Organization of American States in Washington, D.C., the European Union and Italy. Ms. Fernandez graduated with a degree in Communications and Public Relations from Universidad John F. Kennedy in Buenos Aires. She holds a Master of Science with a specialization in broadcast journalism from Boston University and has completed doctorate courses at Harvard University in Law and Diplomacy, Strategic Communications, Conflict Resolution and Negotiations in Conflict Areas.
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Daniel Schleiniger, 43, is our Vice President of Corporate Communications and Investor Relations. He joined the Company in February 2014 as Director of Investor Relations. Prior to joining Arcos Dorados, he worked for many years in Coral Gables, Florida, for the Cisneros Group of Companies in a number of roles, including Senior Manager of Investor Relations, Director of Corporate Financial Planning and Vice President and Treasurer. Mr. Schleiniger’s experience also includes equity research at Morgan Stanley in New York, corporate banking with Unibanco in São Paulo and consulting work for Wharton Econometric Forecasting Associates in Philadelphia. Mr. Schleiniger holds a Bachelor of Science degree in chemistry and an MBA with a concentration in finance from the University of Delaware.
| B. | Compensation |
Long-term and Equity Incentive Plans
Long-term Incentive Plan
We implemented a long-term incentive plan in 2008 (the “2008 long-term incentive plan”) to reward certain employees for the success of our business. In accordance with this plan, we historically granted phantom equity units, called CADs, annually to certain employees, pursuant to which such employees are entitled to receive, upon vesting, a cash payment equal to the appreciation in the fair value of the award over the base value of the award. In 2011, our Board approved the use of the Company’s market capitalization following our initial public offering as the metric used to determine the Company’s fair market value under this incentive plan in place of the existing formula used to determine the current value of the awards. Due to an extension granted in April 2014, the exercise rights for any outstanding CADs under this plan will expire in May 2017 or May 2018, depending on their grant date.
As of December 31, 2016, 627,134 CADs were outstanding, as compared to 664,775 CADs as of December 31, 2015. During 2016, 4,550 CADs were exercised, and the total amount paid for these exercises was $0.02 million. A total of $33,091 CADs was forfeited during 2016. At December 31, 2016, we maintain a current payable of $0.5 million related to these exercises that is presented within “accrued payroll and other liabilities” in our balance sheet.
Equity Incentive Plan
In March 2011, we adopted our Equity Incentive Plan, or 2011 Plan, to attract and retain the most highly qualified and capable professionals and to promote the success of our business. This plan replaces our 2008 long-term incentive plan discussed above, although the CADs that have already been granted will remain outstanding until their respective termination dates. Like our 2008 long-term incentive plan, the 2011 Plan is being used to reward certain employees for the success of our business through an annual award program. The 2011 Plan permits grants of awards relating to class A shares, including awards in the form of share (also referred to as stock) options, restricted shares, restricted share units, share appreciation rights, performance awards and other share-based awards as will be determined by our Board.
Pursuant to the 2011 Plan, on April 14, 2011, the first trading day of our class A shares on the NYSE, we made the annual grants for 2011 to certain of our executive officers and other employees. The grants included 231,455 restricted share units and 833,388 stock options that will vest as follows: 40% on the second anniversary of the date of grant and 20% on each of the following three anniversaries. In addition, on April 14, 2011, we granted special awards of restricted share units and stock options to certain of our executive officers and other employees in connection with our initial public offering. The special grant included 782,137 restricted share units and 1,046,459 stock options that will vest one-third on each of the second, third and fourth anniversaries of the grant date. With respect to all of the grants made on April 14, 2011, each stock option represents the right to acquire one class A share at a strike price of $21.20 (the closing price on the date of grant), while each restricted share unit represents the right to receive one class A share, when vested.
On May 10, 2012, we made the annual grants for 2012 to certain of our executive officers and other employees. The grants include 211,169 restricted share units and 584,587 stock options that will vest as follows: 40% on the second anniversary of the grant date and 20% on each of the following three anniversaries. Each stock option granted represents the right to acquire one class A share at a strike price of $14.35 (the closing price on the grant date), while each restricted share unit represents the right to receive one class A share when vested.
On May 10, 2013, we made the annual grants for 2013 to certain of our executive officers and other employees. The grants include 213,600 restricted share units and 431,726 stock options that will vest as follows: 40% on the second anniversary of the grant date and 20% on each of the following three anniversaries. Each stock option granted represents the right to acquire one class A share at a strike price of $14.31 (the closing price on the grant date), while each restricted share unit represents the right to receive one class A share when vested.
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On May 10, 2014, we made the annual grants for 2014 to certain of our executive officers and other employees. The grants include 317,351 restricted share units and 247,475 stock options that will vest as follows: 40% on the second anniversary of the grant date and 20% on each of the following three anniversaries. Each stock option granted represents the right to acquire one class A share at a strike price of $8.58 (the closing price on the grant date), while each restricted share unit represents the right to receive one class A share when vested.
On May 8, 2015, we made the annual grants for 2015 to certain of our executive officers and other employees. The grants include 923,213 restricted share units that will vest as follows: 40% on the second anniversary of the grant date and 20% on each of the following three anniversaries. Each restricted share unit represents the right to receive one class A share when vested.
On May 10, 2016, we made the annual grants for 2016 to certain of our executive officers and other employees. The grants include 865,291 restricted share units that will vest as follows: 40% on the second anniversary of the grant date and 20% on each of the following three anniversaries. Each restricted share unit represents the right to receive one class A share when vested.
The maximum number of shares that may be issued under the 2011 Plan is 5,238,235 class A shares, equal to 2.5% of our total outstanding class A and class B shares immediately following our initial public offering on April 14, 2011. We issued 172,328 class A shares during 2016 in connection with the partial vesting of outstanding restricted share units.
On June 28, 2016, 1,117,380 stock options were converted into liability awards. There were no incremental compensation costs resulting from the modification and only 104 employees were affected. As of December 31, 2016, the accumulated additional paid-in capital related to these units as measured from the grant date amounted to $5,820 (net of $9, which was reclassified under “Accrued payroll and other liabilities-non current” in our consolidated balance sheet). The accrued liability is remeasured on a monthly basis until settlement.
See Note 17 to our consolidated financial statements for additional information.
We intend to make the 2017 annual grant under the 2011 Plan during the second quarter of 2017.
Compensation of Directors and Officers
General
The approximate aggregate annual total cash compensation for our 14 officers was $7.1 million in 2016. In 2016, we approved annual compensation for our non-executive directors of $140,000 each, payable 100% in cash. The cash payments corresponding to services performed in 2016 were paid $105,000 each in 2016 and $35,000 each in 2017, except for Mr. Gutiérrez’s compensation, which was paid in full in 2016. We have not entered into any service contracts with our directors to provide for benefits upon termination of employment.
| C. | Board Practices |
Our Committees
Audit Committee
Our audit committee consists of three directors, Mr. Chu, Mr. Vélez and Mr. Gutiérrez, who are independent within the meaning of the SEC and NYSE corporate governance rules applicable to foreign private issuers. Our Board of Directors has determined that Mr. Chu, Mr. Vélez and Mr. Gutiérrez are also “audit committee financial experts” as defined by the SEC.
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The charter of the audit committee states that the purpose of the audit committee is to assist the Board of Directors in its oversight of:
| · | the integrity of our financial statements; |
| · | the annual independent audit of our financial statements, the engagement of the independent auditor and the evaluation of the qualifications, independence and performance of our independent auditor; |
| · | the performance of our internal audit function; and |
| · | our compliance with legal and regulatory requirements. |
Compensation and Nomination Committee
Our compensation and nomination committee consists of Mr. Hernández-Artigas and Ms. Franqui. Pursuant to its charter, the compensation and nomination committee is responsible for, among other things:
| · | approving corporate goals and objectives relevant to compensation, evaluating the performance of executives in light of such goals and objectives and recommending compensation based on such evaluation, recommending any long-term incentive component of compensation and approving the compensation of our executive officers; |
| · | reviewing and reporting to the board of directors on our management succession plan and on compensation for directors; |
| · | evaluating our compensation and benefits policies; |
| · | evaluating the structure of our board of directors; |
| · | nominating candidates to executive positions and to the board of directors; and |
| · | reporting to the board periodically. |
| D. | Employees |
Our employees are a crucial component of our customers’ restaurant service experience. As such, we consistently train our employees to deliver fast and friendly service through a series of training programs. We support our McDonald’s-based training programs with an extensive set of quality controls throughout production, processing and distribution and also in our restaurants, where we monitor restaurant managers’ performance and use ongoing external customer satisfaction opportunity reports that analyze key operating indicators.
Our employees can be divided into three different categories: crew, restaurant managers and professional staff. Due to the different tasks of each of these categories of employees, turnover rates differ significantly. Crew turnover is considerably higher than turnover for managers and professional staff.
As of December 31, 2016, we had a total of approximately 82,040 employees in company-operated restaurants and staff throughout the Territories. Of this number, 83.0% were crew, 15.0% were restaurant managers and the remainder were professional staff. Approximately 40.0% of our employees were located in Brazil.
We have various types of employment arrangements with our employees in Brazil. Some of our employees receive monthly wages whereas others are paid by the hour, and some of our employees have fixed work schedules. Most of our employees in Brazil, in particular students and minors, work schedules of less than 180 hours per month. Brazilian law requires that employers provide a minimum monthly wage, which, in the case of employees who are paid by the hour, is prorated in terms of wages per hour.
In the beginning of 2012, we decided to transition to fixed work schedules and hourly wages for our employees in Brazil. Our employees will work between 180 and 220 hours per month, with proportional wages based on the quantity of hours fixed in their employment agreements. In 2013, pursuant to the Pernambuco Labor Court ruling, we began the transition to a fixed hourly schedule according to the timeframe agreed to in the ruling. See “Item 8. Financial Information—A. Consolidated Statements and Other Financial Information—Legal Proceedings—Brazilian Labor Litigation.”
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In August 2012, the Labor Prosecutor’s Office of the State of Pernambuco (Ministério Público do Trabalho do Estado de Pernambuco) filed a civil complaint against us in the Labor Court of Pernambuco (Justiça do Trabalho de Pernambuco) regarding alleged noncompliance with certain labor laws. See “Item 8. Financial Information—A. Consolidated Statements and Other Financial Information—Legal Proceedings—Brazilian Labor Litigation.”
The following table illustrates the distribution of our employees by division and employee category as of December 31, 2016. Due to the reorganization of our segments effective January 1, 2013, the segment information below is not directly comparable to the segment information presented in our annual reports on Form 20-F for the years prior to 2013. See “Presentation of Financial and Other Information—Operating Data.”
Division | Crew | Restaurant Managers | Professional Staff | Total | ||||||||||||
| Brazil | 26,567 | 5,978 | 489 | 33,034 | ||||||||||||
| Caribbean division | 8,759 | 1,659 | 315 | 10,733 | ||||||||||||
| NOLAD | 8,310 | 1,801 | 248 | 10,359 | ||||||||||||
| SLAD | 27,914 | 3,154 | 284 | 27,540 | ||||||||||||
| Corporate and other | 0 | 0 | 374 | 374 | ||||||||||||
| Total | 67,738 | 12,592 | 1,710 | 82,040 | ||||||||||||
Restaurant managers are responsible for the daily management of our restaurants. As such, we have a comprehensive training program for them that is focused on customer management practices, food preparation and other operational procedures. Standards are taught and continuously reinforced through the use of such training programs. We also use performance measurements on a continual basis, both internally and externally in connection with all our restaurants. Our internal on-site visit restaurant operations improvement process evaluates operational standards, which are compared globally to assure continuous improvement. We also contract third parties, which we refer to as third-party shoppers, to visit our restaurants anonymously and report on our performance. Our external third-party shopper measurements and customer satisfaction opportunity reports help maintain our competitiveness. In addition, Hamburger University provides restaurant managers, mid-managers and owner/operators with training on best practices in different aspects of our business. In 2016, approximately 3,100 people attended different courses or events organized by Hamburger University in areas such as restaurant and customer management, sales and accounting.
The role performed by our crew is of critical importance in our interactions with our customers. Employee relations are thus key to maintaining the level of motivation and enthusiasm on the part of our crew that help differentiate our restaurants from those of our competitors. We have been recognized by many independent organizations for being a “great place to work.”
Although we have unions in some of our most important markets, including Brazil, Argentina and Mexico, the unions only have an active role in our Brazil restaurants. In these markets, the restaurant industry is unionized by law. However, in Brazil every employee and company are necessarily represented by unions. Workers unions can negotiate directly with companies through Collective Bargaining Agreements, or CBAs, or with the company’s union through Collective Convention. Under Brazilian law, employees or groups of employees cannot opt-out of the terms under union agreements, which integrate the employment contract for all legal purposes. In Brazil, the CBA or the Collective Convention should provide, on a yearly basis, the salary adjustment to be afforded by all employees, and may also provide certain additional guarantees or rights, to be applicable to all employees, regardless of their unit or position in the company, during a certain term (maximum of two years). All collective agreements are mandatory in Brazil.
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| E. | Share Ownership |
The following table presents the beneficial ownership of our shares owned by our directors and officers as of the date of this annual report. Other than those persons listed below, none of our directors or officers beneficially own any of our shares.
|
Shareholder |
Class A Shares |
Percentage of Outstanding Class A Shares |
Class B Shares |
Percentage of Outstanding Class B Shares |
Total Economic Interest |
Total Voting Interest(1) |
| Los Laureles Ltd.(2)(3) | — | — | 80,000,000 | 100.0% | 38.0% | 75.4% |
| Woods Staton(3) | 7,684,672 | 5.9% | — | — | 3.6% | 1.4% |
| Sergio Alonso | * | * | — | — | * | * |
| Annette Franqui | * | * | — | — | * | * |
| Carlos Hernández-Artigas | * | * | — | — | * | * |
| Juan David Bastidas | * | * | — | — | * | * |
| José Valledor Rojo | * | * | — | — | * | * |
| José Fernandez | * | * | — | — | * | * |
| Marcelo Rabach | * | * | — | — | * | * |
| Mariano Tannenbaum | * | * | — | — | * | * |
| Sebastian Magnasco | * | * | — | — | * | * |
| Diego Benenzon | * | * | — | — | * | * |
| Marlene Fernandez | * | * | — | — | * | * |
| Luis Raganato | * | * | — | — | * | * |
| Rogério Barreira | * | * | — | — | * | * |
| Alejandro Yapur | * | * | — | — | * | * |
| Paulo Camargo | * | * | — | — | * | * |
| Dan Gertsacov | * | * | — | — | * | * |
| Daniel Schleiniger | * | * | — | — | * | * |
____________________
| * | Each of these directors and officers beneficially owns less than 1% of the total number of outstanding class A shares. |
| (1) | Class A shares are entitled to one vote per share and class B shares are entitled to five votes per share. |
| (2) | Los Laureles Ltd. is beneficially owned by Mr. Staton, our Executive Chairman. See “Item 7. Major Shareholders and Related Party Transactions—A. Major Shareholders—Los Laureles Ltd.” |
| (3) | In addition to the class B shares he beneficially owns through Los Laureles Ltd., Mr. Staton beneficially owns 7,684,672 class A shares (includes 199,741 shares of common stock issuable upon exercise of stock options and 249,658 restricted share units) directly, and indirectly through Chablais Investments S.A. (“Chablais”). On a combined basis, Mr. Staton is the beneficial owner of an aggregate of 41.6% of the total economic interests of Arcos Dorados and 76.8% of its total voting interests. The address of Mr. Staton is Mantua No. 6575 (esquina Potosí), Montevideo, Uruguay 11500. The address of Chablais is Level 1, Palm Grove House, Wickham’s Cay 1, Road Town, Tortola, BVI. |
As of the date of this annual report, our 14 officers had been granted (i) a total of 1,027,923 restricted share units, 478,578 options at an exercise price of $21.20 per share, 127,176 stock options at an exercise price of $14.35 per share and 74,028 stock options at an exercise price of $14.31 per share pursuant to the 2011 Plan. For more information, see “—B. Compensation—Long-term and Equity Incentive Plans” above. Our non-executive directors had been granted a total of 53,652 stock options at an exercise price of $14.35 per share, 100,332 stock options at an exercise price of $14.31 and 247,478 stock options at an exercise price of $8.58 per share per share pursuant to the 2011 Plan.
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ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
| A. | Major Shareholders |
As of the date of this annual report, under our memorandum and articles of association, we are authorized to issue a maximum of 420,000,000 class A shares, no par value per share, and 80,000,000 class B shares, no par value per share. Each of our class A shares entitles its holder to one vote. Each of our class B shares entitles its holder to five votes. Los Laureles Ltd., our controlling shareholder, owns 37.97% of our issued and outstanding share capital, and 75.37% of our voting power by virtue of its ownership of 100% of our class B shares. The following table presents the beneficial ownership of our shares as of the date of this annual report:
| Shareholder | Class A Shares | % of Outstanding Class A Shares | Class B Shares | % of Outstanding Class B Shares | Total Economic Interest | Total Voting Interest(1) | ||||||||||||||||||
| Los Laureles Ltd(2)(3) | — | — | 80,000,000 | 100.0 | % | 37.97 | % | 75.37 | % | |||||||||||||||
| Woods Staton(3) | 7,684,672 | 5.88 | % | — | — | 3.65 | % | 1.45 | % | |||||||||||||||
| Brandes Investment Partners, L.P. (4) | 7,737,320 | 5.92 | % | 3.67 | % | 1.46 | % | |||||||||||||||||
| Coronation Asset Management (Pty) Ltd.(5) | 2,980,800 | 2.28 | % | — | — | 1.41 | % | 0.56 | % | |||||||||||||||
| William H. Gates III(6) | 11,641,400 | 8.91 | % | — | — | 5.53 | % | 2.19 | % | |||||||||||||||
| Macquarie Group Limited(7) | 6,564,036 | 5.02 | % | — | — | 3.12 | % | 1.24 | % | |||||||||||||||
| Black Creek Investment Management Inc.(8) | 9,152,320 | 7.00 | % | — | — | 4.34 | % | 1.72 | % | |||||||||||||||
| Invesco Ltd.(9) | 8,435,243 | 6.45 | % | 4.00 | % | 1.59 | % | |||||||||||||||||
| TIAA-CREF Investment Management, LLC (10) | 7,774,742 | 5.95 | % | — | — | 3.69 | % | 1.47 | % | |||||||||||||||
| Teachers Advisors, Inc. (11) | 6,090,701 | 4.66 | % | — | — | 2.89 | % | 1.15 | % | |||||||||||||||
| Public | 62,649,990 | 47.93 | % | — | — | 29.73 | % | 11.80 | % | |||||||||||||||
| Total | 130,711,224 | 100.0 | % | 80,000,000 | 100.0 | % | 100.0 | % | 100.0 | % | ||||||||||||||
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| (1) | Class A shares are entitled to one vote per share and class B shares are entitled to five votes per share. |
| (2) | The address of Los Laureles Ltd. is 325 Waterfront Drive, Omar Hodge Building, 2nd Floor, Wickham’s Cay 1, Road Town, Tortola, British Virgin Islands. Los Laureles Ltd. is beneficially owned by Mr. Staton, our Executive Chairman. Los Laureles Ltd. established a voting trust with respect to the voting interests in us held by Los Laureles Ltd. Los Laureles Ltd. is the beneficiary of the voting trust. See “—Los Laureles Ltd.” |
| (3) | In addition to the class B shares he beneficially owns through Los Laureles Ltd., Mr. Staton beneficially owns 7,684,672 class A shares (includes 199,741 shares of common stock issuable upon exercise of stock options and 249,658 restricted share units) directly, and indirectly through Chablais Investments S.A. (“Chablais”). On a combined basis, Mr. Staton is the beneficial owner of an aggregate of 41.6% of the total economic interests of Arcos Dorados and 76.8% of its total voting interests. The address of Mr. Staton is Mantua No. 6575 (esquina Potosí), Montevideo, Uruguay 11500. The address of Chablais is Level 1, Palm Grove House, Wickham’s Cay 1, Road Town, Tortola, BVI. |
| (4) | Brandes Investment Partners, L.P. and its control persons filed with the SEC an amended Schedule 13G dated February 2, 2017. Based solely on the disclosure set forth in such Schedule 13G, Brandes Investment Partners, L.P. has shared voting power with respect to 7,476,168 class A shares and shared dispositive power with respect to 7,737,320 class A shares. The address of Brandes Investment Partners, L.P. is 11988 El Camino Real, Suite 600, San Diego, CA 92130. |
| (5) | Coronation Asset Management (Pty) Ltd. filed with the SEC a Schedule 13G/A dated February 10, 2017. Based solely on the disclosure set forth in such Schedule 13G/A, Coronation Asset Management (Pty) Ltd. has sole voting power with respect to 2,980,800 class A shares and sole dispositive power with respect to 2,980,800 class A shares. The address of Coronation Asset Management (Pty) Ltd. is 7th Fl. Montclare Centre, CNR Main and Campground Rd., Claremont, Cape Town T3 7708, South Africa. |
| (6) | William H. Gates III (“Mr. Gates”) indirectly owns Class A shares through Cascade Investment, LLC (“Cascade”) and the Bill & Melinda Gates Foundation Trust (the “Trust”). Cascade, the Trust, Mr. Gates and Melinda French Gates (“Mrs. Gates”) filed with the SEC a Schedule 13G/A dated February 13, 2015. Based solely on the disclosure set forth in such Schedule 13G/A, (i) Cascade has sole voting power with respect to 8,580,900 class A shares and sole dispositive power with respect to 8,580,900 class A shares; (ii) the Trust has shared voting power with respect to 3,060,500 class A shares and shared dispositive power with respect to 3,060,500 class A shares; (iii) Mr. Gates has shared voting power with respect to 11,641,400 class A shares and shared dispositive power with respect to 11,641,400 class A shares; and (iv) Mrs. Gates has shared voting power with respect to 3,060,500 class A shares and shared dispositive power with respect to 3,060,500 class A shares. The address of Cascade Investment, LLC is 2365 Carillon Point, Kirkland, Washington 98033. The address of the Trust and Mrs. Gates is 500 Fifth Avenue North, Seattle, Washington 98119. The address of Mr. Gates is One Microsoft Way, Redmond, Washington 98052. |
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| (7) | The Macquarie Group Limited filed with the SEC a Schedule 13G/A dated February 14, 2017. Based solely on the disclosure set forth in such Schedule 13G/A, (i) The Macquarie Group Limited has sole voting power with respect to 0 class A shares and sole dispositive power with respect to 0 class A shares, (ii) The Macquarie Bank Limited has sole voting power with respect to 0 class A shares and sole dispositive power with respect to 0 class A shares, (iii) Delaware Management Holdings, Inc. has sole voting power with respect to 6,564,036 class A shares and sole dispositive power with respect to 6,564,036 class A shares and (iv) Delaware Management Business Trust has sole voting power with respect to 6,564,036 class A shares and sole dispositive power with respect to 6,564,036 class A shares. The principal business address of Macquarie Group Limited, Macquarie Bank Limited and Macquarie Investment Management Ltd. is No. 1 Martin Place, Sydney, New South Wales, Australia. The principal business address of Delaware Management Holdings Inc. and Delaware Management Business Trust is 2005 Market Street, Philadelphia, PA 19103. |
| (8) | Black Creek Investment Management Inc. filed with the SEC a Schedule 13G dated February 14, 2017. Based solely on the disclosure set forth in such Schedule 13G, Black Creek Investment Management Inc. has sole voting power with respect to 9,152,320 class A shares and sole dispositive power with respect to 9,152,320 class A shares. The address of Black Creek Investment Management Inc. is 123 Front Street West, Suite 1200, Toronto, Ontario, ON M5J 2M2, Canada. |
| (9) | Invesco Ltd. filed with the SEC a Schedule 13G dated February 7, 2017. Based solely on the disclosure set forth in such Schedule 13G, Invesco Ltd. has sole voting power with respect to 8,435,243 class A shares and sole dispositive power with respect to 8,435,243 class A shares. The address of Invesco Ltd. is 1555 Peachtree Street NE, Suite 1800, Atlanta, GA 30309. |
| (10) | TIAA-CREF Investment Management, LLC filed with the SEC a Schedule 13G/A dated February 14, 2017. Based solely on the disclosure set forth in such Schedule 13G/A, TIAA-CREF Investment Management, LLC has sole voting power with respect to 7,774,742 class A shares and sole dispositive power with respect to 7,774,742 class A shares. The address of TIAA-CREF Investment Management, LLC is 730 Third Avenue, New York, NY 10017-3206. |
| (11) | Teachers Advisors, Inc. filed with the SEC a Schedule 13G/A dated February 14, 2017. Based solely on the disclosure set forth in such Schedule 13G/A, Teachers Advisors, Inc. has sole voting power with respect to 6,090,701 class A shares and sole dispositive power with respect to 6,090,701 class A shares. The address of Teachers Advisors, Inc. is 730 Third Avenue, New York, NY 10017-3206. |
Los Laureles Ltd.
Los Laureles Ltd. is our controlling shareholder and is beneficially owned by Mr. Staton, our Executive Chairman. Los Laureles Ltd. currently owns 38.0% of the economic interests of Arcos Dorados and 75.4% of its voting interests. Los Laureles Ltd. has established a voting trust with respect to the voting interests in us held by Los Laureles Ltd. Los Laureles Ltd. is the beneficiary of the voting trust. The voting trust exercises the vote of the class B shares through a voting committee, which consists of only Mr. Staton. The decision of the voting committee must be approved by Los Laureles (PTC) Limited, a British Virgin Islands company that is a wholly owned subsidiary of Los Laureles Limited. Mr. Staton is the sole director of Los Laureles (PTC) Limited. Without the consent of McDonald’s, Mr. Staton may add any one or more of his descendants, certain other relatives, any board member of Arcos Dorados and the chief executive officer, chief operating officer or chief financial officer of Arcos Dorados to the committee.
Following Mr. Staton’s death or during Mr. Staton’s incapacity, the voting committee will consist of (1) certain officers or directors of Arcos Dorados, (2) certain descendants of Mr. Staton or their representatives, and (3) other persons appointed by Los Laureles (PTC) Limited, subject to McDonald’s consent if such person is not one of Mr. Staton’s descendants and is not the chief executive officer, chief operating officer or chief financial officer of Arcos Dorados. For the first five years from the date of the execution of the voting trust, the officers and directors of Arcos Dorados on the voting committee will have the tie-breaking vote (if any). Thereafter, Mr. Staton’s descendants will have the tie-breaking vote.
Significant Changes in Ownership by Major Shareholders
We have experienced significant changes in the percentage ownership held by major shareholders as a result of our initial public offering and follow-on offering. Prior to our initial public offering in April 2011, our principal shareholders were Los Laureles Ltd. (40.0% economic, 76.9% voting), Gavea Investment AD, L.P. (26.1% economic, 10.0% voting) and investment funds controlled by Capital International, Inc. (20.4% economic, 7.9% voting) and DLJ South American Partners L.L.C. (through its affiliates) (13.2% economic, 5.1% voting).
On April 19, 2011, we completed our initial public offering and listed our class A shares on the NYSE. In the initial public offering, we sold 9,529,412 class A shares and Gavea Investment AD, L.P. and investment funds controlled by Capital International, Inc. and DLJ South American Partners L.L.C. (through its affiliates) sold 74,977,376 class A shares, including 11,022,624 class A shares sold to the underwriters pursuant to the underwriters’ over-allotment option. On October 25, 2011, we completed a follow-on offering in which Gavea Investment AD, L.P. and investment funds controlled by Capital International, Inc. and DLJ South American Partners L.L.C. (through its affiliates) sold the remainder of their shareholdings.
As of March 20, 2017, there were six class A shareholders of record. We believe the number of beneficial owners is substantially greater than the number of record holders because a large portion of class A shares is held in “street name” by brokers.
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| B. | Related Party Transactions |
Our Board of Directors has created and adopted a related party transactions policy for the purpose of assisting the Board of Directors in reviewing, approving and ratifying related party transactions. This Policy is intended to supplement, and not to supersede, our other policies that may be applicable to or involve transactions with related parties, such as our Standards of Business Conduct.
Axionlog Split-off
In March 2011, we effected a split-off of Axionlog (formerly known as Axis) to our principal shareholders. The split-off was effected through the redemption of 41,882,966 shares (25,129,780 class A shares and 16,753,186 class B shares). As consideration for the redemption, the Company transferred to its principal shareholders its equity interests in the operating subsidiaries of the Axionlog business totaling a net book value of $15.4 million and an equity contribution that was made to the Axionlog holding company amounting to $29.8 million. Following the split-off, Los Laureles Ltd. acquired the Axionlog shares held by Gavea Investment AD, L.P. and investment funds controlled by Capital International, Inc. and DLJ South American Partners L.L.C. (through its affiliates). The split-off of Axionlog did not have a material effect on our results of operations or financial condition.
In 2011, we entered into a master commercial agreement with Axionlog on arm’s-length terms pursuant to which Axionlog provides us with distribution inventory, storage (dry, frozen and chilled) and transportation services in Argentina, Chile, Colombia, Mexico, Venezuela, Uruguay and Peru. Pricing under the agreement is determined pursuant to an agreed upon formula that is considered standard in the distribution services industry. Additionally, Axionlog must comply with McDonald’s quality program, the Distributor Quality Management System (DQMP) and other supplier requirements to maintain its status as a McDonald’s-approved supplier pursuant to the MFA. The pricing formula considers certain variables to determine the applicable fees, including (i) cost inputs (i.e., transportation expenses and salaries); (ii) time required for completion; (iii) storage requirements; (iv) merchandise volume; and (v) inflation and exchange rate adjustments. We use similar pricing formulas with our other distribution service providers in the territories not covered by Axionlog. Under the terms of the agreement, the pricing formula is reviewed on a yearly basis. During these reviews, we share information in order to find potential cost efficiencies and savings. In addition, we or Axionlog may request a renegotiation of the pricing formula in the event that, due to factors outside of our or their control, the formula is substantially altered based on changes to its variable inputs.
On November 9, 2011, we entered into a revolving loan agreement as a creditor with Axionlog B.V. (formerly known as Axis Distribution B.V.), a holding company of the Axionlog business, pursuant to which we agreed to lend Axionlog up to a total amount of $12.0 million at an interest rate of LIBOR plus 6%, in line with the interest rates prevailing in the market at the time of the agreement, the loan facility matured on November 7, 2016. As of December 31, 2015 and 2014, Axionlog B.V. had borrowed $1.8 million and $11.5 million, respectively, from us in connection with this revolving loan facility. Notwithstanding the fact that the loan maturity date was November 7, 2016 the parties decided to terminate the agreement as of May 27, 2016. As a result, we collected the outstanding principal amount of $1.8 million on May 27, 2016.
During 2016, we incurred $40.7 million in total distribution fees payable to Axionlog, which accounted for approximately 4.0% of our total food and paper costs.
See Note 25 to our consolidated financial statements for details of the outstanding balances and transactions with related parties as of December 31, 2016 and 2015 and for the fiscal years ended December 31, 2016, 2015 and 2014.
Employment of Francisco Staton
Mr. Francisco Staton, Woods Staton’s son, leads our operations in Colombia, serving as the managing director for Arcos Dorados Colombia. In this position, Francisco Staton reports to Luis Raganato, President of the Caribbean Division. He has a bachelor’s degree from Columbia University in New York, where he also completed a Master’s in Business Administration. Prior to working at Arcos Dorados, he worked as a consultant for the Boston Consulting Group. At Arcos Dorados, Francisco Staton has completed the Company’s operational training programs in São Paulo and Bogotá, and has also held other positions at the Company, including serving as a restaurant manager as well as serving as a Senior Development Manager for new business projects in the NOLAD Division, in Mexico. For his services as managing director in Colombia, Francisco Staton receives customary compensation and benefits commensurate with his level of responsibility within the Company. His compensation package is aligned with the compensation packages of similar positions in other companies in Colombia, according to external compensation surveys. Francisco Staton is not an executive officer of the Company.
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| C. | Interests of Experts and Counsel |
Not applicable.
| A. | Consolidated Statements and Other Financial Information |
Financial statements
See “Item 18. Financial Statements,” which contains our financial statements prepared in accordance with U.S. GAAP.
Legal Proceedings
Puerto Rican Franchisees
In January 2007, several Puerto Rican franchisees filed a lawsuit against McDonald’s Corporation and certain subsidiaries, which the Company purchased during the acquisition of the LatAm business (the “Puerto Rican franchisees lawsuit”). The lawsuit originally sought declaratory judgment and damages in the amount of $11 million plus plaintiffs’ attorney’s fees. In January 2008, the plaintiffs filed an amended complaint that increased the amount of damages sought to $66.7 million plus plaintiffs’ attorney’s fees. The complaint, as amended, requests that the court declare that the plaintiffs’ respective franchise agreements and contractual relationships with McDonald’s Corporation, which agreements and relationships were assigned or otherwise transferred to the Company as part of the Acquisition of the LatAm business, are governed by the Dealers’ Act of Puerto Rico, or “Law 75”, a Puerto Rican law that limits the grounds under which a principal may refuse to renew or terminate a distribution contract. The complaint also seeks preliminary and permanent injunctions to restrict the Company from declining to renew the plaintiffs’ agreements except for just cause, and to prohibit the Company from opening restaurants or kiosks within a three-mile radius of a franchisee’s restaurant. In September 2008, the Company filed a counter-suit requesting the termination of the franchise agreements with these franchisees due to several material breaches. On December 23, 2010, the Commissioner assigned by the Court of First Instance to this case issued a resolution holding that Law 75 applies to the parties’ commercial relationship. On July 20, 2011, the Court of First Instance adopted the Commissioner’s determination with respect to the application of Law 75. This determination is an interlocutory determination that defines the legislation applicable to the franchisee rights and obligations. Law 75 will be the applicable law during the trial process. After the trial conclusion, the Company can still reiterate in appeal the position that Law 75 does not apply to the franchised agreements. The franchisees will still need to demonstrate and prove that the franchisor has breached their respective contracts. Therefore, no provision has been recorded regarding this lawsuit because the Company believes that a final negative outcome has a low probability of occurrence.
Both parties have concluded discovery and the pretrial hearing was held on August 30, 2012. The trial commenced on September 10, 2012 and was heard by the court-assigned commissioner. At the end of 2014, plaintiffs finished their presentation of evidence and we have not yet started our presentation of evidence. We anticipate that the Commissioner will issue a recommendation of resolution to the Court of First Instance during 2017.
