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Item 9A. Controls and Procedures

2024-02-27 compared with 2023-02-28 · 54 added, 21 removed, 206 unchanged (27% of the section changed)

14 unchanged sentences

In making this assessment, management used the criteria set forth in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”).

Management omitted the internal controls of Hardie’s F&V, LLC (“Hardie’s”) and Oakville Produce Partners, LLC (“GreenLeaf”) from its assessment as permitted by the Securities and Exchange Commission due to the timing of the acquisitions.

GreenLeaf constituted 6% of consolidated total assets as of December 29, 2023, and 2% of consolidated net sales for the fiscal year then ended.

Hardie’s constituted 4% of consolidated total assets as of December 29, 2023, and 6% of consolidated net sales for the fiscal year then ended.

Based on this assessment, our Chief Executive Officer and Chief Financial Officer have concluded that the Company’s internal control over financial reporting was effective as of December 29, 2023.

The Company’s financial statements included in this Annual Report on Form 10-K have been audited by BDO USA, LLP, an independent registered public accounting firm, as indicated in the report appearing on page 45 of this Form 10-K.

BDO USA, LLP has also provided an attestation report on the Company’s internal control over financial reporting.

The Company’s financial statements included in this Annual Report on Form 10-K have been audited by BDO USA, P.C., an independent registered public accounting firm, as indicated in the report appearing on page 43 of this Form 10-K.

BDO USA, P.C.

has also provided an attestation report on the Company’s internal control over financial reporting.

Changes In Internal Control Over Financial Reporting.

There were no changes in our internal control over financial reporting that have occurred during the fiscal quarter ended December 30, 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

There were no changes in our internal controls over financial reporting that occurred during the quarter ended December 29, 2023 that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

The Company is currently integrating Hardie’s and GreenLeaf into its overall system of internal control over financial reporting and, if necessary, will make appropriate changes as it integrates Hardie’s and GreenLeaf into the Company's overall internal control over financial reporting process.

Report of Independent Registered Public Accounting Firm

5 unchanged sentences

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 29, 2023, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated balance sheets of the Company as of December 30, 2022 and December 24, 2021, the related consolidated statements of operations and comprehensive income (loss), stockholders’ equity, and cash flows for each of the three years in the period ended December 30, 2022, and the related notes and our report dated February 28, 2023 expressed an unqualified opinion thereon.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated balance sheets of the Company as of December 29, 2023 and December 30 2022, the related consolidated statements of operations and comprehensive income (loss), stockholders’ equity, and cash flows for each of the three fiscal years in the period ended December 29, 2023, and the related notes and our report dated February 27, 2024 expressed an unqualified opinion thereon.

Basis for Opinion

The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Item 9A, Management’s Report on Internal Control over Financial Reporting.

The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying “Item 9A, Management’s Annual Report on Internal Control over Financial Reporting”.

Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

6 unchanged sentences

We believe that our audit provides a reasonable basis for our opinion.

As indicated in the accompanying “Item 9A, Management’s Annual Report on Internal Control over Financial Reporting”, management’s assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of Oakville Produce Partners, LLC (“GreenLeaf”) and Hardie’s F&V, LLC (“Hardie’s”), which were acquired on May 1, 2023 and March 20, 2023, respectively, and which are included in the consolidated balance sheet of the Company as of December 29, 2023, and the related consolidated statements of operations and comprehensive income (loss), stockholders’ equity, and cash flow for the fiscal year then ended.

GreenLeaf constituted 6% of consolidated total assets as of December 29, 2023, and 2% of consolidated net sales for the fiscal year then ended.

Hardie’s constituted 4% of consolidated total assets as of December 29, 2023, and 6% of consolidated net sales for the fiscal year then ended.

Management did not assess the effectiveness of internal control over financial reporting of GreenLeaf and Hardie’s because of the timing of the acquisitions which were completed on May 1, 2023 and March 20, 2023, respectively.

Our audit of internal control over financial reporting of the Company also did not include an evaluation of the internal control over financial reporting of GreenLeaf and Hardie’s.

Definition and Limitations of Internal Control over Financial Reporting

5 unchanged sentences

Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ BDO USA, LLP

/s/ BDO USA, P.C.

Stamford, Connecticut

1 unchanged sentence

OTHER INFORMATION

Rule 10b5-1 and Non-Rule 10b5-1 Trading Arrangements

During the three months ended December 29, 2023, none of the Company’s directors or executive officers adopted , modified or terminated any contract, instruction or written plan for the purchase or sale of the Company’s common stock that was intended to satisfy the affirmative defense conditions of Exchange Act Rule 10b5-1(c) or any “non-Rule 10b5-1 trading arrangement.”

Amended and Restated Severance Agreements

On February 27, 2024, the Company entered into an Amended and Restated Severance Agreement with each of its executive officers other than Mr.

McCauley to provide for an indefinite term and lump sum severance payment (instead of a renewable annual term and payment of severance over a specified severance period), subject to the terms and conditions of the Amended and Restated Severance Agreements.

The severance formulas under the agreements were unchanged by the amendment and

restatement of the agreements and are the same as those described in the Company’s Definitive Proxy Statement filed with the

SEC on March 29, 2023.

