Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We have established and maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized, and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. 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 as of the end of the period covered by this report. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of December 26, 2021.
Management’s Annual Report on Internal Control over Financial Reporting
Management’s report on our internal control over financial reporting and the attestation report of PricewaterhouseCoopers LLP, our independent registered certified public accounting firm, on our internal control over financial reporting are included in Item 8, Financial Statements and Supplementary Data, of this Annual Report on Form 10-K.
Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting during our most recent quarter ended December 26, 2021 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
Amendment to CEO Employment Agreement
On February 21, 2022, the Company entered into the Second Amendment to Amended and Restated Officer Employment Agreement (the “Second Amendment”) with David J. Deno, the Company’s Chief Executive Officer. Pursuant to the Second Amendment, effective February 21, 2022, Mr. Deno’s annual base salary was increased to One Million Dollars ($1,000,000) and his long-term incentive award target was increased to 4.35 times his annual base salary (collectively, the “Market Adjustment”). The increase to Mr. Deno’s annual base salary and related annual incentive compensation target will be pro-rated for 2022.
The Market Adjustment was reviewed and approved by the Company’s Compensation Committee after consultation with Frederic W. Cook & Co., Inc., the Compensation Committee’s independent compensation consultant and brings Mr. Deno’s total target compensation level more in-line with the Company’s peer group benchmark.
The foregoing summary of the Second Amendment does not purport to be complete and is qualified in its entirety by the full text of the Second Amendment, a copy of which is filed as Exhibit 10.48 to this Annual Report on Form 10-K and incorporated herein by reference.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
None.
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PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this item relating to our directors and nominees will be included under the captions “Proposal No.1: Election of Directors—Nominees for Election at this Annual Meeting” and “—Directors Continuing in Office” in our definitive Proxy Statement for the 2022 Annual Meeting of Stockholders (“Definitive Proxy Statement”) and is incorporated herein by reference.
The information required by this item relating to our executive officers is included under the caption “Information About Our Executive Officers” in Part I of this Report on Form 10-K.
The information required by this item regarding compliance with Section 16(a) of the Securities Act of 1934 will be included under the caption “Executive Compensation and Related Information—Delinquent Section 16(a) Reports” in our Definitive Proxy Statement and is incorporated herein by reference.
We have adopted a Code of Conduct that applies to all employees. A copy of our Code of Conduct is available on our website, free of charge. The Internet address for our website is www.bloominbrands.com, and the Code of Conduct may be found on our main webpage by clicking first on “Investors” and then on “Governance—Governance Documents” and next on “Code of Conduct.”
We intend to satisfy any disclosure requirement under Item 5.05 of Form 8-K regarding an amendment to, or waiver from, a provision of this code of ethics by posting such information on our website, on the Governance Documents webpage, as specified above.
The information required by this item regarding our Audit Committee will be included under the caption “Proposal No.1: Election of Directors—Board Committees and Meetings” in our Definitive Proxy Statement and is incorporated herein by reference.
Item 11. Executive Compensation
The information required by this item will be included under the captions “Proposal No.1: Election of Directors—Director Compensation” and “Executive Compensation and Related Information” in our Definitive Proxy Statement and is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this item will be included under the caption “Ownership of Securities” in our Definitive Proxy Statement and is incorporated herein by reference.
The information relating to securities authorized for issuance under equity compensation plans is included under the caption “Securities Authorized for Issuance Under Equity Compensation Plans” in Item 5 of this Report on Form 10-K.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this item relating to transactions with related persons will be included under the caption “Certain Relationships and Related Party Transactions,” and the information required by this item relating to director independence will be included under the caption “Proposal No.1: Election of Directors—Independent Directors,” in each case in our Definitive Proxy Statement, and is incorporated herein by reference.
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Item 14. Principal Accounting Fees and Services
The information required by this item will be included under the captions “Proposal No.2: Ratification of Independent Registered Certified Public Accounting Firm—Principal Accountant Fees and Services” and “—Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Auditor” in our Definitive Proxy Statement and is incorporated herein by reference.
