Table of Contents

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

x

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

For the quarterly period ended August 31, 2009

 

 

OR

 

 

o

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                to                  

 

Commission File Number:  0-18926

 

JOE’S JEANS INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

11-2928178

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

5901 South Eastern Avenue, Commerce, California

 

90040

(Address of principal executive offices)

 

(Zip Code)

 

(323) 837-3700

(Registrant’s telephone number, including area code)

 

NO CHANGE

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

 

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.  x Yes  o 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 such shorter period that the registrant was required to submit and post such files).  o Yes  o No

 

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

 

Large accelerated filer o

 

Accelerated filer o

 

 

 

Non-accelerated filer o

 

Smaller reporting company x

(Do not check if a smaller reporting company)

 

 

 

Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Exchange Act).  Yes o  No x

 

The number of shares of the registrant’s common stock outstanding as of October 15, 2009 was 60,455,256.

 

 

 



Table of Contents

 

JOE’S JEANS INC.

 

QUARTERLY REPORT ON FORM 10-Q

 

 

 

Page

 

 

 

PART I.

FINANCIAL INFORMATION

1

 

 

 

Item 1.

Financial Statements

1

 

 

 

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

18

 

 

 

Item 3.

Quantitative and Qualitative Disclosures about Market Risk

28

 

 

 

Item 4T.

Controls and Procedures

28

 

 

 

PART II.

OTHER INFORMATION

29

 

 

 

Item 1.

Legal Proceedings

29

 

 

 

Item 1A.

Risk Factors

29

 

 

 

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds

29

 

 

 

Item 3.

Defaults Upon Senior Securities

29

 

 

 

Item 4.

Submission of Matters to a Vote of Security Holders

29

 

 

 

Item 5.

Other Information

29

 

 

 

Item 6.

Exhibits

30

 

 

 

 

SIGNATURES

31

 



Table of Contents

 

PART I — FINANCIAL INFORMATION

 

Item 1.                   Financial Statements.

 

JOE’S JEANS INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands)

 

 

 

August 31, 2009

 

November 30, 2008

 

 

 

(unaudited)

 

 

 

ASSETS

 

 

 

 

 

Current assets

 

 

 

 

 

Cash and cash equivalents

 

$

 9,545

 

$

 3,465

 

Accounts receivable, net of allowance for customer credits and returns of $865 (2009) and $660 (2008)

 

1,219

 

865

 

Inventories, net

 

21,521

 

22,271

 

Due from related parties

 

203

 

 

Prepaid expenses and other current assets

 

273

 

301

 

Total current assets

 

32,761

 

26,902

 

 

 

 

 

 

 

Property and equipment, net

 

2,825

 

2,825

 

Goodwill

 

3,836

 

3,836

 

Intangible assets

 

24,000

 

24,000

 

Other assets

 

108

 

106

 

 

 

 

 

 

 

Total assets

 

$

 63,530

 

$

 57,669

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

 

 

 

 

 

Current liabilities

 

 

 

 

 

Accounts payable and accrued expenses

 

$

 7,421

 

$

 8,628

 

Due to factor

 

4,232

 

2,900

 

Deferred licensing revenue

 

866

 

 

Due to related parties

 

184

 

205

 

Total current liabilities

 

12,703

 

11,733

 

 

 

 

 

 

 

Long term deferred rent

 

474

 

251

 

Deferred tax liability

 

9,600

 

9,600

 

Total liabilities

 

22,777

 

21,584

 

 

 

 

 

 

 

Commitments and contingencies

 

 

 

 

 

 

 

 

 

 

 

Stockholders’ equity

 

 

 

 

 

Common stock, $0.10 par value: 100,000 shares authorized, 60,595 shares issued and 60,455 outstanding (2009) and 59,946 shares issued and 59,806 outstanding (2008)

 

6,061

 

5,996

 

Additional paid-in capital

 

103,403

 

102,859

 

Accumulated deficit

 

(65,911

)

(69,970

)

Treasury stock, 140 shares

 

(2,800

)

(2,800

)

Total stockholders’ equity

 

40,753

 

36,085

 

 

 

 

 

 

 

Total liabilities and stockholders’ equity

 

$

 63,530

 

$

 57,669

 

 

The accompanying notes are an integral part of these financial statements.

 

1



Table of Contents

 

JOE’S JEANS INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF INCOME

(in thousands, except per share data)

 

 

 

Three months ended

 

Nine months ended

 

 

 

August 31, 2009

 

August 31, 2008

 

August 31, 2009

 

August 31, 2008

 

 

 

(unaudited)

 

(unaudited)

 

Net sales

 

$

 21,238

 

$

 18,248

 

$

 54,899

 

$

 51,413

 

Cost of goods sold

 

10,864

 

9,303

 

27,576

 

27,242

 

Gross profit

 

10,374

 

8,945

 

27,323

 

24,171

 

 

 

 

 

 

 

 

 

 

 

Operating expenses

 

 

 

 

 

 

 

 

 

Selling, general and administrative

 

7,394

 

6,544

 

21,383

 

19,042

 

Depreciation and amortization

 

132

 

70

 

401

 

244

 

 

 

7,526

 

6,614

 

21,784

 

19,286

 

Operating income

 

2,848

 

2,331

 

5,539

 

4,885

 

Interest expense

 

90

 

133

 

290

 

492

 

Income before provision for taxes

 

2,758

 

2,198

 

5,249

 

4,393

 

Income taxes

 

824

 

368

 

1,190

 

631

 

Net income

 

$

 1,934

 

$

 1,830

 

$

 4,059

 

$

 3,762

 

 

 

 

 

 

 

 

 

 

 

Earnings per common share - basic

 

$

 0.03

 

$

 0.03

 

$

 0.07

 

$

 0.06

 

 

 

 

 

 

 

 

 

 

 

Earnings per common share - diluted

 

$

 0.03

 

$

 0.03

 

$

 0.07

 

$

 0.06

 

 

 

 

 

 

 

 

 

 

 

Weighted average shares outstanding

 

 

 

 

 

 

 

 

 

Basic

 

60,177

 

59,477

 

59,935

 

59,360

 

Diluted

 

61,462

 

60,063

 

60,800

 

59,752

 

 

The accompanying notes are an integral part of these financial statements.

 

2



Table of Contents

 

JOE’S JEANS INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

 

 

 

Nine months ended

 

 

 

August 31, 2009

 

August 31, 2008

 

 

 

(unaudited)

 

CASH FLOWS FROM OPERATING ACTIVITIES

 

 

 

 

 

Net cash provided by operating activities

 

$

 5,251

 

$

 2,398

 

 

 

 

 

 

 

CASH FLOWS FROM INVESTING ACTIVITIES

 

 

 

 

 

Purchases of property and equipment

 

(401

)

(411

)

Other

 

 

125

 

Net cash used in investing activities

 

(401

)

(286

)

 

 

 

 

 

 

CASH FLOWS FROM FINANCING ACTIVITIES

 

 

 

 

 

Proceeds from factor borrowing, net

 

1,332

 

(301

)

Proceeds from issuance of common stock

 

 

13

 

Payment of taxes on restricted stock units

 

(102

)

(38

)

Net cash provided by (used in) financing activities

 

1,230

 

(326

)

 

 

 

 

 

 

NET CHANGE IN CASH AND CASH EQUIVALENTS

 

6,080

 

1,786

 

 

 

 

 

 

 

CASH AND CASH EQUIVALENTS, at beginning of period

 

3,465

 

1,331

 

 

 

 

 

 

 

CASH AND CASH EQUIVALENTS, at end of period

 

$

 9,545

 

$

 3,117

 

 

The accompanying notes are an integral part of these financial statements.

 

3



Table of Contents

 

JOE’S JEANS INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

(in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

 

 

Common Stock

 

Additional

 

Accumulated

 

Treasury

 

Stockholders’

 

 

 

Shares

 

Par Value

 

Paid-In Capital

 

Deficit

 

Stock

 

Equity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance, November 25, 2007

 

59,862

 

$

 5,988

 

$

 102,056

 

$

 (74,872

)

$

 (2,776

)

$

 30,396

 

Net income (unaudited)

 

 

 

 

3,762

 

 

3,762

 

Issuance of restricted stock (unaudited)

 

64

 

6

 

(6

)

 

 

 

Issuance of common stock (unaudited)

 

13

 

1

 

12

 

 

 

13

 

Stock-based compensation (unaudited)

 

 

 

617

 

 

 

617

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance, August 31, 2008 (unaudited)

 

59,939

 

$

 5,995

 

$

 102,679

 

$

 (71,110

)

$

 (2,776

)

$

 34,788

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance, November 30, 2008

 

59,946

 

$

 5,996

 

$

 102,859

 

$

 (69,970

)

$

 (2,800

)

$

 36,085

 

Net income (unaudited)

 

 

 

 

4,059

 

 

4,059

 

Issuance of restricted stock (unaudited)

 

649

 

65

 

(65

)

 

 

 

Stock-based compensation, net of withholding taxes (unaudited)

 

 

 

609

 

 

 

609

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance, August 31, 2009 (unaudited)

 

60,595

 

$

 6,061

 

$

 103,403

 

$

 (65,911

)

$

 (2,800

)

$

 40,753

 

 

The accompanying notes are an integral part of these financial statements.

 

4



Table of Contents

 

JOE’S JEANS INC. AND SUBSIDIARIES

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

NOTE 1 - BASIS OF PRESENTATION

 

The unaudited condensed consolidated financial statements of Joe’s Jeans Inc., or Joe’s, which include the accounts of its wholly-owned subsidiaries, for the three and nine months ended August 31, 2009 and 2008 and the related footnote information have been prepared on a basis consistent with Joe’s audited consolidated financial statements as of November 30, 2008 contained in Joe’s Annual Report on Form 10-K, or the Annual Report.

 

Joe’s principal business activity involves the design, development and worldwide marketing of apparel products.  Joe’s primary current operating subsidiary is Joe’s Jeans Subsidiary Inc., or Joe’s Jeans Subsidiary.  All significant inter-company transactions have been eliminated.  Currently, Joe’s has only one segment of operations, primarily apparel, which includes an immaterial amount of revenue from its retail operations and license agreements.  On October 12, 2007, Joe’s filed an amended and restated certificate of incorporation in Delaware to change its corporate name from Innovo Group Inc. to Joe’s Jeans Inc. and to increase the shares of common stock authorized for issuance to 100,000,000.  Joe’s fiscal year end is November 30.

 

These unaudited condensed consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X.  Accordingly, they do not include all of the information and footnotes required by U.S. generally accepted accounting principles for complete financial statements.  These unaudited condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements and the related notes thereto contained in Joe’s Annual Report.  In the opinion of management, the accompanying unaudited financial statements contain all adjustments (consisting of normal recurring adjustments), which management considers necessary to present fairly Joe’s financial position, results of operations and cash flows for the interim periods presented.  The results for the three and nine months ended August 31, 2009 are not necessarily indicative of the results anticipated for the entire year ending November 30, 2009.  The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements.  Actual results may differ from those estimates.

