Attached files
| file | filename |
|---|---|
| EX-32.1 - EXHIBIT 32.1 - Diversified Restaurant Holdings, Inc. | exhibit321.htm |
| EX-31.2 - EXHIBIT 31.2 - Diversified Restaurant Holdings, Inc. | exhibit312.htm |
| EX-32.2 - EXHIBIT 32.2 - Diversified Restaurant Holdings, Inc. | exhibit322.htm |
| EX-31.1 - EXHIBIT 31.1 - Diversified Restaurant Holdings, Inc. | exhibit311.htm |
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Amendment No. 1)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
EXCHANGE ACT OF 1934
For the fiscal year ended December 28, 2014
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
EXCHANGE ACT OF 1934
for the transition period from to .
Commission File No. 000-53577
DIVERSIFIED RESTAURANT HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
(Exact name of registrant as specified in its charter)
Nevada | 03-0606420 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |
27680 Franklin Rd., Southfield, MI 48034
(Address of principal executive offices)
(Address of principal executive offices)
Registrant’s telephone number (248) 223-9160
Securities registered pursuant to Section 12(b) of the Exchange Act:
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.0001 par value per share
(Title of Class)
(Title of Class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes þ No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. þ
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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o | Smaller reporting company o | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o No þ
The aggregate market value of the voting stock held by non-affiliates was $64.7 million based on the closing sale price of the Company’s common stock as reported on the NASDAQ stock market on June 27, 2014.
The number of shares outstanding of the registrant’s common stock as of March 6, 2015: 26,187,199 shares
DOCUMENTS INCORPORATED BY REFERENCE:
None.
EXPLANATORY NOTE
Diversified Restaurant Holdings, Inc. (“DRH” or the “Company”) is filing this Amendment No. 1 on Form 10-K/A (the “Amendment”) to our Annual Report on Form 10-K for the fiscal year ended December 28, 2014, which was filed with the Securities and Exchange Commission (the “SEC”) on March 13, 2015 (the “Original Filing”). We are filing this Amendment to respond to SEC Comments dated August 31, 2015. In accordance with the SEC Comments, we have amended “Item 9A. Controls and Procedures” in its entirety.
Pursuant to the rules of the SEC, Item 15 of Part IV of the Original Filing has been amended to contain the currently-dated certifications from our principal executive officer and principal financial officer, as required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002. The certifications of our principal executive officer and our principal financial officer are attached to this Amendment as Exhibits 31.1, 31.2, 32.1 and 32.2.
Except for the foregoing amended information, this Amendment continues to describe conditions as of the date of the Original Filing, and we have not updated the disclosures contained herein to reflect events that have occurred subsequent to that date. Other events occurring after the date of the Original Filing or other information necessary to reflect subsequent events have been disclosed in reports filed with the SEC subsequent to the Original Filing.
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures.
As of December 28, 2014, an evaluation was performed under the supervision of and with the participation of our management, including our principal executive and principal financial officers, of the effectiveness of the design and operation of our disclosure controls and procedures. Based on that evaluation, our management, including our principal executive and principal financial and accounting officers, concluded that our disclosure controls and procedures were not effective as of December 28, 2014 due to the material weakness in the Company’s internal control over financial reporting discussed below.
Evaluation of Internal Control and Procedures.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f). There are inherent limitations in the effectiveness of any system of internal control. Accordingly, even an effective system of internal control can provide only reasonable assurance with respect to financial statement preparation.
Under the supervision and with the participation of our management, including our principal executive and principal financial and accounting officers, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 28, 2014. This evaluation was based on criteria for effective internal control over financial reporting described in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (1992 Framework). Based on our evaluation under the framework in Internal Control — Integrated Framework, our management concluded that our internal control over financial reporting was not effective as of December 28, 2014. Refer to page 37 of the Original Filing for management’s report. Our management team has reviewed and discussed the material weakness identified in management’s report with the Audit Committee and is in the process of developing and implementing an action plan to resolve it.
Our independent registered public accounting firm issued an audit report on our internal control over financial reporting which is included in the Original Filing.
Changes in Internal Control Over Financial Reporting.