During 2014, another franchisee filed a complaint (the “related Puerto Rican franchisee lawsuit”) against us and McDonald’s USA, LLC (a wholly owned subsidiary of McDonald’s Corporation), asserting a very similar claim to the one filed in the Puerto Rican franchisees lawsuit. The claim seeks declaratory judgment and damages in the amount of $30 million plus plaintiff’s attorney’s fees. Although this case is in its early stages, we believe that a final negative resolution has a low probability of occurrence, since its close resemblance to the Puerto Rican franchisees lawsuit.
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Furthermore, on March 26, 2010, we filed a collection claim against Puerto Rico Owner Operator’s Association (“PROA”), an association integrated by our franchisees that meets periodically to coordinate the development of promotional and marketing campaigns, for the reimbursement of the monetary contribution made during August 2007. On June 15, 2010, PROA, also known as the cooperative, filed a third party complaint and counterclaim (the “PROA claim”) against us and other third party defendants, in the amount of $31 million. At that time, the association was formed solely by franchisees that are plaintiffs in the Puerto Rican franchisees lawsuit, described above. PROA’s complaint requests breach of contract for withdrawing from the association (PROA’s position is that we cannot resign to the cooperative) and collection of past contributions, among others. On June 9, 2014, after several motions for summary judgment duly filed and opposed by the parties, the Court entered a “Partial Summary Judgment and Resolution” in favor of PROA, before initiating the discovery phase, finding that we must participate and contribute funds to the association. However, the Court did not specify any amount for which we should be held liable, due to its preliminary and interlocutory nature, and the lack of discovery conducted regarding the amounts claimed by the plaintiffs. We are opposing this claim vigorously because we believe that there is no legal basis for it considering: (i) the obligation to contribute is not directed towards a cooperative, (ii) the franchise agreement does not contain a provision that makes it mandatory to participate in the cooperative, and (iii) PROA’s by-laws state that participation in the cooperative is voluntary, among other arguments. Based on the above, we believe that a negative final outcome has a low probability of occurrence and, consequently, no provision has been recorded.
Pursuant to Section 9.3 of the Stock Purchase Agreement, McDonald’s Corporation indemnifies the Company for certain Brazilian claims as well as for specific and limited claims arising from the Puerto Rican franchisees lawsuit. Pursuant to the MFA, the Company indemnifies McDonald’s for the related Puerto Rican franchisee lawsuit and the PROA claim.
Brazilian Labor Litigation
In August 2012, the Labor Prosecutor’s Office of the State of Pernambuco (Ministério Público do Trabalho do Estado de Pernambuco) in Brazil filed a civil complaint against us in the Labor Court of Pernambuco (Justiça do Trabalho de Pernambuco) in order to (i) compel us to change the variable work schedule applicable to our 14 restaurants in Pernambuco, which is a state in northeastern Brazil, to a fixed work schedule, (ii) seek fines of R$3,000 per employee per month for alleged noncompliance with labor laws related to, for example, overtime payment, breaks between workdays, night shift premiums, duration of breaks and weekly rest time, (iii) seek a penalty of R$20,000 related to the non-exhibition of documentation relating to audit labor inspections and (iv) seek collective damages of R$30,000,000 related to the variable work schedule practices in Pernambuco in recent years. The first hearing was scheduled for March 21, 2013.
On February 22, 2013, the Labor Prosecutor’s Office of Pernambuco filed an additional petition seeking the extension of the original complaint throughout Brazil and increasing the amount of collective damages requested from R$30,000,000 to R$50,000,000. The Labor Prosecutor’s Office of the State of Pernambuco also added a demand that all employees should be allowed to bring their own meals for consumption during breaks in our restaurants.
On March 19, 2013, the Labor Court of Pernambuco ruled that we are required to implement a fixed work schedule for all of our employees in Brazil, with the exception of the regions (which represent approximately 80% of our employees in Brazil) where we have already signed a commitment or have obtained favorable legal decisions. The Labor Court of Pernambuco also held that our employees should be allowed to bring their own meals and approved the fine of R$3,000 for alleged noncompliance with labor laws, as described above, and the penalty of R$20,000 related to the non-exhibition of documentation relating to audit labor inspections.
On March 21, 2013, at a hearing before the Labor Court of Pernambuco, we agreed with the Labor Prosecutor’s Office of the State of Pernambuco to the following terms:
| · | our commitment to implement a fixed work schedule in Brazil; |
| · | our commitment to comply with overtime payment, breaks between workdays, night shift premiums, duration of breaks, and weekly rest time requirements, among others requirements; |
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| · | a reduction of the fine for proved alleged noncompliance with the abovementioned items from R$3,000 to R$2,000 per employee per month; |
| · | a reduction of the penalty for the non-exhibition of documentation relating to audit labor inspections from R$20,000 to R$2,000; |
| · | the temporary stay for 60 days of the requirement to allow employees to bring their own meals; |
| · | non-recognition of collective damages, provided that we will pay an amount of R$1.5 million in cash to the states of Pernambuco, Rio de Janeiro and Paraná (R$0.5 million each) on June 21, 2013 and we will incur an aggregate amount of R$6.0 million over the course of four years (R$1.5 million in January of each of 2014, 2015, 2016 and 2017) in advertising as part of a national communications campaign for educational or health purposes to be determined by the Labor Prosecutor’s Office of the State of Pernambuco by June 2013. |
The claim to guarantee the payment of the minimum wage independently of working hours is currently on hold but will continue to be subject to legal discussion. No provision has been recorded regarding this claim because we believe that a final negative resolution has a low probability based on the fact that this labor practice complies with prevailing laws and regulations. The Labor Prosecutor has begun audits in order to confirm compliance with the terms of the settlement. Pursuant to the terms of the settlement, on June 21, 2013 we paid an aggregate amount of R$1.5 million in cash to the states of Pernambuco, Rio de Janeiro and Paraná (R$0.5 million each). On February 24, 2014, we and the Labor Prosecutor agreed on the schedule and terms relating to the payment of up to an aggregate amount of R$1.5 million throughout 2014 to fund communications campaigns for the Labor Prosecutor’s Office of the State of Pernambuco. On March 3, 2015 we and the Labor Prosecutor also came to an agreement over the designation of the R$1.5 million we gave to a communication campaign sponsored by the Labor Prosecutor’s Office of the State of Pernambuco, called “MPT Journalism Award 2015.” The payments were made at the time of each campaign, in order to comply with the terms of the settlement. On April 5, 2016 we were informed by the Labor Ministry Prosecutor that the provisioned amount of R$1.5 million will also be destined to its communication campaign “MPT Journalism Award 2016.” We have requested information from the Labor Prosecutor’s Office regarding payment of the 2017 installment, but have still not received the relevant guidance. A hearing was scheduled for September 12, 2016 to terminate the discovery phase and issue a ruling on the pleas related to payment of the minimum wage for employees who do not work full time, as well as the possibility of employees bringing their own meals and not the meals provided by the Company. However, the hearing was cancelled due to an audit carried out by the Labor Prosecutor’s Office to verify compliance with the settlement. There were no new developments in this case as a result of this audit.
In parallel with the judicial case, on December 2016, an administrative assessment of compliance with the settlement was initiated by a team composed of Labor Prosecutors. A preliminary report was issued on December 1, 2016 in which the Labor Prosecutors claimed there were certain irregularities in our compliance with the settlement and demanded penalties of approximately R$104 million. On December 13, 2016, an administrative hearing was held at the Labor Prosecutor’s headquarters in São Paulo, in which the Labor Prosecutor emphasized the preliminary nature of the report and granted us the opportunity to submit information, explanations and documents relating to compliance with the settlement. On March 15, 2017, we submitted a petition and documents as evidence that we have complied with the settlement, and on March 17, 2017, we attended a meeting with the Labor Prosecutor to clarify our arguments. We delivered additional documents regarding our compliance with the settlement for the period ranging from December 2015 to April 2017 on April 20, 2017. A hearing to discuss the investigation will take place on May 5, 2017.
Sinthoresp – Brasília
On February 23, 2015, a coalition of labor unions filed a lawsuit against us. The coalition alleges that we have defaulted on our obligations to our employees with a variety of inadequate working conditions such as an unhealthy working environment, consolidation of employee tasks, failure to pay the legal minimum wage or wages established through collective bargaining agreements, time-card fraud, failure to regularly collect contributions to the Mandatory Severance Pay Fund (FGTS), failure to grant legally-mandated meal and rest periods, failure to pay corresponding overtime, provision of sandwiches as the shift meal, failure to pay contracted amounts for recession of contracts, failure to supply the documents necessary to withdraw FGTS payments, and failure to provide the social security and termination of employment documents required under Brazilian law.
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The plaintiffs argue that the alleged practices are a form of “social dumping,” a cause of action under the commercial law characterized by practices seeking to obtain a significant reduction in production costs resulting in unfair competition. The plaintiffs have requested an order requiring: (i) immediate rectification of the alleged practices; (ii) an injunction against opening any new restaurants until compliance with the labor practices is demonstrated; (iii) damages for pain and suffering equal to an amount between 1% and 30% of gross income; (iv) that the Economic Defense Administrative Council – CADE be placed on notice of these conditions; and (v) service of process to the Labor Prosecutor to require it to follow up on the lawsuit.
The lawsuit is currently before the 22nd DF Labor Court in Brasilia. On March 6, 2015, the Labor Court denied the coalition’s requests (i) to enjoin the allegedly unfair labor practices and (ii) that we not be permitted to open any new restaurants in Brazil. The first defense hearing was held on November 4, 2015 and the discovery hearing was held on May 11, 2016. Production of oral evidence was denied and a hearing for closure of the discovery phase was held on August 24, 2016. At this new hearing, the date for issuing a judgment in this case was scheduled for December 19, 2016. However, there were several postponements. On March 27, 2017, the Labor Court entered a judgment rejecting all claims made by the coalition of labor unions and affirmed that the coalition was not able to prove its allegations. The coalition presented a motion to clarify some aspects of the decision and may also file an appeal against it.
Civil Complaint 0528900-98.2006.5.02.0080
On December 13, 2006, a civil complaint was filed by the Labor Prosecutor’s Office in São Paulo, questioning our compliance with rules related to sanitary surveillance, workers’ health and safety, work ergonomics and working hours. After a preliminary injunction was granted for compliance with issues related to relevant rules cited in the complaint, an agreement (the “TAC”) was entered into between the company and the Labor Prosecutor’s Office that provides for a daily fine of R$5,000 for non-compliance with the TAC provisions. The full contents of the TAC were ratified by the Labor Court on March 16, 2007.
On October 18, 2010, we entered into a new agreement with the Labor Prosecutor’s Office in São Paulo, which maintained the previous commitments assumed by us in the TAC, but also included an obligation to annually pay R$1,300,000 (as adjusted on a yearly basis from 2011 to 2019) towards the financing of campaigns against child labor and to make a one-time contribution in the amount of R$1,500,000 to the São Paulo’s Medical University’s Foundation. Furthermore, according to the agreement, the company was required to file a schedule for the compliance with the obligations set forth in the TAC. The company has been in compliance with this agreement, which will remain in effect through 2019.
In parallel with the judicial lawsuit’s developments, the Labor Prosecutor’s Office initiated an administrative audit regarding the company’s compliance with the TAC. On November 2016, the Labor Prosecutor’s Office claimed that it had identified violations of the TAC and demanded R$13 million in connection with such violations. The company was notified and an administrative hearing was scheduled for March 13, 2017 before the Labor Prosecutor’s Office. On April 3, 2017, we submitted a petition and documents as evidence that we have complied with the settlement, rejecting the Labor Prosecutor’s claims.
Retained Lawsuits and Contingent Liabilities
We have certain contingent liabilities with respect to existing or potential claims, lawsuits and other proceedings, including those involving labor, tax and other matters. As of December 31, 2016 we maintained a provision for contingencies amounting to $36.7 million ($26.1 million as of December 31, 2015), which is disclosed net of judicial deposits amounting to $18.6 million ($5.5 million as of December 31, 2015) that we were required to make in connection with the proceedings. As of December 31, 2016, the net amount of $18.1 million was disclosed as follows: $0.8 million as a current liability and $17.3 million as a non-current liability. See Note 18 to our consolidated financial statements for more details.
Pursuant to the Acquisition, McDonald’s Corporation indemnifies us for certain Brazilian claims as well as for specific and limited claims arising from the Puerto Rican franchisee lawsuit. As of December 31, 2016, the non-current portion of the provision for contingencies included $5.2 million ($3.5 million as of December 31, 2015) related to Brazilian claims that are covered by the indemnification agreement. As a result, we have recorded a current asset and non-current asset in respect of McDonald’s Corporation’s indemnity in our consolidated balance sheet. The current asset in respect of McDonald’s Corporation’s indemnity represents the amount of cash to be received as a result of settling certain Brazilian labor and tax contingencies.
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Several of these proceedings have already been resolved successfully, either by a judicial decision or a cash settlement. The cash settlements were made pursuant to a recent reopening of a 2009 amnesty granted by the Brazilian federal government, in which McDonalds opted to participate. The amnesty was originally granted in 2009 as a way to reduce litigation with federal authorities and increase tax collection during the financial crisis. The amnesty allowed Brazilian taxpayers to settle federal tax debts under favorable conditions, including reduced penalties and interest and the ability to pay principal in up to 180 installments. In 2014, pursuant to an additional amnesty, such outstanding Brazilian federal tax debts were paid in full using mainly applicable tax loss carryforwards. The remaining retained proceedings are pending a final decision.
As of December 31, 2016, there are certain matters related to the interpretation of tax and labor law for which there is a possibility that a loss may have been incurred in accordance with ASC 450-20-50-4 within a range of $89 million and $122 million.
Other Proceedings
In addition to the matters described above, we are from time to time subject to certain claims and party to certain legal proceedings incidental to the normal course of our business. In view of the inherent difficulty of predicting the outcome of legal matters, we cannot state with confidence what the eventual outcome of these pending matters will be, what the timing of the ultimate resolution of these matters will be or what the eventual loss, fines or penalties related to each pending matter may be. We believe that we have made adequate reserves related to the costs anticipated to be incurred in connection with these various claims and legal proceedings and believe that liabilities related to such claims and proceedings should not have, in the aggregate, a material adverse effect on our business, financial condition, or results of operations. However, in light of the uncertainties involved in these claims and proceedings, there is no assurance that the ultimate resolution of these matters will not significantly exceed the reserves currently accrued by us; as a result, the outcome of a particular matter may be material to our operating results for a particular period, depending upon, among other factors, the size of the loss or liability imposed and the level of our income for that period.
Dividends and Dividend Policy
Our Board of Directors considers the legal requirements with regard to our net income and retained earnings and our cash flow generation, targeted leverage ratios and debt covenant requirements in determining the amount of dividends to be paid, if any. Dividends may only be paid in accordance with the provisions of our memorandum and articles of association and Section 57 of the BVI Business Companies Act, 2004 (as amended) and after having fulfilled our capital expenditures program and after satisfying our indebtedness and liquidity thresholds, in that order. Pursuant to our memorandum and articles of association, all dividends unclaimed for three years after having been declared may be forfeited by a resolution of directors for the benefit of the Company.
No dividends were declared for fiscal year 2016 and, as of the date of this annual report on Form 20-F, no dividends have been declared for fiscal year 2017.
The only dividends we have declared since the Acquisition are the four $12.5 million dividends in 2014, four $12.5 million dividends in 2013, four $12.5 million dividends in 2012, four $12.5 million dividends in 2011 and a $40 million dividend with respect to our results of operations for fiscal year 2009. All of these dividends have been paid in full.
The amounts and dates of future dividend payments, if any, will be subject to, among other things, the discretion of our Board of Directors. Accordingly, there can be no assurance that any future distributions will be made, or, if made, as to the amount of such distributions.
| B. | Significant Changes |
None.
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| A. | Offering and Listing Details |
The following table shows the annual, quarterly and monthly ranges of the high and low per share closing sales price for our class A shares as reported by the NYSE.
| Low | High | |||||||
| Year Ended December 31: | ||||||||
| 2011 (since April 14, 2011) | $ | 19.50 | $ | 29.41 | ||||
| 2012 | $ | 10.55 | $ | 22.99 | ||||
| 2013 | $ | 10.45 | $ | 15.52 | ||||
| 2014 | $ | 5.17 | $ | 12.12 | ||||
| 2015 | $ | 2.57 | $ | 6.60 | ||||
| 2016 | $ | 2.16 | $ | 6.60 | ||||
| Year Ended December 31, 2015: | ||||||||
| First Quarter | $ | 4.09 | $ | 5.93 | ||||
| Second Quarter | $ | 4.81 | $ | 6.60 | ||||
| Third Quarter | $ | 2.71 | $ | 5.26 | ||||
| Fourth Quarter | $ | 2.57 | $ | 3.97 | ||||
| Year Ended December 31, 2016: | ||||||||
| First Quarter | $ | 2.16 | $ | 3.89 | ||||
| Second Quarter | $ | 3.29 | $ | 5.13 | ||||
| Third Quarter | $ | 4.56 | $ | 5.99 | ||||
| Fourth Quarter | $ | 5.15 | $ | 6.60 | ||||
| Year Ended December 31, 2017: | ||||||||
| First Quarter | $ | 5.45 | $ | 8.25 | ||||
| Month Ended: | ||||||||
| October 31, 2016 | $ | 5.18 | $ | 6.60 | ||||
| November 30, 2016 | $ | 5.20 | $ | 6.20 | ||||
| December 31, 2016 | $ | 5.25 | $ | 6.00 | ||||
| January 31, 2017 | $ | 5.45 | $ | 5.95 | ||||
| February 28, 2017 | $ | 5.83 | $ | 6.60 | ||||
| March 31, 2017 | $ | 6.00 | $ | 8.25 | ||||
| April 30, 2017 (through April 25, 2017) | $ | 7.55 | $ | 8.40 | ||||
| B. | Plan of Distribution |
Not applicable.
| C. | Markets |
Our class A shares have been listed on the NYSE, since April 14, 2011 under the symbol “ARCO.” For information regarding the price history of our class A shares, see “—A. Offering and Listing Details.”
| D. | Selling Shareholders |
Not applicable.
| E. | Dilution |
Not applicable.
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| F. | Expenses of the Issue |
Not applicable.
ITEM 10. ADDITIONAL INFORMATION
| A. | Share Capital |
Not applicable.
| B. | Memorandum and Articles of Association |
General
We are a British Virgin Islands company incorporated with limited liability and our affairs are governed by the provisions of our memorandum and articles of association, as amended and restated from time to time, and by the provisions of applicable British Virgin Islands law, including the BVI Business Companies Act, 2004, or the BVI Act.
Our company number in the British Virgin Islands is 1619553. As provided in sub-regulation 4.1 of our memorandum of association, subject to British Virgin Islands law, we have full capacity to carry on or undertake any business or activity, do any act or enter into any transaction and, for such purposes, full rights, powers and privileges. Our registered office is at Maples Corporate Services (BVI) Limited, Kingston Chambers, P.O. Box 173, Road Town, Tortola, British Virgin Islands.
The transfer agent and registrar for our class A and class B shares is Continental Stock Transfer & Trust Company, which maintains the share registrar for each class in New York, New York.
As of the date of this annual report, under our memorandum and articles of association, we are authorized to issue up to 420,000,000 class A shares and 80,000,000 class B shares. As of the date of this annual report, 130,711,224 class A shares and 80,000,000 class B shares were issued, fully paid and outstanding.
The maximum number of shares that we are authorized to issue may be changed by resolution of shareholders amending our memorandum and articles of association. Shares may be issued from time to time only by resolution of shareholders.
Our class A shares are listed on the NYSE under the symbol “ARCO.”
The following is a summary of the material provisions of our memorandum and articles of association.
Class A Shares
Holders of our class A shares may freely hold and vote their shares.
The following summarizes the rights of holders of our class A shares:
| · | each holder of class A shares is entitled to one vote per share on all matters to be voted on by shareholders generally, including the election of directors; |
| · | holders of class A shares vote together with holders of class B shares; |
| · | there are no cumulative voting rights; |
| · | the holders of our class A shares are entitled to dividends and other distributions, pari passu with our class B shares, as may be declared from time to time by our board of directors out of funds legally available for that purpose, if any, and pursuant to our memorandum and articles of association, all dividends unclaimed for three years after having been declared may be forfeited by a resolution of directors for the benefit of the Company; |
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| · | upon our liquidation, dissolution or winding up, the holders of class A shares will be entitled to share ratably, pari passu with our class B shares, in the distribution of all of our assets remaining available for distribution after satisfaction of all our liabilities; and |
| · | the holders of class A shares have preemptive rights in connection with the issuance of any securities by us, except for certain issuances of securities by us, including (i) pursuant to any employee compensation plans; (ii) as consideration for (a) any merger, consolidation or purchase of assets or (b) recapitalization or reorganization; (iii) in connection with a pro rata division of shares or dividend in specie or distribution; or (iv) in a bona fide public offering that has been registered with the SEC, but they are not entitled to the benefits of any redemption or sinking fund provisions. |
Class B Shares
All of our class B shares are owned by Los Laureles Ltd. Holders of our class B shares may freely hold and vote their shares.
The following summarizes the rights of holders of our class B shares:
| · | each holder of class B shares is entitled to five votes per share on all matters to be voted on by shareholders generally, including the election of directors; |
| · | holders of class B shares vote together with holders of class A shares; |
| · | class B shares may not be listed on any U.S. or foreign national or regional securities exchange or market; |
| · | there are no cumulative voting rights; |
| · | the holders of our class B shares are entitled to dividends and other distributions, pari passu with our class A shares, as may be declared from time to time by our board of directors out of funds legally available for that purpose, if any, and pursuant to our memorandum and articles of association, all dividends unclaimed for three years after having been declared may be forfeited by a resolution of directors for the benefit of the Company; |
| · | upon our liquidation, dissolution or winding up, the holders of class B shares will be entitled to share ratably, pari passu with our class A shares, in the distribution of all of our assets remaining available for distribution after satisfaction of all our liabilities; |
| · | the holders of class B shares have preemptive rights in connection with the issuance of any securities by us, except for certain issuances of securities by us, including (i) pursuant to any employee compensation plans; (ii) as consideration for (a) any merger, consolidation or purchase of assets or (b) recapitalization or reorganization; (iii) in connection with a pro rata division of shares or dividend in specie or distribution; or (iv) in a bona fide public offering that has been registered with the SEC, but they are not entitled to the benefits of any redemption or sinking fund provisions; |
| · | each class B share is convertible into one class A share at the option of the holder at any time, subject to the prior written approval of McDonald’s; and |
| · | each class B share will convert automatically into one class A share at such time as the holders of class B shares cease to hold, directly or indirectly, at least 20% of the aggregate number of outstanding class A and class B shares. |
Limitation on Liability and Indemnification Matters
Under British Virgin Islands law, each of our directors and officers, in performing his or her functions, is required to act honestly and in good faith with a view to our best interests and exercise the care, diligence and skill that a reasonably prudent director would exercise in comparable circumstances. Our memorandum and articles of association provide that, to the fullest extent permitted by British Virgin Islands law or any other applicable laws, our directors will not be personally liable to us or our shareholders for any acts or omissions in the performance of their duties. This limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission. These provisions will not limit the liability of directors under United States federal securities laws.
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Our memorandum and articles of association provide that we shall indemnify any of our directors or anyone serving at our request as a director of another entity against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings or suits. We may pay any expenses, including legal fees, incurred by any such person in defending any legal, administrative or investigative proceedings in advance of the final disposition of the proceedings. If a person to be indemnified has been successful in defense of any proceedings referred to above, the director is entitled to be indemnified against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred by the director or officer in connection with the proceedings.
We may purchase and maintain insurance in relation to any of our directors, officers, employees, agents or liquidators against any liability asserted against them and incurred by them in that capacity, whether or not we have or would have had the power to indemnify them against the liability as provided in our memorandum and articles of association.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted to our directors, officers or controlling persons pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable as a matter of United States law.
Shareholders’ Meetings and Consents
The following summarizes certain relevant provisions of British Virgin Islands law and our articles of association in relation to our shareholders’ meetings:
| · | the directors of the Company may convene meetings of shareholders at such times and in such manner and places within or outside the British Virgin Islands as the directors consider necessary or desirable; provided that at least one meeting of shareholders be held each year; |
| · | upon the written request of shareholders entitled to exercise 30 percent or more of the voting rights in respect of the matter for which the meeting is requested, the directors are required to convene a meeting of the shareholders. Any such request must state the proposed purpose of the meeting; |
| · | the directors convening a meeting must give not less than ten days’ notice of a meeting of shareholders to: (i) those shareholders whose names on the date the notice is given appear as shareholders in the register of members of our company and are entitled to vote at the meeting, and (ii) the other directors; |
| · | a meeting of shareholders held in contravention of the requirement to give notice is valid if shareholders holding at least 90 percent of the total voting rights on all the matters to be considered at the meeting have waived notice of the meeting and, for this purpose, the presence of a shareholder at the meeting shall constitute waiver in relation to all the shares that such shareholder holds; |
| · | a shareholder may be represented at a meeting of shareholders by a proxy who may speak and vote on behalf of the shareholder; |
| · | a meeting of shareholders is duly constituted if, at the commencement of the meeting, there are present in person or by proxy not less than 50 percent of the votes of the shares or class or series of shares entitled to vote on resolutions of shareholders to be considered at the meeting; |
| · | if within two hours from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of shareholders, shall be dissolved; in any other case it shall be adjourned to the next business day in the jurisdiction in which the meeting was to have been held at the same time and place or to such other date, time and place as the directors may determine, and if at the adjourned meeting there are present within one hour from the time appointed for the meeting in person or by proxy not less than one third of the votes of the shares or each class or series of shares entitled to vote on the matters to be considered by the meeting, those present shall constitute a quorum, but otherwise the meeting shall be dissolved. Notice of the adjourned meeting need not be given if the date, time and place of such meeting are announced at the meeting at which the adjournment is taken; |
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| · | a resolution of shareholders is valid (i) if approved at a duly convened and constituted meeting of shareholders by the affirmative vote of a majority of the votes of the shares entitled to vote thereon which were present at the meeting and were voted, or (ii) if it is a resolution consented to in writing by a majority of the votes of shares entitled to vote thereon; and |
| · | an action that may be taken by the shareholders at a meeting may also be taken by a resolution of shareholders consented to in writing by a majority of the votes of shares entitled to vote thereon, without the need for any notice, but if any resolution of shareholders is adopted otherwise than by unanimous written consent of all shareholders, a copy of such resolution shall forthwith be sent to all shareholders not consenting to such resolution. |
We held our most recent annual shareholder meeting on April 24, 2017 in Montevideo, Uruguay.
Compensation of Directors
The compensation of our directors is determined by our Board of Directors, and there is no requirement that a specified number or percentage of “independent” directors must approve any such determination.
Differences in Corporate Law
We were incorporated under, and are governed by, the laws of the British Virgin Islands. The corporate statutes of the State of Delaware and the British Virgin Islands in many respects are similar, and the flexibility available under British Virgin Islands law has enabled us to adopt a memorandum of association and articles of association that will provide shareholders with rights that, except as described in this annual report, do not vary in any material respect from those they would enjoy if we were incorporated under the Delaware General Corporation Law, or Delaware corporate law. Set forth below is a summary of some of the differences between provisions of the BVI Act applicable to us and the laws applicable to companies incorporated in Delaware and their shareholders.
Director’s Fiduciary Duties
Under Delaware corporate law, a director of a Delaware corporation has a fiduciary duty to the corporation and its shareholders. This duty has two components: the duty of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to shareholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest of the corporation and its shareholders take precedence over any interest possessed by a director, officer or controlling stockholder and not shared by the shareholders generally. In general, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Should such evidence be presented concerning a transaction by a director, a director must prove the procedural fairness of the transaction, and that the transaction was of fair value to the corporation.
British Virgin Islands law provides that every director of a British Virgin Islands company, in exercising his powers or performing his duties, shall act honestly and in good faith and in what the director believes to be in the best interests of the company. Additionally, the director shall exercise the care, diligence, and skill that a reasonable director would exercise in the same circumstances, taking into account the nature of the company, the nature of the decision and the position of the director and his responsibilities. In addition, British Virgin Islands law provides that a director shall exercise his powers as a director for a proper purpose and shall not act, or agree to the company acting, in a manner that contravenes British Virgin Islands law or the memorandum association or articles of association of the company.
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Amendment of Governing Documents
Under Delaware corporate law, with very limited exceptions, a vote of the shareholders is required to amend the certificate of incorporation. In addition, Delaware corporate law provides that shareholders have the right to amend the bylaws, and the certificate of incorporation also may confer on the directors the right to amend the bylaws. Our memorandum of association may only be amended by a resolution of shareholders, provided that any amendment of the provision related to the prohibition against listing our class B shares must be approved by not less than 50% of the votes of the class A shares entitled to vote that were present at the relevant meeting and voted. Our articles of association may also only be amended by a resolution of shareholders.
Written Consent of Directors
Under Delaware corporate law, directors may act by written consent only on the basis of a unanimous vote. Similarly, under our articles of association, a resolution of our directors in writing shall be valid only if consented to by all directors or by all members of a committee of directors, as the case may be.
Written Consent of Shareholders
Under Delaware corporate law, unless otherwise provided in the certificate of incorporation, any action to be taken at any annual or special meeting of shareholders of a corporation may be taken by written consent of the holders of outstanding stock having not less than the minimum number of votes that would be necessary to take that action at a meeting at which all shareholders entitled to vote were present and voted. As permitted by British Virgin Islands law, shareholders’ consents need only a majority of shareholders signing to take effect. Our memorandum and articles of association provide that shareholders may approve corporate matters by way of a resolution consented to at a meeting of shareholders or in writing by a majority of shareholders entitled to vote thereon.
Shareholder Proposals
Under Delaware corporate law, a shareholder has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice provisions in the governing documents. A special meeting may be called by the board of directors or any other person authorized to do so in the governing documents, but shareholders may be precluded from calling special meetings. British Virgin Islands law and our memorandum and articles of association provide that our directors shall call a meeting of the shareholders if requested in writing to do so by shareholders entitled to exercise at least 30% of the voting rights in respect of the matter for which the meeting is requested. Any such request must state the proposed purpose of the meeting.
Sale of Assets
Under Delaware corporate law, a vote of the shareholders is required to approve the sale of assets only when all or substantially all assets are being sold. In the British Virgin Islands, shareholder approval is required when more than 50% of the Company’s total assets by value are being disposed of or sold if not made in the usual or regular course of the business carried out by the company. Under our memorandum and articles of association, the directors may by resolution of directors determine that any sale, transfer, lease, exchange or other disposition is in the usual or regular course of the business carried on by us and such determination is, in the absence of fraud, conclusive.
Dissolution; Winding Up
Under Delaware corporate law, unless the board of directors approves the proposal to dissolve, dissolution must be approved in writing by shareholders holding 100% of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved by a simple majority of the corporation’s outstanding shares. Delaware corporate law allows a Delaware corporation to include in its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board. As permitted by British Virgin Islands law and our memorandum and articles of association, we may be voluntarily liquidated under Part XII of the BVI Act by resolution of directors and resolution of shareholders if we have no liabilities or we are able to pay our debts as they fall due.
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Redemption of Shares
Under Delaware corporate law, any stock may be made subject to redemption by the corporation at its option, at the option of the holders of that stock or upon the happening of a specified event, provided shares with full voting power remain outstanding. The stock may be made redeemable for cash, property or rights, as specified in the certificate of incorporation or in the resolution of the board of directors providing for the issue of the stock. As permitted by British Virgin Islands law and our memorandum and articles of association, shares may be repurchased, redeemed or otherwise acquired by us. However, the consent of the shareholder whose shares are to be repurchased, redeemed or otherwise acquired must be obtained, except as described under “—Compulsory Acquisition” below. Moreover, our directors must determine that immediately following the redemption or repurchase we will be able to pay our debts as they become due and that the value of our assets will exceed our liabilities.
Compulsory Acquisition
Under Delaware General Corporation Law § 253, in a process known as a “short form” merger, a corporation that owns at least 90% of the outstanding shares of each class of stock of another corporation may either merge the other corporation into itself and assume all of its obligations or merge itself into the other corporation by executing, acknowledging and filing with the Delaware Secretary of State a certificate of such ownership and merger setting forth a copy of the resolution of its board of directors authorizing such merger. If the parent corporation is a Delaware corporation that is not the surviving corporation, the merger also must be approved by a majority of the outstanding stock of the parent corporation. If the parent corporation does not own all of the stock of the subsidiary corporation immediately prior to the merger, the minority shareholders of the subsidiary corporation party to the merger may have appraisal rights as set forth in § 262 of the Delaware General Corporation Law.
Under the BVI Act, subject to any limitations in a Company’s memorandum or articles, members holding 90% of the votes of the outstanding shares entitled to vote, and members holding 90% of the votes of the outstanding shares of each class of shares entitled to vote, may give a written instruction to the company directing the company to redeem the shares held by the remaining members. Upon receipt of such written instruction, the company shall redeem the shares specified in the written instruction, irrespective of whether or not the shares are by their terms redeemable. The company shall give written notice to each member whose shares are to be redeemed stating the redemption price and the manner in which the redemption is to be effected. A member whose shares are to be so redeemed is entitled to dissent from such redemption, and to be paid the fair value of his shares, as described under “—Shareholders’ Rights under British Virgin Islands Law Generally” below.
Variation of Rights of Shares
Under Delaware corporate law, a corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of that class, unless the certificate of incorporation provides otherwise. As permitted by British Virgin Islands law and our memorandum of association, we may vary the rights attached to any class of shares only with the consent in writing of holders of not less than 50% of the issued shares of that class and of holders of not less than 50% of the issued shares of any other class which may be adversely affected by such variation.
Removal of Directors
Under Delaware corporate law, a director of a corporation with a classified board may be removed only for cause with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. Our memorandum and articles of association provide that directors may be removed at any time, with or without cause, by a resolution of shareholders or a resolution of directors.
In addition, directors are subject to rotational retirement every three years. The initial terms of office of the Class I, Class II and Class III directors have been staggered over a period of three years to ensure that all directors of the company do not face reelection in the same year.