 

NOTE 2 —ADOPTION OF ACCOUNTING PRINCIPLES

 

On December 4, 2007, the FASB issued SFAS No. 141 (Revised 2007), “Business Combinations,” or SFAS No. 141(R).  New requirements under the revised standard include: (i) the fair value of stock provided as consideration be measured as of the acquisition date instead of the announcement date; (ii) acquisition-related costs be recognized separately from the acquisition, generally as an expense, instead of treated as a part of the cost of the acquisition that was allocated to the assets acquired and the liabilities assumed;  (iii) restructuring costs that the acquirer expected, but was not obligated to incur, be recognized separately from the acquisition instead of recognized as if they were a liability assumed at the acquisition date; (iv) contingent consideration be recognized at the acquisition date, measured at its fair value at that date, instead of recognized when the contingency was resolved and consideration was issued or became issuable; (v) recognizing a gain when the fair value of the identifiable net assets acquired exceeds the fair value of the consideration transferred instead of allocating the “negative goodwill” amount as a pro rata reduction of the amounts that otherwise would have been assigned to particular assets acquired; (vi) research and development assets acquired in a business combination will be recognized at their acquisition-date fair values as assets acquired in a business combination instead of being measured at their acquisition-date fair values and then immediately charged to expense; and (vii) changes in the amount of deferred tax benefits created in a business combination, outside of the valuation period, will be recognized either in income from continuing operations or directly in contributed capital, depending on the circumstances, instead of recognized through a corresponding reduction to goodwill or certain noncurrent assets or an increase in so-called negative goodwill.  SFAS No. 141(R) is effective for Joe’s for transactions consummated during annual periods beginning after December 15, 2008, which is the year beginning December 1, 2009 for Joe’s.  Joe’s does not expect that SFAS No. 141(R) will have any impact on its financial statements unless it enters into an applicable transaction in the future.

 

5



Table of Contents

 

In April 2008, the FASB issued FSP SFAS 142-3, “Determination of the Useful Life of Intangible Assets,” or FSP 142-3.  FSP 142-3 amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under SFAS No. 142, “Goodwill and Other Intangible Assets,” or SFAS 142, in order to improve the consistency between the useful life of a recognized intangible asset under SFAS 142 and the period of expected cash flows used to measure the fair value of the asset under SFAS No. 141(R).  FSP 142-3 is effective for financial statements issued for fiscal years beginning after December 15, 2008, is the year beginning December 1, 2009 for Joe’s, and interim periods within that fiscal year.  The adoption of FSP 142-3 did not have a material impact on the Joe’s financial position or results from operations.

 

In May 2009, the FASB issued SFAS No. 165, “Subsequent Events,” or SFAS No. 165.  SFAS No. 165 establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before financial statements are issued or are available to be issued. It requires the disclosure of the date through which an entity has evaluated subsequent events and the basis for selecting that date, that is, whether that date represents the date the financial statements were issued or were available to be issued.  SFAS No. 165 is effective for interim or annual financial periods ending after June 15, 2009.  Joe’s adopted SFAS No. 165 in the third fiscal quarter of 2009 and the related disclosure can be found in “Note 12 — Subsequent Events.”

 

In June 2009, the FASB issued SFAS No. 168, “The FASB Accounting Standards Codification and the Hierarchy of Generally Accepted Accounting Principles, a replacement of FASB Statement No. 162,” or SFAS No. 168.  SFAS 168 replaces SFAS No. 162, “The Hierarchy of Generally Accepted Accounting Principles,” to establish the FASB Accounting Standards Codification as the source of authoritative accounting principles recognized by the FASB to be applied by nongovernmental entities in preparation of financial statements in conformity with generally accepted accounting principles in the United States.  SFAS No. 168 is effective for interim and annual periods ending after September 15, 2009.  The adoption of SFAS No. 168 will not impact Joe’s financial position or results of operations.

 

NOTE 3 — ACCOUNTS RECEIVABLE, INVENTORY ADVANCES AND DUE TO FACTOR

 

Joe’s primary method to obtain the cash necessary for operating needs was through the sale of accounts receivable pursuant to factoring agreements and obtaining advances under inventory security agreements with its factor, CIT Commercial Services, Inc., a unit of CIT Group Inc., or CIT.

 

As a result of these agreements, amounts due to factor consist of the following (in thousands):

 

 

 

August 31, 2009

 

November 30, 2008

 

   Non-recourse receivables assigned to factor

 

$

 11,877

 

$

 9,954

 

   Client recourse receivables

 

108

 

1,444

 

Total receivables assigned to factor

 

11,985

 

11,398

 

 

 

 

 

 

 

Allowance for customer credits

 

(2,454

)

(2,087

)

Net loan balance from factored accounts receivable

 

(9,950

)

(9,903

)

Net loan balance from inventory advances

 

(3,813

)

(2,308

)

Due to factor

 

$

 (4,232

)

$

 (2,900

)

 

 

 

 

 

 

   Non-factored accounts receivable

 

$

 2,084

 

$

 1,525

 

   Allowance for customer credits

 

(300

)

$

 (120

)

   Allowance for doubtful accounts

 

(565

)

(540

)

Accounts receivable, net of allowance

 

$

 1,219

 

$

 865

 

 

Of the total amount of receivables sold as of August 31, 2009 and November 30, 2008, Joe’s bears the risk of payment of $108,000 and $1,444,000, respectively, in the event of non-payment by its customers.

 

6



Table of Contents

 

CIT Commercial Services

 

On June 1, 2001, the Joe’s Jeans Subsidiary entered into an accounts receivable factoring agreement and an inventory security agreement with CIT.  In prior years, Joe’s other active subsidiaries also entered into substantially identical agreements.  These agreements give Joe’s the ability to obtain cash by selling to CIT certain of its accounts receivable and to obtain advances for up to 50 percent of the value of certain eligible inventory.  The accounts receivable are sold for up to 85 percent of the face amount on either a recourse or non-recourse basis depending on the creditworthiness of the customer.  CIT currently permits Joe’s to sell its accounts receivable at the maximum level of 85 percent and allows advances of up to $6,000,000 for eligible inventory.  CIT has the ability, in its discretion at any time or from time to time, to adjust or revise any limits on the amount of loans or advances made to Joe’s pursuant to these agreements and to impose surcharges on our rates for certain of our customers.  As further assurance to CIT, cross guarantees were executed by and among Joe’s and all of its subsidiaries to guarantee each subsidiary’s obligations.

 

As of August 31, 2009, Joe’s cash availability with CIT was approximately $720,000.  This amount fluctuates on a daily basis based upon invoicing and collection related activity by CIT for the receivables sold.  In connection with the agreements with CIT, certain assets are pledged to CIT, including all of the inventory, merchandise and/or goods, including raw materials through finished goods and receivables.  However, the Joe’s trademarks are not encumbered.

 

The agreements may be terminated by CIT upon 60 days written notice or immediately upon the occurrence of an event of default as defined in the agreement.  The agreements may be terminated by Joe’s upon 60 days written notice prior to June 30, 2010, or earlier provided that the minimum factoring fees have been paid for the respective period.

 

The factoring rate that Joe’s pays to CIT to factor accounts is 0.6 percent for accounts which CIT bears the credit risk, subject to discretionary surcharges, and 0.4 percent for accounts which Joe’s bears the credit risk.  The interest rate associated with borrowings under the inventory lines and factoring facility is 0.25 percent plus the Chase prime rate.  As of August 31, 2009, the Chase prime rate was 3.25 percent.

 

In addition, Joe’s has also established a letter of credit facility with CIT to allow it to open letters of credit for a fee of 0.25 percent of the letter of credit face value with international and domestic suppliers, subject to cash availability on our inventory line of credit.  At August 31, 2009, Joe’s did not have any letters of credit outstanding.

 

NOTE 4 — INVENTORIES

 

Inventories are valued at the lower of cost or market with cost determined by the first-in, first-out method.  Inventories consisted of the following (in thousands):

 

 

 

August 31, 2009

 

November 30, 2008

 

 

 

 

 

 

 

Finished goods

 

$

 13,283

 

$

 9,346

 

Finished goods consigned to others

 

60

 

84

 

Work in progress

 

2,081

 

1,744

 

Raw materials

 

7,319

 

12,141

 

 

 

22,743

 

23,315

 

Less allowance for obsolescence and slow moving items

 

(1,222

)

(1,044

)

 

 

$

 21,521

 

$

 22,271

 

 

Joe’s recorded a charge to its inventory reserve allowance of $28,000 for the three months ended August 31, 2009 and did not record any charges for the three months ended August 31, 2008. For the nine months ended August 31, 2009 and 2008, Joe’s recorded charges of $28,000 and $22,000 to its inventory reserve allowance, respectively.

 

7



Table of Contents

 

NOTE 5 - MERGER TRANSACTION

 

Merger Agreement

 

Joe’s, Joe’s Subsidiary, JD Holdings, Inc., or JD Holdings, and Joseph Dahan, the sole stockholder of JD Holdings, entered into an initial definitive Agreement and Plan of Merger on February 6, 2007, and amended it on June 25, 2007, or the Merger Agreement.  JD Holdings primary assets included all rights, title and interest in all intellectual property, including the trademarks related to the Joe’s®, Joe’s Jeans™ and JD brand and marks, or the Joe’s Brand.  JD Holdings was the successor to JD Design, the entity from whom Joe’s licensed the Joe’s Brand.  The license agreement terminated automatically upon completion of the merger.  Joe’s acquired JD Holdings in order to acquire the Joe’s Brand which allowed it to expand its product offerings and the brand in the marketplace, including opening Joe’s retail stores and entering into licenses for additional product categories.  Joe’s believed that the combined company created synergies to allow it to generate additional revenue from the brand recognition established by the denim business and increased market opportunity.  Joe’s also believed that the combined company and complete ownership of the Joe’s Brand enhanced the value of Joe’s from a stockholder and market participant point of view.  Joe’s believes that these factors support the amount of goodwill recorded.

 

Under the terms and subject to the conditions set forth in the Merger Agreement, on October 25, 2007, Joe’s and JD Holdings completed the merger.  In connection with the merger, Joe’s Subsidiary merged with and into JD Holdings, with Joe’s Subsidiary as the surviving entity.  In addition, Joe’s issued 14,000,000 shares of its common stock, made a cash payment of $300,000 to JD Holdings in exchange for all of its outstanding shares and incurred $93,000 of merger related expenses. As a result of the merger, Joe’s now owns all outstanding stock of JD Holdings and all rights, title and interest in the Joe’s Brand.

 

Under the revised Merger Agreement, Mr. Dahan is entitled to, for a period of 120 months following October 25, 2007, a certain percentage of the gross profit earned by Joe’s in any applicable fiscal year.  See “Note 10 — Commitments and Contingencies — Contingent Consideration Payments” for further discussion of the contingent consideration obligation.  In addition, the Merger Agreement contains a restrictive covenant relating to non-competition and non-solicitation for one year following the termination of Mr. Dahan’s service.

 

Upon completion of the merger, on October 25, 2007, Mr. Dahan became an officer, director and greater than 10 percent stockholder of Joe’s and an Employment Agreement and Investor Rights Agreement became effective.

 

The merger has been accounted for as a business combination under U.S. generally accepted accounting principles. Accordingly, management has allocated the purchase price to the assets and liabilities of JD Holdings in Joe’s financial statements as of the completion of the merger at their respective fair values.  At November 30, 2007, the valuations of intangible assets, income taxes and certain other items were preliminary.  Management completed the initial purchase price allocation during the second quarter of fiscal 2008.  In March 2009, management performed a new allocation as a result of the restatement of its first three quarter financial statements for fiscal 2008.