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BLOOMIN’ BRANDS, INC.
PART IV
Item 15. Exhibits and Financial Statement Schedules
(a)(1) LISTING OF FINANCIAL STATEMENTS
The following consolidated financial statements of the Company and subsidiaries are included in Item 8 of this Report:
• Consolidated Balance Sheets – December 26, 2021 and December 27, 2020
• Consolidated Statements of Operations and Comprehensive Income (Loss) – Fiscal years 2021, 2020 and 2019
• Consolidated Statements of Changes in Stockholders’ Equity – Fiscal years 2021, 2020 and 2019
• Consolidated Statements of Cash Flows – Fiscal years 2021, 2020 and 2019
• Notes to Consolidated Financial Statements
(a)(2) FINANCIAL STATEMENT SCHEDULES
All financial statement schedules have been omitted, since the required information is not applicable or is not present in amounts sufficient to require submission of the schedule, or because the information required is included in the consolidated financial statements and notes thereto included in this Report.
(a)(3) EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS FILINGS REFERENCED FOR
INCORPORATION BY REFERENCE
3.1 Third Amended and Restated Certificate of Incorporation of Bloomin’ Brands, Inc.
May 19, 2021 Form 8-K, Exhibit 3.1
3.2 Third Amended and Restated Bylaws of Bloomin’ Brands, Inc.
December 7, 2018 Form 8-K, Exhibit 3.1
4.1 Form of Common Stock Certificate
Amendment No. 4 to Registration Statement on Form S-1, File No. 333-180615, filed on July 18, 2012, Exhibit 4.1
4.2 Description of Common Stock
December 29, 2019 Form 10-K, Exhibit 4.2
4.3 Indenture, dated as of May 8, 2020, between Bloomin’ Brands, Inc. and Wells Fargo Bank, National Association
May 11, 2020 Form 8-K, Exhibit 4.1
4.4 Form of 5.00% Convertible Senior Notes due 2025
May 11, 2020 Form 8-K, Included as Exhibit A to Exhibit 4.1
4.5 Indenture, dated as of April 16, 2021, by and among Bloomin’ Brands, Inc., OSI Restaurant Partners, LLC, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee
April 20, 2021 Form 8-K, Exhibit 4.1
4.6 Form of 5.125% Senior Notes due 2029
April 20, 2021 Form 8-K, Included as Exhibit A to Exhibit 4.1
10.1 Second Amended and Restated Credit Agreement, dated April 16, 2021, by and among Bloomin’ Brands, Inc., OSI Restaurant Partners, LLC, the guarantors party thereto, the lenders party thereto, and Wells Fargo Bank, National Association, as administrative Agent
April 20, 2021 Form 8-K, Exhibit 10.1
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS FILINGS REFERENCED FOR
INCORPORATION BY REFERENCE
10.2 Royalty Agreement dated April 1995 among Carrabba’s Italian Grill, Inc., Outback Steakhouse, Inc., Mangia Beve, Inc., Carrabba, Inc., Carrabba Woodway, Inc., John C. Carrabba, III, Damian C. Mandola, and John C. Carrabba, Jr., as amended by First Amendment to Royalty Agreement dated January 1997 and Second Amendment to Royalty Agreement made and entered into effective April 7, 2010 by and among Carrabba’s Italian Grill, LLC, OSI Restaurant Partners, LLC, Mangia Beve, Inc., Mangia Beve II, Inc., Original, Inc., Voss, Inc., John C. Carrabba, III, Damian C. Mandola, and John C. Carrabba, Jr.
Registration Statement on Form S-1, File No. 333-180615, filed on April 6, 2012, Exhibit 10.6
10.3 Third Amendment to Royalty Agreement made and entered into effective June 1, 2014, by and among Carrabba’s Italian Grill, LLC, OSI Restaurant Partners, LLC, Mangia Beve, Inc., Mangia Beve II, Inc., Original, Inc., Voss, Inc., John C. Carrabba, III, Damian C. Mandola, and John C. Carrabba, Jr.