There was a change in the Company's internal control over financial reporting during the quarter ended December 28, 2014, as discussed on page 37 of the Original Filing, that has materially affected, or is reasonably likely to materially affect the Company's internal control over financial reporting.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) (1) Financial Statements. The following financial statements and reports of independent registered public accounting firms of Diversified Restaurant Holdings and its subsidiaries are filed as part of this report:
• | Reports of Independent Registered Public Accounting Firm — BDO USA, LLP |
• | Report by Diversified Restaurant Holdings, Inc.’s Management on Internal Control Over Financial Reporting |
• | Consolidated Balance Sheets as of December 28, 2014 and December 29, 2013 |
• | Consolidated Statements of Operations for the Fiscal Years Ended December 28, 2014, December 29, 2013, and December 30, 2012 |
• | Consolidated Statement of Comprehensive Income for the Fiscal Years Ended December 28, 2014, December 30, 2013, and December 30, 2012 |
• | Consolidated Statement of Stockholders' Equity for the Fiscal Years Ended December 28, 2014, December 29, 2013, and December 30, 2012 |
• | Consolidated Statements of Cash Flows for the Fiscal Years Ended December 28, 2014, December 29, 2013, and December 30, 2012 |
• | Notes to Consolidated Financial Statements |
The consolidated financial statements, the notes to the consolidated financial statements, and the reports of independent registered public accounting firm listed above are contained in Item 8 of this report.
(2) Financial Statement Schedules
Not applicable
(b) Index to Exhibits required by Item 601 of Regulation S-K:
EXHIBIT NO. | EXHIBIT DESCRIPTION |
2.1 | Purchase Agreement dated July 13, 2012 (incorporated by reference to Exhibit 2.1 of our Form 8-K filed September 28, 2012) |
2.2 | Asset Purchase Agreement between the Company and Screamin’ Hot Florida, LLC and Screamin’ Hot Trinity, LLC, dated April 1, 2014 (incorporated by reference to Exhibit 10.2 of our Form 10-Q filed May 9, 2014). |
2.3 | First Amendment to Asset Purchase Agreement, dated May 27, 2014 (incorporated by reference to Exhibit 2.2 of our Form 8-K filed July 2, 2014). |
2.4 | Purchase and Sale Agreement dated as of October 6, 2014 (incorporated by reference to Exhibit 2.1 of our Form 8-K filed November 6, 2014) |
2.5 | Amendment to Purchase and Sale Agreement dated as of October 30, 2014 (incorporated by reference to Exhibit 2.2 of our Form 8-K filed November 6, 2014) |
2.6 | Form of Lease (incorporated by reference to Exhibit 2.3 of our Form 8-K filed November 6, 2014) |
2.7 | Form of Lease Amendment (incorporated by reference to Exhibit 2.4 of our Form 8-K filed November 6, 2014) |
3.1 | Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of our registration statement on Form SB-2 (SEC File Number 333-145316) filed on August 10, 2007) |
3.2 | Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of our Form 8-K filed August 29, 2012) |
3.3 | First Amendment to Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of our Form 8-K filed October 31, 2012) |
4.1 | Specimen Stock Certificate (incorporated by reference to Exhibit 4.1 of our registration statement on Form SB-2 (SEC File Number 333-145316) filed on August 10, 2007) |
10.1 | Buffalo Wild Wings Area Development Agreement dated July 18, 2003, by and between Buffalo Wild Wings International, Inc. and MCA Enterprises, Inc. (subsequently assigned to AMC Wings, Inc., a wholly-owned subsidiary of the Company) (incorporated by reference to Exhibit 10.3 of our Form 10-Q filed November 12, 2010) |
10.3 | Amendment to Buffalo Wild Wings Area Development Agreement dated December 27, 2003 (incorporated by reference to Exhibit 10.12 of our Form 10-Q filed November 12, 2010) |
10.4 | Transfer Agreement dated March 20, 2007, by MCA Enterprises Brandon, Inc. (formerly MCA Enterprises, Inc.), T. Michael Ansley, Mark C. Ansley, Thomas D. Ansley, Steven Menker, Jason Curtis and AMC Wings, Inc. and Buffalo Wild Wings International, Inc. (incorporated by reference to Exhibit 10.4 of our Form 10-Q filed November 12, 2010) |