 

The assets acquired in this merger consisted of all outstanding stock of JD Holdings and intangible assets.  JD Holdings had an immaterial amount of other assets, including incidental office equipment that was distributed to Mr. Dahan as the sole stockholder prior to the closing of the transaction.  Pursuant to the SFAS No. 142, “Goodwill and Other Intangible Assets,” or SFAS No. 142, Joe’s has determined that the useful life of the acquired assets is indefinite and therefore no amortization expense needs to be recognized.  However, Joe’s tests the assets for impairment annually and/or if events or changes in circumstances indicate that the assets might be impaired.  Additionally, a deferred tax liability has been established in the allocation of the purchase price with respect to the identified indefinite long lived intangible assets acquired and contingent consideration payments are recorded as an expense.  Contingent consideration payments recorded as an operating expense were $422,000 and $411,000, respectively, for the three months ended August 31, 2009 and 2008, and $1,238,000, and $1,337,000, respectively, for the nine months ended August 31, 2009 and 2008.

 

8



Table of Contents

 

Employment Agreement

 

After completion of the merger, Joe’s entered into an employment agreement for Mr. Dahan to serve as Creative Director for the Joe’s Brand.

 

The initial term of employment is five years with automatic renewals for successive one year periods thereafter, unless terminated earlier in accordance with the agreement. Under the employment agreement, Mr. Dahan is entitled to an annual salary of $300,000 and other discretionary benefits that the Compensation Committee of the Board of Directors may deem appropriate in its sole and absolute discretion.

 

Under the terms of the employment agreement, Joe’s may terminate Mr. Dahan for cause or if he becomes disabled, as defined in the agreement.  Should Joe’s terminate Mr. Dahan’s employment for cause or disability, Joe’s would only be required to pay him through the date of termination.  Joe’s may terminate Mr. Dahan’s employment without cause at any time upon two weeks notice, provided that it pays to him the present value of the annual salary amounts otherwise due to him for the remainder of the initial term of employment or any renewal term. Mr. Dahan may terminate his employment for good reason at any time with 30 days written notice.  In the event that Mr. Dahan terminates his employment for good reason, then he will be entitled to the present value of the annual salary amounts otherwise due to him for the remainder of the term of employment. Further, Mr. Dahan may terminate his employment for any reason upon ten business days’ notice and only be entitled to his salary as of the date of termination on a pro rata basis.

 

The employment agreement contains customary terms and conditions related to confidentiality of information, ownership by Joe’s of all intellectual property, including future designs and trademarks, alternative dispute resolution and Mr. Dahan’s duties and responsibilities to Joe’s and the Joe’s Brand as Creative Director.

 

Investor Rights Agreement

 

Upon the closing of the merger, Joe’s also entered into an investor rights agreement.  Pursuant to the investor rights agreement, Joe’s agreed to register for resale, on a periodic basis at the request of Mr. Dahan, the shares of common stock eligible for resale issued in connection with the merger.  The shares of common stock issued as merger consideration become eligible for resale beginning on the six month anniversary of the closing date of the merger at an initial rate of 1/6 of the shares issued and every six months thereafter at the same rate until all the shares are fully released on the third anniversary of the closing date.  Joe’s agreed to bear all expenses associated with registering these shares for resale and have granted to Mr. Dahan certain piggyback rights with respect to future registration statements filed by Joe’s. The investor rights agreement contains customary terms and conditions related to registration procedures, trading suspensions and indemnification of the parties.  On March 24, 2008, a registration statement on Form S-3 was declared effective for the resale of up to 2,333,333 shares where the contractual restrictions on resale lapsed on April 25, 2008.   Mr. Dahan has not requested the filing of any additional registration statements.

 

NOTE 6 —RELATED PARTY TRANSACTIONS

 

As of August 31, 2009 and November 30, 2008, Joe’s related party balance consisted of amounts due to and due from certain related parties, as further described below, as follows:

 

 

 

August 31, 2009

 

November 30, 2008

 

 

 

 

 

 

 

Due from Related Parties

 

 

 

 

 

Kids Jeans, LLC

 

$

 203

 

$

 —

 

Total due from related parties

 

$

 203

 

$

 —

 

 

 

 

 

 

 

Due to Related Parties

 

 

 

 

 

Joe Dahan

 

143

 

196

 

Albert Dahan

 

32

 

 

Commerce Investment Group and affliates

 

9

 

9

 

Total due to related parties

 

$

 184

 

$

 205

 

 

9



Table of Contents

 

Joe Dahan/JD Holdings Inc.

 

On February 7, 2001, Joe’s acquired a license for the rights to the Joe’s® brand from JD Design LLC, which was subsequently merged with and into JD Holdings.  Under the license agreement, JD Holdings was entitled to a royalty of three percent on net sales of licensed products.  In October 2005, Joe’s granted JD Holdings the right to develop the children’s branded apparel line under an amendment to its master license agreement in exchange for a five percent royalty on net sales of those products.  On October 25, 2007, in connection with the acquisition of JD Holdings by Joe’s, the license agreement terminated.

 

As part of the consideration paid in connection with the merger, Mr. Dahan is entitled to a certain percentage of the gross profit earned by Joe’s in any applicable fiscal year until October 2017.  See “Note 5 — Merger Transaction” for a further discussion on the merger agreement and the contingent consideration payments.

 

Victor Dahan

 

Victor Dahan, brother of Joe Dahan, is the managing member of Shipson LLC, or Shipson, and Joe’s previously outsourced its E-shop on the Joe’s Jeans website to his company.  Joe’s ceased doing business with Shipson in February 2008.  As of the termination date of the relationship, Shipson owed Joe’s approximately $192,000, for outstanding purchase orders that were fully reserved for in Joe’s year end financial statements for fiscal 2008.  During May 2009, Shipson returned $51,000 in goods and agreed to pay $141,000 for the outstanding purchase orders pursuant to a settlement agreement.

 

Albert Dahan

 

In April 2009, Joe’s has entered into a commission-based sales agreement with Albert Dahan, brother of Joe Dahan, for the sale of its products into the off-price channels of distribution.  Under the agreement, Mr. Albert Dahan is entitled to a commission for purchase orders entered into by Joe’s where he acts as a sales person for Joe’s.  The agreement may be terminated at any time for any reason or no reason with or without notice.  For the three months ended August 31, 2009, payments made to Mr. Albert Dahan under this arrangement totaled $180,000.

 

Effective as of June 1, 2009, Joe’s entered into a license agreement for the license of the children’s product line with Kids Jeans LLC, or Kids LLC, an entity which Mr. Albert Dahan holds an interest where he has voting control over the entity.  Under the terms of the license, Kids LLC has an exclusive right to produce, distribute and sell children’s products bearing the Joe’s® brand on a worldwide basis, subject to certain limitations on the channels of distribution.  In exchange for the license, Kids LLC will pay to Joe’s a royalty payment of 20 percent on the first $5,000,000 in net sales and 10 percent thereafter.  The initial term of the agreement is for three years until June 30, 2012 and is subject to certain guaranteed minimum net sales and royalty payment requirements during the initial term and for renewal.  Kids LLC advanced $1,000,000 as a payment against the first year’s guaranteed minimum royalties.  This amount has been reflected under the caption of “Deferred Licensing Revenue” on the Condensed Consolidated Balance Sheets.  Joe’s expects to recognize the royalty revenue based upon a percentage as set forth in the agreement of the licensees actual net sales or minimum net sales, whichever is greater.  Payments received in consideration of the grant of the license or advanced royalty payments are recognized ratably as revenue over the term of the license agreement.  The revenue recognized ratably over the term of the license agreement will not exceed royalty payments received.  The unrecognized portion of the upfront payments are included in deferred royalties and accrued expenses depending on the long or short term nature of the payments to be recognized.  As of August 31, 2009, $225,000 of the advanced payment has been recognized as income.

 

FameCast, Inc.

 

In the first quarter of fiscal 2009, Joe’s entered into an agreement with FameCast, Inc., or FameCast, an entity which Kent Savage, a member of Joe’s Board of Directors, serves as CEO and a founder.  The agreement with FameCast is for web hosting and management for an integrated contest site within the www.joesjeans.com site.  Under the terms of the agreement, the aggregate amount of the transaction with FameCast was $175,000.

 

10



Table of Contents

 

Commerce Investment Group and affiliates

 

Prior to 2007, Joe’s entered into certain transactions with Commerce Investment Group and its affiliates, or collectively, Commerce.  Commerce is no longer considered a related party nor has Joe’s engaged in any current transactions with them in fiscal 2008 or fiscal 2009.  However, a balance of $9,000 remains owed to Commerce that is included in the due to balance.

 

NOTE 7— EARNINGS PER SHARE

 

Earnings per share are computed using weighted average common shares and dilutive common equivalent shares outstanding. Potentially dilutive securities consist of outstanding options and warrants. A reconciliation of the numerator and denominator of basic earnings per share and diluted earnings per share is as follows:

 

 

 

Three months ended

 

Nine months ended

 

 

 

(in thousands, except per share data)

 

(in thousands, except per share data)

 

 

 

August 31, 2009

 

August 31, 2008

 

August 31, 2009

 

August 31, 2008

 

Basic earnings per share computation:

 

 

 

 

 

 

 

 

 

Numerator:

 

 

 

 

 

 

 

 

 

Net income

 

$

1,934

 

$

1,830

 

$

4,059

 

$

3,762

 

Denominator:

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding

 

60,177

 

59,477

 

59,935

 

59,360

 

Income per common share - basic

 

 

 

 

 

 

 

 

 

Net income

 

$

0.03

 

$

0.03

 

$

0.07

 

$

0.06

 

 

 

 

 

 

 

 

 

 

 

Diluted earnings per share computation:

 

 

 

 

 

 

 

 

 

Numerator:

 

 

 

 

 

 

 

 

 

Net income

 

$

1,934

 

$

1,830

 

$

4,059

 

$

3,762

 

Denominator:

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding

 

60,177

 

59,477

 

59,935

 

59,360

 

Effect of dilutive securities:

 

 

 

 

 

 

 

 

 

Options and warrants

 

1,285

 

586

 

865

 

392

 

Dilutive potential common shares

 

61,462

 

60,063

 

60,800

 

59,752

 

 

 

 

 

 

 

 

 

 

 

Income per common share - dilutive

 

 

 

 

 

 

 

 

 

Net income

 

$

0.03

 

$

0.03

 

$

0.07

 

$

0.06

 

 

Potentially dilutive options, warrants, restricted stock and restricted stock units in the aggregate of 4,117,340 and 3,007,885 for the three months ended August 31, 2009 and 2008, respectively, and 4,242,340 and 3,007,885 for the nine months ended August 31, 2009 and 2008, respectively, have been excluded from the calculation of the diluted income per share, as their effect would have been anti-dilutive.

 

Shares Reserved for Future Issuance

 

As of August 31, 2009, shares reserved for future issuance include (i) 3,226,046 shares of common stock issuable upon the exercise of stock options granted under the incentive plans; (ii) 2,908,038 shares of common stock issuable upon the vesting of RSUs; (iii) an aggregate of 580,030 shares of common stock available for future issuance under the 2004 Stock Incentive Plan; and (iv) 667,500 shares of common stock issuable upon the exercise of outstanding warrants.

 

NOTE 8 —INCOME TAXES

 

Joe’s utilizes the liability method of accounting for income taxes in accordance with SFAS No. 109.  Under the liability method, deferred taxes are determined based on the temporary differences between the financial statement and tax bases of assets and liabilities using enacted tax rates.