June 29, 2014 Form 10-Q, Exhibit 10.6
10.4 Fourth Amendment to Royalty Agreement made and entered into effective May 1, 2017, by and among Carrabba’s Italian Grill, LLC, OSI Restaurant Partners, LLC, Mangia Beve, Inc., Mangia Beve II, Inc., Original, Inc., Voss, Inc., John C. Carrabba, III, Damian C. Mandola, and John C. Carrabba, Jr.
June 25, 2017 Form 10-Q, Exhibit 10.1
10.5 Purchase and Sale of Royalty Payment Stream and Termination of Royalty Agreement dated August 2, 2021 by and among Carrabba’s Italian Grill, LLC, OSI Restaurant Partners, LLC Mangia Beve, Inc., Mangia Beve II, Inc., Original, Inc., Voss, Inc., John C. Carrabba, III, Damian C. Mandola and John C. Carrabba, Jr.
August 5, 2021 Form 10-Q, Exhibit 10.2
10.6 Amended and Restated Operating Agreement for OSI/Fleming’s, LLC made as of June 4, 2010 by and among OS Prime, LLC, a wholly-owned subsidiary of OSI Restaurant Partners, LLC, FPSH Limited Partnership and AWA III Steakhouses, Inc.
Registration Statement on Form S-1, File No. 333-180615, filed on April 6, 2012, Exhibit 10.8
10.7* OSI Restaurant Partners, LLC HCE Deferred Compensation Plan effective October 1, 2007
Registration Statement on Form S-1, File No. 333-180615, filed on April 6, 2012, Exhibit 10.46
10.8* Kangaroo Holdings, Inc. 2007 Equity Incentive Plan, as amended
Registration Statement on Form S-1, File No. 333-180615, filed on April 6, 2012, Exhibit 10.1
10.9* Form of Option Agreement for Options under the Kangaroo Holdings, Inc. 2007 Equity Incentive Plan
Registration Statement on Form S-1, File No. 333-180615, filed on April 6, 2012, Exhibit 10.42
10.10* Bloomin’ Brands, Inc. 2012 Incentive Award Plan
Amendment No. 4 to Registration Statement on Form S-1, File No. 333-180615, filed on July 18, 2012, Exhibit 10.2
10.11* Form of Nonqualified Stock Option Award Agreement for options granted under the Bloomin’ Brands, Inc. 2012 Incentive Award Plan
December 7, 2012 Form 8-K, Exhibit 10.2
10.12* Form of Restricted Stock Award Agreement for restricted stock granted to directors under the Bloomin’ Brands, Inc. 2012 Incentive Award Plan
December 7, 2012 Form 8-K, Exhibit 10.3
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS FILINGS REFERENCED FOR
INCORPORATION BY REFERENCE
10.13* Form of Restricted Stock Award Agreement for restricted stock granted to employees and consultants under the Bloomin’ Brands, Inc. 2012 Incentive Award Plan
December 7, 2012 Form 8-K, Exhibit 10.4
10.14* Form of Restricted Stock Unit Award Agreement for restricted stock granted to directors under the Bloomin’ Brands, Inc. 2012 Incentive Award Plan
September 30, 2013 Form 10-Q, Exhibit 10.1
10.15* Form of Restricted Stock Unit Award Agreement for restricted stock granted to employees and consultants under the Bloomin’ Brands, Inc. 2012 Incentive Award Plan
September 30, 2013 Form 10-Q, Exhibit 10.2
10.16* Form of Performance Unit Award Agreement for performance units granted under the Bloomin’ Brands, Inc. 2012 Incentive Award Plan
December 7, 2012 Form 8-K, Exhibit 10.5
10.17* Form of Bloomin’ Brands, Inc. Indemnification Agreement by and between Bloomin’ Brands, Inc. and each member of its Board of Directors and each of its executive officers
Amendment No. 4 to Registration Statement on Form S-1, File No. 333-180615, filed on July 18, 2012, Exhibit 10.39
10.18* Bloomin’ Brands, Inc. 2016 Omnibus Incentive Compensation Plan
March 11, 2016 Definitive Proxy Statement
10.19* Form of Nonqualified Stock Option Award Agreement for options granted to executive management under the Bloomin’ Brands, Inc. 2016 Omnibus Incentive Compensation Plan