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Mergers
Under Delaware corporate law, one or more constituent corporations may merge into and become part of another constituent corporation in a process known as a merger. A Delaware corporation may merge with a foreign corporation as long as the law of the foreign jurisdiction permits such a merger. To effect a merger under Delaware General Corporation Law § 251, an agreement of merger must be properly adopted and the agreement of merger or a certificate of merger must be filed with the Delaware Secretary of State. In order to be properly adopted, the agreement of merger must be adopted by the board of directors of each constituent corporation by a resolution or unanimous written consent. In addition, the agreement of merger generally must be approved at a meeting of stockholders of each constituent corporation by a majority of the outstanding stock of the corporation entitled to vote, unless the certificate of incorporation provides for a supermajority vote. In general, the surviving corporation assumes all of the assets and liabilities of the disappearing corporation or corporations as a result of the merger.
Under the BVI Act, two or more BVI companies may merge or consolidate in accordance with the statutory provisions. A merger means the merging of two or more constituent companies into one of the constituent companies, and a consolidation means the uniting of two or more constituent companies into a new company. In order to merge or consolidate, the directors of each constituent BVI company must approve a written plan of merger or consolidation which must be authorized by a resolution of shareholders. One or more BVI companies may also merge or consolidate with one or more companies incorporated under the laws of jurisdictions outside the BVI, if the merger or consolidation is permitted by the laws of the jurisdictions in which the companies incorporated outside the BVI are incorporated. In respect of such a merger or consolidation a BVI company is required to comply with the provisions of the BVI Act, and a company incorporated outside the BVI is required to comply with the laws of its jurisdiction of incorporation.
Shareholders of BVI companies not otherwise entitled to vote on the merger or consolidation may still acquire the right to vote if the plan of merger or consolidation contains any provision which, if proposed as an amendment to the memorandum of association or articles of association, would entitle them to vote as a class or series on the proposed amendment. In any event, all shareholders must be given a copy of the plan of merger or consolidation irrespective of whether they are entitled to vote at the meeting or consent to the written resolution to approve the plan of merger or consolidation.
Inspection of Books and Records
Under Delaware corporate law, any shareholder of a corporation may for any proper purpose inspect or make copies of the corporation’s stock ledger, list of shareholders and other books and records. Under British Virgin Islands law, members of the general public, on payment of a nominal fee, can obtain copies of the public records of a company available at the office of the British Virgin Islands Registrar of Corporate Affairs which will include the company’s certificate of incorporation, its memorandum and articles of association (with any amendments) and records of license fees paid to date, and will also disclose any articles of dissolution, articles of merger and a register of registered charges if such a register has been filed in respect of the company.
A member of a company is entitled, on giving written notice to the company, to inspect:
| (a) | the memorandum and articles; |
| (b) | the register of members; |
| (c) | the register of directors; and |
| (d) | the minutes of meetings and resolutions of members and of those classes of members of which he is a member; and to make copies of or take extracts from the documents and records referred to in (a) to (d) above. Subject to the memorandum and articles, the directors may, if they are satisfied that it would be contrary to the company’s interests to allow a member to inspect any document, or part of a document, specified in (b), (c) or (d) above, refuse to permit the member to inspect the document or limit the inspection of the document, including limiting the making of copies or the taking of extracts from the records. |
Where a company fails or refuses to permit a member to inspect a document or permits a member to inspect a document subject to limitations, that member may apply to the court for an order that he should be permitted to inspect the document or to inspect the document without limitation.
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A company is required to keep at the office of its registered agent the memorandum and articles of the company; the register of members maintained or a copy of the register of members; the register of directors or a copy of the register of directors; and copies of all notices and other documents filed by the company in the previous ten years.
Where a company keeps a copy of the register of members or the register of directors at the office of its registered agent, it is required to notify any changes to the originals of such registers to the registered agent, in writing, within 15 days of any change; and to provide the registered agent with a written record of the physical address of the place or places at which the original register of members or the original register of directors is kept. Where the place at which the original register of members or the original register of directors is changed, the company is required to provide the registered agent with the physical address of the new location of the records within fourteen days of the change of location.
A company is also required to keep at the office of its registered agent or at such other place or places, within or outside the British Virgin Islands, as the directors determine, the minutes of meetings and resolutions of members and of classes of members; and the minutes of meetings and resolutions of directors and committees of directors. If such records are kept at a place other than at the office of the company’s registered agent, the company is required to provide the registered agent with a written record of the physical address of the place or places at which the records are kept and to notify the registered agent, within 14 days, of the physical address of any new location where such records may be kept.
A company is further required to:
| (a) | keep at the office of its registered agent or at such other place or places, within or outside the British Virgin Islands, as the directors may determine, the records and underlying documentation of the company; |
| (b) | retain the records and underlying documentation for a period of at least five years from the date: (i) of completion of the transaction to which the records and underlying documentation relate; or (ii) the company terminates the business relationship to which the records and underlying documentation relate; and |
| (c) | provide its registered agent without delay any records and underlying documentation in respect of the company that the registered agent requests pursuant to the entitlement of the company's registered agent to make such a request where the registered agent is required to do so by the British Virgin Islands Financial Services Commission or any other competent authority in the British Virgin Islands acting pursuant to the exercise of a power under an enactment. |
The records and underlying documentation of the company are required to be in such form as:
| (a) | are sufficient to show and explain the company’s transactions; and |
| (b) | will, at any time, enable the financial position of the company to be determined with reasonable accuracy. |
Where the records and underlying documentation of a company are kept at a place or places other than at the office of the company’s registered agent, the company is required to provide the registered agent with a written:
| (a) | record of the physical address of the place at which the records and underlying documentation are kept; and |
| (b) | record of the name of the person who maintains and controls the company’s records and underlying documentation. |
Where the place or places at which the records and underlying documentation of the company, or the name of the person who maintains and controls the company’s records and underlying documentation, change, the company must within 14 days of the change, provide:
| (a) | its registered agent with the physical address of the new location of the records and underlying documentation; or |
| (b) | the name of the new person who maintains and controls the company’s records and underlying documentation. |
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For the foregoing purposes:
| (a) | “business relationship” means a continuing arrangement between a company and one or more persons with whom the company engages in business, whether on a one-off, regular or habitual basis; and |
| (b) | “records and underlying documentation” includes accounts and records (such as invoices, contracts and similar documents) in relation to: (i) all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place; (ii) all sales and purchases of goods by the company; and (iii) the assets and liabilities of the company. |
Conflict of Interest
Under Delaware corporate law, a contract between a corporation and a director or officer, or between a corporation and any other organization in which a director or officer has a financial interest, is not void as long as the material facts as to the director’s or officer’s relationship or interest are disclosed or known and either a majority of the disinterested directors authorizes the contract in good faith or the shareholders vote in good faith to approve the contract. Nor will any such contract be void if it is fair to the corporation when it is authorized, approved or ratified by the board of directors, a committee or the shareholders.
The BVI Act provides that a director shall, forthwith after becoming aware that he is interested in a transaction entered into or to be entered into by the company, disclose that interest to the board of directors of the company. The failure of a director to disclose that interest does not affect the validity of a transaction entered into by the director or the company, so long as the director’s interest was disclosed to the board prior to the Company’s entry into the transaction or was not required to be disclosed because the transaction is between the company and the director himself and is otherwise in the ordinary course of business and on usual terms and conditions. As permitted by British Virgin Islands law and our memorandum and articles of association, a director interested in a particular transaction may vote on it, attend meetings at which it is considered and sign documents on our behalf which relate to the transaction, provided that the disinterested directors consent.
Transactions with Interested Shareholders
Delaware corporate law contains a business combination statute applicable to Delaware public corporations whereby, unless the corporation has specifically elected not to be governed by that statute by amendment to its certificate of incorporation, it is prohibited from engaging in certain business combinations with an “interested shareholder” for three years following the date that the person becomes an interested shareholder. An interested shareholder generally is a person or group that owns or owned 15% or more of the target’s outstanding voting stock within the past three years. This has the effect of limiting the ability of a potential acquirer to make a two-tiered bid for the target in which all shareholders would not be treated equally. The statute does not apply if, among other things, prior to the date on which the shareholder becomes an interested shareholder, the board of directors approves either the business combination or the transaction that resulted in the person becoming an interested shareholder. This encourages any potential acquirer of a Delaware public corporation to negotiate the terms of any acquisition transaction with the target’s board of directors.
British Virgin Islands law has no comparable provision. As a result, we cannot avail ourselves of the types of protections afforded by the Delaware business combination statute. However, although British Virgin Islands law does not regulate transactions between a company and its significant shareholders, it does provide that these transactions must be entered into bona fide in the best interests of the company and not with the effect of constituting a fraud on the minority shareholders.
Independent Directors
There are no provisions under Delaware corporate law or under the BVI Act that require a majority of our directors to be independent.
Cumulative Voting
Under Delaware corporate law, cumulative voting for elections of directors is not permitted unless the Company’s certificate of incorporation specifically provides for it. Cumulative voting potentially facilitates the representation of minority shareholders on a board of directors since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single director, which increases the shareholder’s voting power with respect to electing such director. There are no prohibitions to cumulative voting under the laws of the British Virgin Islands, but our memorandum of association and articles of association do not provide for cumulative voting.
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Shareholders’ Rights under British Virgin Islands Law Generally
The BVI Act provides for remedies which may be available to shareholders. Where a company incorporated under the BVI Act or any of its directors engages in, or proposes to engage in, conduct that contravenes the BVI Act or the Company’s memorandum and articles of association, the BVI courts can issue a restraining or compliance order. Shareholders cannot also bring derivative, personal and representative actions under certain circumstances. The traditional English basis for members’ remedies has also been incorporated into the BVI Act: where a shareholder of a company considers that the affairs of the company have been, are being or are likely to be conducted in a manner likely to be oppressive, unfairly discriminatory or unfairly prejudicial to him, he may apply to the court for an order based on such conduct.
Any shareholder of a company may apply to court for the appointment of a liquidator of the company and the court may appoint a liquidator of the company if it is of the opinion that it is just and equitable to do so.
The BVI Act provides that any shareholder of a company is entitled to payment of the fair value of his shares upon dissenting from any of the following: (a) a merger, if the company is a constituent company, unless the company is the surviving company and the member continues to hold the same or similar shares; (b) a consolidation, if the company is a constituent company; (c) any sale, transfer, lease, exchange or other disposition of more than 50% in value of the assets or business of the company if not made in the usual or regular course of the business carried on by the company but not including (i) a disposition pursuant to an order of the court having jurisdiction in the matter, (ii) a disposition for money on terms requiring all or substantially all net proceeds to be distributed to the shareholders in accordance with their respective interest within one year after the date of disposition, or (iii) a transfer pursuant to the power of the directors to transfer assets for the protection thereof; (d) a redemption of 10% or fewer of the issued shares of the company required by the holders of 90% or more of the shares of the company pursuant to the terms of the BVI Act; and (e) an arrangement, if permitted by the court.
Generally any other claims against a company by its shareholders must be based on the general laws of contract or tort applicable in the British Virgin Islands or their individual rights as shareholders as established by the Company’s memorandum and articles of association.
| C. | Material Contracts |
The MFAs
We received exclusive master franchising rights from McDonald’s for the Territories on August 3, 2007 when Mr. Staton, our Executive Chairman and controlling shareholder and our founding private equity shareholders purchased McDonald’s LatAm business for $698.1 million (including $18.7 million of acquisition costs) and entered into the MFAs. Prior to the Acquisition, Mr. Staton had been the joint venture partner of McDonald’s Corporation in Argentina for over 20 years and had served as President of McDonald’s South Latin America division since 2004.
McDonald’s has a long-standing presence in Latin America and the Caribbean dating to the opening of its first restaurant in Puerto Rico in 1967. Since then, McDonald’s expanded its footprint across the region as consumer markets and opportunities arose, opening its first restaurants in Brazil in 1979, in Mexico and Venezuela in 1985 and in Argentina in 1986.
We hold our McDonald’s franchise rights pursuant to the MFA for all of the Territories except Brazil, executed on August 3, 2007, as amended and restated on November 10, 2008 and as further amended on August 31, 2010, June 3, 2011 and March 17, 2016 entered into by us, our wholly owned subsidiary Arcos Dorados Coöperatieve U.A., Arcos Dorados B.V. (or these two entities together with us collectively, the Owner Entities), LatAm, LLC, or the Master Franchisee, certain subsidiaries of the Master Franchisee, Los Laureles, Ltd. and McDonald’s. On August 3, 2007, our subsidiary Arcos Dourados Comercio de Alimentos Ltda., or the Brazilian Master Franchisee, and McDonald’s entered into the separate, but substantially identical, Brazilian MFA, which was amended and restated on November 10, 2008.
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The MFAs set forth McDonald’s and our rights and obligations in respect of the ownership and operation of the McDonald’s-branded restaurants located in the Territories. The MFAs do not include the following Latin American and Caribbean countries and territories, among others: Anguilla, Antigua and Barbuda, the Bahamas, Barbados, Belize, Bolivia, the British Virgin Islands, the Cayman Islands, Cuba, Dominica, Dominican Republic, El Salvador, Grenada, Guatemala, Guiana, Haiti, Honduras, Jamaica, Montserrat, Nicaragua, Paraguay, Suriname, St. Barthélemy, St. Kitts and Nevis, St. Lucia, St. Maarten, St. Vincent and the Grenadines, Turks & Caicos Islands and the U.S. Virgin Islands, with the exception of St. Croix and St. Thomas.
The material provisions of the MFAs are set forth below.
Term
The initial term of the franchise granted pursuant to the MFAs is 20 years for all of the Territories other than French Guiana, Guadeloupe and Martinique. After the expiration of the initial term, McDonald’s may grant us an option to extend the term of the MFAs with respect to all Territories for an additional period of 10 years. The initial term of the franchise for French Guiana, Guadeloupe and Martinique was 10 years. Under the MFA, we had the right to extend the term of the MFA with respect to French Guiana, Guadeloupe and Martinique for an additional term of 10 years. On June 27, 2016, we exercised this right and McDonald’s granted us an extension of the initial term for the franchises in French Guiana, Guadeloupe and Martinique for a period of 10 years, expiring August 2, 2027.
Our Right to Own and Operate McDonald’s-Branded Restaurants
Under the MFAs, in the Territories, we have the exclusive right to (i) own and operate, directly or indirectly, McDonald’s restaurants, (ii) license and grant franchises with respect to McDonald’s-branded restaurants, (iii) adopt and use, and to grant the right and license to franchisees to adopt and use, the McDonald’s operations system in our restaurants, (iv) advertise to the public that we are a franchisee of McDonald’s, and (v) to use, and to sublicense to our franchisees the right to use the McDonald’s intellectual property solely in connection with the development, ownership, operation, promotion and management of our restaurants, and to engage in related advertising, promotion and marketing programs and activities.
Under the MFAs, McDonald’s cannot grant the rights described in clauses (i), (ii) and (iii) of the preceding paragraph to any other person while the MFAs are in effect. Notwithstanding the foregoing, McDonald’s has reserved, with respect to the McDonald’s restaurants located in the Territories, all rights not specifically granted to us, including the right, directly or indirectly, to (i) use and sublicense the McDonald’s intellectual property for all other purposes and means of distribution, (ii) sell, promote or license the sale of products or services under the intellectual property and (iii) use the intellectual property in connection with all other activities not prohibited by the MFAs.
In addition, under the MFAs, McDonald’s provides us with know-how and new developments, techniques and improvements in the areas of restaurant management, food preparation and service, and operations manuals that contain the standards and procedures necessary for the successful operation of McDonald’s-branded restaurants.
Franchise Fees
Under the MFAs, we are responsible for the payment to McDonald’s of initial franchise fees, continuing franchise fees and transfer fees.
The initial franchise fee is payable upon the opening of a new restaurant and the extension of the term of any existing franchise agreement. For Company-operated restaurants, the initial fee is based on the term remaining under the MFAs for the country in which the restaurant is located. For franchised restaurants, we receive an initial fee from the franchisee based on the term of the franchise agreement (generally 20 years), and pay 50% of this fee to McDonald’s.
The continuing franchise fee is paid, with respect to each calendar month, to McDonald’s in an amount generally equal to 7% of the U.S. dollar equivalent of the gross sales, as defined therein, of each of the McDonald’s restaurants in the Territories for that calendar month, minus, as applicable, a brand building adjustment. During the first 10 years of the MFAs, the brand building adjustment is 2% of the gross sales, for a net continuing franchise fee payment of 5% of the gross sales. During years 11 through 15 of the MFAs, the brand building adjustment will be 1% of the gross sales, for a net continuing franchise fee payment of 6%; and the brand building adjustment will be 0% thereafter, for a net continuing franchise fee payment of 7% of the gross sales. In addition, on January 25, 2017, McDonald’s Corporation agreed to provide growth support for the same period. We project that the impact of this support could result in an effective royalty rate of 5.3% in 2017, 5.7% in 2018 and 5.9% in 2019.
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We are responsible for collecting the continuing franchise fee from our franchisees and must pay that amount to McDonald’s. In the event that a franchisee does not pay the full amount of the fee or any of our subsidiaries are unable to transfer funds to us due to currency restrictions or otherwise, we are responsible for any resulting shortfall. See “Item 3. Key Information—D. Risk Factors—Certain Factors Relating to Our Business—Our financial condition and results of operations depend, to a certain extent, on the financial condition of our franchisees and their ability to fulfill their obligations under their franchise agreements” and “Item 3. Key Information—D. Risk Factors—Certain Factors Relating to Latin America and the Caribbean—We are subject to significant foreign currency exchange controls and depreciation in certain countries in which we operate.”
In the event of a voluntary or involuntary transfer of any of the McDonald’s restaurants located in the Territories to a person other than a subsidiary of ours or an affiliate of one of our franchisees, we must charge a transfer fee of not less than $10,000, and must pay to McDonald’s an amount equal to 50% of the fee charged.
All payments to McDonald’s must be made in U.S. dollars, but are based on local currency exchange rates at the time of payment.
Material Breach
A material breach under the MFAs would occur if we, or our subsidiaries that are a party to the MFAs, materially breached any of the representations or warranties or obligations under the MFAs (not cured within 30 days after receipt of notice thereof from McDonald’s) relating to or otherwise in connection with any aspect of the master franchise business, the franchised restaurants or any other matter in or affecting any one or more Territories. The following events, among others, constitute a material breach under the MFAs: our noncompliance with anti-terrorism or anti-corruption policies and procedures required by applicable law; our bankruptcy, insolvency, voluntary filing or filing by any other person of a petition in commercial insolvency; our conviction or that of our subsidiaries, or of our or our subsidiaries’ agents or employees for a crime or offense that is punishable by incarceration for more than one year or a felony, or a crime or offense or the indictment on charges thereof that, in the determination of McDonald’s, is likely to adversely affect the reputation of such person, any franchised restaurant or McDonald’s; the entry of any judgment against us or our subsidiaries in excess of $1,000,000 that is not duly paid or otherwise discharged within 30 days (unless such judgment is being contested on appeal in good faith); our failure to maintain certain quarterly financial ratios and not cure any non-compliance within 30 days; our failure to achieve (a) at least 80% of the targeted openings during any one-calendar year of any restaurant opening plan; or (b) at least 90% of the targeted openings during the three-calendar year term of any restaurant opening plan; and our failure to comply with at least 80% of the funding requirements of any reinvestment plan with respect to any Territory for a period of one year.
Business of the Company and the Other Owner Entities
In addition to the payment of franchise fees described above, we and the other Owner Entities are subject to a variety of obligations and restrictions under the MFAs.
Under the MFAs, we cannot, directly or indirectly, enter into any other QSR business or any business other than the operation of McDonald’s-branded restaurants in the Territories. Neither we nor any of the other Owner Entities can engage in a business other than holding, directly or indirectly, our equity interests. In addition, neither we nor any of the other Owner Entities can engage in any activity or participate in any business that competes with McDonald’s business.
Under the MFAs, Los Laureles Ltd., a British Virgin Islands company beneficially owned by Mr. Staton, our Executive Chairman and controlling shareholder, is required to own not less than 40% of our economic interests and 51% of our voting interests. The MFAs do provide an exception for any dilution following an initial public offering, so long as such dilution does not cause Los Laureles Ltd. to be diluted below 30% of our economic interests. Also, under the MFAs, we are required to own, directly or indirectly, 100% of the equity interests of our subsidiaries and cannot enter into any partnership, joint venture or similar arrangement without McDonald’s consent. In addition, at least 50% of all McDonald’s-branded restaurants in the Territories must be Company-operated restaurants.
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Real Estate
Under the MFAs, we must own or lease the real estate property where all of our Company-operated restaurants are located. We cannot transfer or encumber any of the real estate properties that we own without McDonald’s consent. Due to the geographic and commercial importance of certain restaurants, we may not sell certain “iconic” properties without the prior written consent of McDonald’s. For certain of these selected properties, we have already perfected a first priority lien in favor of McDonald’s.
Under the MFAs, no more than 50% of the total number of restaurants in each Territory, and no more than 10% of the total number of restaurants in all the Territories, can be located on real estate property that is owned, held or leased by our franchisees.
In addition, the MFA lists 25 restaurants that we are prohibited from selling or otherwise transferring without McDonald’s consent.
Transfer of Equity Interests or Significant Assets
Under the MFAs, neither we nor any of the other Owner Entities can transfer or pledge the equity interests of any of our subsidiaries, or any significant portion of our assets, without McDonald’s consent.
Operational Control
Under the MFAs, McDonald’s is entitled to approve the appointment of our chief executive officer and our chief operating officer.
In the event that McDonald’s modifies its standards applicable to technology and related equipment, we must purchase any new or modified technology, software, hardware or equipment necessary to comply with the modified standards.
Restaurant Opening Plan and Reinvestment Plan
Under the MFAs, we are required to agree with McDonald’s on a restaurant opening plan and a reinvestment plan for each three-year period during the term of the MFAs. The restaurant opening plan specifies the number and type of new restaurants to be opened in the Territories during the applicable three-year period, while the reinvestment plan specifies the amount we must spend reimaging or upgrading restaurants during the applicable three-year period. Prior to the expiration of the then-applicable three-year period we must agree with McDonald’s on a subsequent restaurant opening plan and reinvestment plan. We may also propose, subject to McDonald’s prior written consent, amendments to any restaurant opening plan or reinvestment plan to adapt to changes in economic or political conditions.
As part of the 2017-2019 restaurant opening and reinvestment plan, we have committed to open 180 new restaurants and to reinvest $292 million in existing restaurants from 2017 through 2019. See “Item 4. Information on the Company—A. History and Development of the Company—Capital Expenditures and Divestitures.” In the event we are unable to reach an agreement on subsequent plans prior to the expiration of the then-existing plan, the MFAs provide for an automatic increase of 20% in the required amount of reinvestments as compared to the then-existing plan and a number of new restaurants no less than 210 multiplied by a factor that increases each period during the subsequent three-year restaurant opening plan.
Advertising and Promotion Plan
Under the MFAs, we must develop and implement a marketing plan with respect to each Territory that must be approved in advance by McDonald’s. The MFAs require us to spend at least 5% of our gross sales on advertisement and promotion activities. Our advertisement and promotion activities are guided by our overall marketing plan, which identifies the key strategic platforms that we aim to leverage in order to drive sales.
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Insurance
Under the MFAs, we are required to acquire and maintain a variety of insurance policies with certain minimum coverage limits, including commercial general liability, workers compensation, “all risk” property and business interruption insurance, among others.
Call Option Right and Security Interest in Equity Interests of the Company
Under the MFAs, McDonald’s has the right, or Call Option, to acquire our non-public shares or our interests in one or more Territories upon: (i) the expiration of the initial term of the MFAs on August 2, 2027 if the initial term is not extended, (ii) the occurrence of a material breach of the MFAs or (iii) during the period of 12 months following the earlier of (x) the 18th month anniversary of the death or permanent incapacity of Mr. Staton or (y) the receipt by McDonald’s of notice from Mr. Staton’s heirs that they have elected to have the period of 12 months commence as of the date specified in the notice. McDonald’s generally has the right either to exercise the Call Option with respect to all of the Territories, or, in its sole discretion, with respect to the Territory or Territories identified by McDonald’s as being affected by such material breach or to which such material breach may be attributable except upon the occurrence of an initial material breach relating to any Territory or Territories in which there are less than 100 restaurants in operation. In such case, McDonald’s only has the right to acquire the equity interests of any of our subsidiaries in the relevant Territory or Territories. As of December 31, 2016, we had more than 100 restaurants in operation in each of Argentina, Brazil, Mexico, Puerto Rico and Venezuela. No other Territory had more than 85 restaurants in operation.
If McDonald’s exercises the Call Option upon the occurrence of the events described in clause (i) or (iii) of the preceding paragraph, it must pay a purchase price equal to 100% of the fair market value of our non-public shares. If the Call Option is exercised upon the occurrence of a material breach, however, the purchase price is reduced to 80% of the fair market value of all of our non-public shares or of all of the equity interests of the subsidiaries operating restaurants in the Territory related to such material breach, as applicable. The purchase price paid by McDonald’s upon exercise of the Call Option is, in all events, reduced by the amount of debt and contingencies and increased by the amount of cash attributable to the entity whose equity interests are being acquired pursuant to the Call Option. In the event McDonald’s were to exercise its right to acquire all of our non-public shares, McDonald’s would become our controlling shareholder.
If McDonald’s exercises the Call Option with respect to any of our subsidiaries (but not all of them) and the amount of debt and contingencies (minus cash) attributable to the equity interests of those subsidiaries is greater than the fair market value of those equity interests, we must, at our election, either (i) assume the debts and contingencies (minus cash) and deliver the equity interests to McDonald’s free of any obligations with respect thereto or (ii) pay to McDonald’s the absolute value of that amount. The fair market value of any of the equity interests is to be determined by internationally recognized investment banks without taking into consideration the debt, contingencies or cash attributable to the equity interests.
In order to secure McDonald’s right to exercise the Call Option, McDonald’s was granted a perfected security interest in the equity interests of the Master Franchisee, the Brazilian Master Franchisee and our subsidiaries other than our subsidiaries organized in Costa Rica, Mexico, French Guiana, Guadeloupe and Martinique. The equity interests of our subsidiaries organized in Costa Rica and Mexico were transferred to a trust for the benefit of McDonald’s. McDonald’s does not have a security interest in the equity interests of our subsidiaries organized in French Guiana, Guadeloupe and Martinique.
The equity interests were transferred to Citibank, N.A., acting as escrow agent. Subject to the terms of the Escrow Agreement and the Intercreditor Agreement, upon McDonald’s exercise of the Call Option and its payment of the respective purchase price, the escrow agent must transfer the equity interests, free of any liens or encumbrances, to McDonald’s.
Limitations on Indebtedness
Under the MFAs, we cannot incur any indebtedness secured by the collateral pledged by us and certain of our subsidiaries in connection with the letters of credit or amend or waive any of the terms related to the collateral, without McDonald’s consent. The pledged collateral includes the equity interests of certain of our subsidiaries, certain of our rights under certain of the Acquisition documents, franchise document payment rights, and our intercompany debt and notes.
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Under the MFAs, we must maintain a fixed charge coverage ratio (as defined therein) at least equal to (a) 1.25 from August 31, 2010 through the fiscal quarter ended September 30, 2011 and (b) 1.50, commencing with the fiscal quarter ended December 31, 2011 and thereafter; and a leverage ratio (as defined therein) not in excess of (a) 5.0, from August 31, 2010 through the fiscal quarter ended June 30, 2011, (b) 4.75 for the fiscal quarter ended September 30, 2011, and (c) 4.25, commencing with the fiscal quarter ended December 31, 2011 and thereafter. Mainly as a result of the adoption of new exchange rates used for remeasurement of our bolivar-denominated assets and liabilities and operating results in Venezuela in 2013 and 2014, we were not in compliance with these ratio requirements for certain periods during 2014, 2015 and 2016. We initially became non-compliant for the quarter ended June 30, 2014, at which time our Leverage Ratio and Fixed Charge Coverage Ratio was 4.38 and 1.48, respectively. Please refer to the table below for disclosure of our Leverage Ratio and Fixed Charge Coverage Ratio as of December 31, 2015 and for the other periods of our non-compliance with the requirements under the MFA. As of December 31, 2015, our Fixed Charge Coverage Ratio was 1.56 and our Leverage Ratio was 4.40. For that reason, McDonald’s granted us limited waivers through and including June 30, 2016, during which time we were not required to comply with these financial ratios. We have been in compliance with these quarterly ratios since the expiration of the waiver. If we are unable to comply with our original commitments under the MFA or to obtain a waiver for any non-compliance in the future, we could be in material breach. Our breach of the MFA would give McDonald’s certain rights, including the ability to acquire all or portions of our business. See “—Material Breach.” Notwithstanding the foregoing, we do not expect any material adverse effect to our business, results of operations, financial condition or cash flows as a result of this situation. We continue to monitor our compliance with these quarterly ratios. On March 17, 2016 we amended the MFA to change certain definitions relevant to the calculation of the Fixed Charge Coverage Ratio and the Leverage Ratio. As of December 31, 2016, our Fixed Charge Coverage Ratio was 1.64 and our Leverage Ratio was 4.21.
Arcos Dorados Financial Ratios under the MFA
Quarter ended | ||||||||||||||||||||
December 31, 2015 | March 31, 2016 | June 30, 2016 | September 30, 2016 | December 31, 2016 | ||||||||||||||||
| Leverage Ratio | 4.40 | 4.80 | 4.40 | 4.08 | 4.21 | |||||||||||||||
| Fixed Charge Coverage Ratio | 1.56 | 1.67 | 1.64 | 1.67 | 1.64 | |||||||||||||||
Letters of Credit
As security for the performance of our obligations under the MFAs, we have obtained (i) on August 3, 2007, an irrevocable standby letter of credit in favor of McDonald’s in an amount of $65.0 million and later reduced to $45.0 million on October 30, 2015, issued by Credit Suisse acting as issuing bank through its Cayman Islands Branch, (ii) on May 9, 2011, an irrevocable standby letter of credit in favor of McDonald’s in an amount of $15.0 million, issued by Itaú Unibanco S.A. (“Itaú”), acting as issuing bank through its New York Branch, and (iii) on November 3, 2015, an irrevocable standby letter of credit in favor of McDonald’s in an amount of $20.0 million, issued by JPMorgan, acting as issuing bank through its New York Branch. The Credit Suisse, Itaú and JP Morgan letters of credit expire on November 10, 2018, May 10, 2018, and November 6, 2018, respectively, but we will be required by the MFAs to renew these letters of credit or obtain new standby letters of credit in the same amount.
The Credit Suisse letter of credit and reimbursement agreement contains a limited number of customary affirmative and negative covenants. These include limitations on (i) any transfer of the MFAs, (ii) amendment or waiver of the MFAs without the consent of the issuing bank, (iii) our leverage ratio, (iv) taking any action to elect to assume the debt of any of our subsidiaries upon McDonald’s exercise of a partial Call Option, (v) our ability to guaranty obligations of our subsidiaries, and (vi) amendments to the credit agreement.
Credit Suisse, as issuing bank, has a security interest in certain of our rights under certain Acquisition documents, franchise document payment rights and our intercompany debt notes. In addition, our subsidiaries (other than those organized in Ecuador, French Guiana, Guadeloupe, Martinique and Peru, and certain subsidiaries organized in Argentina, Colombia and Mexico) guaranteed to Credit Suisse the full and prompt payment of our obligations under the Credit Suisse letter of credit and reimbursement agreement.
The letter of credit that we obtained from Itaú effectively replaced the cash collateral that we had previously pledged in favor of McDonald’s in an amount of $15.0 million. The Itaú continuing standby letter of credit agreement contains a limited number of customary affirmative and negative covenants. These include limitations on (i) any transfer of the MFAs, (ii) amendment or waiver of the MFAs without the consent of the issuing bank, (iii) our leverage ratio, (iv) taking any action to elect to assume the debt of any of our subsidiaries upon McDonald’s exercise of a Call Option, and (v) permitting ourselves or any of our subsidiaries to become insolvent.
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We delivered a promissory note to Itaú in an amount of $15.0 million evidencing our obligations to Itaú under the continuing standby letter of credit agreement and a guarantee letter from our Brazilian subsidiary guaranteeing the full and punctual payment when due of our obligations and liabilities to Itaú in respect of the Itaú letter of credit and the continuing standby letter of credit agreement, including without limitation our reimbursement obligations for any payments made by Itaú under the letter of credit.
The letter of credit that we obtained from JPMorgan effectively replaced the $ 20.0 million reduction in the Credit Suisse letter of credit.
The JPMorgan letter of credit is guaranteed by certain of our subsidiaries and contains a limited number of customary affirmative and negative covenants. These include limitations on (i) our leverage ratio, (ii) the dissolution, liquidation or winding-up of the applicant or a guarantor, (iii) a material breach or failure to comply with the MFA, and (iv) permitting the applicant or any guarantor to become insolvent.
Termination
The MFAs automatically terminate without the need for any party to it to take any further action if any type of insolvency or similar proceeding in respect of us or any of the other Owner Entities commences.
In the event of the occurrence of certain material breaches, such as if we fail to comply with the reinvestment or restaurant opening plans, McDonald’s has the right to terminate the MFAs.
Upon the termination of the MFAs, McDonald’s has the right to acquire all, but not less than all, of our equity interests at fair market value, which is to be calculated by internationally recognized investment banks selected by us and McDonald’s. The fair market value of our equity interests shall be calculated in U.S. dollars based on the amount that would be received for our equity interests in an arm’s-length transaction between a willing buyer and a willing seller, taking into account the benefits provided by the MFAs.
The 2016 Secured Loan Agreement
For a description of the secured loan agreement entered into by Arcos Dourados Comércio de Alimentos Ltda. with Citibank N.A., Bank of America N.A., Itau BBA International plc, JPMorgan Chase Bank, N.A. and Banco Santander (Brasil) S.A., Cayman Islands Branch, see “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Net Cash (used in) Financing Activities—The 2016 Secured Loan Agreement.”
The 2016 Notes, the 2023 Notes and the 2027 Notes
For a description of the 2016 notes, the 2023 notes and the 2027 notes, see “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources.”
The Revolving Credit Facilities
For a description of the revolving credit facilities entered into by Arcos Dorados B.V. with Bank of America, N.A. and JP Morgan Chase Bank, N.A. see “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Net Cash (used in) Financing Activities—Revolving Credit Facilities.”
The 2012 Swap Transaction
On August 13, 2012, the Company entered into a total equity return swap agreement with Goldman Sachs International in order to minimize earnings volatility related to this risk, which was renewed twice and matured on September 12, 2015.