 

11



Table of Contents

 

Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized. The likelihood of a material change in Joe’s expected realization of these assets depends on its ability to generate sufficient future taxable income. Joe’s ability to generate enough taxable income to utilize its deferred tax assets depends on many factors, among which is Joe’s ability to deduct tax loss carry-forwards against future taxable income, the effectiveness of tax planning strategies and reversing deferred tax liabilities.

 

In June 2006, the FASB issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes — An Interpretation of FASB Statement 109”, or FIN No. 48.  FIN No. 48 establishes a single model to address accounting for uncertain tax positions.  FIN No. 48 clarifies the accounting for income taxes by prescribing a minimum recognition threshold a tax position is required to meet before being recognized in the financial statements.  FIN No. 48 also provides guidance on derecognition, measurement, classification, interest and penalties, accounting in interim periods, disclosure and transition.  Joe’s adopted the provisions of FIN No. 48 on December 1, 2007.  Upon adoption, Joe’s did not recognize an adjustment in the amount of unrecognized tax benefits.  As of the date of adoption, Joe’s had no unrecognized tax benefits.  Joe’s policy is to recognize interest and penalties that would be assessed in relation to the settlement value of unrecognized tax benefits as a component of income tax expense.

 

Joe’s and its subsidiaries are subject to U.S. federal income tax as well as income tax in multiple state jurisdictions.  To the extent allowed by law, the tax authorities may have the right to examine prior periods where net operating losses were generated and carried forward, and make adjustments up to the amount of the net operating loss carryforward amount.  Joe’s is not currently under an Internal Revenue Service tax examination or an examination by any other state, local or foreign jurisdictions for any tax year.  Joe’s has identified its federal tax return and its state tax return in California as major tax jurisdictions. The only periods subject to examination for Joe’s federal tax returns are years 2006 through 2008. The periods subject to examination for Joe’s state tax returns in California are years 2004 through 2007.

 

Joe’s currently has a net operating loss carryforward of $48,372,000 for federal tax purposes expiring through 2026. Joe’s also has $18,341,000 of net operating loss carryforwards available for California which begin to expire in 2014.  Joe’s recorded an income tax expense of $824,000 and $368,000 for the three months ended August 31, 2009 and 2008, respectively and $1,190,000 and $631,000 for the nine months ended August 31, 2009 and 2008, respectively.  Joe’s effective tax rate was 30 percent and 23 percent for the three and nine months ended August 31, 2009, respectively, and 17 percent and 14 percent for the three and nine months ended August 31, 2008, respectively.

 

Certain limitations may be placed on net operating loss carryforwards as a result of “changes in control” as defined in Section 382 of the Internal Revenue Code.  In the event a change in control occurs, it will have the effect of limiting the annual usage of the carryforwards in future years.  Additional changes in control in future periods could result in further limitations of Joe’s ability to offset taxable income.  Management believes that certain changes in control have occurred which resulted in limitations on its net operating loss carryforwards.  Management has determined that realization of the net deferred tax assets does not meet the more likely than not criteria.  As a result, a valuation allowance has been provided for.  The difference between the effective tax rate and the statutory rate is primarily attributable to the utilization of net operating loss tax carryforwards against which a full valuation allowance has been established.

 

NOTE 9— STOCKHOLDERS’ EQUITY

 

Warrants

 

Joe’s has issued warrants in conjunction with various private placements of its common stock, and debt to equity conversions.  All warrants are currently exercisable.  As of August 31, 2009, outstanding common stock warrants are as follows:

 

Exercise price

 

Shares

 

Issued

 

Expiration

 

 

 

 

 

 

 

 

 

$

 2.28

 

62,500

 

October 2004

 

October 2009

 

0.66

 

125,000

 

December 2006

 

December 2011

 

1.36

 

480,000

 

June 2007

 

June 2012

 

 

 

667,500

 

 

 

 

 

 

12



Table of Contents

 

Stock Incentive Plans

 

In March 2000, Joe’s adopted the 2000 Employee Stock Option Plan, or the 2000 Employee Plan.  In connection with stockholder approval of the 2004 Stock Incentive Plan, Joe’s stated that it would no longer grant options pursuant to the 2000 Employee Plan.  In December 2007, the outstanding options remaining under the 2000 Employee Plan expired and the 2000 Employee Plan automatically terminated.

 

In September 2000, Joe’s adopted the 2000 Director Stock Incentive Plan, or the 2000 Director Plan, under which nonqualified stock options were granted to members of the Board of Directors in lieu of cash director fees.  After the adoption of the 2004 Stock Incentive Plan in June 2004, Joe’s no longer granted options pursuant to the 2000 Director Plan; however, it remains in effect for awards outstanding as of the adoption of the 2004 Stock Incentive Plan.  As of August 31, 2009, options to purchase up to 203,546 shares of common stock remained outstanding under the 2000 Director Plan.

 

On June 3, 2004, Joe’s adopted the 2004 Stock Incentive Plan, or the 2004 Incentive Plan, and has subsequently amended it to increase the number of shares authorized for issuance to 12,265,172 shares of common stock as of October 8, 2009.  Under the 2004 Incentive Plan, grants may be made to employees, officers, directors and consultants under a variety of awards based upon underlying equity, including, but not limited to, stock options, restricted common stock, restricted stock units or performance shares.  The 2004 Incentive Plan limits the number of shares that can be awarded to any employee in one year to 1,250,000.  Exercise price for incentive options may not be less than the fair market value of Joe’s common stock on the date of grant and the exercise period may not exceed ten years.  Vesting periods, terms and types of awards are determined by the Board of Directors and/or its Compensation and Stock Option Committee, or Compensation Committee.  The 2004 Incentive Plan includes a provision for the acceleration of vesting of all awards upon a change of control as well as a provision that allows forfeited or unexercised awards that have expired to be available again for future issuance. Since fiscal 2008, Joe’s has issued both restricted common stock and restricted common stock units, or RSUs, to its officers, directors and employees pursuant to the 2004 Stock Incentive Plan.  The RSUs represent the right to receive one share of common stock for each unit on the vesting date provided that the employee continues to be employed by Joe’s.   On the vesting date of the RSUs, Joe’s expects to issue the shares of common stock to each participant upon vesting and expects to withhold an equivalent number of shares at fair market value on the vesting date to fulfill tax withholding obligations.  Any RSUs withheld or forfeited will be shares available for issuance in accordance with the terms of the 2004 Incentive Plan.

 

The shares of common stock issued upon exercise of a previously granted stock option or a grant of restricted common stock or RSUs are considered new issuances from shares reserved for issuance in connection with the adoption of the various plans.  Joe’s requires that the option holder provide a written notice of exercise in accordance with the option agreement and plan to the stock plan administrator and full payment for the shares be made prior to issuance.  All issuances are made under the terms and conditions set forth in the applicable plan.  As of August 31, 2009, 580,030 shares remained available for issuance under the 2004 Incentive Plan.

 

For all stock compensation awards that contain graded vesting with time-based service conditions, Joe’s has elected to apply a straight-line recognition method to account for all of these awards.  For existing grants that were not fully vested at November 30, 2008, there was a total of $711,000 of stock based compensation expense recognized in the nine months ended August 31, 2009.

 

The following summarizes option grants, restricted common stock and RSUs issued to members of the Board of Directors for the fiscal years 2002 through the third quarter of fiscal 2009 (in actual amounts) for service as a member:

 

 

 

August 31, 2009

 

 

 

As of:

 

Number of options

 

Exercise price

 

2002

 

40,000

 

$

1.00

 

2002

 

31,496

 

$

1.27

 

2003

 

30,768

 

$

1.30

 

2004

 

320,000

 

$

1.58

 

2005

 

300,000

 

$

5.91

 

2006

 

450,000

 

$

1.02

 

 

 

 

 

 

 

 

 

 

 

Number of restricted
stock/RSU’s isssued

 

2007

 

 

 

320,000

 

2008

 

 

 

473,455

 

2009

 

 

 

 

 

13



Table of Contents

 

Stock activity in the aggregate for the periods indicated are as follows (in actual amounts):

 

 

 

Options

 

Weighted
Average
Exercise Price

 

Weighted Average
Remaining Contractual
Life (Years)

 

Aggregate
Intrinsic
Value

 

 

 

 

 

 

 

 

 

 

 

Outstanding at November 30, 2008

 

3,313,146

 

$

1.76

 

 

 

 

 

Granted

 

 

 

 

 

 

 

Exercised

 

 

 

 

 

 

 

Expired

 

 

 

 

 

 

 

Forfeited

 

(87,100

)

(1.02

)

 

 

Outstanding and exercisable at August 31, 2009

 

3,226,046

 

$

1.78

 

4.9

 

$

64,771

 

 

 

 

Options

 

Weighted
Average
Exercise Price

 

Weighted Average
Remaining Contractual
Life (Years)

 

Aggregate
Intrinsic
Value

 

 

 

 

 

 

 

 

 

 

 

Outstanding at November 30, 2007

 

3,626,046

 

$

1.80

 

 

 

 

 

Granted

 

 

 

 

 

 

 

Exercised

 

(12,900

)

1.02

 

 

 

 

 

Expired

 

(200,000

)

2.40

 

 

 

 

 

Forfeited

 

(100,000

)

1.98

 

 

 

Outstanding at August 31, 2008

 

3,313,146

 

$

1.76

 

5.9

 

$

823,667

 

 

 

 

 

 

 

 

 

 

 

Exercisable and vested at August 31, 2008

 

3,306,896

 

$

1.77

 

5.9

 

$

817,855

 

 

As of August 31, 2009, there was $1,674,000 of total unrecognized compensation cost related to nonvested share-based compensation arrangements granted under the 2004 Incentive Plan.  That unrecognized compensation cost is expected to be recognized over a weighted-average period of 2.5 years.   The total fair value of shares of stock options that vested during the three months ended August 31, 2009 and 2008 was $0 and $5,000, respectively.  The total fair value of shares of stock options that vested during the nine months ended August 31, 2009 and 2008 was $0 and $17,000, respectively.