June 26, 2016 Form 10-Q, Exhibit 10.2
10.20* Form of Restricted Stock Unit Award Agreement for restricted stock granted to directors under the Bloomin’ Brands, Inc. 2016 Omnibus Incentive Compensation Plan
June 26, 2016 Form 10-Q, Exhibit 10.3
10.21* Form of Restricted Stock Unit Award Agreement for restricted stock granted to executive management under the Bloomin’ Brands, Inc. 2016 Omnibus Incentive Compensation Plan
June 26, 2016 Form 10-Q, Exhibit 10.4
10.22* Form of Performance Award Agreement for performance units granted under the Bloomin’ Brands, Inc. 2016 Omnibus Incentive Compensation Plan
June 26, 2016 Form 10-Q, Exhibit 10.5
10.23* Form of Restricted Cash Award Agreement for cash awards granted under the Bloomin’ Brands, Inc. 2016 Omnibus Incentive Compensation Plan
March 26, 2017 Form 10-Q, Exhibit 10.1
10.24* Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
April 9, 2020 Definitive Proxy Statement
10.25* Form of Restricted Stock Unit Award Agreement for restricted stock granted to directors under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
May 29, 2020 Form 8-K, Exhibit 10.2
10.26* Form of Nonqualified Stock Option Award Agreement for options granted to executive management under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
May 29, 2020 Form 8-K, Exhibit 10.3
10.27* Form of Restricted Stock Unit Award Agreement for restricted stock granted to executive management under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
May 29, 2020 Form 8-K, Exhibit 10.4
10.28* Form of Performance Award Agreement for performance units granted to executive management under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
May 29, 2020 Form 8-K, Exhibit 10.5
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS FILINGS REFERENCED FOR
INCORPORATION BY REFERENCE
10.29* Form of Restricted Cash Award Agreement for cash awards granted to executive management under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
May 29, 2020 Form 8-K, Exhibit 10.6
10.30* Amended Form of Performance Award Agreement for performance units granted to executive management under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
December 27, 2020 Form 10-K, Exhibit 10.48
10.31* Amended Form of Performance Award Agreement with adapted service criteria for performance units granted to executive management under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
December 27, 2020 Form 10-K, Exhibit 10.49
10.32* Form of Restricted Stock Unit Award Agreement with adapted service criteria for restricted stock units granted to executive management under the Bloomin’ Brands, Inc. 2020 Omnibus Incentive Compensation Plan
December 27, 2020 Form 10-K, Exhibit 10.50
10.33* Bloomin’ Brands, Inc. Executive Change in Control Plan, effective December 6, 2012
December 7, 2012 Form 8-K, Exhibit 10.1
10.34* Second Amended and Restated Employment Agreement, effective April 1, 2019, by and between Elizabeth A. Smith and Bloomin’ Brands, Inc.
March 31, 2019 Form 10-Q, Exhibit 10.2
10.35* Amended and Restated Officer Employment Agreement, effective April 1, 2019, by and between David J. Deno and Bloomin’ Brands, Inc.
March 31, 2019 Form 10-Q, Exhibit 10.3
10.36* Employment Offer Letter Agreement, dated as of July 29, 2016, between Bloomin’ Brands, Inc. and Gregg Scarlett
September 25, 2016 Form 10-Q, Exhibit 10.2
10.37* Employment Offer Letter Agreement, dated as of March 7, 2019, between Bloomin’ Brands, Inc. and Christopher Meyer
March 31, 2019 Form 10-Q, Exhibit 10.4
10.38* Employment Offer Letter Agreement, dated as of May 1, 2019, between Michael Stutts and Bloomin’ Brands, Inc.