Under the agreement effective as from August 20, 2012, the Company received (paid) the appreciation (depreciation), plus any dividends, on a certain notional number of Class A shares (2,272,551 at the inception) over a reference price of approximately $13.77 per share. The Company in turn paid interest at 3-month LIBOR plus 450 basis points (330 basis points at the inception and 380 between August 2013 and September 2014). During 2015 and 2014 the Company paid interest amounting to $0.52 million and $0.59 million, respectively, in connection with this agreement.
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As a consequence of the maturity of the swap agreement, the Company paid, during August and September 2015, $9.7 million as settlement of the remaining 1,022,551 Class A shares net of accumulated dividends.
Beginning on September 23, 2014, the Company was required to make a collateral deposit equal to the excess of the mark-to-market above a threshold of $3 million with $0.5 million as the incremental basis. As of December 31, 2014, the collateral amounted to $4.8 million and was presented as a current asset within “Collateral deposits”. During 2015, before the maturity of the total equity return swap, there were two amendments to the conditions of the collateral deposit that reduced the threshold from $3 million to $0 and included an additional collateral deposit of $0.5 million. As a consequence of the maturity of the swap agreement, the collateral deposit was returned to the Company.
The Company did not designate the swap as a hedge under ASC 815. Therefore, the agreement was carried at fair market value in the consolidated balance sheets with changes reported in earnings, within “General and administrative expenses.” The interest portion was recorded within “Net interest expense” in the Company’s consolidated statement of income.
| D. | Exchange Controls |
There are currently no exchange control regulations in the BVI applicable to us or our shareholders. For information about any exchange controls or restrictions in Argentina, Brazil and Mexico, see “Item 3. Key Information—A. Selected Financial Data—Exchange Rates and Exchange Controls.”
| E. | Taxation |
British Virgin Islands Tax Considerations
The following summary contains a general description of certain British Virgin Islands tax consequences of the acquisition, ownership and disposition of class A shares, but it does not purport to be a comprehensive description of all the tax considerations that may be relevant to a decision to hold class A shares. The general summary is based upon the tax laws of the British Virgin Islands and regulations thereunder as of the date hereof, which are subject to change.
We are not liable to pay any form of corporate taxation in the BVI and all dividends, interests, rents, royalties, compensations and other amounts paid by us to persons who are not persons resident in the BVI or providing services in the BVI are exempt from all forms of taxation in the BVI and any capital gains realized with respect to any shares, debt obligations, or other securities of ours by persons who are not persons resident in the BVI are exempt from all forms of taxation in the BVI.
No estate, inheritance, succession or gift tax, rate, duty, levy or other charge is payable by persons who are not persons resident in the BVI with respect to any shares, debt obligation or other securities of ours.
Subject to the payment of stamp duty on the acquisition or certain leasing of property in the BVI by us (and in respect of certain transactions in respect of the shares, debt obligations or other securities of BVI incorporated companies owning land in the BVI), all instruments relating to transfers of property to or by us and all instruments relating to transactions in respect of the shares, debt obligations or other securities of ours and all instruments relating to other transactions relating to our business are exempt from payment of stamp duty in the BVI.
There are currently no withholding taxes or exchange control regulations in the BVI applicable to us or our shareholders who are not providing services in the BVI.
The BVI has signed two inter-governmental agreements to improve international tax compliance and the exchange of information—one with the United States and one with the United Kingdom (the “US IGA” and the “UK IGA”, respectively). The BVI has also signed, along with over 90 other countries, a multilateral competent authority agreement to implement the Organization for Economic Co-Operation and Development (OECD) Standard for Automatic Exchange of Financial Account Information—Common Reporting Standard (the “CRS” and together with the US IGA and the UK IGA, “AEOI”).
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Amendments have been made to the Mutual Legal Assistance (Tax Matters) Act, 2003 and orders have been made pursuant to this Act to give effect to the terms of the US IGA and the UK IGA under BVI law (the “BVI legislation”). Guidance notes were published by the government of the BVI in March 2015 to provide practical assistance to entities and others affected by the US IGA and/or UK IGA and the BVI legislation (the “Guidance Notes”). Further amendments have been made to the BVI legislation to give effect to the terms of the CRS, which took effect on 1 January 2016. The implementing legislation makes it clear that the CRS commentary published by the OECD is an integral part of the CRS and applies for the purposes of the automatic exchange of financial account information although additional guidance may be issued to aid with compliance with the BVI legislation relating to CRS.
All BVI “Financial Institutions” will be required to comply with the registration, due diligence and reporting requirements of the BVI legislation, except to the extent that they can rely on an exemption that allows them to become a “Non-Reporting Financial Institution” (as defined in the relevant BVI legislation) with respect to one or more of the AEOI regimes.
There is no income tax treaty currently in effect between the United States and the BVI.
Material U.S. Federal Income Tax Considerations for U.S. Holders
The following summary describes the material U.S. federal income tax consequences of the ownership and disposition of class A shares, but it does not purport to be a comprehensive description of all of the tax considerations that may be relevant to a particular person’s decision to own such securities. This summary applies only to U.S. Holders (as defined below) that own class A shares as capital assets for U.S. federal income tax purposes. In addition, it does not describe all of the tax consequences that may be relevant in light of a U.S. Holder’s particular circumstances, including alternative minimum tax consequences, the potential application of the provisions of the Internal Revenue Code of 1986, as amended, (the “Code”) known as the Medicare contribution tax, and tax consequences applicable to certain U.S. Holders subject to special rules, such as:
| · | certain financial institutions; |
| · | dealers or traders in securities who use a mark-to-market method of tax accounting; |
| · | persons holding class A shares as part of a hedge, “straddle,” wash sale, conversion transaction or integrated transaction or persons entering into a constructive sale with respect to the class A shares; |
| · | persons whose “functional currency” for U.S. federal income tax purposes is not the U.S. dollar; |
| · | tax exempt entities, including “individual retirement accounts” and “Roth IRAs”; |
| · | entities classified as partnerships for U.S. federal income tax purposes; |
| · | persons that own or are deemed to own ten percent or more of our voting shares; |
| · | persons who acquired our class A shares pursuant to the exercise of an employee stock option or otherwise as compensation; or |
| · | persons holding class A shares in connection with a trade or business conducted outside the United States. |
If an entity that is classified as a partnership for U.S. federal income tax purposes holds class A shares, the U.S. federal income tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. Partnerships holding class A shares and partners in such partnerships should consult their tax advisers as to the particular U.S. federal income tax consequences of holding and disposing of the class A shares.
This discussion is based upon the Code, administrative pronouncements, judicial decisions and final, temporary and proposed Treasury Regulations, all as of the date hereof, changes to any of which may affect the tax consequences described herein—possibly with retroactive effect.
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A “U.S. Holder” is a holder who, for U.S. federal income tax purposes, is a beneficial owner of class A shares that is:
| (1) | a citizen or individual resident of the United States; |
| (2) | a corporation, or other entity taxable as a corporation, created or organized in or under the laws of the United States, any state therein or the District of Columbia; or |
| (3) | an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source. |
U.S. Holders should consult their tax advisers concerning the U.S. federal, state, local and foreign tax consequences of owning and disposing of class A shares in their particular circumstances.
This discussion assumes that we are not, and will not become, a passive foreign investment company, as described below.
Taxation of Distributions
Distributions paid on class A shares, other than certain pro rata distributions of class A shares, will be treated as dividends to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Because we do not maintain calculations of our earnings and profits under U.S. federal income tax principles, we expect that distributions generally will be reported to U.S. Holders as dividends. Subject to applicable limitations, dividends paid to certain non-corporate U.S. Holders may be eligible for taxation as “qualified dividend income” and therefore may be taxable at rates applicable to long-term capital gains. Non-corporate U.S. Holders should consult their tax advisers regarding the availability of the reduced tax rates on dividends in their particular circumstances. The amount of the dividend will be treated as foreign-source dividend income to U.S. Holders and will not be eligible for the dividends-received deduction generally available to U.S. corporations under the Code. Dividends will be included in a U.S. Holder’s income on the date of the U.S. Holder’s receipt of the dividend.
Sale or Other Taxable Disposition of Class A Shares
For U.S. federal income tax purposes, gain or loss realized on the sale or other taxable disposition of class A shares will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder owned the class A shares for more than one year. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the class A shares disposed of and the amount realized on the disposition, in each case as determined in U.S. dollars. This gain or loss will generally be U.S.-source gain or loss for foreign tax credit purposes.
Passive Foreign Investment Company Rules
We believe that we were not a “passive foreign investment company” (a “PFIC”) for U.S. federal income tax purposes for our 2016 taxable year. However, because the application of the Treasury Regulations is not entirely clear and because PFIC status depends on the composition of a company’s income and assets and the market value of its assets from time to time, there can be no assurance that we will not be a PFIC for any taxable year.
If we were a PFIC for any taxable year during which a U.S. Holder owned class A shares, gain recognized by such U.S. Holder on a sale or other disposition (including certain pledges) of the class A shares would be allocated ratably over the U.S. Holder’s holding period for the class A shares. The amounts allocated to the taxable year of the sale or other disposition and to any year before we became a PFIC would be taxed as ordinary income. The amount allocated to each other taxable year would be subject to tax at the highest rate in effect for individuals or corporations, as appropriate, for that taxable year, and an interest charge would be imposed on the resulting tax liability for each taxable year. Further, to the extent that any distribution received by a U.S. Holder on its class A shares exceeds 125% of the average of the annual distributions on the class A shares received during the preceding three years or such U.S. Holder’s holding period, whichever is shorter, that distribution would be subject to taxation in the same manner as gain on the disposition of a share of a PFIC, described immediately above. If we were a PFIC, certain elections may be available that would result in alternative treatments (such as mark-to-market treatment) of the class A shares that differ from the treatment set forth in this paragraph.
In addition, if we were a PFIC or, with respect to any U.S. Holder, were treated as a PFIC for the taxable year in which we paid a dividend or for the prior taxable year, the preferential dividend rates discussed above with respect to dividends paid to certain non-corporate U.S. Holders would not apply.
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If we are a PFIC for any taxable year during which a U.S. Holder owned our class A shares, the U.S. Holder will generally be required to file IRS Form 8621 (or any successor form) with their annual U.S. federal income tax returns, subject to certain exceptions.
Information Reporting and Backup Withholding
Payments of dividends and sales proceeds that are made within the United States or through certain U.S.-related financial intermediaries generally are subject to information reporting, and may be subject to backup withholding, unless (i) the U.S. Holder is an exempt recipient or (ii) in the case of backup withholding, the U.S. Holder provides a correct taxpayer identification number and certifies that it is not subject to backup withholding.
The amount of any backup withholding from a payment to a U.S. Holder will be allowed as a credit against the holder’s U.S. federal income tax liability and may entitle it to a refund, provided that the required information is timely furnished to the IRS.
Certain U.S. Holders who are individuals (and specified entities that are formed or availed of for purposes of holding certain foreign financial assets) may be required to report information relating to their ownership of stock of a non-U.S. person, subject to certain exceptions (including an exception for stock held in certain accounts maintained by a U.S. financial institution). U.S. Holders should consult their tax advisers regarding the effect, if any, of these reporting requirements on their ownership and disposition of class A shares.
| F. | Dividends and Paying Agents |
Not applicable.
| G. | Statement by Experts |
Not applicable.
| H. | Documents on Display |
We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Accordingly, we are required to file reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. You may inspect and copy reports and other information filed with the SEC at the Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an Internet website that contains reports and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov.
As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we will not be required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
We will send the transfer agent a copy of all notices of shareholders’ meetings and other reports, communications and information that are made generally available to shareholders. The transfer agent has agreed to mail to all shareholders a notice containing the information (or a summary of the information) contained in any notice of a meeting of our shareholders received by the transfer agent and will make available to all shareholders such notices and all such other reports and communications received by the transfer agent.
| I. | Subsidiary Information |
Not applicable.
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ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Risk Management
In the ordinary course of our business activities, we are exposed to various market risks that are beyond our control, including fluctuations in foreign exchange rates and the price of our primary supplies, and which may have an adverse effect on the value of our financial assets and liabilities, future cash flows and profit. As a result of these market risks, we could suffer a loss due to adverse changes in foreign exchange rates and the price of commodities in the international markets. In addition, we are subject to equity price risk relating to our share-based compensation plans. Our policy with respect to these market risks is to assess the potential of experiencing losses and the consolidated impact thereof, and to mitigate these market risks. We do not enter into market risk sensitive instruments for trading or speculative purposes.
Foreign Currency Exchange Rate Risk
Foreign Currency Exchange Rate Risk in 2016
We are exposed to foreign currency exchange rate risk primarily in connection with the fluctuation in the value of the local currencies of the countries in which we operate, primarily the Brazilian real, the Argentine peso and the Mexican peso, among others. We generate revenues and cash from our operations in local currencies while a significant portion of our long-term debt is denominated in U.S. dollars. An adverse change in foreign currency exchange rates would therefore affect the generation of cash flow from operations in U.S. dollars, which could negatively impact our ability to pay amounts owed in U.S. dollars. In order to partially mitigate the foreign exchange rate risk related to our long-term debt, we entered into certain derivative instruments. See Note 13 to our consolidated financial statements for more detail. Moreover, our continuing franchise fee payments to McDonald’s pursuant to the MFAs must be translated into and paid in U.S. dollars using the exchange rate of the last business day of the month, payable on the seventh day subsequent to each month-end. As such, in the intervening period we are subject to significant foreign exchange risk.
While substantially all our income is denominated in the local currencies of the countries in which we operate, our supply chain management involves the importation of various products, and some of our imports are denominated in U.S. dollars. Therefore, we are exposed to foreign currency exchange risk related to imports. We have entered into various forward contracts to hedge a portion of the foreign exchange risk associated with the forecasted imports of certain countries. See Note 13 to our consolidated financial statements for more details. In addition, we attempt to minimize this risk also by entering into annual and semi-annual pricing arrangements with our main suppliers.
We are also exposed to foreign exchange risk related to U.S. dollar-denominated intercompany balances held by certain of our operating subsidiaries with our holding companies, and to foreign currency-denominated intercompany balances held by our holding companies with certain operating subsidiaries. Although these intercompany balances are eliminated through consolidation, an adverse change in exchange rates could have a significant impact on our results through the recognition of foreign currency exchange losses in our consolidated income statement. To help mitigate some of these foreign currency exchange rate risks, we have entered into a cross-currency interest rate swap agreement, to hedge all the variability in a portion of the collection of principal and interest from an intercompany loan receivable denominated in Brazilian reais of our holding company, Arcos Dorados B.V. See Note 13 to our consolidated financial statements for more details.
A decrease of 10% in the value of the Brazilian real against the U.S. dollar would result in a net foreign exchange loss totaling $10.6 million over (i) the cross-currency interest rate swap used to partially hedge the intercompany loan receivable of Arcos Dorados B.V. denominated in Brazilian reais (R$111.6 million including accrued interest), (ii) the Brazilian reais-denominated intercompany net receivable held by our subsidiaries, Arcos Dorados B.V. and Latam LLC (R$482.3 million including accrued interest), and (iii) the outstanding balance of the U.S. dollar-denominated intercompany net debt held by our Brazilian subsidiaries of $3.2 million as of December 31, 2016.
A decrease of 10% in the value of the Mexican peso against the U.S. dollar would result in a foreign exchange loss of $10.4 million, mainly related to the outstanding U.S. dollar-denominated intercompany receivable held by our subsidiary in Mexico of $93.8 million as of December 31, 2016.
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An increase of 10% in the value of the Uruguayan peso against the U.S. dollar would result in a foreign exchange loss of $4.3 million over the outstanding U.S. dollar-denominated intercompany net receivable held by our subsidiaries in Uruguay of $39.1 million as of December 31, 2016.
An increase of 10% in the value of the Costa Rican Colones against the U.S. dollar would result in a foreign exchange loss of $2.3 million mainly related to the outstanding U.S. dollar-denominated intercompany net receivable held by our subsidiary in Costa Rica of $21.0 million as of December 31, 2016.
An increase of 10% in the value of the European euro against the U.S. dollar would result in a foreign exchange loss of $2.1 million mainly related to the outstanding U.S. dollar-denominated intercompany receivable held by our subsidiary in Martinique of $19.5 million as of December 31, 2016.
An increase of 10% in the value of the Chilean peso against the U.S. dollar would result in a foreign exchange loss of $1.7 million over the outstanding U.S. dollar-denominated intercompany net receivable held by our subsidiary in Chile of $15.7 million as of December 31, 2016.
Fluctuations in the value of the other local currencies against the U.S. dollar would not result in material foreign exchange gains or losses as of December 31, 2016 since there are no other significant intercompany balances exposed to foreign exchange risk.
We are also exposed to foreign currency exchange risk related to the currency translation of our Venezuelan operations. A depreciation of the Venezuelan bolívar against the U.S. dollar would result in a foreign currency exchange loss as a result of remeasuring monetary balances denominated in Venezuelan bolívares. See Note 22 to our consolidated financial statements for details about exchange controls affecting our operations in Venezuela.
Summary of Foreign Currency Exchange Rate Risk in 2015
A decrease of 10% in the value of the Brazilian real against the U.S. dollar would result in a net foreign exchange loss totaling $10.0 million over (i) the outstanding balance of the 2016 notes (R$659.0 million including accrued interest), (ii) the cross-currency interest rate swap used to partially hedge the intercompany loan receivable of Arcos Dorados B.V. denominated in Brazilian reais (R$111.6 million including accrued interest), (iii) the Brazilian reais-denominated intercompany net receivable held by our subsidiaries, Arcos Dorados B.V. and Latam LLC (R$1,072.6 million including accrued interest), and (iv) the outstanding balance of the U.S. dollar-denominated intercompany net debt held by our Brazilian subsidiaries of $33.7 million as of December 31, 2015.
An increase of 10% in the value of the Argentine peso against the U.S. dollar would result in a foreign exchange loss of $1.5 million mainly related to the intercompany payable denominated in Argentine peso held by our subsidiary Latam LLC (ARS$ 297.8 million) and the outstanding U.S. dollar-denominated intercompany payable held by our subsidiary in Argentina of $9.7 million as of December 31, 2015.
An increase of 10% in the value of the European euro against the U.S. dollar would result in a foreign exchange loss of $1.6 million mainly related to the outstanding U.S. dollar-denominated intercompany receivable held by our subsidiary in Martinique of $14.6 million as of December 31, 2015.
An increase of 10% in the value of the Uruguayan peso against the U.S. dollar would result in a foreign exchange loss of $3.6 million over the outstanding U.S. dollar-denominated intercompany net receivable held by our subsidiaries in Uruguay of $32.2 million as of December 31, 2015.
Fluctuations in the value of the other local currencies against the U.S. dollar would not result in material foreign exchange gains or losses as of December 31, 2015 since there are no other significant intercompany balances exposed to foreign exchange risk.
We are also exposed to foreign currency exchange risk related to the currency translation of our Venezuelan operations. A depreciation of the Venezuelan bolívar against the U.S. dollar would result in a foreign currency exchange loss as a result of remeasuring monetary balances denominated in bolívares. See Note 22 to our consolidated financial statements for details about exchange controls affecting our operations in Venezuela.
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Commodity Price Risk
We purchase our primary supplies, including beef, chicken, buns, produce, cheese, dairy mixes and toppings pursuant to oral agreements with our approved suppliers at prices that are derived from international market prices, local conversion costs and local tariffs and taxes. We therefore carry market risk exposure to changes in commodity prices that have a direct impact on our costs. We do not enter into futures or options contracts to protect ourselves against changes in commodity prices, although we may do so in the future. We attempt to minimize this risk by entering into annual and semi-annual pricing arrangements with our main suppliers. This allows us to provide cost predictability while avoiding the costs related to the use of derivative instruments, which we may not be able to pass on to our customers due to the competitive nature of the QSR industry.
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
| A. | Debt Securities |
Not applicable.
| B. | Warrants and Rights |
Not applicable.
| C. | Other Securities |
Not applicable.
| D. | American Depositary Shares |
Not applicable.
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ITEM 13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
| A. | Defaults |
No matters to report.
| B. | Arrears and Delinquencies |
No matters to report.
ITEM 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
| A. | Material Modifications to Instruments |
None.
| B. | Material Modifications to Rights |
None.
| C. | Withdrawal or Substitution of Assets |
None.
| D. | Change in Trustees or Paying Agents |
None.
| E. | Use of Proceeds |
Not applicable.
ITEM 15. CONTROLS AND PROCEDURES
| A. | Disclosure Controls and Procedures |
As of December 31, 2016, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we performed an evaluation of the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act). There are inherent limitations to the effectiveness of any system of disclosure controls and procedures. Accordingly, even effective disclosure controls and procedures can only provide reasonable assurance of achieving their control objectives.
Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of December 31, 2016 in ensuring that information we are required to disclose in the reports that we file or submit under the Exchange Act is (1) recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and (2) accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
| B. | Management’s Annual Report on Internal Control over Financial Reporting |
Our management is responsible for establishing and maintaining an adequate internal control over financial reporting as defined in Rule 13a-15(f) under the Exchange Act.
Our internal control over financial reporting is a process designed by, or under the supervision of, our principal executive and principal financial officers, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of our financial statements for external reporting purposes, in accordance with generally accepted accounting principles. These include those policies and procedures that:
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| · | pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect transactions and dispositions of our assets; |
| · | provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements, in accordance with generally accepted accounting principles, and that receipts and expenditures are being made only in accordance with authorization of our management and directors; and |
| · | provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements. |
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, effective control over financial reporting cannot, and does not, provide absolute assurance of achieving our control objectives. Also, projections of, and any evaluation of effectiveness of the internal controls in future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
We have adapted our internal control over financial reporting based on the guidelines set by the Internal Control—Integrated Framework of the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework), or COSO.
Under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2016, based on the guidelines set forth by the COSO.
Based on this assessment, management believes that, as of December 31, 2016, its internal control over financial reporting was effective based on those criteria.
Pistrelli, Henry Martin y Asociados S.R.L., member firm of Ernst & Young Global, independent registered public accounting firm, has audited and reported on the effectiveness of our internal controls over financial reporting as of December 31, 2016.
| C. | Attestation Report of the Registered Public Accounting Firm |
Pistrelli, Henry Martin y Asociados S.R.L., member firm of Ernst & Young Global, independent registered public accounting firm, has audited and reported on the effectiveness of our internal controls over financial reporting as of December 31, 2016, as stated in their report which appears below.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of
ARCOS DORADOS HOLDINGS INC.:
We have audited Arcos Dorados Holdings Inc. internal control over financial reporting as of December 31, 2016, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). Arcos Dorados Holdings Inc. management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
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A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, Arcos Dorados Holdings Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2016, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Arcos Dorados Holdings Inc. as of December 31, 2016 and 2015, and the related consolidated statements of income, comprehensive income, changes in equity and cash flows for each of the three years in the period ended December 31, 2016, and our report dated March 15, 2017 expressed an unqualified opinion thereon.
Buenos Aires, Argentina
March 15, 2017
|
/s/ Pistrelli, Henry Martin y Asociados S.R.L. | |
| PISTRELLI, HENRY MARTIN Y ASOCIADOS S.R.L. | |
| Member of Ernst & Young Global |
| D. | Changes in Internal Control over Financial Reporting |
There has been no change in our internal control over financial reporting identified in connection with the evaluation required by Rules 13a-15 or 15d-15 that occurred during the period covered by this annual report that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT
Our audit committee consists of three directors, Mr. Chu, Mr. Vélez and Mr. Gutiérrez, who are independent within the meaning of the SEC and NYSE corporate governance rules applicable to foreign private issuers. Our Board of Directors has determined that Mr. Chu, Mr. Vélez and Mr. Gutiérrez are also “audit committee financial experts” as defined by the SEC.
Our Board of Directors has approved and adopted our Standards of Business Conduct, which are a code of ethics that applies to all employees of Arcos Dorados, including executive officers, and to our board members. The current version of the Standards of Business Conduct is posted and maintained on the Arcos Dorados website at www.arcosdorados.com. The information contained on our website is not a part of this annual report.
ITEM 16C. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following table describes the amounts billed to us by Pistrelli, Henry Martin y Asociados S.R.L., member firm of Ernst & Young Global, independent registered public accounting firm, for audit and other services performed in fiscal years 2016 and 2015.
2016 | 2015 | |||||||
| (in thousands of U.S. dollars) | ||||||||
| Audit fees | $ | 1,898 | $ | 1,908 | ||||
| Audit-related fees | 44 | 6 | ||||||
| Tax fees | 431 | 530 | ||||||
| All other fees | 92 | 68 | ||||||
126
Audit Fees
Audit fees are fees billed for professional services rendered by the principal accountant for the audit of the registrant’s annual financial statements or services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements for those fiscal years. It includes the audit of our annual consolidated financial statements, the reviews of our quarterly consolidated financial statements submitted on Form 6-K and other services that generally only the independent accountant reasonably can provide, such as comfort letters, statutory audits, attestation services, consents and assistance with and review of documents filed with the SEC.
Audit-Related Fees
Audit-related fees are fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements for fiscal years 2016 and 2015 and not reported under the previous category. These services would include, among others: employee benefit plan audits, due diligence related to mergers and acquisitions, accounting consultations and audits in connection with acquisitions, internal control reviews, attest services that are not required by statute or regulation and consultation concerning financial accounting and reporting standards.
Tax Fees
Tax fees are fees billed for professional services for tax compliance, tax advice and tax planning.
All Other Fees
All other fees are fees not reported under other categories. This category mainly includes advisory services on process improvement related to diagnostics and recommendations.
Pre-Approval Policies and Procedures
Our audit committee charter requires the audit committee to pre-approve the audit services and non-audit services to be provided by our independent auditor before the auditor is engaged to render such services. The audit committee may delegate its authority to pre-approve services to the Chair of the audit committee, provided that such designees present any such approvals to the full audit committee at the next audit committee meeting.
All of the audit fees, audit-related fees, tax fees and all other fees described in this Item 16C have been pre-approved by the audit committee in accordance with these pre-approval policies and procedures.
ITEM 16D. EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
Not applicable.
ITEM 16E. PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
None.
ITEM 16F. CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT
None.
ITEM 16G. CORPORATE GOVERNANCE
Our class A shares are listed on the NYSE. We are therefore required to comply with certain of the NYSE’s corporate governance listing standards, or the NYSE Standards. As a foreign private issuer, we may follow our home country’s corporate governance practices in lieu of most of the NYSE Standards. Our corporate governance practices differ in certain significant respects from those that U.S. companies must adopt in order to maintain a NYSE listing and, in accordance with Section 303A.11 of the NYSE Listed Company Manual, a brief, general summary of those differences is provided as follows.
127
Director independence
The NYSE Standards require a majority of the membership of NYSE-listed company boards to be composed of independent directors. Neither British Virgin Islands law, the law of our country of incorporation, nor our memorandum and articles of association require a majority of our board to consist of independent directors. Our Board of Directors currently consists of eight members, three of whom are independent directors.
Non-management directors’ executive sessions
The NYSE Standards require non-management directors of NYSE-listed companies to meet at regularly scheduled executive sessions without management. Our memorandum and articles of association do not require our non-management directors to hold such meetings.
Committee member composition
The NYSE Standards require NYSE-listed companies to have a nominating/corporate governance committee and a compensation committee that are composed entirely of independent directors. British Virgin Islands law, the law of our country of incorporation, does not impose similar requirements. We do not have a nominating/corporate governance committee.
Independence of the compensation and nomination committee and its advisers
NYSE listing standards require that the board of directors of a listed company consider two factors (in addition to the existing general independence tests) in the evaluation of the independence of compensation committee members: (i) the source of compensation of the director, including any consulting, advisory or other compensatory fees paid by the listed company, and (ii) whether the director has an affiliate relationship with the listed company, a subsidiary of the listed company or an affiliate of a subsidiary of the listed company. In addition, before selecting or receiving advice from a compensation consultant or other adviser, the compensation committee of a listed company is required to take into consideration six specific factors, as well as all other factors relevant to an adviser’s independence.
Foreign private issuers such as us are exempt from these requirements if home country practice is followed. British Virgin Islands law does not impose similar requirements.
Miscellaneous
In addition to the above differences, we are not required to: make our audit and compensation and nomination committees prepare a written charter that addresses either purposes and responsibilities or performance evaluations in a manner that would satisfy the NYSE’s requirements; acquire shareholder approval of equity compensation plans in certain cases; or adopt and make publicly available corporate governance guidelines.
We were incorporated under, and are governed by, the laws of the British Virgin Islands. For a summary of some of the differences between provisions of the BVI Act applicable to us and the laws application to companies incorporated in Delaware and their shareholders, see “Item 10. Additional Information—B. Memorandum and Articles of Association—Differences in Corporate Law.”
ITEM 16H. MINE SAFETY DISCLOSURE
Not applicable.
128
We have responded to Item 18 in lieu of this item.
Financial Statements are filed as part of this annual report. See page F-1.
|
Exhibit No. |
Description |
| 1.1 | Memorandum and Articles of Association, incorporated herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 2.1 | Indenture dated September 27, 2013 among Arcos Dorados Holdings Inc., as issuer, the Subsidiary Guarantors named therein, Citibank N.A., as trustee, registrar, paying agent and transfer agent, and Banque Internationale à Luxembourg Société Anonyme, as Luxembourg paying agent, incorporated herein by reference to Exhibit 2.2 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2013. |
| 2.2* | Indenture dated April 4, 2017 among Arcos Dorados Holdings Inc., as issuer, the Subsidiary Guarantors named therein, and Citibank N.A., as trustee, registrar, paying agent and transfer agent. |
| 3.1 | Los Laureles Voting Trust, incorporated herein by reference to Exhibit 9.1 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.1 | Amended and Restated Master Franchise Agreement for McDonald’s Restaurants in All of the Territories, except Brazil, incorporated herein by reference to Exhibit 10.1 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.2 | Amendment No. 1 to the Amended and Restated Master Franchise Agreement for McDonald’s Restaurants in All of the Territories, except Brazil, incorporated herein by reference to Exhibit 10.2 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.3 | Second Amended and Restated Master Franchise Agreement for McDonald’s Restaurants in Brazil, incorporated herein by reference to Exhibit 10.3 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.4 | Amendment No. 3 to the Amended and Restated Master Franchise Agreement for McDonald’s Restaurants in all the Territories, except Brazil dated March 17, 2016 incorporated herein by reference to Exhibit 4.4 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2015. |
| 4.5 | Letter of Agreement dated as of July 31, 2014 among McDonald’s Latin America and LatAm, LLC, incorporated herein by reference to Exhibit 4.4 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2014. |
| 4.6 | Amended and Restated Escrow Agreement dated October 12, 2010 among McDonald’s Latin America, LLC, LatAm, LLC, each of the Escrowed MF Subsidiaries, Arcos Dorados Restaurantes de Chile Ltda., Arcos Dorados B.V., Deutsche Bank Trust Company Americas, as collateral agent, and Citibank, N.A., as escrow agent, incorporated herein by reference to Exhibit 10.4 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.7 | Letter of Credit Reimbursement Agreement dated August 3, 2007 between Arcos Dorados B.V. and Credit Suisse, acting through its Cayman Islands Branch, incorporated herein by reference to Exhibit 10.5 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.8 | Amendment to Letter of Credit Reimbursement Agreement dated November 3, 2008 between Arcos Dorados B.V. and Credit Suisse, acting through its Cayman Islands Branch, incorporated herein by reference to Exhibit 10.6 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
129
|
Exhibit No. |
Description |
| 4.9 | Second Amendment to Letter of Credit Reimbursement Agreement dated December 10, 2008 between Arcos Dorados B.V. and Credit Suisse, acting through its Cayman Islands Branch, incorporated herein by reference to Exhibit 10.7 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.10 | Third Amendment to Letter of Credit Reimbursement Agreement dated July 8, 2009 between Arcos Dorados B.V. and Credit Suisse, acting through its Cayman Islands Branch, incorporated herein by reference to Exhibit 10.8 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.11 | Fourth Amendment to Letter of Credit Reimbursement Agreement dated April 23, 2010 between Arcos Dorados B.V. and Credit Suisse AG, Cayman Islands Branch, incorporated herein by reference to Exhibit 10.9 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.12 | ISDA Schedule to the 2002 Master Agreement dated as of December 14, 2009 between Morgan Stanley & Co. International plc and Arcos Dorados B.V., incorporated herein by reference to Exhibit 10.16 to the Company’s Registration Statement on Form F-1(File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.13 | ISDA Schedule to the 2002 Master Agreement dated as of December 14, 2009 between JPMorgan Chase Bank, N.A. and Arcos Dorados B.V., incorporated herein by reference to Exhibit 10.19 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.14 | Credit Support Annex to the Schedule to the Master Agreement dated as of December 14, 2009 between JPMorgan Chase Bank, N.A. and Arcos Dorados B.V., incorporated herein by reference to Exhibit 10.20 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.15 | Equity Incentive Plan, incorporated herein by reference to Exhibit 10.23 to the Company’s Registration Statement on Form F-1 (File No. 333-173063) filed with the SEC on March 25, 2011. |
| 4.16 | Amendment No. 2 to the Amended and Restated Master Franchise Agreement for McDonald’s Restaurants in All of the Territories, except Brazil, incorporated herein by reference to Exhibit 10.17 to the Company’s Registration Statement on Form F-1 (File No. 333-177210) filed with the SEC on October 7, 2011. |
| 4.17 | ISDA Master Agreement dated as of April 20, 2012 between Bank of America, N.A. and Arcos Dorados Holdings Inc., incorporated herein by reference to Exhibit 4.19 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2012. |
| 4.18 | ISDA Schedule to the 2012 Master Agreement dated as of April 20, 2012 between Bank of America, N.A. and Arcos Dorados Holdings Inc., incorporated herein by reference to Exhibit 4.20 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2012. |
| 4.19 | Guarantee dated as of April 20, 2012 of Arcos Dourados Comercio de Alimentos Ltda. in favor of Bank of America, N.A. in connection with the ISDA Master Agreement and Schedule thereto, each dated as of April 20, 2012, and any confirmations thereunder, incorporated herein by reference to Exhibit 4.21 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2012. |
| 4.20 | Confirmation dated June 8, 2012 between Arcos Dorados Holdings Inc. and Bank of America, N.A., incorporated herein by reference to Exhibit 4.22 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2012. |
| 4.21 | Credit Agreement dated as of August 3, 2011 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender, incorporated herein by reference to Exhibit 4.23 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2012. |
| 4.22 | First Amendment to Credit Agreement dated as of August 3, 2012 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender, incorporated herein by reference to Exhibit 4.24 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2012. |
| 4.23 | Second Amendment to Credit Agreement dated as of August 2, 2013 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender, incorporated herein by reference to Exhibit 4.26 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2013. |
130
|
Exhibit No. |
Description |
| 4.23 | Second Amendment to Credit Agreement dated as of August 2, 2013 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender, incorporated herein by reference to Exhibit 4.26 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2013. |
| 4.24 | Third Amendment to Credit Agreement dated as of July 28, 2014 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender, incorporated herein by reference to Exhibit 4.31 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2014. |
| 4.25 | Fourth Amendment to Credit Agreement dated as of July 30, 2015 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender, incorporated herein by reference to Exhibit 4.25 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2015. |
| 4.26 | Waiver and Fifth Amendment to Credit Agreement dated as of March 16, 2016 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender, incorporated herein by reference to Exhibit 4.26 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2015. |
| 4.27* | Sixth Amendment to Credit Agreement dated as of August 1, 2016 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors, and Bank of America, N.A., as lender. |
| 4.28* |
Credit Agreement dated as of November 10, 2016 among Arcos Dorados B.V., as borrower, certain subsidiaries of the borrower, as guarantors and JPMorgan Chase Bank, N.A., as lender. |
| 8.1* | List of subsidiaries. |
| 12.1* | Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934. |
| 12.2* | Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934. |
| 13.1* | Certification of the Chief Executive Officer pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934 and Section 1350 of Chapter 63 of Title 18 of the United States Code. |
| 13.2* | Certification of the Chief Financial Officer pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934 and Section 1350 of Chapter 63 of Title 18 of the United States Code. |
| 15.1* | Consent of Pistrelli, Henry Martin y Asociados S.R.L., member firm of Ernst & Young Global, independent registered public accounting firm. |
| 101.INS** | XBRL Instance Document |
| 101.SCH** | XBRL Taxonomy Extension Schema Document |
| 101.CAL** | XBRL Taxonomy Extension Calculation Linkbase Document |
| 101.DEF** | XBRL Taxonomy Extension Definition Linkbase Document |
| 101.LAB** | XBRL Taxonomy Extension Label Linkbase Document |
| 101.PRE** | XBRL Taxonomy Extension Presentation Linkbase Document |
| ____________________ |
| * | Filed with this Annual Report on Form 20-F. |
| ** | In accordance with Rule 402 of Regulation S-T, the information in these exhibits shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing. |
131
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
| Arcos Dorados Holdings Inc. | |||
| By: | /s/ Mariano Tannenbaum | ||
| Name: Mariano Tannenbaum | |||
| Title: Chief Financial Officer | |||
Date: April 27, 2017
132
Arcos Dorados Holdings Inc.