 

14



Table of Contents

 

Exercise prices for options outstanding as of August 31, 2009 are as follows:

 

 

 

Options Outstanding and Exercisable

 

Exercise Price

 

Number of Shares

 

Weighted-Average
Remaining Contractual
Life

 

 

 

 

 

 

 

$0.39 - $0.41

 

190,064

 

4.0

 

$1.00 - $1.02

 

1,915,000

 

4.8

 

$1.27 - $1.30

 

60,982

 

3.5

 

$1.58 - $1.63

 

610,000

 

4.9

 

$5.91

 

450,000

 

5.8

 

 

 

 

 

 

 

 

 

3,226,046

 

4.9

 

 

The following table summarizes the stock option activity by plan:

 

 

 

Total Number
of Shares

 

2004 Incentive
Plan

 

2000 Director
Plan

 

 

 

 

 

 

 

 

 

Outstanding at November 30, 2008

 

3,313,146

 

3,109,600

 

203,546

 

Granted

 

 

 

 

Exercised

 

 

 

 

Forfeited / Cancelled

 

(87,100

)

(87,100

)

 

Outstanding and exercisable at August 31, 2009

 

3,226,046

 

3,022,500

 

203,546

 

 

15



Table of Contents

 

A summary of the status of restricted common stock and RSUs as of November 30, 2008, and changes during the three and nine months ended August 31, 2009, are presented below:

 

 

 

 

 

 

 

 

 

Weighted-Average Grant-Date Fair
Value

 

 

 

Restricted
Shares

 

Restricted Stock
Units

 

Total Shares

 

Restricted
Shares

 

Restricted Stock
Units

 

 

 

 

 

 

 

 

 

 

 

 

 

Outstanding at November 30, 2008

 

157,233

 

2,503,526

 

2,660,759

 

$

1.59

 

$

0.75

 

Granted

 

 

1,197,856

 

1,197,856

 

 

0.41

 

Vested

 

 

 

 

 

 

Issued

 

 

(648,580

)

(648,580

)

 

0.70

 

Cancelled

 

 

(144,764

)

(144,764

)

 

0.77

 

Forfeited

 

 

 

 

 

 

Outstanding at August 31, 2009

 

157,233

 

2,908,038

 

3,065,271

 

$

1.59

 

$

0.62

 

 

 

 

 

 

 

 

 

 

 

 

 

Outstanding at November 30, 2007

 

529,182

 

 

529,182

 

$

1.59

 

$

 

Granted

 

 

745,600

 

745,600

 

 

1.46

 

Vested

 

(240,000

)

 

(240,000

)

(1.59

)

 

 

Issued

 

 

(63,870

)

(63,870

)

 

1.46

 

Cancelled

 

 

(31,455

)

(31,455

)

 

1.46

 

Forfeited

 

 

(60,000

)

(60,000

)

 

(1.46

)

Outstanding at August 31, 2008

 

289,182

 

590,275

 

879,457

 

$

1.59

 

$

1.46

 

 

In the three months ended August 31, 2009, there were no options granted or exercised or RSUs granted.  In the nine months ended August 31, 2009, Joe’s issued 648,580 shares of its common stock to holders of RSUs and withheld or cancelled 144,764 RSUs.

 

NOTE 10 — COMMITMENTS AND CONTINGENCIES

 

Contingent Consideration Payments

 

As part of the consideration paid in connection with the completion of the merger, Mr. Dahan will be entitled to a certain percentage of the gross profit earned by Joe’s in any applicable fiscal year until October 2017.  Mr. Dahan will be entitled to the following: (i) 11.33 percent of the gross profit from $11,251,000 to $22,500,000; (ii) three percent of the gross profit from $22,501,000 to $31,500,000; (iii) two percent of the gross profit from $31,501,000 to $40,500,000; (iv) one percent of the gross profit above $40,501,000. The payments will be paid in advance on a monthly basis based upon estimates of gross profit after the assumption has been reached that the payments will likely be paid.  At the end of each quarter, any overpayments will be offset against future payments and any significant underpayments will promptly be made.  No payment will be made if the gross profit is less than $11,250,000.  “Gross Profit” is defined as net sales of the Joe’s® brand less cost of goods sold as reported in periodic filings with the SEC.  Contingent consideration payments recorded as operating expense were $422,000 and $411,000 for the three months ended August 31, 2009, and 2008, respectively, and $1,238,000 and $1,337,000 for the nine months ended August 31, 2009 and 2008, respectively.

 

Retail Leases

 

Joe’s leases retail store locations under operating lease agreements expiring on various dates through 2019 or 10 years from the rent commencement date. Some of these leases require Joe’s to make periodic payments for property taxes, utilities and common area operating expenses. Certain retail store leases provide for rents based upon the minimum annual rental amount and a percentage of annual sales volume, generally ranging from 6% to 8%, when specific sales volumes are exceeded.  Some leases include lease incentives, rent abatements and fixed rent escalations, which are amortized and recorded over the initial lease term on a straight-line basis.

 

16



Table of Contents

 

As of August 31, 2009, the future minimum rental payments under non-cancelable retail operating leases with lease terms in excess of one year were as follows:

 

2009 Remainder of the year

 

$

307

 

2010

 

1,535

 

2011

 

1,647

 

2012

 

1,707

 

2013

 

1,770

 

Thereafter

 

10,423

 

 

 

$

 17,389

 

 

NOTE 11— SEASONALITY

 

The market for apparel products is seasonal.  The majority of Joe’s sales activities take place from late fall to early spring and the greatest volume of shipments and sales are generally made from late spring through the summer.  This time period coincides with Joe’s second and third fiscal quarters and its cash flow is generally strongest in its third and fourth fiscal quarters when a significant amount of its net sales are realized as a result of shipping orders taken during earlier months.  In the second quarter in order to prepare for peak sales that occur during the second half of the year, Joe’s builds its inventory levels, which results in higher liquidity needs compared to other quarters.

 

Due to the seasonality of its business, as well as the evolution and changes in its business and product mix, Joe’s quarterly or yearly results are not necessarily indicative of the results for the next quarter or year.

 

NOTE 12— SUBSEQUENT EVENTS

 

As of October 15, 2009, the date of issuance of this Form 10-Q for the quarter ended August 31, 2009, there were no items deemed to be reportable as a subsequent event.

 

17



Table of Contents

 

Item 2.    Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

Forward-Looking Statements

 

When used in this Quarterly Report on Form 10-Q, or Quarterly Report, the words “may,” “will,” “expect,” “anticipate,” “intend,” “estimate,” “continue,” “believe” and similar expressions are intended to identify forward-looking statements.  Similarly, statements that describe our future expectations, objectives and goals or contain projections of our future results of operations or financial condition are also forward-looking statements.  Statements looking forward in time are included in this Quarterly Report pursuant to the “safe harbor” provision of the Private Securities Litigation Reform Act of 1995.  Such statements are subject to certain risks and uncertainties, which could cause actual results to differ materially, including, without limitation, continued acceptance of our product, product demand, competition, capital adequacy and the potential inability to raise additional capital if required, and the risk factors contained in our reports filed with the Securities and Exchange Commission, or SEC, pursuant to the Securities Exchange Act of 1934, as amended, or Exchange Act, including our Annual Report on Form 10-K for the year ended November 30, 2008.  Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof.  Our future results, performance or achievements could differ materially from those expressed or implied in these forward-looking statements.  We do not undertake and specifically decline any obligation to publicly revise these forward-looking statements to reflect events or circumstances occurring after the date hereof or to reflect the occurrence of unanticipated events.

 

Introduction

 

This discussion and analysis summarizes the significant factors affecting our results of operations and financial conditions during the three and nine month periods ended August 31, 2009 and 2008.  This discussion should be read in conjunction with our Condensed Consolidated Financial Statements, Notes to Condensed Consolidated Financial Statements and supplemental information contained in this quarterly report.

 

Executive Overview

 

Our principal business activity has evolved into the design, development and worldwide marketing of our Joe’s® products, which include denim jeans, related casual wear and accessories.  Since Joe’s® was established in 2001, the brand is recognized in the premium denim industry, an industry term for denim jeans with price points of $120 or more, for its quality, fit and fashion-forward designs.  Because we focus on design, development and marketing, we rely on third parties to manufacture our apparel products and for distribution and product fulfillment services.  We sell our products through our own retail stores, to numerous retailers, which include major department stores, specialty stores and distributors around the world.  Historically, we sold other branded apparel products, such as indie™, Betsey Johnson®, Fetish™ and Shago®, private label denim and denim related products and craft and accessory products.

 

The focus of our operations has been on our Joe’s® brand.  Our transition plan, which began in 2006, included selling the assets or ceasing operations of our other branded and private label apparel products.  To enhance our ability to capitalize on the Joe’s® brand, on February 6, 2007, we entered into a merger agreement to merge with JD Holdings, the successor in interest to JD Design LLC, or JD Design, the entity from whom we licensed the Joe’s® brand.  We also entered into our first license agreement for other product categories for handbags and small leather goods bearing the Joe’s® brand.  In October 2007, we completed the merger and acquired JD Holdings.  In exchange for JD Holdings, we issued 14,000,000 shares of our common stock and $300,000 in cash.  As part of the merger consideration, we are obligated to pay Mr. Dahan a percentage of our gross profits above $11,251,000 until 2017.  Mr. Dahan will be entitled to the following: (i) 11.33 percent of the gross profit from $11,251,000 to $22,500,000; (ii) 3 percent of the gross profit from $22,501,000 to $31,500,000; (iii) 2 percent of the gross profit from $31,501,000 to $40,500,000; and (iv) 1 percent of the gross profit above $40,501,000.  Concurrently, we entered into an employment agreement with Joe Dahan to be one of our executive officers.  Mr. Dahan is our largest stockholder.  He owns approximately 23 percent of our total shares outstanding and is a member of our Board of Directors.

 

18



Table of Contents

 

Our strategic plan for 2009 has included and continues to include a focus on our retail stores’ performance, continuing improvement in international and men’s sales, evaluating licensing opportunities for other product categories and continuing enhancements to the products available in our collection.  We opened our first full price retail store in October 2008 in Chicago, Illinois.  By the end of the fourth quarter of fiscal 2008, we opened one additional full price store in San Francisco, California and two outlets, one located in Central Valley, New York and one in Orlando, Florida.  We also entered into two additional leases during fiscal 2008 — one for a full price retail store in Santa Monica Place in Santa Monica, California and one for an outlet store in Camarillo, California.  We opened our Camarillo store in July 2009 and expect to open the Santa Monica Place store in 2010.  We believe that the retail stores will enhance our net sales and gross profit and the outlet stores will allow us to sell our overstock or slow moving items at higher profit margins.  We continue to look for other retail leases, but remain cautious about our retail store plans.

 

In addition, we have engaged licensing agents to bring licensing opportunities to us for evaluation.  We recently announced that we entered into license agreements for the license of belts and children’s products.  In exchange for the exclusive right to these product lines, the licensees paid to us non-refundable advances on the first year’s royalties and will pay us additional amounts on net sales in future years.  We continue to have our license agreement for handbags and small leather goods as well and we are actively looking for additional licensees to expand our product offerings.  In addition, at the end of July 2009, we began shipping a new collection of unisex woven shirts in various fabrications that has been met with success in the marketplace.

 

Our business is seasonal.  The majority of the marketing and sales activities take place from late fall to early spring.  The greatest volume of shipments and sales are generally made from late spring through the summer, which coincides with our second and third fiscal quarters and our cash flow is strongest in our third and fourth fiscal quarters.  Due to the seasonality of our business, as well as the evolution and changes in our business and product mix, often our quarterly or yearly results are not necessarily indicative of the results for the next quarter or year.

 

Comparison of Three Months Ended August 31, 2009 to Three Months Ended August 31, 2008

 

 

 

Three months ended

 

 

 

(dollar values in thousands)

 

 

 

August 31, 2009

 

August 31, 2008

 

$  Change

 

% Change

 

 

 

 

 

 

 

 

 

 

 

Net sales

 

$

21,238

 

$

18,248

 

$

2,990

 

16

%

Cost of goods sold

 

10,864

 

9,303

 

1,561

 

17

%

Gross profit

 

10,374

 

8,945

 

1,429

 

16

%

Gross margin

 

49

%

49

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general & administrative

 

7,394

 

6,544

 

850

 

13

%

Depreciation & amortization

 

132

 

70

 

62

 

89

%

Operating income

 

2,848

 

2,331

 

517

 

22

%

 

 

 

 

 

 

 

 

 

 

Interest expense

 

90

 

133

 

(43

)

(32

)%

Income before provision for taxes

 

2,758

 

2,198

 

560

 

25

%

 

 

 

 

 

 

 

 

 

 

Income taxes

 

824

 

368

 

456

 

124

%

 

 

 

 

 

 

 

 

 

 

Net income

 

$

1,934

 

$

1,830

 

$

104

 

6

%

 

Three Months Ended August 31, 2009 Overview

 

For the three months ended August 31, 2009, or the third quarter of fiscal 2009, our net sales increased to $21,238,000 from $18,248,000 for the three months ended August 31, 2008, or the third quarter fiscal 2008, a 16 percent increase.  We generated net income in the amount of $1,934,000 for the third quarter of fiscal 2009 compared to $1,830,000 for the third quarter of fiscal 2008.