10.5 | Amendment to Buffalo Wild Wings Area Development Agreement dated March 20, 2007 (incorporated by reference to Exhibit 10.5 of our Form 10-Q filed November 12, 2010) |
10.6 | Amendment to Buffalo Wild Wings Area Development Agreement dated November 5, 2007 (incorporated by reference to Exhibit 10.5 of our Form 10-Q filed November 12, 2010) |
10.7 | Form of Stock Option Agreement (incorporated by reference to Exhibit 10.1 of our Form 8-K filed August 5, 2010)* |
10.8 | Form of Stock Option Agreement, dated July 30, 2007, entered into by and between the Company and Directors Gregory Stevens, T. Michael Ansley, Jay Alan Dusenberry, Jason T. Curtis and David Ligotti (incorporated by reference to Exhibit 10.24 of our Form 10-K filed March 26, 2010)* |
10.9 | Diversified Restaurant Holdings, Inc. Performance Bonus Plan (incorporated by reference to Exhibit 10.1 of our Form 8-K filed March 11, 2013)* |
10.10 | 2013 Diversified Restaurant Holdings, Inc. Short-Term Incentive Program (incorporated by reference to Exhibit 10.2 of our Form 8-K filed March 11, 2013)* |
10.11 | $62M Senior Secured Credit Facility with RBS Citizens, N.A., as administrative agent, Wells Fargo Bank, N.A., as documentation agent, and the other banks party thereto, dated April 15, 2013 (incorporated by reference to Exhibit 10.1 of our form 8-K filed April 15, 2013) |
10.12 | Second Amendment to Credit Agreement dated March 20, 2014 (incorporated by reference to Exhibit 10.1 of our Form 8-K filed March 26, 2014) |
10.13 | $77.0M Senior Secured Credit Facility with RBS Citizens, N.A., as administrative agent, dated December 16, 2014 (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
21 | Subsidiaries of Diversified Restaurant Holdings, Inc. (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
23 | Consent of BDO USA, LLP (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
31.1 | Certification of Chief Executive Officer pursuant to Rule 13a-14(a) |
31.2 | Certification of Chief Financial Officer pursuant to Rule 13a-14(a) |
32.1 | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350 |
32.2 | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350 |
101.INS | XBRL Instance Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.SCH | XBRL Taxonomy Extension Schema Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.CAL | XBRL Taxonomy Extension Calculation Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.DEF | XBRL Taxonomy Extension Definition Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.LAB | XBRL Taxonomy Extension Labels Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.PRE | XBRL Taxonomy Extension Presentation Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
* | Management contract or compensatory plan |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
Dated: October 28, 2015
DIVERSIFIED RESTAURANT HOLDINGS, INC.
By: /s/ T. Michael Ansley
T. Michael Ansley
President, Chief Executive Officer, Director, Chairman of the Board, and Principal Executive Officer
By: /s/ David G. Burke
David G. Burke
Treasurer, Chief Financial Officer, Director,
Principal Financial Officer, and
Principal Accounting Officer
EXHIBIT INDEX
EXHIBIT NO. | EXHIBIT DESCRIPTION |
2.1 | Purchase Agreement dated July 13, 2012 (incorporated by reference to Exhibit 2.1 of our Form 8-K filed September 28, 2012) |
2.2 | Asset Purchase Agreement between the Company and Screamin’ Hot Florida, LLC and Screamin’ Hot Trinity, LLC, dated April 1, 2014 (incorporated by reference to Exhibit 10.2 of our Form 10-Q filed May 9, 2014). |
2.3 | First Amendment to Asset Purchase Agreement, dated May 27, 2014 (incorporated by reference to Exhibit 2.2 of our Form 8-K filed July 2, 2014). |
2.4 | Purchase and Sale Agreement dated as of October 6, 2014 (incorporated by reference to Exhibit 2.1 of our Form 8-K filed November 6, 2014) |
2.5 | Amendment to Purchase and Sale Agreement dated as of October 30, 2014 (incorporated by reference to Exhibit 2.2 of our Form 8-K filed November 6, 2014) |
2.6 | Form of Lease (incorporated by reference to Exhibit 2.3 of our Form 8-K filed November 6, 2014) |
2.7 | Form of Lease Amendment (incorporated by reference to Exhibit 2.4 of our Form 8-K filed November 6, 2014) |