Consolidated Financial Statements
As of December 31, 2016 and 2015 and for each of the three years in the period ended December 31, 2016
F - 1
Audited Consolidated Financial Statements – Arcos Dorados Holdings Inc.
F - 2
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of
ARCOS DORADOS HOLDINGS INC.:
We have audited the accompanying consolidated balance sheets of Arcos Dorados Holdings Inc. and subsidiaries (the “Company”) as of December 31, 2016 and 2015, and the related consolidated statements of income (loss), comprehensive income (loss), changes in equity and cash flows for each of the three years in the period ended December 31, 2016. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Arcos Dorados Holdings Inc. and subsidiaries as of December 31, 2016 and 2015, and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 2016, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company's internal control over financial reporting as of December 31, 2016, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated March 15, 2017 expressed an unqualified opinion thereon.
Buenos Aires, Argentina
March 15, 2017
except for Note 27, as to which the date is April 27, 2017
| /s/ Pistrelli, Henry Martin y Asociados S.R.L. | |
| PISTRELLI, HENRY MARTIN Y ASOCIADOS S.R.L. | |
|
Member of Ernst & Young Global
|
F - 3
Consolidated Statements of Income (Loss)
For the fiscal years ended December 31, 2016, 2015 and 2014
Amounts in thousands of US dollars, except for share data and as otherwise indicated
| REVENUES | 2016 | 2015 | 2014 | |||||||||
| Sales by Company-operated restaurants | $ | 2,803,334 | $ | 2,930,379 | $ | 3,504,302 | ||||||
| Revenues from franchised restaurants | 125,296 | 122,361 | 146,763 | |||||||||
| Total revenues | 2,928,630 | 3,052,740 | 3,651,065 | |||||||||
| OPERATING COSTS AND EXPENSES | ||||||||||||
| Company-operated restaurant expenses: | ||||||||||||
| Food and paper | (1,012,976 | ) | (1,037,487 | ) | (1,243,907 | ) | ||||||
| Payroll and employee benefits | (607,082 | ) | (660,773 | ) | (791,677 | ) | ||||||
| Occupancy and other operating expenses | (752,428 | ) | (793,622 | ) | (939,481 | ) | ||||||
| Royalty fees | (142,777 | ) | (149,089 | ) | (173,663 | ) | ||||||
| Franchised restaurants – occupancy expenses | (55,098 | ) | (54,242 | ) | (63,939 | ) | ||||||
| General and administrative expenses | (221,075 | ) | (270,680 | ) | (272,065 | ) | ||||||
| Other operating income (expenses), net | 41,386 | 6,560 | (95,476 | ) | ||||||||
| Total operating costs and expenses | (2,750,050 | ) | (2,959,333 | ) | (3,580,208 | ) | ||||||
| Operating income | 178,580 | 93,407 | 70,857 | |||||||||
| Net interest expense | (66,880 | ) | (64,407 | ) | (72,750 | ) | ||||||
| Loss from derivative instruments | (3,065 | ) | (2,894 | ) | (685 | ) | ||||||
| Foreign currency exchange results | 32,354 | (54,032 | ) | (74,117 | ) | |||||||
| Other non-operating (expenses) income, net | (2,360 | ) | (627 | ) | 146 | |||||||
| Income (loss) before income taxes | 138,629 | (28,553 | ) | (76,549 | ) | |||||||
| Income tax expense | (59,641 | ) | (22,816 | ) | (32,479 | ) | ||||||
| Net income (loss) | 78,988 | (51,369 | ) | (109,028 | ) | |||||||
| Less: Net income attributable to non-controlling interests | (178 | ) | (264 | ) | (305 | ) | ||||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc. | $ | 78,810 | $ | (51,633 | ) | $ | (109,333 | ) | ||||
| Earnings (loss) per share information: | ||||||||||||
| Basic net income (loss) per common share attributable to Arcos Dorados Holdings Inc. | $ | 0.37 | $ | (0.25 | ) | $ | (0.52 | ) | ||||
| Diluted net income (loss) per common share attributable to Arcos Dorados Holdings Inc. | 0.37 | (0.25 | ) | (0.52 | ) | |||||||
See Notes to the Consolidated Financial Statements.
F - 4
Consolidated Statements of Comprehensive Income (Loss)
For the fiscal years ended December 31, 2016, 2015 and 2014
Amounts in thousands of US dollars
| 2016 | 2015 | 2014 | ||||||||||
| Net income (loss) | $ | 78,988 | $ | (51,369 | ) | $ | (109,028 | ) | ||||
| Other comprehensive income (loss), net of tax: | ||||||||||||
| Foreign currency translation | (9,929 | ) | (128,492 | ) | (85,858 | ) | ||||||
| Post-employment benefits: | ||||||||||||
| Loss recognized in accumulated other comprehensive income (loss) | (310 | ) | (213 | ) | (544 | ) | ||||||
| Reclassification of loss to consolidated statement of income (loss) | 386 | 440 | 199 | |||||||||
| Post-employment benefits (expenses) (net of $39, $120 and $178 of deferred income taxes, respectively) | 76 | 227 | (345 | ) | ||||||||
| Cash flow hedges: | ||||||||||||
| Net (loss) gains recognized in accumulated other comprehensive loss | (18,813 | ) | 20,487 | 5,158 | ||||||||
| Reclassification of net loss (gain) to consolidated statement of income (loss) | 11,242 | (14,209 | ) | (2,792 | ) | |||||||
| Cash flow hedges (net of $nil of income taxes) | (7,571 | ) | 6,278 | 2,366 | ||||||||
| Total other comprehensive loss | (17,424 | ) | (121,987 | ) | (83,837 | ) | ||||||
| Comprehensive income (loss) | 61,564 | (173,356 | ) | (192,865 | ) | |||||||
| Less: Comprehensive income attributable to non-controlling interests | (140 | ) | (73 | ) | (200 | ) | ||||||
| Comprehensive income (loss) attributable to Arcos Dorados Holdings Inc. | $ | 61,424 | $ | (173,429 | ) | $ | (193,065 | ) | ||||
See Notes to the Consolidated Financial Statements.
F - 5
Arcos Dorados Holdings Inc.
Consolidated Statements of Balance Sheet
As of December 31, 2016 and 2015
Amounts in thousands of US dollars, except for share data and as otherwise indicated
| ASSETS | 2016 | 2015 | ||||||
| Current assets | ||||||||
| Cash and cash equivalents | $ | 194,803 | $ | 112,519 | ||||
| Accounts and notes receivable, net | 83,239 | 63,348 | ||||||
| Other receivables | 28,841 | 35,629 | ||||||
| Inventories | 48,915 | 44,641 | ||||||
| Prepaid expenses and other current assets | 87,643 | 110,808 | ||||||
| Deferred income taxes | — | 12,051 | ||||||
| McDonald’s Corporation’s indemnification for contingencies | 1,749 | — | ||||||
| Total current assets | 445,190 | 378,996 | ||||||
| Non-current assets | ||||||||
| Miscellaneous | 89,661 | 62,524 | ||||||
| Collateral deposits | 5,325 | 5,325 | ||||||
| Property and equipment, net | 847,966 | 833,357 | ||||||
| Net intangible assets and goodwill | 43,044 | 49,486 | ||||||
| Deferred income taxes | 70,446 | 63,321 | ||||||
| Derivative instruments | — | 6,741 | ||||||
| McDonald’s Corporation’s indemnification for contingencies | 3,421 | 3,452 | ||||||
| Total non-current assets | 1,059,863 | 1,024,206 | ||||||
| Total assets | $ | 1,505,053 | $ | 1,403,202 | ||||
| LIABILITIES AND EQUITY | ||||||||
| Current liabilities | ||||||||
| Accounts payable | $ | 217,914 | $ | 187,685 | ||||
| Royalties payable to McDonald’s Corporation | 17,585 | 14,834 | ||||||
| Income taxes payable | 38,912 | 28,581 | ||||||
| Other taxes payable | 73,681 | 69,006 | ||||||
| Accrued payroll and other liabilities | 144,442 | 93,112 | ||||||
| Provision for contingencies | 764 | 512 | ||||||
| Interest payable | 7,035 | 15,990 | ||||||
| Short-term debt | — | 2,500 | ||||||
| Current portion of long-term debt | 28,099 | 161,240 | ||||||
| Derivative instruments | 19,876 | 2,126 | ||||||
| Deferred income taxes | — | 1,728 | ||||||
| Total current liabilities | 548,308 | 577,314 | ||||||
| Non-current liabilities | ||||||||
| Accrued payroll and other liabilities | 23,760 | 19,381 | ||||||
| Provision for contingencies | 17,348 | 20,066 | ||||||
| Long-term debt, excluding current portion | 551,580 | 491,327 | ||||||
| Derivative instruments | 10,615 | — | ||||||
| Deferred income taxes | 1,866 | 8,224 | ||||||
| Total non-current liabilities | 605,169 | 538,998 | ||||||
| Total liabilities | 1,153,477 | 1,116,312 | ||||||
| Equity | ||||||||
| Class A shares - no par value common stock; 420,000,000 shares authorized; 130,711,224 shares issued and outstanding at December 31, 2016; 130,538,896 shares issued and outstanding at December 31, 2015 | 373,969 | 371,857 | ||||||
| Class B shares - no par value common stock; 80,000,000 shares authorized, issued and outstanding at December 31, 2016 and 2015 | 132,915 | 132,915 | ||||||
| Additional paid-in capital | 13,788 | 12,606 | ||||||
| Retained earnings | 271,968 | 193,158 | ||||||
| Accumulated other comprehensive losses | (441,649 | ) | (424,263 | ) | ||||
| Total Arcos Dorados Holdings Inc. shareholders’ equity | 350,991 | 286,273 | ||||||
| Non-controlling interests in subsidiaries | 585 | 617 | ||||||
| Total equity | 351,576 | 286,890 | ||||||
| Total liabilities and equity | $ | 1,505,053 | $ | 1,403,202 | ||||
See Notes to the Consolidated Financial Statements.
F - 6
Arcos Dorados Holdings Inc.
Consolidated Statements of Cash Flows
For the fiscal years ended December 31, 2016, 2015 and 2014
Amounts in thousands of US dollars
| 2016 | 2015 | 2014 | ||||||||||
| Operating activities | ||||||||||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc | $ | 78,810 | $ | (51,633 | ) | $ | (109,333 | ) | ||||
| Adjustments to reconcile net income (loss) attributable to Arcos Dorados Holdings Inc. to cash provided by operations: | ||||||||||||
| Non-cash charges and credits: | ||||||||||||
| Depreciation and amortization | 92,969 | 110,715 | 116,811 | |||||||||
| Loss from derivative instruments | 3,065 | 2,894 | 685 | |||||||||
| Amortization and accrual of letter of credit fees and deferred financing costs | 3,974 | 3,982 | 4,195 | |||||||||
| Gain of property and equipment sales | (55,163 | ) | (10,942 | ) | (890 | ) | ||||||
| Net income attributable to non-controlling interests | 178 | 264 | 305 | |||||||||
| Deferred income taxes | 5,499 | (9,057 | ) | 7,419 | ||||||||
| Foreign currency exchange results | (33,348 | ) | 23,239 | 55,894 | ||||||||
| Accrued net share-based compensation expense | 3,558 | 4,082 | 9,252 | |||||||||
| Impairment of long-lived assets and goodwill | 12,742 | 13,022 | 52,915 | |||||||||
| Write-offs and related contingencies of property and equipment | 5,776 | 6,038 | 7,111 | |||||||||
| Gain on Sales of restaurants businesses | (16,549 | ) | (3,390 | ) | (1,079 | ) | ||||||
| Others, net | 6,459 | 6,892 | 7,418 | |||||||||
| Changes in assets and liabilities: | ||||||||||||
| Accounts payable | 35,815 | 25,020 | (16,128 | ) | ||||||||
| Accounts and notes receivable and other receivables | (32,604 | ) | 2,369 | (9,779 | ) | |||||||
| Inventories, prepaid and other assets | 26,763 | (45,900 | ) | 53,082 | ||||||||
| Income taxes payable | 9,480 | 15,786 | 15,884 | |||||||||
| Other taxes payable | 8,180 | (2,568 | ) | (27 | ) | |||||||
| Interest payable | (9,533 | ) | (3,746 | ) | (1,054 | ) | ||||||
| Accrued payroll and other liabilities and provision for contingencies | 15,412 | 24,195 | (198 | ) | ||||||||
| Others | 2,706 | 1,427 | 608 | |||||||||
| Net cash provided by operating activities | 164,189 | 112,689 | 193,091 | |||||||||
| Investing activities | ||||||||||||
| Property and equipment expenditures | (92,282 | ) | (90,964 | ) | (169,813 | ) | ||||||
| Purchases of restaurant businesses paid at acquisition date | — | (1,091 | ) | (825 | ) | |||||||
| Proceeds from sale of property and equipment and related advances | 88,380 | 19,738 | 3,237 | |||||||||
| Proceeds from sales of restaurant businesses and related advances | 25,090 | 3,861 | 1,938 | |||||||||
| Loans collected from / (granted to) related parties | 1,800 | 9,702 | (2,500 | ) | ||||||||
| Other investing activity | 30 | (1,361 | ) | (1,001 | ) | |||||||
| Net cash provided by (used in) investing activities | 23,018 | (60,115 | ) | (168,964 | ) | |||||||
| Financing activities | ||||||||||||
| Proceeds from secured loan agreement | 167,262 | — | — | |||||||||
| Dividend payments to Arcos Dorados Holdings Inc.’ shareholders | — | (12,509 | ) | (50,036 | ) | |||||||
| Net (payment) collection of derivative instruments | (6,268 | ) | 19,817 | — | ||||||||
| Purchase of 2023 Notes | (80,800 | ) | — | — | ||||||||
| Purchase and repayment of 2016 Notes | (181,156 | ) | (11,710 | ) | — | |||||||
| Issuance of other long-term debt | — | — | 33,267 | |||||||||
| Net short-term borrowings | (2,488 | ) | (29,043 | ) | 26,296 | |||||||
| Other financing activities | (9,545 | ) | (8,818 | ) | (8,343 | ) | ||||||
| Net cash (used in) provided by financing activities | (112,995 | ) | (42,263 | ) | 1,184 | |||||||
| Effect of exchange rate changes on cash and cash equivalents | 8,072 | (36,822 | ) | (61,929 | ) | |||||||
| Increase (decrease) in cash and cash equivalents | 82,284 | (26,511 | ) | (36,618 | ) | |||||||
| Cash and cash equivalents at the beginning of the year | 112,519 | 139,030 | 175,648 | |||||||||
| Cash and cash equivalents at the end of the year | $ | 194,803 | $ | 112,519 | $ | 139,030 | ||||||
| Supplemental cash flow information: | ||||||||||||
| Cash paid during the year for: | ||||||||||||
| Interest | $ | 76,605 | $ | 64,229 | $ | 71,369 | ||||||
| Income tax | 39,135 | 11,191 | 13,139 | |||||||||
| Non-cash investing and financing activities: | ||||||||||||
| Dividend declared pending of payment | — | — | 12,509 | |||||||||
| Seller financing pending of payment and settlement of franchise receivables related to purchases of restaurant businesses | — | 2,113 | 1,864 | |||||||||
| Exchange of assets | 2,150 | — | — | |||||||||
See Notes to the Consolidated Financial Statements.
F - 7
Arcos Dorados Holdings Inc.
Consolidated Statements of Changes in Equity
For the fiscal years ended December 31, 2016, 2015 and 2014
Amounts in thousands of US dollars, except for share data and as otherwise indicated
| Arcos Dorados Holdings Inc.’ Shareholders | ||||||||||||||||||||||||||||||
| Class A shares of common stock | Class B shares of common stock | Additional paid-in capital | Retained earnings | Accumulated other comprehensive losses | Total | Non-controlling interests | Total | |||||||||||||||||||||||
| Number | Amount | Number | Amount | |||||||||||||||||||||||||||
| Balances at December 31, 2013 | 129,867,426 | 358,820 | 80,000,000 | 132,915 | 17,250 | 404,287 | (218,735 | ) | 694,537 | 762 | 695,299 | |||||||||||||||||||
| Net income for the year | — | — | — | — | — | (109,333 | ) | — | (109,333 | ) | 305 | (109,028 | ) | |||||||||||||||||
| Other comprehensive losses | — | — | — | — | — | — | (83,732 | ) | (83,732 | ) | (105 | ) | (83,837 | ) | ||||||||||||||||
| Dividends to Arcos Dorados Holdings Inc.’s shareholders ($0.24 per share) | — | — | — | — | — | (50,036 | ) | — | (50,036 | ) | — | (50,036 | ) | |||||||||||||||||
| Issuance of shares in connection with the partial vesting of outstanding restricted share units under the 2011 Equity Incentive Plan | 348,617 | 6,881 | — | — | (6,881 | ) | — | — | — | — | — | |||||||||||||||||||
| Stock-based compensation related to the 2011 Equity Incentive Plan | — | — | — | — | 6,163 | — | — | 6,163 | — | 6,163 | ||||||||||||||||||||
| Acquisition of non-controlling interests | — | — | — | — | (558 | ) | — | — | (558 | ) | (192 | ) | (750 | ) | ||||||||||||||||
| Dividends on restricted share units under the 2011 Equity Incentive Plan | — | — | — | — | — | (127 | ) | — | (127 | ) | — | (127 | ) | |||||||||||||||||
| Dividends to non-controlling interests | — | — | — | — | — | — | — | — | (97 | ) | (97 | ) | ||||||||||||||||||
| Balances at December 31, 2014 | 130,216,043 | 365,701 | 80,000,000 | 132,915 | 15,974 | 244,791 | (302,467 | ) | 456,914 | 673 | 457,587 | |||||||||||||||||||
| Net loss for the year | — | — | — | — | — | (51,633 | ) | — | (51,633 | ) | 264 | (51,369 | ) | |||||||||||||||||
| Other comprehensive losses | — | — | — | — | — | — | (121,796 | ) | (121,796 | ) | (191 | ) | (121,987 | ) | ||||||||||||||||
| Issuance of shares in connection with the partial vesting of outstanding restricted share units under the 2011 Equity Incentive Plan | 322,853 | 6,156 | — | — | (6,156 | ) | — | — | — | — | — | |||||||||||||||||||
| Stock-based compensation related to the 2011 Equity Incentive Plan | — | — | — | — | 2,788 | — | — | 2,788 | — | 2,788 | ||||||||||||||||||||
| Dividends to non-controlling interests | — | — | — | — | — | — | — | — | (129 | ) | (129 | ) | ||||||||||||||||||
| Balances at December 31, 2015 | 130,538,896 | 371,857 | 80,000,000 | 132,915 | 12,606 | 193,158 | (424,263 | ) | 286,273 | 617 | 286,890 | |||||||||||||||||||
| Net income for the year | — | — | — | — | — | 78,810 | — | 78,810 | 178 | 78,988 | ||||||||||||||||||||
| Other comprehensive losses | — | — | — | — | — | — | (17,386 | ) | (17,386 | ) | (38 | ) | (17,424 | ) | ||||||||||||||||
| Issuance of shares in connection with the partial vesting of outstanding restricted share units under the 2011 Equity Incentive Plan | 172,328 | 2,112 | — | — | (2,112 | ) | — | — | — | — | — | |||||||||||||||||||
| Stock-based compensation related to the 2011 Equity Incentive Plan | — | — | — | — | 3,294 | — | — | 3,294 | — | 3,294 | ||||||||||||||||||||
| Dividends to non-controlling interests | — | — | — | — | — | — | — | — | (172 | ) | (172 | ) | ||||||||||||||||||
| Balances at December 31, 2016 | 130,711,224 | 373,969 | 80,000,000 | 132,915 | 13,788 | 271,968 | (441,649 | ) | 350,991 | 585 | 351,576 | |||||||||||||||||||
See Notes to the Consolidated Financial Statements.
F - 8
1. Organization and nature of business
Arcos Dorados Holdings Inc. (the “Company”) is a limited liability company organized and existing under the laws of the British Virgin Islands. The Company’s fiscal year ends on the last day of December. The Company has a 99.999% equity interest in Arcos Dorados Cooperatieve U.A., which has a 100% equity interest in Arcos Dorados B.V. (“ADBV”).
On August 3, 2007 the Company, indirectly through its wholly-owned subsidiary ADBV, entered into a Stock Purchase Agreement and Master Franchise Agreements (“MFAs”) with McDonald’s Corporation pursuant to which the Company completed the acquisition of the McDonald’s business in Latin America and the Caribbean (“LatAm business”). See Note 4 for details. Prior to this acquisition, the Company did not carry out operations. The Company’s rights to operate and franchise McDonald’s-branded restaurants in the Territories, and therefore the ability to conduct the business, derive exclusively from the rights granted by McDonald’s Corporation in the MFAs through 2027. The initial term of the MFA for French Guyana, Guadeloupe and Martinique was ten years through August 2, 2017 with an option to extend the agreement for these territories for an additional period of ten years, through August 2, 2027. On July 20, 2016, the Company has exercised its option to extend the MFA for these three territories.
The Company, through ADBV’s wholly-owned and majority owned subsidiaries, operates and franchises McDonald’s restaurants in the food service industry. The Company has operations in twenty territories as follows: Argentina, Aruba, Brazil, Chile, Colombia, Costa Rica, Curacao, Ecuador, French Guyana, Guadeloupe, Martinique, Mexico, Panama, Peru, Puerto Rico, Trinidad and Tobago, Uruguay, the U.S. Virgin Islands of St. Croix and St. Thomas (USVI) and Venezuela. All restaurants are operated either by the Company’s subsidiaries or by independent entrepreneurs under the terms of sub-franchisee agreements (franchisees).
2. Basis of presentation and principles of consolidation
The accompanying consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (“US GAAP”) and include the accounts of the Company and its subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation. The Company has elected to report its consolidated financial statements in United States dollars (“$” or “US dollars”).
Reclassifications
Certain reclassifications have been made from "Occupancy and other operating expenses" to "Payroll and employee benefits" in the Company's consolidated statements of income (loss), totaling $44,415 and $57,584, to the prior years information to conform to the current year presentation, for the fiscal year ended December, 31, 2015 and 2014, respectively.
According to the Accounting Standard Update 2015-03, debt issuance cost related to a recognized debt liability is required to be presented in the consolidated statements of balance sheet as a direct deduction from the corresponding debt liability rather than as an asset for the fiscal year beginning after December 15, 2015. As a result, certain reclassifications have been made from "Miscellaneous", included within "Non-current asset" amounting to $3,775 to "Current portion of long-term debt" and to "Long-term debt, excluding current portion", included within "Liabilities" in the Company's consolidated balance sheet amounting to $359 and $3,416, respectively.
3. Summary of significant accounting policies
The following is a summary of significant accounting policies followed by the Company in the preparation of the consolidated financial statements.
F - 9
3. Summary of significant accounting policies (continued)
Use of estimates
The preparation of the consolidated financial statements in conformity with generally accepted accounting principles 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 periods. Actual results could differ from those estimates.
Foreign currency matters
The financial statements of the Company’s foreign operating subsidiaries are translated in accordance with guidance in ASC 830 Foreign Currency Matters. Except for the Company’s Venezuelan operations, the functional currencies of the Company’s foreign operating subsidiaries are the local currencies of the countries in which they conduct their operations. Therefore, assets and liabilities are translated into US dollars at the balance sheets date exchange rates, and revenues and expenses are translated at average rates prevailing during the periods. Translation adjustments are included in the “Accumulated other comprehensive losses” component of shareholders’ equity. The Company includes foreign currency exchange results related to monetary assets and liabilities transactions, including intercompany transactions, denominated in currencies other than its functional currencies in its income (loss) statement.
Effective January 1, 2010, Venezuela is considered to be highly inflationary, and as such, the financial statements of the Company’s Venezuelan subsidiaries are remeasured as if their functional currencies were the reporting currency (US dollars). As a result, remeasurement gains and losses are recognized in earnings rather than in the cumulative translation adjustment, component of “Accumulated other comprehensive losses” within shareholders’ equity.
See Note 22 for additional information pertaining to the Company’s Venezuelan operations, including currency restrictions and controls existing in the country and a discussion of the exchange rate used for remeasurement purposes.
Cash and cash equivalents
The Company considers all highly liquid investments with an original maturity of three months or less, from the date of purchase, to be cash equivalents.
Revenue recognition
The Company’s revenues consist of sales by Company-operated restaurants and revenues from restaurants operated by franchisees. Sales by Company-operated restaurants are recognized on a cash basis. The Company presents sales net of sales tax and other sales-related taxes. Revenues from restaurants operated by franchisees include rental income, initial franchise fees and royalty income. Rental income is measured on a monthly basis based on the greater of a fixed rent, computed on a straight-line basis, or a certain percentage of gross sales reported by franchisees. Initial franchise fees represent the difference between the amount the Company collects from the franchisee and the amount the Company pays to McDonald’s Corporation upon the opening of a new restaurant, which is when the Company has performed substantially all initial services required by the franchisee agreement. Royalty income represents the difference, if any, between the amount the Company collects from the franchisee and the amount the Company is required to pay to McDonald’s Corporation. Royalty income is recognized in the period earned.
Accounts and notes receivable and allowance for doubtful accounts
Accounts receivable primarily consist of royalty and rent receivables due from franchisees and debit and credit card receivables. Accounts receivable are initially recorded at fair value and do not bear interest. Notes receivable relates to interest-bearing financing granted to certain franchisees in connection with the acquisition of equipment and third-party suppliers. The Company maintains an allowance for doubtful accounts in an amount that it considers sufficient to cover losses resulting from the inability of its franchisees to make required payments. In judging the adequacy of the allowance for doubtful accounts, the Company considers multiple factors including historical bad debt experience, the current economic environment and the aging of the receivables.
F - 10
3. Summary of significant accounting policies (continued)
Other receivables
Other receivables primarily consist of value-added tax and other tax receivables (amounting to $15,089 and $24,088 as of December 31, 2016 and 2015, respectively). Other receivables are reported at the amount expected to be collected.
Inventories
Inventories are stated at the lower of cost or market, with cost being determined on a first-in, first-out basis.
Property and equipment, net
Property and equipment are stated at cost, net of accumulated depreciation. Property costs include costs of land and building for both company-operated and franchise restaurants while equipment costs primarily relate to company-operated restaurants. Cost of property and equipment acquired from McDonald’s Corporation (as part of the acquisition of LatAm business) was determined based on its estimated fair market value at the acquisition date, then partially reduced by the allocation of the negative goodwill that resulted from the purchase price allocation. Cost of property and equipment acquired or constructed after the acquisition of LatAm business in connection with the Company’s restaurant reimaging and extension program is comprised of acquisition and construction costs and capitalized internal costs. Capitalized internal costs include payroll expenses related to employees fully dedicated to restaurant construction projects and related travel expenses. Capitalized payroll costs are allocated to each new restaurant location based on the actual time spent on each project. The Company commences capitalizing costs related to construction projects when it becomes probable that the project will be developed – when the site has been identified and the related profitability assessment has been approved. Maintenance and repairs are expensed as incurred. Accumulated depreciation is calculated using the straight-line method over the following estimated useful lives: buildings – up to 40 years; leasehold improvements – the lesser of useful lives of assets or lease terms which generally include option periods; and equipment 3 to 12 years.
Intangible assets, net
Intangible assets include computer software costs, initial franchise fees, reacquired rights under franchise agreements, letter of credit fees and others.
The Company follows the provisions of ASC 350-40-30 within ASC 350 Intangibles, Subtopic 40 Internal Use Software which requires the capitalization of costs incurred in connection with developing or obtaining software for internal use. These costs are amortized over a period of three years on a straight line basis.
The Company is required to pay to McDonald’s Corporation an initial franchisee fee upon opening of a new restaurant. The initial franchise fee related to Company-operated restaurants is capitalized as an intangible asset and amortized on a straight-line basis over the term of the franchise.
A reacquired franchise right is recognized as an intangible asset as part of the business combination in the acquisition of franchised restaurants apart from goodwill with an assigned amortizable life limited to the remaining contractual term (i.e., not including any renewal periods). The value assigned to the reacquired franchise right excludes any amounts recognized as a settlement gain or loss and is limited to the value associated with the remaining contractual term and operating conditions for the acquired restaurants. The reacquired franchise right is measured using a valuation technique that considers restaurant's cash flows after payment of an at-market royalty rate to the Company. The cash flows are projected for the remaining contractual term, regardless of whether market participants would consider potential contractual renewals in determining its fair value.
Letter of credit fees are amortized on a straight-line basis over the term of the Letter of Credit.
F - 11
3. Summary of significant accounting policies (continued)
Impairment and disposal of long-lived assets
In accordance with the guidance within ASC 360-10-35, the Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate the carrying value of the asset may not be recoverable. For purposes of reviewing assets for potential impairment assets are grouped at a country level for each of the operating markets. The Company manages its restaurants as a group or portfolio with significant common costs and promotional activities; as such, each restaurant’s cash flows are not largely independent of the cash flows of others in a market. If an indicator of impairment exists for any grouping of assets, an estimate of undiscounted future cash flows produced by each individual restaurant within the asset grouping is compared to its carrying value. If an individual restaurant is determined to be impaired, the loss is measured by the excess of the carrying amount of the restaurant over its fair value considering its highest and best use, as determined by an estimate of discounted future cash flows or its market value.
During June 2014 and March 2015, the Company performed an impairment testing of its long-lived assets in Venezuela considering the operating losses incurred in this market as a consequence of the Company’s currency exchange rate changes (indicator of potential impairment), as mentioned in Note 22. As a result of this analysis, the Company recorded impairment charges of $7,804 and $45,186 during the fiscal years 2015 and 2014, respectively, primarily associated to an advanced payment for a real estate given during the fourth quarter of 2013, using a fair market value approach. The impairment charges also included certain restaurants with undiscounted future cash flows insufficient to recover their carrying value. In the fourth quarter of 2016, 2015 and 2014, the Company assessed all markets for impairment indicators. As a result of these assessments, the Company concluded the second step was required to be performed as a component of the impairment testing of its long-lived assets in the following markets on a per store basis:
| 2016 | 2015 | 2014 | ||||
| Puerto Rico | Yes | Yes | Yes | |||
| Mexico | Yes | Yes | Yes | |||
| Peru | Yes | Yes | Yes | |||
| Aruba | Yes | Yes | Yes | |||
| Curacao | No | Yes | Yes | |||
| USVI | Yes | Yes | Yes | |||
| Venezuela | Yes | Yes | Yes | |||
| Colombia | Yes | Yes | Yes | |||
| Ecuador | Yes | Yes | No | |||
| Trinidad and Tobago | Yes | No | No |
As a result of the impairment testing the Company recorded the following impairment charges, for the markets indicated below, within Other operating income (expenses), net on the statements of income (loss):
| Fiscal year | Markets | Total | ||||
| 2016 | Mexico, Puerto Rico, USVI, Peru, Ecuador, Venezuela and Trinidad and Tobago | $ | 7,697 | |||
| 2015 | Mexico, Peru, Colombia and Venezuela | 12,343 | ||||
| 2014 | Mexico, Puerto Rico, Peru, Colombia and Venezuela | 50,886 | ||||
F - 12
3. Summary of significant accounting policies (continued)
Goodwill
Goodwill represents the excess of cost over the estimated fair market value of net tangible assets and identifiable intangible assets acquired. In accordance with the guidance within ASC 350 Intangibles-Goodwill and Other, goodwill is stated at cost and reviewed for impairment on an annual basis. The annual impairment test is mostly performed during the fourth quarter of the fiscal year and compares the fair value of each reporting unit, generally based on discounted future cash flows, with its carrying amount including goodwill. If the carrying amount of the reporting unit exceeds its fair value, an impairment loss is measured as the difference between the implied fair value of the reporting unit’s goodwill and the carrying amount of goodwill.