 

19



Table of Contents

 

Net Sales

 

Our net sales increased to $21,238,000 for the third quarter of fiscal 2009 from $18,248,000 for the third quarter of fiscal 2008, a 16 percent increase.  This increase can be primarily attributed to an increase of 13 percent in women’s domestic net sales and the addition of sales from our retail stores and the woven shirts in the third quarter of fiscal 2009 that we did not have in the third quarter of fiscal 2008.

 

Gross Profit

 

Our gross profit increased to $10,374,000 from $8,945,000 for the third quarter of fiscal 2008, a 16 percent increase.  Our overall gross margins were consistent at 49 percent for both the third quarter of fiscal 2009 and the third quarter of fiscal 2008.  Our gross profit increased by 16 percent primarily as a result of our increase in net sales.

 

Selling, General and Administrative Expense

 

Selling, general and administrative, or SG&A, expenses increased to $7,394,000 for the third quarter of fiscal 2009 from $6,544,000 for the third quarter of fiscal 2008, a 13 percent increase.

 

The SG&A increase in the third quarter of fiscal 2009 compared to the third quarter of fiscal 2008 is largely a result of the following factors: (i) an increase of $358,000 in employee and employee-related expenses due to a higher headcount in the third quarter of fiscal 2009 compared to fiscal 2008 to support our growth, including personnel to support our retail strategy; (ii) an increase of $319,000 in facilities and retail operating related expenses primarily due to the addition of four retail stores in the fourth quarter of fiscal 2008 and one in the third quarter of fiscal 2009; (iii) an increase of $183,000 in commission expense due to higher net sales; (iv) an increase of $70,000 in factor and bank fees due to the increase in net sales; (v)  an increase of $37,000 in advertising and tradeshow expenses; and (vi) an increase of $18,000 in stock-based compensation expense due to the issuance of restricted stock units in the fourth quarter of fiscal 2008 and first quarter of fiscal 2009, respectively.  These increases were partially offset by a decrease of $112,000 in professional fees primarily due termination of certain litigation in the ordinary course of business

 

Depreciation and Amortization Expenses

 

Our depreciation and amortization expenses increased to $132,000 for the third quarter of fiscal 2009 from $70,000 for the third quarter of fiscal 2008, an 89 percent increase.  The increase was attributable to additional depreciation for our retail stores’ leasehold improvements in the third quarter of fiscal 2009 which we did not have in the third quarter of fiscal 2008 due to the addition of four retail stores in the fourth quarter of fiscal 2008 and one in the third quarter of fiscal 2009.

 

Interest Expense

 

Our combined interest expense decreased to $90,000 for the third quarter of fiscal 2009 from $133,000 for the third quarter of fiscal 2008, a 32 percent decrease.  Our interest expense is primarily associated with interest expense from our factoring and inventory lines of credit and letters of credit from CIT used to help support our working capital needs.  The decrease in interest expense is mostly due to a lower average interest rate on our factoring and inventory lines of credit as compared to the prior year period as a result of interest rate cuts by the Federal Reserve.

 

Income Tax

 

For the third quarter of fiscal 2009, our income tax expense was $824,000 compared to $368,000 for the third quarter of fiscal 2008.  Our effective tax rate was 30 percent for the third quarter of fiscal 2009 compared to 17 percent for the third quarter of fiscal 2008.  We expect our effective tax rate to be approximately 21 percent for fiscal 2009.  For the three months ended August 31, 2009 and 2008, the difference between the effective tax rate and the statutory rate is primarily attributable to the utilization of net operation loss carryforwards against which a full valuation allowance has been established and our increase in net income.

 

20



Table of Contents

 

Net Income

 

We generated net income of $1,934,000 in the third quarter of fiscal 2009 compared to $1,830,000 for the third quarter of fiscal 2008.  The increase in net income for our third quarter of fiscal 2009 compared to our third quarter of fiscal 2008 is largely the result of our increase of $1,429,000, or 16 percent, in gross profit, which was offset by an increase of $850,000, or 13 percent, in SG&A and an increase of $456,000, or 124 percent, in income tax expense due to continued profitability.

 

Comparison of Nine Months Ended August 31, 2009 to Nine Months Ended August 31, 2008

 

Nine Months Ended August 31, 2009 Overview

 

The following table sets forth certain statements of operations data for the periods as indicated:

 

 

 

Nine months ended

 

 

 

(dollar values in thousands)

 

 

 

August 31, 2009

 

August 31, 2008

 

$  Change

 

% Change

 

 

 

 

 

 

 

 

 

 

 

Net sales

 

$

54,899

 

$

51,413

 

$

3,486

 

7

%

Cost of goods sold

 

27,576

 

27,242

 

334

 

1

%

Gross profit

 

27,323

 

24,171

 

3,152

 

13

%

Gross margin

 

50

%

47

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general & administrative

 

21,383

 

19,042

 

2,341

 

12

%

Depreciation & amortization

 

401

 

244

 

157

 

64

%

Operating income

 

5,539

 

4,885

 

654

 

13

%

 

 

 

 

 

 

 

 

 

 

Interest expense

 

290

 

492

 

(202

)

(41

)%

Income before provision for taxes

 

5,249

 

4,393

 

856

 

19

%

 

 

 

 

 

 

 

 

 

 

Income taxes

 

1,190

 

631

 

559

 

89

%

 

 

 

 

 

 

 

 

 

 

Net income

 

$

4,059

 

$

3,762

 

$

297

 

8

%

 

Net Sales

 

Our net sales increased to $54,899,000 for the nine months ended August 31, 2009 compared to $51,413,000 for the nine months ended August 31, 2008, a 7 percent increase.  The increase can be attributed to a 17 percent increase in our men’s domestic net sales, the addition of retail store sales and sales from our woven shirts in the nine months ended August 31, 2009 that we did not have in the nine months ended August 31, 2008.  The increase in our men’s domestic net sales was offset by a decrease in our women’s domestic net sales and a decrease in our children’s net sales as we entered into a license agreement for that product line.

 

Gross Profit

 

Our gross profit increased to $27,323,000 for the nine months ended August 31, 2009 from $24,171,000  for the nine months ended August 31, 2008, a 13 percent increase.  Our gross margin percentage increased to 50 percent for the nine months ended August 31, 2009 from 47 percent for the nine months ended August 31, 2008, a three percentage point increase.

 

21



Table of Contents

 

The increase in our gross profit and gross margin percentage was primarily due to (i) 88 percent of our products during the nine months ended August 31, 2009 compared to 74 percent during the nine month period ended August 31, 2008 that were manufactured outside of the United States where we have lower costs of production and (ii) the positive impact of the gross margins realized from sales by our retail stores where we capture the difference between our cost and the retail sales price rather than our cost and wholesale sales price.  As a result, our gross profit and gross margins improved from the nine months ended August 31, 2008 to 2009.

 

Selling, General and Administrative Expenses

 

Selling, general and administrative, or SG&A, expenses increased to $21,383,000 for the nine months ended August 31, 2009 from $19,042,000 for the nine months ended August 31, 2008, a 12 percent increase.

 

The SG&A increase in the nine months ended August 31, 2009 compared to the nine months ended August 31, 2008 is mostly due to (i) an increase of $907,000 in employee and employee-related expenses due to a higher headcount in the nine months ended August 31, 2009 compared to the nine months ended August 31, 2008 to support our growth, including personnel to support our retail strategy; (ii) an increase of $969,000 in facilities and retail operating related expenses primarily due to the addition of four retail stores in the fourth quarter of fiscal 2008 and one in the third quarter of fiscal 2009; (iii) an increase of $321,000 in professional fees primarily due to increases legal fees associated with litigation in the ordinary course of business; (iv) an increase of $218,000 in advertising and tradeshow expenses; (v) an increase of $164,000 in factor and bank fees due to the increase in our net sales; and (vi) an increase of $56,000 in stock-based compensation expense due to the issuance of restricted stock units in the fourth quarter of fiscal 2008 and first quarter of fiscal 2009, respectively; and (vii) an increase of $92,000 in commission expense due to an increase in wholesale net sales.  These increases were partially offset by (i) a decrease of $412,000 in sample expense due to better control over costs and timing of the expense; and (ii) a decrease of $98,000 in earn-out expense due to the change in accounting related to the earn-out expense we made during the first three quarters of fiscal 2009 that was not made for the fourth quarter of fiscal 2008 because of its immateriality related that quarter.

 

Depreciation and Amortization Expenses

 

Our depreciation and amortization expenses increased to $401,000 for the nine months ended August 31, 2009 from $244,000 for the nine months ended August 31, 2008, a 64 percent increase.  The increase was primarily attributable to additional depreciation for our retail stores’ leasehold improvements due to the addition of four retail stores in the fourth quarter of fiscal 2008 and one in the third quarter of fiscal 2009.

 

Interest Expense

 

Our combined interest expense decreased to $290,000 for the nine months ended August 31, 2009 from $492,000 for the nine months ended August 31, 2008, a 41 percent decrease.  Our interest expense consists of interest expense from our factoring and inventory lines of credit and letters of credit from CIT.  The decrease in interest expense is mostly due to a lower average interest rate on our factoring and inventory lines of credit as compared to the prior year period as a result of interest rate cuts by the Federal Reserve.

 

Income Tax

 

For the nine months ended August 31, 2009, our income tax expense was $1,190,000 compared to $631,000 for the nine months ended May 31, 2008.  Our effective tax rate was 23 percent for the nine months ended August 31, 2009 and 14 percent for the nine months ended August 31, 2008.  We expect our effective tax rate to be approximately 21 percent for fiscal 2009.  For the nine months ended August 31, 2009 and 2008, the difference between the effective tax rate and the statutory rate is primarily attributable to the utilization of net operation loss tax carryforwards against which a full valuation allowance has been established.

 

22



Table of Contents

 

Net Income

 

We generated net income of $4,059,000 in the nine months ended August 31, 2009 compared to $3,762,000 for the nine months ended August 31, 2008.  The increase in net income for the nine months ended August 31, 2009 compared to the nine months ended August 31, 2008 is largely the result of our increase of $3,152,000, or 13 percent, in gross profit, which was offset by an increase of $2,341,000, or 12 percent, in SG&A and an increase of $559,000, or 89 percent, in income tax expense due to continued profitability.

 

Liquidity and Capital Resources

 

Our primary sources of liquidity are: (i) cash from sales of our products; and (ii) sales from accounts receivable factoring facilities and advances against inventory. For the nine months ended August 31, 2009, we generated $5,251,000 of cash flow from operations and used $401,000 for purchases of property and equipment mostly in connection with the operation of our retail stores.  We received net proceeds of $1,332,000 in factored borrowings.  Our cash balance was $9,545,000 as of August 31, 2009.