3.1 | Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of our registration statement on Form SB-2 (SEC File Number 333-145316) filed on August 10, 2007) |
3.2 | Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of our Form 8-K filed August 29, 2012) |
3.3 | First Amendment to Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 of our Form 8-K filed October 31, 2012) |
4.1 | Specimen Stock Certificate (incorporated by reference to Exhibit 4.1 of our registration statement on Form SB-2 (SEC File Number 333-145316) filed on August 10, 2007) |
10.1 | Buffalo Wild Wings Area Development Agreement dated July 18, 2003, by and between Buffalo Wild Wings International, Inc. and MCA Enterprises, Inc. (subsequently assigned to AMC Wings, Inc., a wholly-owned subsidiary of the Company) (incorporated by reference to Exhibit 10.3 of our Form 10-Q filed November 12, 2010) |
10.3 | Amendment to Buffalo Wild Wings Area Development Agreement dated December 27, 2003 (incorporated by reference to Exhibit 10.12 of our Form 10-Q filed November 12, 2010) |
10.4 | Transfer Agreement dated March 20, 2007, by MCA Enterprises Brandon, Inc. (formerly MCA Enterprises, Inc.), T. Michael Ansley, Mark C. Ansley, Thomas D. Ansley, Steven Menker, Jason Curtis and AMC Wings, Inc. and Buffalo Wild Wings International, Inc. (incorporated by reference to Exhibit 10.4 of our Form 10-Q filed November 12, 2010) |
10.5 | Amendment to Buffalo Wild Wings Area Development Agreement dated March 20, 2007 (incorporated by reference to Exhibit 10.5 of our Form 10-Q filed November 12, 2010) |
10.6 | Amendment to Buffalo Wild Wings Area Development Agreement dated November 5, 2007 (incorporated by reference to Exhibit 10.5 of our Form 10-Q filed November 12, 2010) |
10.7 | Form of Stock Option Agreement (incorporated by reference to Exhibit 10.1 of our Form 8-K filed August 5, 2010)* |
10.8 | Form of Stock Option Agreement, dated July 30, 2007, entered into by and between the Company and Directors Gregory Stevens, T. Michael Ansley, Jay Alan Dusenberry, Jason T. Curtis and David Ligotti (incorporated by reference to Exhibit 10.24 of our Form 10-K filed March 26, 2010)* |
10.9 | Diversified Restaurant Holdings, Inc. Performance Bonus Plan (incorporated by reference to Exhibit 10.1 of our Form 8-K filed March 11, 2013)* |
10.10 | 2013 Diversified Restaurant Holdings, Inc. Short-Term Incentive Program (incorporated by reference to Exhibit 10.2 of our Form 8-K filed March 11, 2013)* |
10.11 | $62M Senior Secured Credit Facility with RBS Citizens, N.A., as administrative agent, Wells Fargo Bank, N.A., as documentation agent, and the other banks party thereto, dated April 15, 2013 (incorporated by reference to Exhibit 10.1 of our form 8-K filed April 15, 2013) |
10.12 | Second Amendment to Credit Agreement dated March 20, 2014 (incorporated by reference to Exhibit 10.1 of our Form 8-K filed March 26, 2014) |
10.13 | $77.0M Senior Secured Credit Facility with RBS Citizens, N.A., as administrative agent, dated December 16, 2014 (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
21 | Subsidiaries of Diversified Restaurant Holdings, Inc. (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
23 | Consent of BDO USA, LLP (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
31.1 | Certification of Chief Executive Officer pursuant to Rule 13a-14(a) |
31.2 | Certification of Chief Financial Officer pursuant to Rule 13a-14(a) |
32.1 | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350 |
32.2 | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350 |
101.INS | XBRL Instance Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.SCH | XBRL Taxonomy Extension Schema Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.CAL | XBRL Taxonomy Extension Calculation Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.DEF | XBRL Taxonomy Extension Definition Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.LAB | XBRL Taxonomy Extension Labels Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
101.PRE | XBRL Taxonomy Extension Presentation Document (filed as an exhibit to the Original Filing, and incorporated herein by this reference) |
* | Management contract or compensatory plan |