In assessing the recoverability of the goodwill, the Company considers changes in economic conditions and makes assumptions regarding estimated future cash flows and other factors. Estimates of future cash flows are highly subjective judgments based on the Company’s experience and knowledge of its operations. These estimates can be significantly impacted by many factors including changes in global and local business and economic conditions, operating costs, inflation, competition, and consumer and demographic trends.
As a result of the analyses performed the Company recorded the following impairment charges, related to goodwill generated in the acquisition of franchised restaurants, for the markets indicated below within Other operating income (expenses), net on the statements of income (loss):
| Fiscal year | Markets | Total | ||||
| 2016 | Mexico | $ | 5,045 | |||
| 2015 | Argentina | 679 | ||||
| 2014 | Puerto Rico | 2,029 | ||||
Advertising costs
Advertising costs are expensed as incurred. Advertising expenses related to Company-operated restaurants were $117,250, $122,920 and $146,363 in 2016, 2015 and 2014, respectively. Advertising expenses related to franchised operations do not affect the Company’s expenses since these are recovered from franchisees. Advertising expenses related to franchised operations were $36,374, $35,131 and $44,828 in 2016, 2015 and 2014, respectively.
Accounting for income taxes
The Company records deferred income taxes using the liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. The guidance requires companies to set up a valuation allowance for that component of net deferred tax assets which does not meet the more likely than not criterion for realization.
Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.
The Company is regularly audited by tax authorities, and tax assessments may arise several years after tax returns have been filed. Accordingly, tax liabilities are recorded when, in management’s judgment, a tax position does not meet the more likely than not threshold for recognition. For tax positions that meet the more likely than not threshold, a tax liability may be recorded depending on management’s assessment of how the tax position will ultimately be settled. The Company records interest and penalties on unrecognized tax benefits in the provision for income taxes.
F - 13
3. Summary of significant accounting policies (continued)
Accounts payable outsourcing
The Company offers its suppliers access to an accounts payable services arrangement provided by third party financial institutions. This service allows the Company’s suppliers to view its scheduled payments online, enabling them to better manage their cash flow and reduce payment processing costs. Independent of the Company, the financial institutions also allow suppliers to sell their receivables to the financial institutions in an arrangement separately negotiated by the supplier and the financial institution. The Company has no economic interest in the sale of these receivables and no direct relationship with the financial institutions concerning the sale of receivables. All of the Company’s obligations, including amounts due, remain to the Company’s suppliers as stated in the supplier agreements. As of December 31, 2016 and 2015, $2,241 and $2,142, respectively, of the Company’s total accounts payable are available for this purpose and have been sold by suppliers to participating financial institutions.
Share-based compensation
The Company recognizes compensation expense as services required to earn the benefits are rendered. See Note 17 for details of the outstanding plans and the related accounting policies.
Derivative financial instruments
The Company utilizes certain hedge instruments to manage its interest rate and foreign currency rate exposures. The counterparties to these instruments generally are major financial institutions. The Company does not hold or issue derivative instruments for trading purposes. In entering into these contracts, the Company assumes the risk that might arise from the possible inability of counterparties to meet the terms of their contracts. The Company does not expect any losses as a result of counterparty defaults. All derivatives are recognized as either assets or liabilities in the balance sheets and are measured at fair value. Additionally, the fair value adjustments will affect either shareholders’ equity as accumulated other comprehensive income (loss) or net income (loss) depending on whether the derivative instrument qualifies as a hedge for accounting purposes and, if so, the nature of the hedging activity.
Severance payments
Under certain laws and labor agreements of the countries in which the Company operates, the Company is required to make minimum severance payments to employees who are dismissed without cause and employees leaving its employment in certain other circumstances. The Company accrues severance costs if they relate to services already rendered, are related to rights that accumulate or vest, are probable of payment and can be reasonably estimated. Otherwise, severance payments are expensed as incurred.
Provision for contingencies
The Company accrues liabilities when it is probable that future costs will be incurred and such costs can be reasonably estimated. Such accruals are based on developments to date, the Company’s estimates of the outcomes of these matters and the Company’s lawyers’ experience in contesting, litigating and settling other matters. As the scope of the liabilities becomes better defined, there may be changes in the estimates of future costs. See Note 18 for details.
Comprehensive income (loss)
Comprehensive income (loss) includes net income as currently reported under generally accepted accounting principles and also includes the impact of other events and circumstances from non-owner sources which are recorded as a separate component of shareholders’ equity. The Company reports foreign currency translation gains and losses, unrealized results on cash flow hedges as well as unrecognized post-retirement benefits as components of comprehensive income (loss).
F - 14
3. Summary of significant accounting policies (continued)
Sales of properties and equipments and restaurant businesses
The Company recognizes the sale of properties and equipments when: (a) the profit is determinable, that is, the collectibility of the sales price is reasonably assured or the amount that will not be collectible can be estimated, and (b) the earnings process is virtually complete, that is, the Company is not obliged to perform significant activities after the sale to earn the profit. The sale of restaurant businesses is recognized when the Company transfers substantially all of the risks and rewards of ownership.
In order to determine the gain or loss on the disposal, the goodwill associated with the sold of property and equipments and restaurant business, if any, is considered within the carrying value. The amount of goodwill to be included in that carrying amount is based on the relative fair value of the item to be disposed and the portion of the reporting unit that will be retained.
During fiscal years 2016, 2015 and 2014, the Company recorded results from sales of properties and equipments and restaurant businesses, amounting to $71,712, $14,332 and $1,969, respectively, included within “Other operating income (expenses), net”. The sales performed during fiscal years 2016 and 2015, were primarily related to the redevelopment of certain real estate assets and restaurant businesses, related to the refranchising of a number of company-operated restaurants.
In addition, as of December 31, 2016 and 2015, the Company received advances related to the redevelopment of certain real estate assets and restaurant businesses plan for which the sales had not met the aforementioned conditions, amounting to $34,341 and $4,939, respectively, recorded within the current portion of “Accrued payroll and other Liabilities”.
Recent accounting pronouncements
In May 2014, the FASB issued guidance codified in Accounting Standards Codification (ASC) 606, “Revenue Recognition - Revenue from Contracts with Customers,” which amends the guidance in former ASC 605, “Revenue Recognition,” and becomes effective beginning January 1, 2017. In August 12, 2015, the FASB deferred the effective date to annual reporting periods beginning after December 15, 2017. The standard’s core principle is that a company must recognize revenue when it transfers promised goods or services to customers, in an amount that reflects the consideration to which the company expects to be entitled in exchange for those goods or services. After evaluating the effect of adopting the new standard, the Company concluded that the sole source of revenue affected would be the initial franchise fee, which would be deferred over the term of the franchise agreement. Consequently, a deferred income is expected within a range of $4 million and $6 million as of the date of the adoption. The Company will adopt the modified retrospective method as of the date the new guidance become effective.
In November 2015, new guidance about ASC 740 “Income Tax” was issued. Becoming effective for fiscal periods, including interim periods, beginning after December 15, 2016, this standard requires the Company to classify all deferred tax assets and liabilities as non-current on the Consolidated Statements of Balance Sheets instead of separating deferred taxes into current and non-current amounts. As of December 31, 2016, the Company adopted this guidance prospectively, since early adoption was permitted.
In addition, in February 2016, new guidance about leases was issued. The new standard (ASC 842) supersede the lease requirements of ASC 840. The objective of the new guidance is to establish the principles that lessees and lessors shall apply to report useful information to users of financial statements about the amount, timing, and uncertainty of cash flows arising from a lease. This standard is effective for annual periods beginning after December 15, 2018, including interim periods. The Company is currently evaluating the impact of the provisions of ASC 842.
No other new accounting pronouncement issued or effective during the periods had or is expected to have a material impact on the Company’s consolidated financial statements.
F - 15
4. Acquisition of businesses
LatAm Business
On August 3, 2007, the Company, indirectly through its wholly-owned subsidiary ADBV, entered into a Stock Purchase Agreement with McDonald’s Corporation pursuant to which the Company completed the acquisition of the McDonald’s business in Latin America and the Caribbean for a final purchase price of $698,080.
The acquisition of the LatAm business was accounted for by the purchase method of accounting and, accordingly, the purchase price was allocated to the assets acquired and liabilities assumed based on the estimated fair values at the date of acquisition. When the fair value of the net assets acquired exceeded the purchase price, the resulting negative goodwill was allocated to partially reduce the fair value of the non-current assets acquired on a pro-rata basis.
In connection with this transaction, ADBV and certain subsidiaries (the “MF subsidiaries”) also entered into 20-year Master Franchise Agreements (“MFAs”) with McDonald’s Corporation which grants to the Company and its MF subsidiaries the following:
| i. | The right to own and operate, directly or indirectly, franchised restaurants in each territory; |
| ii. | The right and license to grant sub franchises in each territory; |
| iii. | The right to adopt and use, and to grant the right and license to sub franchisees to adopt and use, the system in each territory; |
| iv. | The right to advertise to the public that it is a franchisee of McDonald’s; |
| v. | The right and license to grant sub franchises and sublicenses of each of the foregoing rights and licenses to each MF subsidiary. |
The Company is required to pay to McDonald’s Corporation continuing franchise fees (Royalty fees) on a monthly basis. The amount to be paid during the first 10 years of the MFAs is equal to 5% of the US dollar equivalent of the gross product sales of each of the franchised restaurants. This percentage increases to 6% and 7% for the subsequent two 5-year periods of the agreement. Payment of monthly royalties is due on the seventh business day of the next calendar month.
Pursuant to the MFAs provisions, McDonald’s Corporation has the right to (a) terminate the MFAs, or (b) exercise a call option over the Company’s shares or any MF subsidiary, if the Company or any MF subsidiary (i) fails to comply with the McDonald’s System (as defined in the MFAs), (ii) files for bankruptcy, (iii) defaults on its financial debt payments, (iv) substantially fails to achieve targeted openings and reinvestments requirements, or (v) upon the occurrence of any other event of default as defined in the MFAs.
Other acquisitions
During fiscal years 2015 and 2014, the Company acquired certain franchised restaurants in certain territories. No acquisitions of franchised restaurant were made during fiscal year 2016. Presented below is supplemental information about these acquisitions:
F - 16
4. Acquisition of businesses (continued)
| Purchases of restaurant businesses: | 2015 | 2014 | ||||||
| Property and equipment | $ | 936 | $ | 583 | ||||
| Identifiable intangible assets | 853 | 518 | ||||||
| Goodwill | 1,621 | 2,029 | ||||||
| Assumed debt | (206 | ) | — | |||||
| Gain on bargain purchase of franchised restaurants | — | (71 | ) | |||||
| Purchase price | 3,204 | 3,059 | ||||||
| Restaurants sold in exchange | — | — | ||||||
| Settlement of franchise receivables | (2,113 | ) | (1,436 | ) | ||||
| Seller financing | — | (798 | ) | |||||
| Purchase price paid at acquisition date | $ | 1,091 | $ | 825 | ||||
5. Accounts and notes receivable, net
Accounts and notes receivable, net consist of the following at year end:
| 2016 | 2015 | |||||||
| Receivables from franchisees | $ | 45,700 | $ | 34,714 | ||||
| Debit and credit card receivables | 40,652 | 28,683 | ||||||
| Meal voucher receivables | 11,024 | 8,920 | ||||||
| Notes receivable | 2,230 | 3,799 | ||||||
| Allowance for doubtful accounts | (16,367 | ) | (12,768 | ) | ||||
| $ | 83,239 | $ | 63,348 | |||||
6. Prepaid expenses and other current assets
Prepaid expenses and other current assets consist of the following at year end:
| 2016 | 2015 | |||||||
| Prepaid taxes | $ | 52,407 | $ | 78,543 | ||||
| Prepaid expenses | 18,753 | 21,124 | ||||||
| Promotion items and prepayments | 12,853 | 11,141 | ||||||
| Other | 3,630 | — | ||||||
| $ | 87,643 | $ | 110,808 | |||||
F - 17
7. Miscellaneous
Miscellaneous consist of the following at year end:
| 2016 | 2015 | |||||||
| Judicial deposits | $ | 35,652 | $ | 23,019 | ||||
| Tax credits | 21,060 | 6,581 | ||||||
| Prepaid property and equipment | 13,279 | 11,344 | ||||||
| Notes receivable | 4,509 | 2,799 | ||||||
| Rent deposits | 4,471 | 6,584 | ||||||
| Other | 10,690 | 12,197 | ||||||
| $ | 89,661 | $ | 62,524 | |||||
8. Property and equipment, net
Property and equipment, net consist of the following at year-end:
| 2016 | 2015 | |||||||
| Land | $ | 145,417 | $ | 138,546 | ||||
| Buildings and leasehold improvements | 605,156 | 575,238 | ||||||
| Equipment | 563,973 | 521,957 | ||||||
| Total cost | 1,314,546 | 1,235,741 | ||||||
| Total accumulated depreciation | (466,580 | ) | (402,384 | ) | ||||
| $ | 847,966 | $ | 833,357 | |||||
Total depreciation expense for fiscal years 2016, 2015 and 2014 amounted to $83,993, $96,383 and $101,703, respectively.
9. Net intangible assets and goodwill
Net intangible assets and goodwill consist of the following at year-end:
| 2016 | 2015 | |||||||
| Net intangible assets (i) | ||||||||
| Computer software cost | $ | 66,969 | $ | 60,088 | ||||
| Initial franchise fees | 15,039 | 14,659 | ||||||
| Reacquired franchised rights | 8,219 | 8,128 | ||||||
| Letter of credit fees | 940 | 940 | ||||||
| Others | 1,000 | 1,000 | ||||||
| Total cost | 92,167 | 84,815 | ||||||
| Total accumulated amortization | (56,242 | ) | (47,579 | ) | ||||
| Subtotal | 35,925 | 37,236 | ||||||
F - 18
9. Net intangible assets and goodwill (continued)
|
||||||||
| Goodwill (ii) | 2016 | 2015 | ||||||
| Mexico | — | 6,013 | ||||||
| Brazil | 5,100 | 4,191 | ||||||
| Chile | 1,110 | 1,050 | ||||||
| Argentina | 411 | 504 | ||||||
| Ecuador | 273 | 273 | ||||||
| Peru | 167 | 165 | ||||||
| Colombia | 58 | 54 | ||||||
| Subtotal | 7,119 | 12,250 | ||||||
| $ | 43,044 | $ | 49,486 | |||||
| (i) | Total amortization expense for fiscal years 2016, 2015 and 2014 amounted to $8,976, $14,332 and $15,108, respectively. The estimated aggregate amortization expense for each of the five succeeding fiscal years and thereafter is as follows: $13,949 for 2017, $9,073 for 2018; $2,843 for 2019; $1,347 for 2020; $1,347 for 2021; and thereafter $7,366. |
| (ii) | Related to the acquisition of franchised restaurants (Mexico, Brazil, Peru, Chile, Argentina and Colombia) and non-controlling interests in subsidiaries (Ecuador and Chile). |
10. Accrued payroll and other liabilities
Accrued payroll and other liabilities consist of the following at year end:
| 2016 | 2015 | |||||||
| Current: | ||||||||
| Accrued payroll | $ | 95,754 | $ | 74,559 | ||||
| Advances related to pending sales of property and equipment and restaurant businesses | 34,341 | 4,939 | ||||||
| Accrued expenses | 9,492 | 11,817 | ||||||
| Other liabilities | 4,855 | 1,797 | ||||||
| $ | 144,442 | $ | 93,112 | |||||
| Non-current: | ||||||||
| Deferred rent | 13,782 | 12,170 | ||||||
| Other liabilities | 9,978 | 7,211 | ||||||
| $ | 23,760 | $ | 19,381 | |||||
11. Short-term debt
Short-term debt consists of the following at year-end:
| 2016 | 2015 | |||||||
| Revolving Credit Facilities | $ | — | $ | 2,500 | ||||
| $ | — | $ | 2,500 | |||||
The Company entered into revolving credit facilities in order to borrow money from time to time to cover its working capital needs and for other general corporate purposes.
F - 19
11. Short-term debt (continued)
On August 1, 2016, ADBV renewed its committed revolving credit facility with Bank of America, N.A. (BOFA), as lender, for up to $25 million maturing on August 3, 2017. In addition, on November 10, 2016, ADBV entered into a revolving credit facility with JPMorgan Chase Bank, N.A, for up to $25 million maturing on November 10, 2017. Each loan made to ADBV under these agreements will bear interest at an annual rate equal to LIBOR plus 2.50%. Interest on each loan will be payable at maturity and on a quarterly basis, beginning with the date that is three calendar months following the date the loan is made.
The obligations of ADBV under the revolving credit facilities are jointly and severally guaranteed by certain of the Company’s subsidiaries on an unconditional basis. Furthermore, the agreements include customary covenants including, among others, restrictions on the ability of ADBV, the guarantors and certain material subsidiaries to: (i) incur liens (except for the event of default that may occur derives from the credit and debit card receivables that secured the Secured Loan Agreement mentioned in Note 12), (ii) enter into any merger, consolidation or amalgamation; (iii) sell, assign, lease or transfer all or substantially all of the borrower’s or guarantor’s business or property; (iv) enter into transactions with affiliates; (v) engage in substantially different lines of business; (vi) engage in transactions that violate certain anti-terrorism laws; and (vii) is required to comply with a consolidated net indebtedness to EBITDA ratio lower than 3.0 to 1 as of the last day of the fiscal quarter ended December 31, 2016 and thereafter. The revolving credit facilities provide for customary events of default, which, if any of them occurs, would permit or require the lender to terminate its obligation to provide loans under the revolving credit facilities and/or to declare all sums outstanding under the loan documents immediately due and payable.
As of December 31, 2016, the mentioned ratio was 1.64 and thus the Company is currently in compliance with the ratio requirement under both revolving credit facilities.
12. Long-term debt
Long-term debt consists of the following at year-end:
| 2016 | 2015 | |||||||
| 2023 Notes | $ | 393,767 | $ | 473,767 | ||||
| 2016 Notes | — | 158,544 | ||||||
| Secured loan agreement | 167,262 | — | ||||||
| Capital lease obligations | 4,704 | 5,599 | ||||||
| Other long-term borrowings | 25,553 | 22,465 | ||||||
| Subtotal | 591,286 | 660,375 | ||||||
| Discount on 2023 Notes | (5,029 | ) | (6,918 | ) | ||||
| Premium on 2023 Notes | 1,910 | 2,640 | ||||||
| Premium on 2016 Notes | — | 245 | ||||||
| Fair value adjustment related to Secured loan agreement (i) | (2,877 | ) | — | |||||
| Deferred financing costs | (5,611 | ) | (3,775 | ) | ||||
| Total | 579,679 | 652,567 | ||||||
| Current portion of long-term debt | 28,099 | 161,240 | ||||||
| Long-term debt, excluding current portion | $ | 551,580 | $ | 491,327 | ||||
| (i) | The carrying value of hedged items in fair value hedges, are adjusted for fair value changes to the extent they are attributable to the risks designated as being hedged. The related hedging instrument is also recorded at fair value included within "Derivative instruments" in liabilities current and non-current. |
F - 20
12. Long-term debt (continued)
2023 and 2016 Notes:
The following table presents additional information related to the 2023 Notes and 2016 Notes:
| Principal as of December 31, | |||||||||||||
| Annual interest rate | Currency | 2016 | 2015 | Maturity | |||||||||
| 2023 Notes | 6.625 | % | USD | $ | 393,767 | 473,767 | September 27, 2023 | ||||||
| 2016 Notes | 10.25 | % | BRL | — | 158,544 | July 13, 2016 | |||||||
| Interest Expense (i) | DFC Amortization (i) | Accretion of Premium and Amortization of Discount (i) | ||||||||||||||||||||||||||||||||||
| 2016 | 2015 | 2014 | 2016 | 2015 | 2014 | 2016 | 2015 | 2014 | ||||||||||||||||||||||||||||
| 2023 Notes | $ | 28,516 | $ | 31,387 | $ | 31,387 | $ | 943 | $ | 439 | $ | 438 | $ | 1,157 | $ | 515 | $ | 506 | ||||||||||||||||||
| 2016 Notes | 6,668 | 20,991 | 29,490 | 391 | 805 | 778 | (266 | ) | (496 | ) | (692 | ) | ||||||||||||||||||||||||
(i) These charges are included within "Net interest expense" in the consolidated statements of income (loss).
On July 13, 2011 and April 24, 2012, the Company issued Brazilian reais notes due in 2016 (the "2016 Notes") amounting to Brazilian reais (“BRL”) 675,000. Periodic payments of principal were not required and interest was paid semi-annually beginning on January 13, 2012. The Company incurred $3,699 of financing costs related to these issuances, which were capitalized as deferred financing costs ("DFC") and were amortized over the life of the notes.
During November 2015 and January 2016, the Company redeemed a portion of the outstanding principal amount of its 2016 Notes. Furthermore, on April 8, 2016, the Company launched a cash tender offer for any and all of its outstanding 2016 Notes, at a redemption price equal to 97%, which expired on May 5, 2016. The holders who tendered their 2016 Notes prior to April 21, 2016, received a redemption price equal to 100%. The results related to the cash tender offer and the accelerated amortization of the related to DFC were recognized as interest expense within the consolidated statement of income (loss). Finally, on July 13, 2016, the Company settled the remaining 2016 Notes amounting to BRL 200,991 (equivalent to $60,965) and paid accrued and unpaid interest amounting to BRL 10,301 (equivalent to $3,124) related to the Notes.
The following table presents information related to the purchase and repayments of the principal of the 2016 Notes:
| Amount | |||||||
| Date | Redemption price | BRL | $ | ||||
| November 25, 2015 | 93.75% | 40,000 | 9,995 | ||||
| November 30, 2015 | 93.75% | 7,039 | 1,715 | ||||
| January 29, 2016 | 97.75% | 1,180 | 288 | ||||
| April 21, 2016 | 100.00% | 421,765 | 118,797 | ||||
| May 5, 2016 | 97.00% | 4,025 | 1,106 | ||||
| July 13, 2016 | 100.00% | 200,991 | 60,965 | ||||
| Total | 675,000 | 192,866 | |||||
On September 27, 2013, the Company issued senior notes, which are due in 2023 (the "2023 Notes"). Periodic payments of principal are not required and interest is paid semi-annually commencing on March 27, 2014. The gross proceeds from the cash issuance of 2023 Notes amounting to $378,409 were partially used to finance the purchase of 2019 Notes and to repay certain of the Company’s short-term debt. The 2019 Notes, were canceled during 2013, when the Company launched a tender and exchange offer pursuant to which it offered to exchange any and all of the outstanding 2019 Notes for 2023 Notes and to purchase any and all of the outstanding 2019 Notes for cash.
F - 21
12. Long-term debt (continued)
2023 and 2016 Notes (continued):
The Company recorded the portion of 2023 Notes issued in exchange for cash at the original price of 100.909%. The portion of 2023 Notes issued as consideration for the partial exchange of 2019 Notes was recorded at the carrying value of the 2019 Notes since there were no substantive modifications to the terms of the debts according to ASC 470-50-40. The net discount amounting to $5,420 (comprised of a discount of $8,829 related to the non-cash issuance, partially offset by $3,409 of a premium related to the cash issuance) is being accreted over the term of the 2023 Notes and recognized as a higher interest expense. The Company incurred $3,313 of financing costs related to the cash issuance of 2023 Notes, which were capitalized as deferred DFC and are being amortized over the life of the notes.
On June 1, 2016, the Company launched a cash tender offer to purchase $80,000 of its outstanding 2023 Notes, at a redemption price equal to 98%, which expired on June 28, 2016. The holders who tendered their 2023 Notes prior to June 14, received a redemption price equal to 101%. As a consequence of this transaction, the Company redeemed 16.89% of the outstanding principal. The total payment was $80,800 (including $800 of early tender payment) plus accrued and unpaid interest. The results related to the cash tender offer and the accelerated amortization of the related DFC were recognized as interest expense within the consolidated statement of income (loss).
The 2023 Notes, are redeemable, in whole or in part, at the option of the Company at any time at the applicable redemption price set forth in the indenture governing them. The 2023 Notes are fully and unconditionally guaranteed on a senior unsecured basis by certain of the Company’s subsidiaries. The Notes and guarantees (i) are senior unsecured obligations and rank equal in right of payment with all of the Company’s and guarantors’ existing and future senior unsecured indebtedness; (ii) will be effectively junior to all of Company’s and guarantors’ existing and future secured indebtedness to the extent of the value of the Company’s assets securing that indebtedness; and (iii) are structurally subordinated to all obligations of the Company’s subsidiaries that are not guarantors.
The indenture governing the Notes limits the Company’s and its subsidiaries’ ability to, among other things, (i) create certain liens; (ii) enter into sale and lease-back transactions; and (iii) consolidate, merge or transfer assets. These covenants are subject to important qualifications and exceptions. The indenture governing the Notes also provides for events of default, which, if any of them occurs, would permit or require the principal, premium, if any, and interest on all of the then-outstanding 2023 Notes to be due and payable immediately.
The 2023 Notes are listed on the Luxembourg Stock Exchange and trade on the Euro MTF Market.
Secured loan agreement
On March 29, 2016, the Company’s Brazilian subsidiary signed a $167,262 Secured Loan Agreement (the "Loan") with five off-shore lenders namely: Citibank N.A., Itaú BBA International plc, Santander (Brasil) S.A., Cayman Islands Branch, Bank of America N.A. and JP Morgan Chase Bank, N.A. Each loan under the agreement bears interest at the following annual interest rates:
| Lender | Annual Interest Rate | |
| Citibank N.A. | 3M LIBOR + 2.439% | |
| Itaú BBA International plc | 5.26% | |
| Banco Santander (Brasil) S.A., Cayman Islands Branch | 4.7863% | |
| Bank of America N.A. | 3M LIBOR + 4.00% | |
| JP Morgan Chase Bank, N.A. | 3M LIBOR + 3.92% |
In order to fully convert each loan of the agreement into BRL, the Brazilian subsidiary entered into five cross-currency interest rate swap agreements with the local subsidiaries of the same lenders. Consequently, the loans were fully converted into BRL amounting to BRL613,850. Refer to Note 13 for more details.
F - 22
12. Long-term debt (continued)
Secured loan agreement (continued)
Considering the cross currency interest rate swap agreements, the final interest rate of the Loan is the Interbank Market reference interest rate (known in Brazil as “CDI”) plus 4.50% per year. Interest payments are made quarterly, beginning June 2016 and principal payments will be made semi-annually, beginning September 2017.
The Company incurred $3,243 of financing costs related to this issuance, which were capitalized as DFC and are being amortized over the life of the loan.
The following table presents information related to the Secured loan agreement:
| Interest Expense (i) (ii) | DFC Amortization (ii) | |||||||||||||||||||||
| 2016 | 2015 | 2014 | 2016 | 2015 | 2014 | |||||||||||||||||
| $ | 6,519 | $ | — | $ | — | $ | 814 | $ | — | $ | — | |||||||||||
| (i) | This charge does not include the effect of the cross-currency interest rate swap agreements mentioned in Note 13, amounting to a loss of $18,177. Including this effect the total interest cost amounts to $24,696. |
| (ii) | These charges are included within "Net interest expense" in the consolidated statement of income (loss). |
The Loan matures on March 30, 2020 and periodic payments of principal are required: 10% of principal in September 2017, 15% in March and September 2018, and 20% in March and September 2019 and in March 2020. Prepayments are allowed without penalty.
The Loan is fully and unconditionally guaranteed on a senior secured basis by the Company and certain subsidiaries and is secured by certain credit and debit card receivables arising from sales in certain Brazilian restaurants operated by the Brazilian subsidiary. The Loan ranks at least pari passu in right of payment with all other unsubordinated and unsecured indebtedness of the borrower and the guarantors.
The Loan proceeds were used primarily to repay the 2016 Notes mentioned above.
The Loan agreement includes customary covenants including, among others, restrictions on the ability of the Company and certain subsidiaries to (i) pay dividends; (ii) create liens; (iii) sell certain real estate assets; (iv) enter into sale and lease-back transactions; (v) pay interest or principal on intercompany loans; and (vi) consolidate, merge or transfer assets. These covenants are subject to important qualifications and exceptions.
Under the Loan, the Company must maintain (i) a Consolidated Net Indebtedness to EBITDA ratio (as defined therein) lower than (a) 3.5 to 1 as of the last day of the fiscal quarter ended March 31 and June 30, 2016, (b) 3.25 to 1 as of the last day of the fiscal quarter ended September 30, 2016 and (c) 3.0 to 1 as of the last day of the fiscal quarter ended December 31, 2016 and thereafter; and (ii) an EBITDA to Consolidated Interest Expense ratio (as defined therein) greater than 2.5 to 1 as of the last day of any fiscal quarter. The Brazilian subsidiary must maintain an Adjusted Net Indebtedness to EBITDA ratio lower than 2.0 to 1 as of the last day of any fiscal quarter. The calculation of Adjusted Net Indebtedness of the Brazilian subsidiary shall exclude any intercompany indebtedness.
As of December 31, 2016, the Company was in compliance with the ratio requirements; Consolidated Net Indebtedness to EBITDA ratio and EBITDA to consolidated Interest Expense ratio were 1.90 and 3.11, respectively; and, the net indebtedness to EBITDA ratio of the Brazilian subsidiary was 0.96.
The Loan also provides for customary events of default, which, if any of them occur, would permit or require the principal and interest on all of the outstanding amount to be due and payable immediately.
F - 23
12. Long-term debt (continued)
Other required disclosure
At December 31, 2016, future payments related to the Company’s long-term debt are as follows:
| Principal | Interest | Total | ||||||||||
| 2017 | $ | 19,974 | $ | 37,200 | $ | 57,174 | ||||||
| 2018 | 54,402 | 34,793 | 89,195 | |||||||||
| 2019 | 71,165 | 31,523 | 102,688 | |||||||||
| 2020 | 37,253 | 28,057 | 65,310 | |||||||||
| 2021 | 3,782 | 27,267 | 31,049 | |||||||||
| Thereafter | 404,710 | 53,945 | 458,655 | |||||||||
| Total payments | 591,286 | 212,785 | 804,071 | |||||||||
| Interest | — | (212,785 | ) | (212,785 | ) | |||||||
| Discount on 2023 Notes | (5,029 | ) | — | (5,029 | ) | |||||||
| Premium on 2023 Notes | 1,910 | — | 1,910 | |||||||||
| Fair value adjustments | (2,877 | ) | — | (2,877 | ) | |||||||
| Deferred financing cost | (5,611 | ) | — | (5,611 | ) | |||||||
| Long-term debt | $ | 579,679 | $ | — | $ | 579,679 | ||||||
13. Derivative instruments
The following table presents the fair values of derivative instruments included in the consolidated balance sheets as of December 31, 2016 and 2015:
| (Liability) Asset Derivatives | ||||||||||
| Fair Value | ||||||||||
| Type of Derivative | Balance Sheets Location | 2016 | 2015 | |||||||
| Derivatives designated as hedging instruments | ||||||||||
| Forward contracts | Other receivables | $ | — | $ | 454 | |||||
|
Accrued payroll and other liabilities
|
(100 | ) | — | |||||||
| 2013 Cross-currency interest rate swap (i) | Derivative instruments | (3,274 | ) | 4,615 | ||||||
| 2016 Cross-currency interest rate swap (i) | Derivative instruments | (27,217 | ) | — | ||||||
| (30,591 | ) | 5,069 | ||||||||
| (i) | At December 31, 2016, presented in the consolidated balance sheet as follows: $19,876 as a current liability and $10,615 as a non-current liability. At December 31, 2015, presented in the consolidated balance sheet as follows: $6,741 as a non-current asset and $2,126 as a current liability. |
F - 24
13. Derivative instruments (continued)
Derivatives designated as hedging instruments
Cash flow hedge
Forward contracts
The Company has entered into various forward contracts in a few territories in order to hedge a portion of the foreign exchange risk associated with forecasted imports of goods. The effect of the hedges result in fixing the cost of goods acquired (i.e. the net settlement or collection adjusts the cost of inventory paid to the suppliers). As of December 31, 2016, the Company has forward contracts outstanding with a notional amount of $12,295 that mature during 2017.
The Company made net (payments) collections totaling $(1,307), $2,306 and $1,451 during fiscal years 2016, 2015 and 2014, respectively, as a result of the net settlements of these derivatives.
2013 Cross-currency interest rate swap
On November 7, 2013, the Company entered into a cross-currency interest rate swap agreement (the "2013 cross-currency interest rate swap") with JP Morgan Chase Bank, N.A., to hedge all the variability in a portion (53.08%) of the principal and interest collections of its BRL intercompany loan receivable with ADBV. The agreement was amended on: November 13, 2015, June 24, 2016, July 15, 2016 and August 11, 2016. All the terms of the swap agreement match the terms of the BRL intercompany loan receivable. Pursuant to this agreement, the Company receives interests at a fixed rate of 4.38% over a notional amount of 33.2 million ($47.3 million at the inception, $28.3 million until June 24, 2016, $30.7 million until July 15, 2016 and $32.4 million before last amendment) and pays interest at a fixed rate of 13% over a notional amount of R$108 million on March 31 and September 30 of each year. This agreement matures on September 29, 2023 with exchange of principal.
As a result of the amendments, the Company paid $6,268 during 2016 and collected $19,817 and recorded a loss of $2,650 within “Loss from derivative instruments” in the income (loss) statement, during 2015. According to ASC 815-30-40, the amount deferred in accumulated other comprehensive income (loss) until the date of the last amendments that equals to a loss of $658 as of December 31,2016, will be amortized to earnings as the originally hedged cash flows affected income (loss) statement.
The Company paid $2,795, $1,933 and $3,512 of net interest during fiscal years 2016, 2015 and 2014, respectively.