 

We are dependent on credit arrangements with suppliers and factoring and inventory based agreements for working capital needs. From time to time, we have conducted equity financing through private placement transactions and obtained increases in our cash availability from CIT through guarantees by certain related parties.

 

Our primary methods to obtain the cash necessary for operating needs were through the sales of Joe’s® products, sales of our accounts receivable pursuant to our factoring agreements, obtaining advances under our inventory security agreements with CIT and utilizing existing cash balances.  The accounts receivable are sold for up to 85 percent of the face amount on either a recourse or non-recourse basis depending on the creditworthiness of the customer.  In addition, the agreements allow us to obtain advances for up to 50 percent of the value of certain eligible inventory.  CIT currently permits us to sell our accounts receivable at the maximum level of 85 percent and allows advances of up to $6,000,000 for eligible inventory.  CIT has the ability, in its discretion at any time or from time to time, to adjust or revise any limits on the amount of loans or advances made to us pursuant to these agreements and to impose surcharges on our rates for certain of our customers.  As further assurance to CIT, cross guarantees were executed by and among us and all of our subsidiaries to guarantee each subsidiary’s obligations.  As of August 31, 2009, our cash availability with CIT was approximately $720,000. This amount fluctuates on a daily basis based upon invoicing and collection related activity by CIT on our behalf. In connection with the agreements with CIT, most of our tangible assets are pledged to CIT, including all of our inventory, merchandise, and/or goods, including raw materials through finished goods and receivables. Our trademarks are not encumbered.

 

The agreements may be terminated by CIT upon 60 days prior written notice or immediately upon the occurrence of an event of default, as defined in the agreement. The agreements may be terminated by us upon 60 days advanced written notice prior to June 30, 2010 or earlier provided that the minimum factoring fees have been paid for the respective period.

 

The factoring rate that we pay to CIT to factor accounts is 0.6 percent for accounts which CIT bears the credit risk, subject to discretionary surcharges, and 0.4 percent for accounts which we bear the credit risk.  The interest rate associated with the agreements is 0.25 percent plus the Chase prime rate.

 

We have also established a letter of credit facility with CIT to allow us to open letters of credit for a fee of 0.25 percent of the letter of credit face value with international and domestic suppliers, subject to cash availability on our inventory line of credit.

 

As of August 31, 2009, we had a net loan balance of $9,950,000 with CIT for factored receivables, a loan balance of $3,813,000 for inventory advances and no letters of credit outstanding.

 

For the remainder of fiscal 2009, our primary capital needs are for (i) operating expenses; (ii) working capital necessary to fund inventory purchases; (iii) capital expenditures for any additional retail store openings; (iv) financing extensions of trade credit to our customers; and (v) payment for the contingent consideration pursuant to the merger agreement with JD Holdings. We anticipate funding our operations through working capital generated by the following: (i) cash flow from sales of our products; (ii) managing our operating expenses and inventory levels; (iii) maximizing trade payables with our domestic and international suppliers; (iv) increasing collection efforts on existing accounts receivables; and (v) utilizing our receivable and inventory-based agreements with CIT.

 

23



Table of Contents

 

Based on our cash on hand, cash flow from operations and the expected cash availability under our agreements with CIT, we believe that we have the working capital resources necessary to meet our projected operational needs for the remainder of fiscal 2009. However, if we require more capital for growth or experience operating losses, we believe that it will be necessary to obtain additional working capital through credit arrangements or debt or equity financings. We believe that any additional capital, to the extent needed, may be obtained from additional sales of equity securities or other loans or credit arrangements. There can be no assurance that this or other financings will be available if needed. Our inability to fulfill any interim working capital requirements would force us to constrict our operations.

 

We believe that the rate of inflation over the past few years has not had a significant adverse impact on our net sales or income (losses) from operations.

 

Off Balance Sheet Arrangements

 

We do not have any off balance sheet arrangements.

 

Management’s Discussion of Critical Accounting Policies

 

We believe that the accounting policies discussed below are important to an understanding of our financial statements because they require management to exercise judgment and estimate the effects of uncertain matters in the preparation and reporting of financial results. Accordingly, we caution that these policies and the judgments and estimates they involve are subject to revision and adjustment in the future. While they involve less judgment, management believes that the other accounting policies discussed in “Notes to Consolidated Financial Statements - Note 2 — Summary of Significant Accounting Policies” included in our Annual Report on Form 10-K for the year ended November 30, 2008 previously filed with the SEC are also important to an understanding of our financial statements. We believe that the following critical accounting policies affect our more significant judgments and estimates used in the preparation of our consolidated financial statements.

 

Revenue Recognition

 

Wholesale revenues are recorded on the accrual basis of accounting when title transfers to the customer, which is typically at the shipping point.  We record estimated reductions to revenue for customer programs, including co-op advertising, other advertising programs or allowances, based upon a percentage of sales.  We also allow for returns based upon pre-approval or in the case of damaged goods. Such returns are estimated based on historical experience and an allowance is provided at the time of sale.

 

Retail store revenue is recognized net of estimated returns at the time of sale to consumers. E-commerce sales of products ordered through our retail internet site known as www.joesjeans.com are recognized upon estimated delivery and receipt of the shipment by the customers. E-commerce revenue is also reduced by an estimate of returns. Retail store revenue and E-commerce revenue exclude sales taxes.  Revenue from licensing arrangements are recognized when earned in accordance with the terms of the underlying agreements, generally based upon the higher of (a) contractually guaranteed minimum royalty levels; and (b) estimates of sales and royalty data received from our licensees. Payments received in consideration of the grant of a license or advanced royalty payments are recognized ratably as revenue over the term of the license agreement and are reflected under the caption of “Deferred Licensing Revenue” on the Condensed Consolidated Balance Sheets.  The revenue recognized ratably over the term of the license agreement will not exceed royalty payments received.  The unrecognized portion of the upfront payments are included in deferred royalties and accrued expenses depending on the long or short term nature of the payments to be recognized.  As of August 31, 2009, we have received total advanced payments of $1,125,000 of the advanced payments under our licensing agreements and has recognized $259,000 as income.

 

24



Table of Contents

 

Accounts Receivable, Due To Factor and Allowance for Customer Credits and Doubtful Allowances

 

We evaluate our ability to collect on accounts receivable and charge-backs (disputes from the customer) based upon a combination of factors.  In circumstances where we are aware of a specific customer’s inability to meet its financial obligations (e.g., bankruptcy filings, substantial downgrading of credit sources), a specific reserve for bad debts is taken against amounts due to reduce the net recognized receivable to the amount reasonably expected to be collected. For all other customers, we recognize reserves for bad debts and charge-backs based on our historical collection experience.  If collection experience deteriorates (i.e., an unexpected material adverse change in a major customer’s ability to meet its financial obligations to us), the estimates of the recoverability of amounts due to us could be reduced by a material amount.

 

The balance in the allowance for customer credits and doubtful accounts as of August 31, 2009 and November 30, 2008 was $865,000 and $660,000 for non-factored accounts receivables.

 

Inventory

 

We continually evaluate the composition of our inventories, assessing slow-turning, ongoing product as well as product from prior seasons.  Market value of distressed inventory is valued based on historical sales trends on our individual product lines, the impact of market trends and economic conditions, and the value of current orders relating to the future sales of this type of inventory.  Significant changes in market values could cause us to record additional inventory markdowns.

 

Valuation of Long-lived and Intangible Assets and Goodwill

 

We assess the impairment of identifiable intangibles, long-lived assets and goodwill annually or whenever events or changes in circumstances indicate that the carrying value may not be recoverable. Factors considered important that could trigger an impairment review other than on an annual basis include the following:

 

·                  A significant underperformance relative to expected historical or projected future operating results;

·                  A significant change in the manner of the use of the acquired asset or the strategy for the overall business; or

·                  A significant negative industry or economic trend.

 

In fiscal 2007, we acquired through merger JD Holdings, which included all of the intangible assets and goodwill related to the Joe’s®, Joe’s Jeans™ and JD® logo and marks. For fiscal 2008, we did not recognize any impairment related to the intangible assets and goodwill of our Joe’s® brand. We have assigned an indefinite life to these intangible assets and therefore, no amortization expenses are expected to be recognized. However, we test the assets for impairment annually in accordance with our critical accounting policies.

 

SFAS No. 142 requires that goodwill and other intangibles be tested for impairment using a two-step process.  The first step is to determine the fair value of each reporting unit and compare this value to its carrying value.  If the fair value exceeds the carrying value, no further work is required and no impairment loss would be recognized.  The second step is performed if the carrying value exceeds the fair value of the assets.  The implied fair value of the reporting unit’s goodwill must be determined and compared to the carrying value of the goodwill.

 

Our annual impairment testing date is September 30 of each year.  On that date in 2008, we determined that there was no impairment of our indefinite lived intangible assets or goodwill.  Additionally, our market capitalization on the impairment testing date was approximately $65,809,000.  On November 30, 2008, the carrying value of our net assets was $36,085,000 and the market capitalization of our outstanding shares was $21,581,000. Accordingly, we updated our annual goodwill impairment test in accordance with SFAS 142.

 

25



Table of Contents

 

We calculated the implied fair value of our net assets using a weighting of (1) a discounted cash flow analysis using updated forward-looking projections of estimated future operating results; and (2) a guideline company methodology under the market approach using revenue and earnings before interest, taxes, depreciation and amortization, or EBITDA, multiples. Based on the results of this testing, we concluded that our implied fair value exceeded our carrying value at November 30, 2008 and accordingly, determined that our recorded goodwill was not impaired as of November 30, 2008.

 

Upon further evaluation and because our stock price has been volatile since November 30, 2008, we also considered the market value of our common stock as of August 31, 2009.  Our market cap was $44,740,000 as of August 31, 2009 and was approximately the carrying value of our net assets as of that date.  In addition, there were no other indicators of impairment of our indefinite lived intangible assets or goodwill.  Therefore, we determined our recorded goodwill was not impaired under SFAS 142.

 

Additional Merger Consideration (Contingent Consideration)

 

In connection with the merger with JD Holdings, we agreed to pay to Mr. Dahan the following contingent consideration in the applicable fiscal year for 120 months following October 25, 2007:

 

·                  No contingent consideration if the gross profit is less than $11,250,000 in the applicable fiscal year;

·                  11.33% of the gross profit from $11,251,000 to $22,500,000;

·                  3% of the gross profit from $22,501,000 to $31,500,000;

·                  2% of the gross profit from $31,501,000 to $40,500,000; and

·                  1% of the gross profit above $40,501,000.

 

The additional merger consideration, or contingent consideration, is paid in advance on a monthly basis based upon estimates of gross profits after the assumption that the payments are likely to be paid. At the end of each quarter, any overpayments are offset against future payments and any significant underpayments are made.

 

EITF 95-8, “Accounting for Contingent Consideration Paid to the Shareholders of an Acquired Enterprise in a Purchase Business Combination,” addresses accounting for consideration transferred to settle a contingency based on earnings or other performance measures. It sets forth the criteria to determine whether contingent consideration based on earnings or other performance measures should be accounted for as (1) adjustment of the purchase price of the acquired enterprise or (2) compensation for services, use of property or profit sharing.