June 30, 2019 Form 10-Q, Exhibit 10.3
10.39* Employment Offer Letter Agreement, dated as of May 1, 2019, between Kelly Lefferts and Bloomin’ Brands, Inc.
June 30, 2019 Form 10-Q, Exhibit 10.4
10.40* Resignation Agreement, effective March 6, 2020, by and between Elizabeth A. Smith and Bloomin’ Brands, Inc.
December 29, 2019 Form 10-K, Exhibit 10.39
10.41* Employment Offer Letter Agreement, dated as of February 14, 2020, between Bloomin’ Brands, Inc. and Gregg Scarlett
December 29, 2019 Form 10-K, Exhibit 10.40
10.42* Amendment to Officer Employment Agreement, dated as of April 6, 2020, between Bloomin’ Brands, Inc. and David J. Deno
March 29, 2020 Form 10-Q, Exhibit 10.4
10.43 Form of Convertible Note Hedge Transactions confirmation
May 11, 2020 Form 8-K, Exhibit 10.1
10.44 Form of Warrant Transactions confirmation
May 11, 2020 Form 8-K, Exhibit 10.2
10.45* Separation Agreement, dated as of December 20, 2021, by and between Michael Stutts and Bloomin’ Brands, Inc.
Filed herewith
10.46* Employment Offer Letter Agreement, dated as of February 10, 2021, between Patrick Murtha and Bloomin’ Brands, Inc.
Filed herewith
10.47* Employment Offer Letter Agreement, dated as of April 14 , 2021, between Patrick Murtha and Bloomin’ Brands, Inc.
Filed herewith
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS FILINGS REFERENCED FOR
INCORPORATION BY REFERENCE
10.48* Second Amendment to Officer Employment Agreement, dated as of February 21,2022, between Bloomin’ Brands, Inc. and David J. Deno
Filed herewith
21.1 List of Subsidiaries
Filed herewith
23.1 Consent of PricewaterhouseCoopers LLP
Filed herewith
31.1 Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Filed herewith
31.2 Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
Filed herewith
32.1 Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 1
Filed herewith
32.2 Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 1
Filed herewith
101.INS Inline XBRL Instance Document Filed herewith
101.SCH Inline XBRL Taxonomy Extension Schema Document Filed herewith
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document Filed herewith
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document Filed herewith
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document Filed herewith
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document Filed herewith
104 Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101) Filed herewith
*Management contract or compensatory plan or arrangement required to be filed as an exhibit.
1 These certifications are not deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section. These certifications will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates them by reference.
Item 16. Form 10-K Summary
None.
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BLOOMIN’ BRANDS, INC.
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.
Date: February 23, 2022 Bloomin’ Brands, Inc.
By: /s/ David J. Deno
David J. Deno
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ David J. Deno Chief Executive Officer and Director
(Principal Executive Officer)
David J. Deno February 23, 2022
/s/ Christopher Meyer Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
Christopher Meyer February 23, 2022
/s/ James R. Craigie
James R. Craigie Chairman of the Board and Director February 23, 2022
/s/ Wendy A. Beck
Wendy A. Beck Director February 23, 2022
/s/ David R. Fitzjohn
David R. Fitzjohn Director February 23, 2022
/s/ John Gainor
John Gainor Director February 23, 2022
/s/ Lawrence Jackson
Lawrence Jackson Director February 23, 2022
/s/ Tara Walpert Levy
Tara Walpert Levy Director February 23, 2022
/s/ John J. Mahoney
John J. Mahoney Director February 23, 2022
/s/ R. Michael Mohan
R. Michael Mohan Director February 23, 2022
/s/ Elizabeth A. Smith
Elizabeth A. Smith Director February 23, 2022