F - 25
13. Derivative instruments (continued)
Derivatives designated as hedging instruments (continued)
Cash flow hedge (continued)
The following table presents the pretax amounts affecting income and other comprehensive income for the fiscal years ended December 31, 2016, 2015 and 2014 for each type of derivative relationship:
| Forward contracts | Cross-currency interest rate swaps | Total | ||||||||||||||||||||||||||||||||||
|
Derivatives in Cash Flow Hedging Relationships |
2016 | 2015 | 2014 | 2016 | 2015 | 2014 | 2016 | 2015 | 2014 | |||||||||||||||||||||||||||
| (Loss) Gain Recognized in Accumulated OCI on Derivative (Effective Portion) | $ | (1,861 | ) | $ | 1,903 | $ | 1,925 | $ | (16,952 | ) | $ | 18,584 | $ | 3,233 | $ | (18,813 | ) | $ | 20,487 | $ | 5,158 | |||||||||||||||
| Loss (Gain) Reclassified from Accumulated OCI into Income (Effective Portion) (i) | 1,307 | (2,306 | ) | (1,451 | ) | 9,935 | (11,903 | ) | (1,341 | ) | 11,242 | (14,209 | ) | (2,792 | ) | |||||||||||||||||||||
| Loss Recognized in Income on Derivative (Amount Excluded from Effectiveness Testing and Ineffective Portion) (ii) | — | — | — | — | (2,650 | ) | — | — | (2,650 | ) | — | |||||||||||||||||||||||||
| (i) | The (loss) gain recognized in income related to forward contracts was recorded as an adjustment to food and paper. The net (loss) gain recognized in income related to the cross-currency interest rate swap is presented in the consolidated income (loss) statement as follows: a (loss) gain of ($6,997), $13,595 and $5,084 for the fiscal year 2016, 2015 and 2014, respectively, as an adjustment to foreign exchange results and a loss of $2,938, $1,692 and $3,743, for the fiscal years 2016, 2015 and 2014, respectively, as an adjustment to net interest expense. |
| (ii) | In the fiscal year 2015 related to the loss incurred in connection with the amendment of the cross-currency interest rate swap agreement. These results were recorded within “Loss from derivative instruments” in the Company’s consolidated statements of income (loss). |
Fair value hedge
2016 Cross-currency interest rate swap
On March 29, 2016, the Company entered into five cross-currency interest rate swap agreements (the "2016 cross-currency interest rate swap") in order to fully hedge the principal and interest cash flows of the Secured Loan Agreement described in Note 12, into BRL. The agreements were signed with the Brazilian subsidiaries of the banks participating in the secured loan. All the terms of the 2016 cross-currency interest rate swap agreements match the terms of the Secured Loan Agreement. Pursuant to these agreements, the Company receives interest in US dollar at an interest rate equal to the one it has to pay to the off-shore lenders over a notional amount of $167,3 million and pays interest in BRL at CDI plus 4.50% per year, over a notional amount of BRL 613,9 million quarterly, beginning June 2016.
During fiscal year 2016, the accrued interest amounted to $18,177. This charge does not include the effect of the secured loan agreement mentioned in Note 12, amounting to a loss of $6,519. Including this effect the total interest cost amounts to $24,696. As of December 31, 2016 all accrued interest were settled.
According to ASC 815-25-35, the change in the fair value of the hedging instrument and the change in the fair value of the hedged item shall be recognized in earnings. If those results are not perfectly offset, the difference shall be considered as hedge ineffectiveness.
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13. Derivative instruments (continued)
Fair value hedge (continued)
2016 Cross-currency interest rate swap (continued)
The following table presents the pretax amounts affecting income for the fiscal year ended December 31, 2016:
| 2016 | |||||
| Derivatives in Fair Value Hedging Relationships | Loss recognized in Income on hedging derivatives | Gain recognized in Income on hedging items | |||
| Cross-currency swaps (i) | (5,814 | ) | 2,877 | ||
| (i) | The loss amounting to $2,938, related to the ineffective portion of derivatives, was recorded within “Loss from derivative instruments” in the Company’s consolidated statements of income (loss). |
Derivatives not designated as hedging instruments
Total equity return swap
On August 13, 2012, the Company entered into a total equity return swap agreement with Goldman Sachs International (GSI) in order to minimize earning volatility related to a long-term incentive plan to reward employees implemented by ADBV in 2008, fully vested in March 2015. The agreement was renewed twice and as from the amendment signed on September 23, 2014, the Company was required to make a collateral deposit, which returned to the Company with the maturity of the agreement on September 12, 2015. During the third quarter of 2015, the Company paid $9,681 as settlement of the agreement.
The Company did not designate this swap as a hedge under ASC 815. Therefore, the agreement was carried at fair market value in the consolidated balance sheets with changes reported in earnings, within "General and administrative expenses". The interest portion was recorded within “Net interest expense” in the Company’s consolidated statement of income (loss).
The following table presents amounts affecting income related to derivatives not designated as hedging instruments:
| Loss Recognized in Income on Derivative instruments | |||||||||||||
| Derivatives Not Designated as Hedging Instruments | Location of Loss Recognized in Income | 2016 | 2015 | 2014 | |||||||||
| Total equity return swap | General and administrative expenses (i) | $ | — | $ | (1,743 | ) | $ | (6,861 | ) | ||||
| Net interest expense | — | (453 | ) | (360 | ) | ||||||||
| Others | Loss from derivative instruments | (127 | ) | (244 | ) | (685 | ) | ||||||
| Total | $ | (127 | ) | $ | (2,440 | ) | $ | (7,906 | ) | ||||
| (i) | For the fiscal year 2015, includes a loss amounting to $1,252 excluded from Adjusted EBITDA as from the total vesting of the plan. See Adjusted EBITDA reconciliation in Note 21. |
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14. Operating lease agreements
At December 31, 2016, the Company was the lessee at 2,775 locations through ground leases (the Company leases the land and the Company or franchisee owns the building) and through improved leases (the Company leases land and buildings). Lease terms for most restaurants vary between 10 and 20 years and, in many cases, provide for rent escalations and renewal options, with certain leases providing purchase options. Escalations terms vary by reporting unit, with examples including fixed-rent escalations, escalations based on an inflation index, and fair value adjustments. According to rental terms, the Company pays monthly rent based on the greater of a fixed rent or a certain percentage of the Company’s gross sales. For most locations, the Company is obligated for the related occupancy costs including property taxes, insurance and maintenance. However, for franchised sites, the Company requires the franchisees to pay these costs. In addition, the Company is the lessee under non-cancelable leases covering certain offices and warehouses.
In March 2010, the Company entered into an aircraft operating lease agreement for a term of 8 years, which provides for quarterly payments of $690. The agreement includes a purchase option at the end of the lease term at fair market value and also an early purchase option at a fixed amount of $26,685 at maturity of the 24th quarterly payment. The Company was required to make a cash deposit of $5,325 as collateral for the obligations assumed under this agreement.
At December 31, 2016, future minimum payments required under existing operating leases with initial terms of one year or more are:
| Restaurant | Other | Total | ||||||||||
| 2017 | $ | 136,812 | $ | 5,340 | $ | 142,152 | ||||||
| 2018 | 124,045 | 2,663 | 126,708 | |||||||||
| 2019 | 110,171 | 1,846 | 112,017 | |||||||||
| 2020 | 98,739 | 1,838 | 100,577 | |||||||||
| 2021 | 84,291 | 1,395 | 85,686 | |||||||||
| Thereafter | 382,221 | 4,162 | 386,383 | |||||||||
| Total minimum payment | $ | 936,279 | $ | 17,244 | $ | 953,523 | ||||||
The following table provides detail of rent expense for fiscal years 2016, 2015 and 2014:
| 2016 | 2015 | 2014 | ||||||||||
| Company-operated restaurants (i) | $ | 131,142 | $ | 135,232 | $ | 151,724 | ||||||
| Franchised restaurants (ii) | 43,311 | 36,381 | 48,814 | |||||||||
| Total rent expense | $ | 174,453 | $ | 171,613 | $ | 200,538 | ||||||
| (i) | Included within “Occupancy and other operating expenses” in the consolidated statements of income (loss). |
| (ii) | Included within “Franchised restaurants – occupancy expenses” in the consolidated statements of income (loss). |
The following table provides a breakdown detail of rent expense between minimum and contingent rentals for fiscal years 2016, 2015 and 2014:
| 2016 | 2015 | 2014 | ||||||||||
| Minimum rentals | $ | 122,726 | $ | 122,110 | $ | 131,463 | ||||||
| Contingent rentals based on sales | 51,727 | 49,503 | 69,075 | |||||||||
| Total rent expense | $ | 174,453 | $ | 171,613 | $ | 200,538 | ||||||
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15. Franchise arrangements
Individual franchise arrangements generally include a lease and a license and provide for payment of initial fees as well as continuing rent and service fees (royalties) to the Company based upon a percentage of sales with minimum rent payments. The Company’s franchisees are granted the right to operate a restaurant using the McDonald’s system and, in most cases, the use of a restaurant facility, generally for a period of 20 years. Franchisees pay related occupancy costs including property taxes, insurance and maintenance. Pursuant to the MFAs, the Company pays initial fees and continuing service fees for franchised restaurants to McDonald’s Corporation. Therefore, the margin for franchised restaurants is primarily comprised of rental income net of occupancy expenses (depreciation for owned property and equipment and/or rental expense for leased properties).
At December 31, 2016 and 2015, net property and equipment under franchise arrangements totaled $140,000 and $131,587, respectively (including land for $39,273 and $39,452, respectively).
Revenues from franchised restaurants for fiscal years 2016, 2015 and 2014 consisted of:
| 2016 | 2015 | 2014 | ||||||||||
| Rent | $ | 123,311 | $ | 121,122 | $ | 145,540 | ||||||
| Initial fees (i) | 1,386 | 611 | 564 | |||||||||
| Royalty fees (ii) | 599 | 628 | 659 | |||||||||
| Total | $ | 125,296 | $ | 122,361 | $ | 146,763 | ||||||
| (i) | Presented net of initial fees paid to McDonald’s Corporation for $1,588, $747 and $885 in 2016, 2015 and 2014, respectively. |
| (ii) | Presented net of royalties fees paid to McDonald’s Corporation for $50,839, $49,742 and $63,680 in 2016, 2015 and 2014, respectively. |
At December 31, 2016, future minimum rent payments due to the Company under existing franchised agreements are:
| Owned sites | Leased sites | Total | ||||||||||
| 2017 | $ | 5,318 | $ | 20,365 | $ | 25,683 | ||||||
| 2018 | 4,824 | 19,372 | 24,196 | |||||||||
| 2019 | 4,358 | 18,693 | 23,051 | |||||||||
| 2020 | 3,954 | 17,236 | 21,190 | |||||||||
| 2021 | 3,646 | 15,658 | 19,304 | |||||||||
| Thereafter | 16,009 | 71,278 | 87,287 | |||||||||
| Total | $ | 38,109 | $ | 162,602 | $ | 200,711 | ||||||
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16. Income taxes
The Company’s operations are conducted by its foreign subsidiaries in Latin America and the Caribbean. The foreign subsidiaries are incorporated under the laws of their respective countries and as such the Company is taxed in such foreign countries.
Statutory tax rates in the countries in which the Company operates for fiscal years 2016, 2015 and 2014 were as follows:
| 2016 | 2015 | 2014 | ||||
| Puerto Rico | 20% | 20% | 20% | |||
| Argentina, Martinique, French Guyana, Guadeloupe, St Croix, St. Thomas, Aruba and Curacao | 35% | 35% | 35% | |||
| Brazil and Venezuela | 34% | 34% | 34% | |||
| Colombia | 40% | 39% | 34% | |||
| Peru | 28% | 28% | 30% | |||
| Costa Rica and Mexico | 30% | 30% | 30% | |||
| Panamá, Uruguay, Trinidad and Tobago and Netherlands | 25% | 25% | 25% | |||
| Ecuador | 25% | 25% | 22% | |||
| Chile | 24% | 23% | 21% |
Income tax expense for fiscal years 2016, 2015 and 2014 consisted of the following:
| 2016 | 2015 | 2014 | ||||||||||
| Current income tax expense | $ | 54,142 | $ | 31,873 | $ | 25,060 | ||||||
| Deferred income tax (benefit) expense | 5,499 | (9,057 | ) | 7,419 | ||||||||
| Income tax expense | $ | 59,641 | $ | 22,816 | $ | 32,479 | ||||||
Income tax expense for fiscal years 2016, 2015 and 2014 differed from the amounts computed by applying the Company’s weighted-average statutory income tax rate to pre-tax income (loss) as a result of the following:
| 2016 | 2015 | 2014 | ||||||||||
| Pre-tax income (loss) | $ | 138,629 | $ | (28,553 | ) | $ | (76,549 | ) | ||||
| Weighted-average statutory income tax rate (i) | 35.4 | % | 32.8 | % | 33.4 | % | ||||||
| Income tax expense at weighted-average statutory tax rate on pre-tax income (loss) | 49,030 | (9,353 | ) | (25,604 | ) | |||||||
| Permanent differences: | ||||||||||||
| Change in valuation allowance | (17,037 | ) | 63,880 | 81,360 | ||||||||
| Non-deductible expenses | 11,993 | 6,368 | 15,641 | |||||||||
| Tax benefits, including Brazil and other | (14,437 | ) | (17,377 | ) | (45,223 | ) | ||||||
| Withholding income taxes on intercompany transactions | 22,379 | 1,557 | 369 | |||||||||
| Expiration and changes in tax loss carryforwards | 18,291 | — | 7,852 | |||||||||
| Differences including exchange rate and inflation adjustment | (9,947 | ) | (25,347 | ) | (4,440 | ) | ||||||
| Alternative taxes | (114 | ) | 2,386 | 3,070 | ||||||||
| Others | (517 | ) | 702 | (546 | ) | |||||||
| Income tax expense | $ | 59,641 | $ | 22,816 | $ | 32,479 | ||||||
F - 30
16. Income taxes (continued)
| (i) | Weighted-average statutory income tax rate is calculated based on the aggregated amount of the income before taxes by country multiplied by the prevailing statutory income tax rate, divided by the consolidated income before taxes. Certain changes, mainly related to the remeasurement effect of the entities with a functional currency different from the local currency, have been made to the prior years weighted-average statutory income tax rate calculation for the fiscal years ended December 31, 2015 and 2014, to conform to the current year presentation. |
The tax effects of temporary differences and carryforwards that comprise significant portions of deferred tax assets and liabilities at December 31, 2016 and 2015 are presented below:
| 2016 | 2015 | |||||||
| Tax loss carryforwards (i) | $ | 268,389 | $ | 254,861 | ||||
| Purchase price allocation adjustment | 30,855 | 37,549 | ||||||
| Property and equipment, tax inflation | 37,471 | 45,650 | ||||||
| Other accrued payroll and other liabilities | 15,437 | 13,891 | ||||||
| Share-based compensation | 4,151 | 3,570 | ||||||
| Provision for contingencies | 3,449 | 2,177 | ||||||
| Other deferred tax assets (ii) | 27,292 | 27,642 | ||||||
| Other deferred tax liabilities (iii) | (13,649 | ) | (9,618 | ) | ||||
| Property and equipment - difference in depreciation rates | (14,195 | ) | (12,411 | ) | ||||
| Valuation allowance (iv) | (290,620 | ) | (297,891 | ) | ||||
| Net deferred tax asset | $ | 68,580 | $ | 65,420 | ||||
| (i) | As of December 31, 2016, the Company and its subsidiaries has accumulated operating tax loss carryforwards amounting to $949,634. The Company has operating tax loss carryforwards amounting to $369,663, expiring between 2017 and 2021. In addition, the Company has operating tax loss carryforwards amounting to $359,793 expiring after 2021 and operating tax loss carryforwards amounting to $220,178 that do no expire. |
| (ii) | Other deferred tax assets reflect the net tax effects of temporary differences between the carrying amounts of assets for financial reporting purposes (accounting base) and the amounts used for income tax purposes (tax base). For the fiscal year ended December 31, 2016, include regular expenses provisions in Brazil and Colombia for $10,785 and $3,278, respectively; $5,055 related to foreign currency exchange differences in Venezuela and $3,832 in Puerto Rico, mainly related to bad debt reserve. For the Fiscal year ended December 31, 2015 include $11,745 related to foreign currency exchange differences in Venezuela. |
| (iii) | Primarily related to intangible assets and foreign currency exchange differences. |
| (iv) | In assessing the realization of deferred income tax assets, the Company considers whether it is more likely than not that some portion or all of the deferred income tax assets will not be realized. |
The total amount of $68,580 for the year ended December 31, 2016, is presented in the consolidated balance sheet as non-current asset and non-current liability amounting to $70,446 and $1,866, respectively.
The total amount of $65,420 for the year ended December 31, 2015, is presented in the consolidated balance sheet as current asset, non-current asset, current liability and non-current liability amounting to $12,051; $63,321; $1,728 and $8,224, respectively.
Deferred income taxes have not been recorded for temporary differences related to investments in certain foreign subsidiaries. These temporary differences were $123,494 at December 31, 2016 and consisted of undistributed earnings considered permanently invested in subsidiaries. Determination of the deferred income tax liability on these unremitted earnings is not practicable because such liability, if any, is dependent on circumstances existing if and when remittance occurs.
F - 31
16. Income taxes (continued)
As of December 31, 2016 and 2015, the Company’s gross unrecognized tax benefits totaled $19 and $63 (including interests and penalties), respectively, that would favorably affect the effective tax rate if resolved in the Company’s favor.
The following table presents a reconciliation of the beginning and ending amounts of unrecognized tax benefits:
| 2016 | 2015 | |||||||
| Balances at beginning balance | $ | 63 | $ | 221 | ||||
| Decrease for positions taken in prior years | (44 | ) | (158 | ) | ||||
| Balances at ending balance | $ | 19 | $ | 63 | ||||
The Company is regularly under audit in multiple tax jurisdictions. It is reasonably possible that, as a result of audit progression within the next 12 months, there may be new information that causes the Company to reassess the total amount of unrecognized tax benefits recorded. While the Company cannot estimate the impact that new information may have on the unrecognized tax benefit balance, the Company believes that the liabilities that are recorded are appropriate and adequate as determined under ASC 740. The Company is generally no longer subject to income tax examinations by tax authorities for years prior to 2010.
As of December 31, 2016, there are certain matters related to the interpretation of income tax laws for which there is a possibility that a loss may have been incurred, as of the date of the financial statements in accordance with ASC 740 in an amount of $20 million, related to assessments for the fiscal years 2010 and 2011. No formal claim has been made for fiscal years from 2012 to 2016 by Tax authorities in any of the mentioned matters, however those years are still subject to audit and claims may be asserted in the future.
17. Share-based compensation
2011 Equity Incentive Plan
In March 2011, the Company adopted its Equity Incentive Plan, or 2011 Plan, to attract and retain the most highly qualified and capable professionals and to promote the success of its business. This Plan is being used to reward certain employees for the success of the Company’s business through an annual award program. The 2011 Plan permits grants of awards relating to class A shares, including awards in the form of shares (also referred to as stock), options, restricted shares, restricted share units, share appreciation rights, performance awards and other share-based awards as will be determined by the Company’s Board of Directors. The maximum number of shares that may be issued under the 2011 Plan is 2.5% of the Company’s total outstanding class A and class B shares immediately following its initial public offering.
The Company made a special grant of stock options and restricted share units in 2011 in connection with its initial public offering, which are totally vested. The Company also made recurring grants of stock options and restricted share units in each of the fiscal years from 2011 to 2016 (for fiscal years 2016 and 2015 only restricted share units). Both types of these recurring annual awards vest as follows: 40% on the second anniversary of the date of grant and 20% on each of the following three anniversaries. For all grants, each stock option granted represents the right to acquire a Class A share at its grant-date fair market value, while each restricted share unit represents the right to receive a Class A share when vested. The exercise right for the stock options is cumulative and, once such right becomes exercisable, it may be exercised in whole or in part during quarterly window periods until the date of termination, which occurs at the seventh anniversary of the date of grant. On June 28, 2016, 1,117,380 stock option units were converted to a liability award maintaining the original conditions of the 2011 Plan.
The Company utilizes a Black-Scholes option-pricing model to estimate the value of stock options at the grant date. The value of restricted shares units is based on the quoted market price of the Company’s class A shares at the grant date. The following variables and assumptions were used by the Company for purposes of measuring its stock options award at 2014 grant date (on the second quarter of the year):
F - 32
17. Share-based compensation (continued)
2011 Equity Incentive Plan (continued)
| 2014 | |||
| Grant-date stock price (i) | 8.58 | ||
| Weighted-average strike price | 8.58 | ||
| Expected volatility (ii) | 35.5% | ||
| Dividend yield | 2.8% | ||
| Risk-free interest rate | 1.3% | ||
| Expected term | 4.1 |
| (i) | Equal to the quoted market price per Class A share at market-closing of the date of grant. |
| (ii) | Based on implied volatility of the Company’s Class A shares. |
The resulting value of stock options and restricted share units granted was $nil and $4,067, respectively, during fiscal year 2016, $nil and $5,844, respectively, during fiscal year 2015 and $491 and $2,723, respectively, during fiscal year 2014.
The Company recognizes stock-based compensation expense on a straight-line basis over the requisite service period for each separately vesting portion of the award as if the award was, in substance, multiple awards. The Company recognized stock-based compensation expense in the amount of $3,303, $2,788 and $6,163 during fiscal years 2016, 2015 and 2014, respectively, of which $nil, $210 and $2,503 relates to the special awards granted in connection with the initial public offering. Stock-based compensation expense is included within “General and administrative expenses” in the consolidated statements of income (loss).
The Company recognized $688, $(1,581) and $678 of related income tax benefit (expense) during fiscal years 2016, 2015 and 2014, respectively.
Stock Options
The following table summarizes the activity of stock options during fiscal years 2016, 2015 and 2014:
| Units | Weighted-average strike price | Weighted-average grant-date fair value | |||||||
| Outstanding at December 31, 2013 | 2,433,888 | 18.57 | 5.26 | ||||||
| 2014 annual grant | 247,475 | 8.58 | 1.98 | ||||||
| Forfeitures | (130,528 | ) | 18.14 | 5.27 | |||||
| Outstanding at December 31, 2014 | 2,550,835 | 17.62 | 4.94 | ||||||
| Forfeitures | (141,130 | ) | 16.54 | 5.02 | |||||
| Expired (i) | (383,811 | ) | 20.01 | 5.41 | |||||
| Outstanding at December 31, 2015 | 2,025,894 | 21.03 | 5.87 | ||||||
| Forfeitures | (80,734 | ) | 10.30 | 2.68 | |||||
| Expired (i) | (51,305 | ) | 14.05 | 4.02 | |||||
| Modification (ii) | (1,117,380 | ) | 19.07 | 5.30 | |||||
| Outstanding at December 31, 2016 | 776,475 | 15.55 | 4.46 | ||||||
| Exercisable at December 31, 2016 | 584,103 | 16.99 | 4.88 | ||||||
(i) As of December 31, 2016 and 2015, Additional paid-in capital included $206 and $2,077 respectively, related to expired stock options.
F - 33
17. Share-based compensation (continued)
2011 Equity Incentive Plan (continued)
Stock Options (continued)
(ii) Corresponds to stock options converted to a liability award. The employees affected by this modification were 104. There were no incremental compensation costs resulting from the modification. As of December 31, 2016, the accumulated Additional paid-in capital related to these units as from the grant date amounts to $5,820 (net of $9 reclassified to "Accrued payroll and other liabilities non-current" in the Company’s consolidated balance sheet. The accrued liability is remeasured on a monthly basis until settlement. The following table provides a summary of the outstanding and exercisable units related to the modification:
| Units | Weighted-average strike price | Weighted-average grant-date fair value | |||||||
| Outstanding at the modification | 1,117,380 | 19.07 | 0.01 | ||||||
| Forfeitures | (10,020 | ) | 14.33 | ||||||
| Expired (i) | (173,961 | ) | 20.14 | ||||||
| Outstanding at December 31, 2016 | 933,399 | 18.92 | 0.01 | ||||||
| Exercisable at December 31, 2016 | 842,986 | 19.41 | 0.01 | ||||||
(i) As of December 31, 2016, Additional paid-in capital included $926, related to expired stock options.
The following table provides a summary of outstanding stock options at December 31, 2016:
| Vested (i) | Non-vested (ii) | Total | |||||||
| Number of units outstanding | 584,103 | 192,372 | 776,475 | ||||||
| Weighted-average grant-date fair market value per unit | 4.88 | 3.18 | 4.46 | ||||||
| Total grant-date fair value | 2,852 | 612 | 3,464 | ||||||
| Weighted-average accumulated percentage of service | 100 | 81.4 | 96.7 | ||||||
| Stock-based compensation recognized in Additional paid-in capital | 2,852 | 498 | 3,350 | ||||||
| Compensation expense not yet recognized (iii) | — | 114 | 114 | ||||||
| (i) | Related to exercisable awards. |
| (ii) | Related to awards that will vest between fiscal years 2017 and 2019. |
| (iii) | Expected to be recognized in a weighted-average period of 0.6 years. |
F - 34
17. Share-based compensation (continued)
Restricted Share Units
The following table summarizes the activity of restricted share units during fiscal years 2016, 2015 and 2014:
| Units | Weighted-average grant-date fair value | |||||
| Outstanding at December 31, 2013 | 942,068 | 18.36 | ||||
| 2014 annual grant | 317,351 | 8.58 | ||||
| Partial vesting of 2011 grant | (274,314 | ) | 21.20 | |||
| Partial vesting of 2012 grant | (74,303 | ) | 14.35 | |||
| Forfeitures | (47,947 | ) | 15.11 | |||
| Outstanding at December 31, 2014 | 862,855 | 14.38 | ||||
| 2015 annual grant | 923,213 | 6.33 | ||||
| Partial vesting of 2011 grant | (222,781 | ) | 21.20 | |||
| Partial vesting of 2012 grant | (31,772 | ) | 14.35 | |||
| Partial vesting of 2013 grant | (68,300 | ) | 14.31 | |||
| Forfeitures | (233,005 | ) | 9.88 | |||
| Outstanding at December 31, 2015 | 1,230,210 | 7.96 | ||||
| 2016 annual grant | 865,291 | 4.70 | ||||
| Partial vesting of 2011 grant | (27,075 | ) | 21.20 | |||
| Partial vesting of 2012 grant | (24,653 | ) | 14.35 | |||
| Partial vesting of 2013 grant | (26,054 | ) | 14.31 | |||
| Partial vesting of 2014 grant | (94,546 | ) | 8.58 | |||
| Forfeitures | (142,176 | ) | 6.64 | |||
| Outstanding at December 31, 2016 | 1,780,997 | 6.07 | ||||
| Exercisable at December 31, 2016 | — | — | ||||
As of December 31, 2016, all Class A Shares were issued. Hence, the accumulated compensation expense related to partial vesting was reclassified from "Additional paid-in capital" to "Common stock".
The following table provides a summary of outstanding restricted share units at December 31, 2016:
| Number of units outstanding (i) | 1,780,997 | |
| Weighted-average grant-date fair market value per unit | 6.07 | |
| Total grant-date fair value | 10,807 | |
| Weighted-average accumulated percentage of service | 49.67 | |
| Stock-based compensation recognized in Additional paid-in capital | 5,368 | |
| Compensation expense not yet recognized (ii) | 5,439 |
| (i) | Related to awards that will vest between fiscal years 2017 and 2021. |
| (ii) | Expected to be recognized in a weighted-average period of 2.0 years. |
F - 35
18. Commitments and contingencies
Commitments
The MFAs require the Company and its MF subsidiaries, among other obligations:
| (i) | to pay monthly royalties commencing at a rate of approximately 5% of gross sales of the restaurants, during the first 10 years, substantially consistent with market. This percentage increases to 6% and 7% for the subsequent two 5-year periods of the agreement; |
| (ii) | to agree with McDonald’s on a restaurant opening plan and a reinvestment plan for each three-year period and pay an initial franchise fee for each new restaurant opened. On January 26, 2017, the Company reached an agreement with McDonald’s Corporation for the three-year period commenced on January 1, 2017. Refer to Note 27 for more details; |
| (iii) | to commit to funding a specified Strategic Marketing Plan; |
| (iv) | to own (or lease) directly or indirectly, the fee simple interest in all real property on which any franchised restaurant is located; and |
| (v) | to maintain a minimum fixed charge coverage ratio (as defined therein) at least equal to 1.50 as well as a maximum leverage ratio (as defined therein) of 4.25. |
Related to the royalties mentioned in point (i), during 2014, the Company negotiated and obtained temporary royalty waivers from McDonald’s Corporation for its operations in Venezuela considering the restrictions and regulations in place affecting its operations in that country. Therefore the Company recorded a royalty waiver amounting to $6.1 million within “Royalty fees” in the consolidated statement of income (loss), for the fiscal year ended December 31, 2014.
McDonald’s Corporation granted the Company limited waivers through and including June 30, 2016, during which time the Company was not required to comply with the financial ratios set forth in the MFA, mentioned in point (v) above. If the Company would not be in compliance with the financial requirements and would be unable to obtain an extension of the waiver or to comply with the original commitments under the MFA, it could be in material breach. A breach of the MFA would give McDonald’s Corporation certain rights, including the ability to acquire all or portions of the business.
The following table summarize Company’s ratios requirements for the three-month periods ended from June 30, 2014 to December 31, 2016:
| Leverage Ratio | Fixed Charge Coverage Ratio | |||||||||
| June 30, 2014 | 4.38 | 1.48 | ||||||||
| September 30, 2014 | 4.59 | 1.44 | ||||||||
| December 31, 2014 | 4.65 | 1.42 | ||||||||
| March 31, 2015 | 4.62 | 1.40 | ||||||||
| June 30, 2015 | 4.61 | 1.45 | ||||||||
| September 30, 2015 | 4.56 | 1.48 | ||||||||
| December 31, 2015 | 4.40 | 1.56 | ||||||||
| March 31, 2016 | 4.80 | 1.67 | ||||||||
| June 30, 2016 | 4.40 | 1.64 | ||||||||
| September 30, 2016 | 4.08 | 1.67 | ||||||||
| December 31, 2016 | 4.21 | 1.64 | ||||||||
F - 36
18. Commitments and contingencies (continued)
Commitments (continued)
In addition, the Company maintains standby letters of credit with an aggregate drawing amount of $80 million in favor of McDonald’s Corporation as collateral for the obligations assumed under the MFAs. The letters of credit can be drawn if certain events occur, including the failure to pay royalties. No amounts have been drawn at the date of issuance of these financial statements.
Provision for contingencies
The Company has certain contingent liabilities with respect to existing or potential claims, lawsuits and other proceedings, including those involving labor, tax and other matters. At December 31, 2016 and 2015, the Company maintains a provision for contingencies, net of judicial deposits, amounting to $18,112 and $20,578, respectively, presented as follows: $764 and $512 as a current liability and $17,348 and $20,066 as a non-current liability, respectively. The breakdown of the provision for contingencies is as follows:
| Description | Balance at beginning of period | Accruals, net | Settlements | Reclassifications and increase of judicial deposits | Translation | Balance at end of period | ||||||||||||||||||
| Year ended December 31, 2016 | ||||||||||||||||||||||||
| Tax contingencies in Brazil (i) | $ | 5,118 | $ | 7,196 | $ | — | $ | — | $ | 998 | $ | 13,312 | ||||||||||||
| Labor contingencies in Brazil (ii) | 7,013 | 19,903 | (17,523 | ) | — | 1,757 | 11,150 | |||||||||||||||||
| Other (iii) | 13,947 | 1,478 | (3,031 | ) | (37 | ) | (135 | ) | 12,222 | |||||||||||||||
| Subtotal | 26,078 | 28,577 | (20,554 | ) | (37 | ) | 2,620 | 36,684 | ||||||||||||||||
| Judicial deposits (iv) | (5,500 | ) | — | — | (11,458 | ) | (1,614 | ) | $ | (18,572 | ) | |||||||||||||
| Provision for contingencies | $ | 20,578 | $ | 28,577 | $ | (20,554 | ) | $ | (11,495 | ) | $ | 1,006 | $ | 18,112 | ||||||||||
| Year ended December 31, 2015 | ||||||||||||||||||||||||
| Tax contingencies in Brazil (i) | $ | 1,999 | $ | 4,616 | $ | (9 | ) | $ | (532 | ) | $ | (956 | ) | $ | 5,118 | |||||||||
| Labor contingencies in Brazil (ii) | 10,360 | 19,692 | (19,877 | ) | (26 | ) | (3,136 | ) | 7,013 | |||||||||||||||
| Other (iii) | 7,780 | 13,421 | (4,213 | ) | (22 | ) | (3,019 | ) | 13,947 | |||||||||||||||
| Subtotal | 20,139 | 37,729 | (24,099 | ) | (580 | ) | (7,111 | ) | 26,078 | |||||||||||||||
| Judicial deposits (iv) | (7,935 | ) | — | 684 | (863 | ) | 2,614 | (5,500 | ) | |||||||||||||||
| Provision for contingencies | $ | 12,204 | $ | 37,729 | $ | (23,415 | ) | $ | (1,443 | ) | $ | (4,497 | ) | $ | 20,578 | |||||||||
| Year ended December 31, 2014 | ||||||||||||||||||||||||
| Tax contingencies in Brazil (i) | $ | 2,235 | $ | 14 | $ | — | $ | — | $ | (250 | ) | $ | 1,999 | |||||||||||
| Labor contingencies in Brazil (ii) | 9,484 | 22,726 | (20,582 | ) | (29 | ) | (1,239 | ) | 10,360 | |||||||||||||||
| Other (iii) | 10,622 | 3,620 | (2,974 | ) | (543 | ) | (2,945 | ) | 7,780 | |||||||||||||||
| Subtotal | 22,341 | 26,360 | (23,556 | ) | (572 | ) | (4,434 | ) | 20,139 | |||||||||||||||
| Judicial deposits (iv) | (7,519 | ) | — | 455 | (1,857 | ) | 986 | (7,935 | ) | |||||||||||||||
| Provision for contingencies | $ | 14,822 | $ | 26,360 | $ | (23,101 | ) | $ | (2,429 | ) | $ | (3,448 | ) | $ | 12,204 | |||||||||
| (i) | In 2014, mainly related to tax on bank account transactions (CPMF). In 2015 and 2016 it also includes indirect tax matters (PIS/COFINS). |
| (ii) | It primarily relates to dismissals in the normal course of business. |
| (iii) | It mainly relates to tax and labor contingencies in other countries. |
F - 37
18. Commitments and contingencies (continued)
Provision for contingencies (continued)
| (iv) | It primarily relates to judicial deposits the Company was required to make in connection with the proceedings in Brazil. |
As of December 31, 2016, there are certain matters related to the interpretation of tax and labor laws for which there is a possibility that a loss may have been incurred in accordance with ASC 450-20-50-4 within a range of $89 million and $122 million.