 

The determination of how to account for the contingent consideration is a matter of judgment that depends on the relevant facts and circumstances. Based upon our evaluation of the relevant facts and circumstances, we originally accounted for the contingent consideration as additional purchase price.  As previously disclosed, we will no longer account for the contingent consideration as additional purchase price.  We now account for the contingent consideration as compensation expense, i.e. compensation for services, use of property or profit sharing.  Accordingly, in our Notes to Consolidated Financial Statements in our Annual Report previously filed with the SEC, we have restated our first three quarters for fiscal 2008 to reflect this change and a change to our valuation of the assets acquired.  The advanced contingent consideration payments are accounted for as operating expense.  For the nine months ended August 31, 2009 and 2008, the advanced contingent consideration payments were $1,238,000 and $1,337,000, respectively.

 

Income Taxes

 

As part of the process of preparing our consolidated financial statements, management is required to estimate income taxes in each of the jurisdictions in which we operate. The process involves estimating actual current tax expense along with assessing temporary differences resulting from differing treatment of items for book and tax purposes. These timing differences result in deferred tax assets and liabilities, which are included in our consolidated balance sheet. Management records a valuation allowance to reduce its deferred tax assets to the amount that is more likely than not to be realized. Management has considered future taxable income and ongoing tax planning strategies in assessing the need for the valuation allowance. Increases in the valuation allowance result in additional expense to be reflected within the tax provision in the consolidated statement of income. Reserves are also estimated for ongoing audits regarding federal and state issues that are currently unresolved. We routinely monitor the potential impact of these situations. Based on management’s assessment, there has been no reduction of the valuation allowance other than to the extent that income taxes on current year net income was offset by net operating losses that carried forward.

 

26



Table of Contents

 

Contingencies

 

We account for contingencies in accordance with SFAS No. 5, “Accounting for Contingencies,” or SFAS No. 5.  SFAS No. 5 requires that we record an estimated loss from a loss contingency when information available prior to issuance of our financial statements indicates that it is probable that an asset has been impaired or a liability has been incurred at the date of the financial statements and the amount of the loss can be reasonably estimated. Accounting for contingencies such as legal and income tax matters requires management to use judgment. Many of these legal and tax contingencies can take years to be resolved. Generally, as the time period increases over which the uncertainties are resolved, the likelihood of changes to the estimate of the ultimate outcome increases. Management believes that the accruals for these matters are adequate. Should events or circumstances change, we could have to record additional accruals.

 

Stock Based Compensation

 

We adopted the provisions of and account for stock-based compensation in accordance with SFAS No. 123(R), “Share Based Payment,” or SFAS No. 123(R), on November 27, 2005. We elected the modified prospective method where prior periods are not revised for comparative purposes. Under the fair value recognition provisions of SFAS No. 123(R), stock based compensation is measured at grant date based upon the fair value of the award and expense is recognized on a straight-line basis over the vesting period. We use the Black-Scholes option pricing model to determine the fair value of stock options, which requires management to use estimates and assumptions. The determination of the fair value of stock based option awards on the date of grant is based upon the exercise price as well as assumptions regarding subjective variables. These variables include our expected life of the option, expected stock price volatility over the term of the award, determination of a risk free interest rate and an estimated dividend yield. We estimate the expected life of the option by calculating the average term based upon historical experience. We estimate the expected stock price volatility by using implied volatility in market traded stock over the same period as the vesting period. We base the risk-free interest rate on zero coupon yields implied from U.S. Treasury issues with remaining terms similar to the term on the options. We do not expect to pay dividends in the foreseeable future and therefore use an expected dividend yield of zero. If factors change or we employ different assumptions for estimating fair value of the stock option, our estimates may be different than future estimates or actual values realized upon the exercise, expiration, early termination or forfeiture of those awards in the future. At this time, we believe that our current method for accounting for stock based compensation is reasonable. Furthermore, under SFAS No. 123(R), an entity may elect either an accelerated recognition method or a straight-line recognition method for awards subject to graded vesting based on a service condition, regardless of how the fair value of the award is measured. For all stock based compensation awards that contain graded vesting based on service conditions, we have elected to apply a straight-line recognition method to account for these awards. However, SFAS No. 123(R) guidance is relatively new and the application of these principles over time may be subject to further interpretation or refinement. See “Note 9 — Stockholders’ Equity — Stock Incentive Plans” for additional discussion of SFAS No. 123(R).

 

Recent Accounting Pronouncements

 

On December 4, 2007, the FASB issued SFAS No. 141 (Revised 2007), “Business Combinations,” or SFAS No. 141(R).  New requirements under the revised standard include: (i) the fair value of stock provided as consideration be measured as of the acquisition date instead of the announcement date; (ii) acquisition-related costs be recognized separately from the acquisition, generally as an expense, instead of treated as a part of the cost of the acquisition that was allocated to the assets acquired and the liabilities assumed;  (iii) restructuring costs that the acquirer expected, but was not obligated to incur, be recognized separately from the acquisition instead of recognized as if they were a liability assumed at the acquisition date; (iv) contingent consideration be recognized at the acquisition date, measured at its fair value at that date, instead of recognized when the contingency was resolved and consideration was issued or became issuable; (v) recognizing a gain when the fair value of the identifiable net assets acquired exceeds the fair value of the consideration transferred instead of allocating the “negative goodwill” amount as a pro rata reduction of the amounts that otherwise would have been assigned to particular assets acquired; (vi) research and development assets acquired in a business

 

27



Table of Contents

 

combination will be recognized at their acquisition-date fair values as assets acquired in a business combination instead of being measured at their acquisition-date fair values and then immediately charged to expense; and (vii) changes in the amount of deferred tax benefits created in a business combination, outside of the valuation period, will be recognized either in income from continuing operations or directly in contributed capital, depending on the circumstances, instead of recognized through a corresponding reduction to goodwill or certain noncurrent assets or an increase in so-called negative goodwill. SFAS No. 141(R) is effective for us for transactions consummated during annual periods beginning after December 15, 2008, which is the year beginning December 1, 2009 for us.  We do not expect that SFAS No. 141(R) will have any impact on our financial statements unless we enter into an applicable transaction in the future.

 

In April 2008, the FASB issued FSP SFAS 142-3, “Determination of the Useful Life of Intangible Assets,” or FSP 142-3.  FSP 142-3 amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under SFAS No. 142, “Goodwill and Other Intangible Assets,” or SFAS 142, in order to improve the consistency between the useful life of a recognized intangible asset under SFAS 142 and the period of expected cash flows used to measure the fair value of the asset under SFAS No. 141(R).  FSP 142-3 is effective for financial statements issued for fiscal years beginning after December 15, 2008, which is the year beginning December 1, 2009 for us, and interim periods within that fiscal year.  The adoption of FSP142-3 did not have a material impact on our financial position or results from operations.

 

In May 2009, the FASB issued SFAS No. 165, “Subsequent Events,” or SFAS No. 165.  SFAS No. 165 establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before financial statements are issued or are available to be issued. It requires the disclosure of the date through which an entity has evaluated subsequent events and the basis for selecting that date, that is, whether that date represents the date the financial statements were issued or were available to be issued.  SFAS No. 165 is effective for interim or annual financial periods ending after June 15, 2009.  We adopted SFAS No. 165 in the third fiscal quarter of 2009 and the related disclosure can be found in “Note 12 — Subsequent Events.”

 

In June 2009, the FASB issued SFAS No. 168, “The FASB Accounting Standards Codification and the Hierarchy of Generally Accepted Accounting Principles, a replacement of FASB Statement No. 162,” or SFAS No. 168.  SFAS 168 replaces SFAS No. 162, “The Hierarchy of Generally Accepted Accounting Principles,” to establish the FASB Accounting Standards Codification as the source of authoritative accounting principles recognized by the FASB to be applied by nongovernmental entities in preparation of financial statements in conformity with generally accepted accounting principles in the United States.  SFAS No. 168 is effective for interim and annual periods ending after September 15, 2009.  The adoption of SFAS No. 168 will not impact our financial position or results of operations.

 

Item 3.      Quantitative and Qualitative Disclosure About Market Risk.

 

Not applicable as a Smaller Reporting Company.

 

Item 4T.                Controls and Procedures.

 

Evaluation of Disclosure Controls and Procedures

 

As of August 31, 2009, the end of the period covered by this periodic report, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15(b) and 15d-15(b) under the Exchange Act.

 

Disclosure controls and procedures are controls and other procedures that are designed to ensure that information required to be disclosed in our reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms.  In addition, disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that the information required to be disclosed by us in the reports we file or submit under the Exchange Act is accumulated and communicated to management, including our principal executive and principal financial officers or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosures.   Management recognizes that a control system, no matter how well conceived

 

28



Table of Contents

 

and operated, can provide only reasonable assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs.  Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues within the company have been detected.  Therefore, assessing the costs and benefits of such controls and procedures necessarily involves the exercise of judgment by management.  Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives.

 

As of the end of the period covered by this report, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were effective at the reasonable assurance level.

 

Changes in Internal Control Over Financial Reporting

 

We made no changes in our internal control over financial reporting during the third quarter of the fiscal year covered by this report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

PART II — OTHER INFORMATION

 

Item 1.                   Legal Proceedings.

 

We are a party to lawsuits and other contingencies in the ordinary course of our business.  We do not believe that we are a party to any material pending legal proceedings or that it is probable that the outcome of any individual action would have an adverse effect in the aggregate on our financial condition.  We do not believe that it is likely that an adverse outcome of individually insignificant actions in the aggregate would be sufficient enough, in number or in magnitude, to have a material adverse effect in the aggregate on our financial condition.

 

Item 1A.                Risk Factors.

 

In addition to the other information set forth in this Quarterly Report, you should carefully consider the factors discussed under “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended November 30, 2008 as filed with the SEC.  These risks could materially and adversely affect our business, financial condition and results of operations.  The risks described in our Form 10-K are not the only risks we face.  Our operations could also be affected by additional factors that are not presently known to us or by factors that we currently consider immaterial to our business.

 

Item 2.                   Unregistered Sales of Equity Securities and Use of Proceeds.

 

None.

 

Item 3.                   Defaults upon Senior Securities.

 

None.

 

Item 4.                   Submission of Matters to a Vote of Security Holders.

 

None.

 

Item 5.                   Other Information.

 

(a)           None.

 

(b)           There have been no material changes to the procedures by which security holders may recommend nominees to our board of directors, including adoption of procedures by which our stockholders may recommend nominees to the our board of directors.

 

29



Table of Contents

 

Item 6.      Exhibits.

 

Exhibits (listed according to the number assigned in the table in Item 601 of Regulation S-K):

 

Exhibit
No.

 

Description

 

Document if Incorporated
by Reference

31.1

 

Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended

 

Filed herewith

 

 

 

 

 

31.2

 

Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended

 

Filed herewith

 

 

 

 

 

32

 

Certification of the Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

Filed herewith

 

30



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

 

JOE’S JEANS INC.

 

 

October 15, 2009

/s/ Marc B. Crossman

 

Marc B. Crossman

 

Chief Executive Officer (Principal Executive Officer), President and Director

 

 

 

 

October 15, 2009

/s/ Hamish Sandhu

 

Hamish Sandhu

 

Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)

 

31



Table of Contents

 

EXHIBIT INDEX

 

Exhibit
No.

 

Description

 

Document if Incorporated by
Reference

31.1

 

Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended

 

Filed herewith

 

 

 

 

 

31.2

 

Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended

 

Filed herewith

 

 

 

 

 

32

 

Certification of the Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

Filed herewith

 

32