Additionally, there is a lawsuit filed by several Puerto Rican franchisees against McDonald’s Corporation and certain subsidiaries purchased by the Company during the acquisition of the LatAm business (“the Puerto Rican franchisees lawsuit”). The claim seeks declaratory judgment and damages in the aggregate amount of $66.7 million plus plaintiffs’ attorney fees. At the end of 2014 the plaintiffs finalized their presentation of evidence whereas the Company has not started yet. The Company believes that a final negative resolution has a low probability of occurrence.
During 2014, another franchisee filed a complaint (“the related Puerto Rican franchisee lawsuit”) against the Company and McDonald’s USA, LLC (a wholly owned subsidiary of McDonald’s Corporation), asserting a very similar claim to the one filed in the Puerto Rican franchisees lawsuit. The claim seeks declaratory judgment and damages in the amount of $30 million plus plaintiffs’ attorney fees. Although this case is in its early stages, the Company believes that a final negative resolution has a low probability of occurrence, since its close resemblance to the Puerto Rican franchisees lawsuit.
Furthermore, the Puerto Rico Owner Operator’s Association (“PROA”), an association integrated by the Company’s franchisees that meets periodically to coordinate the development of promotional and marketing campaigns (an association that at the time of the claim was formed solely by franchisees that are plaintiffs in the Puerto Rican franchisees lawsuit), filed a third party complaint and counterclaim (“the PROA claim”) against the Company and other third party defendants, in the amount of $31 million. On June 9, 2014, after several motions for summary judgment duly filed and opposed by the parties, the Court entered a “Partial Summary Judgment and Resolution” in favor of PROA, before initiating the discovery phase, finding that the Company must participate and contribute funds to the association. However, the Court did not specify any amount for which the Company should be held liable, due to its preliminary and interlocutory nature, and the lack of discovery conducted regarding the amounts claimed by the plaintiffs. The Company is opposing this claim vigorously because it believes that there is no legal basis for it, considering: (i) the obligation to contribute is not directed towards a cooperative, (ii) the franchise agreement does not contain a provision that makes it mandatory to participate in the cooperative, and (iii) PROA’s by-laws state that participation in the cooperative is voluntary, among other arguments. According to the points previously mentioned, the Company believes that a final negative resolution has a low probability of occurrence, therefore no provision has been recorded.
Pursuant to Section 9.3 of the Stock Purchase Agreement, McDonald’s Corporation indemnifies the Company for certain Brazilian claims as well as for specific and limited claims arising from the Puerto Rican franchisees lawsuit. Pursuant to the MFA, the Company indemnifies McDonald’s for the related Puerto Rican franchisee lawsuit and the PROA claim.
At December 31, 2016, the non-current portion of the provision for contingencies includes $5,170 related to Brazilian claims that are covered by the indemnification agreement. As a result, the Company has recorded a current asset and non-current asset in respect of McDonald’s Corporation’s indemnity in the consolidated balance sheet. The current asset in respect of McDonald’s Corporation’s indemnity represents the amount of cash to be received as a result of settling certain Brazilian labor and tax contingencies.
F - 38
19. Disclosures about fair value of financial instruments
As defined in ASC 820 Fair Value Measurement and Disclosures, fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (exit price). The transaction is based on a hypothetical transaction in the principal or most advantageous market considered from the perspective of the market participant that holds the asset or owes the liability. The valuation techniques that can be used under this guidance are the market approach, income approach or cost approach. The market approach uses prices and other information for market transactions involving identical or comparable assets or liabilities, such as matrix pricing. The income approach uses valuation techniques to convert future amounts to a single discounted present amount based on current market conditions about those future amounts, such as present value techniques, option pricing models (e.g. Black-Scholes model) and binomial models (e.g. Monte-Carlo model). The cost approach is based on current replacement cost to replace an asset.
The Company utilizes market data or assumptions that market participants who are independent, knowledgeable and willing and able to transact would use in pricing the asset or liability, including assumptions about risk and the risks inherent in the inputs to the valuation technique. These inputs can be readily observable, market corroborated or generally unobservable. The Company attempts to utilize valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs. The Company is able to classify fair value balances based on the observance of those inputs. The guidance establishes a formal fair value hierarchy based on the inputs used to measure fair value. The hierarchy gives the highest priority to level 1 measurements and the lowest priority to level 3 measurements, and accordingly, level 1 measurement should be used whenever possible.
The three levels of the fair value hierarchy as defined by the guidance are as follows:
Level 1: Valuations utilizing quoted, unadjusted prices for identical assets or liabilities in active markets that the Company has the ability to access. This is the most reliable evidence of fair value and does not require a significant degree of judgment. Examples include exchange-traded derivatives and listed equities that are actively traded.
Level 2: Valuations utilizing quoted prices in markets that are not considered to be active or financial instruments for which all significant inputs are observable, either directly or indirectly for substantially the full term of the asset or liability.
Financial instruments that are valued using models or other valuation methodologies are included. Models used should primarily be industry-standard models that consider various assumptions and economic measures, such as interest rates, yield curves, time value, volatilities, contract terms, current market prices, credit risk or other market-corroborated inputs. Examples include most over-the-counter derivatives (non-exchange traded), physical commodities, most structured notes and municipal and corporate bonds.
Level 3: Valuations utilizing significant unobservable inputs provides the least objective evidence of fair value and requires a significant degree of judgment. Inputs may be used with internally developed methodologies and should reflect an entity’s assumptions using the best information available about the assumptions that market participants would use in pricing an asset or liability. Examples include certain corporate loans, real-estate and private equity investments and long-dated or complex over-the-counter derivatives.
Depending on the particular asset or liability, input availability can vary depending on factors such as product type, longevity of a product in the market and other particular transaction conditions. In some cases, certain inputs used to measure fair value may be categorized into different levels of the fair value hierarchy. For disclosure purposes under this guidance, the lowest level that contains significant inputs used in valuation should be chosen. Pursuant to ASC 820-10-50, the Company has classified its assets and liabilities into these levels depending upon the data relied on to determine the fair values. The fair values of the Company’s derivatives are valued based upon quotes obtained from counterparties to the agreements and are designated as Level 2.
The following fair value hierarchy table presents information about the Company’s assets and liabilities measured at fair value on a recurring basis as of December 31, 2016:
F - 39
19. Disclosures about fair value of financial instruments (continued)
|
Quoted Prices in Active Markets For Identical Assets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Unobservable Inputs (Level 3) |
Balance as of December 31, 2016 | |||||||||||||
| Assets | ||||||||||||||||
| Cash equivalents | $ | 132,040 | $ | — | $ | — | $ | 132,040 | ||||||||
| Total Assets | $ | 132,040 | $ | — | $ | — | $ | 132,040 | ||||||||
| Liabilities | ||||||||||||||||
| Derivatives | $ | — | $ | 30,591 | $ | — | $ | 30,591 | ||||||||
| Share-based compensation | — | 512 | — | 512 | ||||||||||||
| Secured loan agreement | — | 164,385 | — | 164,385 | ||||||||||||
| Total Liabilities | $ | — | $ | 195,488 | $ | — | $ | 195,488 | ||||||||
The derivative contracts were measured based on quotes from the Company’s counterparties. Such quotes have been derived using models pricing or discounted cash analysis that incorporate observable market parameters for all significant inputs such as interest yield curves, options volatilities and currency rates and that were observable for substantially the full term of the derivative contracts.
Certain financial assets and liabilities not measured at fair value
At December 31, 2016, the fair value of the Company’s short-term and long-term debt was estimated at $435,228, compared to a carrying amount of $422,329. This fair value was estimated using various pricing models or discounted cash flow analysis that incorporated quoted market prices, and is similar to Level 2 within the valuation hierarchy. The carrying amount for notes receivable approximates fair value.
Non-financial assets and liabilities measured at fair value on a nonrecurring basis
Certain assets and liabilities are measured at fair value on a nonrecurring basis; that is, the assets and liabilities are not measured at fair value on an ongoing basis but are subject to fair value adjustments in certain circumstances (e.g., when there is evidence of impairment). At December 31, 2016, no material fair value adjustments or fair value measurements were required for non-financial assets or liabilities, except for those required in connection with the impairment of long-lived assets and goodwill. Refer to Note 3 for more details, including inputs and valuation techniques used to measure fair value of these non-financial assets.
20. Certain risks and concentrations
The Company’s financial instruments that are exposed to concentration of credit risk primarily consist of cash and cash equivalents and accounts and notes receivable. Cash and cash equivalents are deposited with various creditworthy financial institutions, and therefore the Company believes it is not exposed to any significant credit risk related to cash and cash equivalents. Concentrations of credit risk with respect to accounts and notes receivable are generally limited due to the large number of franchisees comprising the Company’s franchise base.
All the Company’s operations are concentrated in Latin America and the Caribbean. As a result, the Company’s financial condition and results of operations depend, to a significant extent, on macroeconomic and political conditions prevailing in the region. See Note 22 for additional information pertaining to the Company’s Venezuelan operations.
F - 40
21. Segment and geographic information
The Company is required to report information about operating segments in annual financial statements and interim financial reports issued to shareholders in accordance with ASC 280. Operating segments are components of a company about which separate financial information is available that is regularly evaluated by the chief operating decision maker(s) in deciding how to allocate resources and assess performance. ASC 280 also requires disclosures about the Company’s products and services, geographical areas and major customers.
As discussed in Note 1, the Company through its wholly-owned and majority-owned subsidiaries operates and franchises McDonald’s restaurants in the food service industry. The Company has determined that its reportable segments are those that are based on the Company’s method of internal reporting. The Company manages its business as distinct geographic segments and its operations are divided into four geographical divisions, which are as follows: Brazil; the Caribbean division, consisting of Aruba, Curacao, Colombia, French Guyana, Guadeloupe, Martinique, Puerto Rico, Trinidad and Tobago, the U.S. Virgin Islands of St. Croix and St. Thomas and Venezuela; the North Latin America division (“NOLAD”), consisting of Costa Rica, Mexico and Panama; and the South Latin America division (“SLAD”), consisting of Argentina, Chile, Ecuador, Peru and Uruguay. The accounting policies of the segments are the same as those described in Note 3.
As from January 1, 2016, the Company made changes in the allocation of certain expenses previously included in the corporate segment to the operating divisions in order to align the financial statement presentation with the revised allocation used by the Company's management as from that date. In accordance with ASC 280, Segment Reporting, the Company has restated its comparative segment information based on the new allocation of expenses.
The following table presents information about profit or loss and assets for each reportable segment:
| For the fiscal years ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| Revenues: | ||||||||||||
| Brazil | $ | 1,333,237 | $ | 1,361,989 | $ | 1,816,046 | ||||||
| Caribbean division | 409,671 | 398,144 | 594,220 | |||||||||
| NOLAD | 363,965 | 367,364 | 385,114 | |||||||||
| SLAD | 821,757 | 925,243 | 855,685 | |||||||||
| Total revenues | $ | 2,928,630 | $ | 3,052,740 | $ | 3,651,065 | ||||||
| Adjusted EBITDA: | ||||||||||||
| Brazil | $ | 168,076 | $ | 174,102 | $ | 220,711 | ||||||
| Caribbean division | 18,049 | 2,059 | (11,284 | ) | ||||||||
| NOLAD | 36,288 | 31,424 | 25,035 | |||||||||
| SLAD | 76,327 | 100,718 | 82,859 | |||||||||
| Total reportable segments | 298,740 | 308,303 | 317,321 | |||||||||
| Corporate and others (i) | (60,295 | ) | (78,132 | ) | (65,647 | ) | ||||||
| Total adjusted EBITDA | $ | 238,445 | $ | 230,171 | $ | 251,674 | ||||||
F - 41
21. Segment and geographic information (continued)
| For the fiscal years ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| Adjusted EBITDA reconciliation: | ||||||||||||
| Total Adjusted EBITDA | $ | 238,445 | $ | 230,171 | $ | 251,674 | ||||||
| (Less) Plus items excluded from computation that affect operating income: | ||||||||||||
| Depreciation and amortization | (92,969 | ) | (110,715 | ) | (116,811 | ) | ||||||
| Gains from sale or insurance recovery of property and equipment | 57,244 | 12,308 | 3,379 | |||||||||
| Write-offs and related contingencies of property and equipment | (5,776 | ) | (6,038 | ) | (7,111 | ) | ||||||
| Impairment of long-lived assets | (7,697 | ) | (12,343 | ) | (50,886 | ) | ||||||
| Impairment of goodwill | (5,045 | ) | (679 | ) | (2,029 | ) | ||||||
| Stock-based compensation related to the special awards in connection with the initial public offering under the 2011 Plan | — | (210 | ) | (2,503 | ) | |||||||
| Reorganization and optimization plan expenses | (5,341 | ) | (18,346 | ) | (4,707 | ) | ||||||
| ADBV Long-Term Incentive Plan incremental compensation from modification | (281 | ) | (741 | ) | (149 | ) | ||||||
| Operating income | 178,580 | 93,407 | 70,857 | |||||||||
| (Less) Plus: | ||||||||||||
| Net interest expense | (66,880 | ) | (64,407 | ) | (72,750 | ) | ||||||
| Loss from derivative instruments | (3,065 | ) | (2,894 | ) | (685 | ) | ||||||
| Foreign currency exchange results | 32,354 | (54,032 | ) | (74,117 | ) | |||||||
| Other non-operating (expenses) income, net | (2,360 | ) | (627 | ) | 146 | |||||||
| Income tax expense | (59,641 | ) | (22,816 | ) | (32,479 | ) | ||||||
| Net income attributable to non-controlling interests | (178 | ) | (264 | ) | (305 | ) | ||||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc. | $ | 78,810 | $ | (51,633 | ) | $ | (109,333 | ) | ||||
F - 42
21. Segment and geographic information (continued)
| For the fiscal years ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| Depreciation and amortization: | ||||||||||||
| Brazil | $ | 43,733 | $ | 48,849 | $ | 60,261 | ||||||
| Caribbean division | 27,376 | 30,998 | 29,142 | |||||||||
| NOLAD | 21,975 | 25,733 | 28,565 | |||||||||
| SLAD | 14,477 | 19,340 | 19,989 | |||||||||
| Total reportable segments | 107,561 | 124,920 | 137,957 | |||||||||
| Corporate and others (i) | 5,478 | 8,068 | 8,202 | |||||||||
| Purchase price allocation (ii) | (20,070 | ) | (22,273 | ) | (29,348 | ) | ||||||
| Total depreciation and amortization | $ | 92,969 | $ | 110,715 | $ | 116,811 | ||||||
| Property and equipment expenditures: | ||||||||||||
| Brazil | $ | 42,657 | $ | 40,482 | $ | 100,455 | ||||||
| Caribbean division | 14,387 | 11,756 | 18,717 | |||||||||
| NOLAD | 10,117 | 14,623 | 23,680 | |||||||||
| SLAD | 24,967 | 23,623 | 25,423 | |||||||||
| Others | 154 | 480 | 1,538 | |||||||||
| Total property and equipment expenditures | $ | 92,282 | $ | 90,964 | $ | 169,813 | ||||||
| As of December 31, | ||||||||
| 2016 | 2015 | |||||||
| Total assets: | ||||||||
| Brazil | $ | 726,250 | $ | 612,074 | ||||
| Caribbean division | 355,568 | 382,022 | ||||||
| NOLAD | 247,546 | 308,632 | ||||||
| SLAD | 246,344 | 242,081 | ||||||
| Total reportable segments | 1,575,708 | 1,544,809 | ||||||
| Corporate and others (i) | 82,822 | 36,946 | ||||||
| Purchase price allocation (ii) | (153,477 | ) | (178,553 | ) | ||||
| Total assets | $ | 1,505,053 | $ | 1,403,202 | ||||
| (i) | Primarily relates to corporate general and administrative expenses, corporate supply chain operations in Uruguay, and related assets. Corporate general and administrative expenses consist of corporate office support costs in areas such as facilities, finance, human resources, information technology, legal, marketing, restaurant operations, supply chain and training. As of December 31, 2016, corporate assets primarily include corporate cash and cash equivalents and a collateral deposit. As of December 31, 2015, corporate assets also included derivative instruments. |
| (ii) | Relates to the purchase price allocation adjustment made at corporate level, which reduces the total assets and the corresponding depreciation and amortization. |
F - 43
21. Segment and geographic information (continued)
The Company’s revenues are derived from two sources: sales by Company-operated restaurants and revenues from restaurants operated by franchisees. See Note 3 for more details. All of the Company’s revenues are derived from foreign operations.
Long-lived assets consisting of property and equipment totaled $847,966 and $833,357 at December 31, 2016 and 2015, respectively. All of the Company’s long-lived assets are related to foreign operations.
22. Venezuelan operations
The Company conducts business in Venezuela where currency restrictions exist, limiting the Company’s ability to immediately access cash through repatriations at the government’s official exchange rate. The Company’s access to Venezuelan Bolívares (VEF) held by its Venezuelan subsidiaries remains available for use within this jurisdiction and is not restricted. The official exchange rate is established by the Central Bank of Venezuela and the Venezuelan Ministry of Finance and the acquisition of foreign currency at the official exchange rate by Venezuelan companies to pay foreign debt or dividends is subject to a registration and approval process by the relevant Venezuelan authorities. Since these restrictions are in place, the Company has not been able to access the official exchange rate to pay dividends and has been limited in its ability to pay royalties at the official exchange rate.
Revenues and operating loss of the Venezuelan operations were $51,615 and $(8,608), respectively, for fiscal year 2016; $40,898 and $(28,329), respectively, for fiscal year 2015; and $187,588 and $(74,962), respectively, for fiscal year 2014.
Since February 2013, the Venezuelan government has announced several changes in the currency exchange regulations. As a consequence, the Company reassessed the exchange rate used for remeasurement purposes as follows:
| Effects of exchange rate change | ||||||||||||||
| Period | Exchange rate System applied |
Exchange rate at System date change (VEF per US dollar) |
Write down of inventories (i) | Impairment of long-lived assets (i) | Foreign currency exchange loss | |||||||||
| From February 8, 2013 to February 28, 2014 | Official exchange rate | 6.30 | — | — | 15,379 | |||||||||
| From March 1, 2014 to May 31, 2014 | SICAD | 11.80 | 7,611 | — | 19,697 | |||||||||
| From June 1, 2014 to February 28, 2015 | SICAD II | 49.98 | 9,937 | 45,186 | 38,963 | |||||||||
| From March 1, 2015 to March 9, 2016 | SIMADI | 177.00 | 3,250 | 7,804 | 8,046 | |||||||||
| From March 10, 2016 up to date | DICOM | 215.34 | 401 | — | 117 | |||||||||
| (i) | Presented within Other operating income (expenses), net |
| (ii) | Presented within Foreign currency exchange results |
Effective from March 10, 2016, a new Exchange Agreement was issued that set forth the new rules that govern foreign exchange transactions carried out by public and private entities and individuals in Venezuela. Hereafter, the SICAD and SIMADI systems were eliminated and a dual exchange system was created: (i) the protected rate called DIPRO, with an initial exchange rate of 10 VEF per US dollar, and (ii) the supplementary floating market rate called DICOM, with an initial exchange rate of 215.34 VEF per US dollar. As of December 31, 2016, DICOM exchange rate settled at 673.76 VEF per US dollar.
F - 44
22. Venezuelan operations (continued)
As of December 31, 2016, the Company’s local currency denominated net monetary position, which would be subject to remeasurement in the event of further changes in the DICOM rate was $3.6 million (including $9.6 million of cash and cash equivalents). Venezuela’s non-monetary assets were $52.4 million at December 31, 2016 and included approximately $42.6 million of fixed assets and advances to suppliers.
In addition to exchange controls, the Venezuelan market is subject to price controls. The Venezuelan government issued a regulation establishing a maximum profit margin for companies and maximum prices for certain goods and services. Although these regulations caused a delay in the pricing plan, the Company was able to increase prices during the fiscal year ended December 31, 2016.
The Company’s Venezuelan operations, and the Company’s ability to repatriate its earnings, continue to be negatively affected by these difficult conditions and would be further negatively affected by additional devaluations or the imposition of additional or more stringent controls on foreign currency exchange, pricing, payments, profits or imports or other governmental actions or continued or increased labor unrest. The Company continues to closely monitor developments in this dynamic environment, to assess evolving business risks and actively manage its operations in Venezuela.
23. Shareholders’ equity
Authorized capital
The Company is authorized to issue to 500,000,000 shares, consisting of 420,000,000 Class A shares and 80,000,000 Class B shares of no par value each.
Issued and outstanding capital
At December 31, 2013, the Company had 209,867,426 shares issued and outstanding with no par value, consisting of 129,867,426 class A shares and 80,000,000 class B shares.
During fiscal years 2016, 2015 and 2014, the Company issued 172,328, 322,853 and 348,617 Class A shares, respectively, in connection with the partial vesting of restricted share units under the 2011 Equity Incentive Plan. Therefore, at December 31, 2016, 2015 and 2014 the Company had 210,711,224; 210,538,896 and 210,216,043 shares issued and outstanding with no par value, consisting of 130,711,224; 130,538,896 and 130,216,043 Class A shares, respectively, and 80,000,000 for Class B shares for each year.
Rights, privileges and obligations
Holders of Class A shares are entitled to one vote per share and holders of Class B shares are entitled to five votes per share. Except with respect to voting, the rights, privileges and obligations of the Class A shares and Class B shares are pari passu in all respects, including with respect to dividends and rights upon liquidation of the Company.
Distribution of dividends
The Company can only make distributions to the extent that immediately following the distribution, its assets exceed its liabilities and the Company is able to pay its debts as they become due.
During fiscal years 2016 and 2015, the Company did not declare a dividend distribution to its shareholders, with respect to its results of operations for fiscal years 2015 and 2014, respectively. During fiscal year 2014, the Company declared dividend distributions totaling $50,036. The last installment of that distribution was paid during the fiscal year 2015, amounting to $12,509.
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23. Shareholders’ equity (continued)
Distribution of dividends (continued)
During April and May, 2014, the Company paid dividends on restricted share units under the 2011 Equity Incentive Plan amounting to $382.
Accumulated other comprehensive loss
The following table sets forth information with respect to the components of “Accumulated other comprehensive loss” as of December 31, 2016 and their related activity during the three-years in the period then ended:
|
Foreign currency translation |
Cash flow hedges |
Post-employment benefits (i) |
Total Accumulated other comprehensive (loss) income | |||||||||||||
| Balances at December 31, 2013 | $ | (217,136 | ) | $ | (768 | ) | $ | (831 | ) | $ | (218,735 | ) | ||||
| Other comprehensive (loss) income before reclassifications | (85,753 | ) | 5,158 | (544 | ) | (81,139 | ) | |||||||||
| Net (gain) loss reclassified from accumulated other comprehensive loss to consolidated statement of income | — | (2,792 | ) | 199 | (2,593 | ) | ||||||||||
| Net current-period other comprehensive (loss) income | (85,753 | ) | 2,366 | (345 | ) | (83,732 | ) | |||||||||
| Balances at December 31, 2014 | (302,889 | ) | 1,598 | (1,176 | ) | (302,467 | ) | |||||||||
| Other comprehensive (loss) income before reclassifications | (128,301 | ) | 20,487 | (213 | ) | (108,027 | ) | |||||||||
| Net (gain) loss reclassified from accumulated other comprehensive loss to consolidated statement of income | — | (14,209 | ) | 440 | (13,769 | ) | ||||||||||
| Net current-period other comprehensive (loss) income | (128,301 | ) | 6,278 | 227 | (121,796 | ) | ||||||||||
| Balances at December 31, 2015 | (431,190 | ) | 7,876 | (949 | ) | (424,263 | ) | |||||||||
| Other comprehensive loss before reclassifications | (9,891 | ) | (18,813 | ) | (310 | ) | (29,014 | ) | ||||||||
| Net loss reclassified from accumulated other comprehensive loss to consolidated statement income | — | 11,242 | 386 | 11,628 | ||||||||||||
| Net current-period other comprehensive (loss) income | (9,891 | ) | (7,571 | ) | 76 | (17,386 | ) | |||||||||
| Balances at December 31, 2016 | $ | (441,081 | ) | $ | 305 | $ | (873 | ) | $ | (441,649 | ) | |||||
| (i) | Related to a post-employment benefit in Venezuela established by the Organic Law of Labor and Workers (known as “LOTTT”, its Spanish acronym) in 2012. This benefit provides a payment of 30 days of salary per year of employment tenure based on the last wage earned to all workers who leave the job for any reason. The term of service to calculate the post-employment payment of active workers run retroactively since June 19, 1997. The Company obtains an actuarial valuation to measure the post-employment benefit obligation, using the projected unit credit actuarial method and measures this benefit in accordance with ASC 715-30, similar to pension benefit. |
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24. Earnings (loss) per share
The Company is required to present basic earnings per share and diluted earnings per share in accordance with ASC 260. Earnings per share are based on the weighted average number of shares outstanding during the period after consideration of the dilutive effect, if any, for common stock equivalents, including stock options and restricted share units. Basic earnings per common share are computed by dividing net income available to common shareholders by the weighted average number of shares of common stock outstanding during the period. Diluted earnings per common share are computed by dividing net income by the weighted average number of shares of common stock outstanding and dilutive securities outstanding during the period under the treasury method.
The following table sets forth the computation of basic and diluted net (loss) income per common share attributable to Arcos Dorados Holdings Inc. for all years presented:
| For the fiscal years ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| Net income (loss) attributable to Arcos Dorados Holdings Inc. available to common shareholders | $ | 78,810 | $ | (51,633 | ) | $ | (109,333 | ) | ||||
| Weighted-average number of common shares outstanding - Basic | 210,646,955 | 210,436,232 | 210,105,059 | |||||||||
| Incremental shares from assumed exercise of stock options (a) | — | — | — | |||||||||
| Incremental shares from vesting of restricted share units | 377,653 | 160,122 | 239,171 | |||||||||
| Weighted-average number of common shares outstanding - Diluted | 211,024,608 | 210,596,354 | 210,344,230 | |||||||||
| Basic net income (loss) per common share attributable to Arcos Dorados Holdings Inc. | $ | 0.37 | $ | (0.25 | ) | $ | (0.52 | ) | ||||
| Diluted net income (loss) per common share attributable to Arcos Dorados Holdings Inc. | $ | 0.37 | $ | (0.25 | ) | $ | (0.52 | ) | ||||
| (a) | Options to purchase shares of common stock were outstanding during fiscal years 2016, 2015 and 2014. See Note 17 for details. These options were not included in the computation of diluted earnings per share because their inclusion would have been anti-dilutive. |
25. Related party transactions
The Company has entered into a master commercial agreement on arm’s length terms with Axionlog, a company under common control that operates the distribution centers in Argentina, Chile, Colombia, Mexico, Venezuela, Uruguay and Perú (the “Axionlog Business”). Pursuant to this agreement Axionlog provides the Company distribution inventory, storage and transportation services in the countries in which it operates. On November 9, 2011 the Company entered into a revolving loan agreement as a creditor with Axionlog Distribution B.V., a holding company of the Axionlog Business, for a total amount of $12 million at an interest rate of LIBOR plus 6%, in line with interest rates prevailing in the market at the time of the agreement. Notwithstanding the fact that the loan maturity date was November 7, 2016 the parties decided to terminate the agreement early as of May 27, 2016. As a result, the Company collected the outstanding principal amount of $1,800.
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25. Related party transactions (continued)
The following table summarizes the outstanding balances between the Company and the Axionlog Business as of December 31, 2016 and 2015:
| As of December 31, | ||||||||
| 2016 | 2015 | |||||||
| Accounts and notes receivable | $ | — | $ | 1,854 | ||||
| Other receivables | 1,050 | 2,266 | ||||||
| Miscellaneous | 3,612 | 1,729 | ||||||
| Accounts payable | (10,355 | ) | (5,110 | ) | ||||
The following table summarizes the transactions between the Company and the Axionlog Business for the fiscal years ended December 31, 2016, 2015 and 2014:
| Fiscal years ended December 31, | ||||||||||||
| 2016 | 2015 | 2014 | ||||||||||
| Food and paper (i) | $ | (163,536 | ) | $ | (164,882 | ) | $ | (199,801 | ) | |||
| Occupancy and other operating expenses | (3,882 | ) | (2,499 | ) | (2,251 | ) | ||||||
| Other operating expenses, net (ii) | — | — | 16,986 | |||||||||
| Net interest income | 47 | 461 | 1,387 | |||||||||
| (i) | Includes $40,714 of distribution fees and $122,822 of suppliers purchases managed through the Axionlog Business for the fiscal year ended December 31, 2016; $44,170 and $120,712, respectively, for the fiscal year ended December 31, 2015; and $45,143 and $154,658, respectively, for the fiscal year ended December 31, 2014. |
| (ii) | Related to inventory sales with a cost of $16,986 for the fiscal year 2014 (the net effect on such income statement line was nil). No such transaction took place in the fiscal years 2016 and 2015. |
As of December 31, 2016 and 2015, the Company had other receivables totaling $1,315 and $142, respectively and accounts payable with Lacoop, A.C. and Lacoop II, S.C. totaling $1,299 and $1,386, respectively.
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26. Valuation and qualifying accounts
The following table presents the information required by Rule 12-09 of Regulation S-X in regards to valuation and qualifying accounts for each of the periods presented:
| Description | Balance at beginning of period | Additions (i) | Deductions (ii) | Translation | Balance at end of period | |||||||||||||||
| Year ended December 31, 2016 | ||||||||||||||||||||
| Deducted from assets accounts: | ||||||||||||||||||||
| Allowance for doubtful accounts | $ | 12,768 | $ | 5,367 | $ | (1,647 | ) | $ | (121 | ) | $ | 16,367 | ||||||||
| Valuation allowance on deferred tax assets | 297,891 | 36,778 | (24,967 | ) | (19,082 | ) | 290,620 | |||||||||||||
| Reported as liabilities: | ||||||||||||||||||||
| Provision for contingencies | 20,578 | 28,577 | (32,049 | ) | 1,006 | 18,112 | ||||||||||||||
| Total | $ | 331,237 | $ | 70,722 | $ | (58,663 | ) | $ | (18,197 | ) | $ | 325,099 | ||||||||
| Year ended December 31, 2015 | ||||||||||||||||||||
| Deducted from assets accounts: | ||||||||||||||||||||
| Allowance for doubtful accounts | $ | 9,373 | $ | 6,656 | $ | (2,615 | ) | $ | (646 | ) | $ | 12,768 | ||||||||
| Valuation allowance on deferred tax assets | 301,012 | 49,879 | (401 | ) | (52,599 | ) | 297,891 | |||||||||||||
| Reported as liabilities: | ||||||||||||||||||||
| Provision for contingencies | 12,204 | 37,729 | (24,858 | ) | (4,497 | ) | 20,578 | |||||||||||||
| Total | $ | 322,589 | $ | 94,264 | $ | (27,874 | ) | $ | (57,742 | ) | $ | 331,237 | ||||||||
| Year ended December 31, 2014 | ||||||||||||||||||||
| Deducted from assets accounts: | ||||||||||||||||||||
| Allowance for doubtful accounts | $ | 5,098 | $ | 6,567 | $ | (800 | ) | $ | (1,492 | ) | $ | 9,373 | ||||||||
| Valuation allowance on deferred tax assets | 270,057 | 76,085 | (4,389 | ) | (40,741 | ) | 301,012 | |||||||||||||
| Reported as liabilities: | ||||||||||||||||||||
| Provision for contingencies | 14,822 | 26,360 | (25,530 | ) | (3,448 | ) | 12,204 | |||||||||||||
| Total | $ | 289,977 | $ | 109,012 | $ | (30,719 | ) | $ | (45,681 | ) | $ | 322,589 | ||||||||
| (i) | Additions in valuation allowance on deferred tax assets are charged to income tax expense. |
Additions in provision for contingencies are explained as follows:
Fiscal years 2016, 2015 and 2014 – Relate to the accrual of $28,577, $37,729 and $26,360, respectively. See Note 18 for details.
| (ii) | Deductions in valuation allowance on deferred tax assets are charged to income tax expense. |
Deductions in provision for contingencies are explained as follows:
Corresponds to the settlements and reclassifications amounting to $20,554 and $11,495, respectively, during fiscal year 2016; $23,415 and $1,443, respectively, during fiscal year 2015; and $23,101 and $2,429, respectively, during fiscal year 2014; as discussed in Note 18.
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27. Subsequent events
On January 26, 2017, as mentioned in Note 18, the Company reached an agreement with McDonald’s Corporation related to the restaurant opening and reinvestment plan for the three-year period commenced on January 1, 2017. Under the agreement, the Company committed to open 180 new restaurants and to reinvest $292 million in existing restaurants. In addition, on January 25, 2017, McDonald’s Corporation agreed to provide growth support for the same period. The Company projects that the impact of this support could result in an effective royalty rate of 5.3% in 2017, 5.7% in 2018 and 5.9% in 2019.
On March 16, 2017, the Company launched a cash tender offer to purchase $80,000 of its outstanding 2023 Notes (the “Notes”), mentioned in Note 12, at a redemption price equal to 104%, which expired on April 12, 2017. The holders who tendered their 2023 Notes prior to March 29, 2017, received a redemption price equal to 107%. As a consequence of this transaction, the Company redeemed 11.6% of the outstanding principal. The total payment was $48,885 (including $3,187 of early tender payment) plus accrued and unpaid interest.
On April 4, 2017, the Company issued senior notes for an aggregate principal amount of $265 million, which are due in 2027 (the “2027 Notes”). The 2027 Notes bear interest of 5.875% per year. Periodic payment of principal is not required and interest is paid semiannually, in April and October, commencing on October 4, 2017. The 2027 Notes are fully and unconditionally guaranteed on a senior unsecured basis by certain of the Company’s subsidiaries. The proceeds from the issuance of the 2027 Notes were used to repay the Secured loan agreement and unwind the related derivative instruments, to pay the principal and premium on the 2023 Notes in connection with the aforementioned tender offer, and for general corporate purposes.
On April 11, 2017, the Company repaid the Secured loan agreement, mentioned in Note 12. The total payment of $169.7 million included all outstanding principal, plus accrued and unpaid interest and certain transaction costs. In addition, on April 13, 2017 and April 17, 2017, the Company unwound the 2016 Cross-currency interest rate swap, mentioned in Note 13, related to the Secured loan agreement for BRL122.7 million.
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