The above description of the Amended and Restated Severance Agreements is a summary, and the full text of the agreements is filed wih the Annual Report on Form 10-K and is incorporated by reference herein.

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS

26 unchanged sentences

PRINCIPAL ACCOUNTING FEES AND SERVICES

The information set forth under the captions “Proposal 2 – Ratification of Independent Registered Public Accounting Firm – Fees Paid to BDO USA, LLP” and “Proposal 2 – Ratification of Independent Registered Public Accounting Firm – Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services” in our definitive Proxy Statement for our 2023 Annual Meeting of Stockholders to be held on May 19, 2023, which we intend to file within 120 days after our fiscal year-end, is incorporated herein by reference.

The information set forth under the captions “Proposal 2 – Ratification of Independent Registered Public Accounting Firm – Fees Paid to BDO USA, P.C.” and “Proposal 2 – Ratification of Independent Registered Public Accounting Firm – Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services” in our definitive Proxy Statement for our 2024 Annual Meeting of Stockholders to be held on May 10, 2024, which we intend to file within 120 days after our fiscal year-end, is incorporated herein by reference.

EXHIBITS AND FINANCIAL STATEMENT SCHEDULE

27 unchanged sentences

and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K filed on November 22, 2019).

4.3 Form of 1.875% Convertible Senior Note due 2024 (included as an exhibit to Exhibit 4.2)

4.3 Form of 1.875% Convertible Senior Note due 2024 ( incorporated by reference to Exhibit 4.2 to th e Company ’ s Form8-K filed on Nov ember 22, 20 19 )

4.4 Rights Agreement, dated as of March 22, 2020, between The Chefs’ Warehouse, Inc.

2 unchanged sentences

and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K filed on December 13, 2022).

4.6 Form of 2.375% Convertible Senior Note due 2028 (included as an exhibit to Exhibit 4.5)

4.6 Form of 2.375% Convertible Senior Note due 2028 ( incorporated by reference to Exhibit 4.

2 to the Company ’ s Form 8- K filed on Dec ember 13, 2022 ) .

10.1 Joint and Several Guaranty of Payment, dated as of April 26, 2012, among The Chefs’ Warehouse, Inc., Chefs’ Warehouse Parent, LLC, Dairyland USA Corporation, The Chefs’ Warehouse Mid-Atlantic, LLC, Bel Canto Foods, LLC, The Chefs’ Warehouse West Coast, LLC, and The Chefs’ Warehouse of Florida, LLC (incorporated by reference to Exhibit 10.4 to the Company’s Form 8-K filed on April 30, 2012).

5 unchanged sentences

10.7* Offer letter between Chefs’ Warehouse Holdings, LLC and Alexandros Aldous, dated as of February 18, 2011 (incorporated by reference to Exhibit 10.17 to the Company’s Form 10-K filed on March 13, 2013).

10.8* Severance Agreement, made as of August 1, 2014, by and between The Chefs’ Warehouse, Inc.

and Alexandros Aldous (incorporated by reference to Exhibit 10.2 to the Company’s Form 8-K filed on August 6, 2014).

10.8* The Chefs’ Warehouse, Inc.

2011 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.13 to the Company’s Form S-1/A filed on July 1, 2011).

10.9* Form of Non-Qualified Stock Option Agreement under The Chefs’ Warehouse, Inc.

2011 Omnibus Equity Incentive Plan (Officers and Employees) (incorporated by reference to Exhibit 10.21 to the Company’s Form 10-K filed on March 10, 2017 ).

10.10* The Chefs’ Warehouse, Inc.

12 unchanged sentences

5, dated as of November 28, 2019, to the Term Loan Facility (incorporated by reference to Exhibit 10.25 to the Company's Form 10-K filed on February 24, 2020).

10.17 Sixth Amendment to Credit Agreement, dated June 8, 2020, by and among Dairyland USA Corporation and Chefs’ Warehouse Parent, LLC, as borrowers, The Chefs’ Warehouse, Inc., certain other subsidiaries, as guarantors, the lenders party thereto and Jefferies Finance LLC, as administrative agent and collateral agent (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on June 8, 2020).

10.18† Seventh Amendment to Credit Agreement, dated February 24, 2021, by and among Dairyland USA Corporation and Chefs’ Warehouse Parent, LLC, as borrowers, The Chefs’ Warehouse, Inc., certain other subsidiaries, as guarantors, the lenders party thereto and Jefferies Finance LLC, as administrative agent and collateral agent.

10.17 Amend ment No.

6, dated June 8, 2020, to the Term Loan Fac ility (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on June 8, 2020).

10.18 Amend ment No.

7 , dated February 24, 2021, to the Term Loan Fa cility (incorporated by reference to Exhibit 10.18 to the Company ’ s Form 10-K filed on February 2 8 , 2023) .

10.19 Amendment No.

8, dated as of August 23, 2022, to the Term Loan Credit Agreement (incorporated by reference to Exhibit 10.3 to the Company's Form 10-Q filed on October 26, 2022).

10.20† A mendment No .

9 , dated as of December 7, 2022, to the Term Loan Credit Agreement.

8, dated as of August 23, 2022, to the Term Loan Facility (incorporated by reference to Exhibit 10.3 to the Company's Form 10-Q filed on October 26, 2022).

10.20 Amendment No.

9, dated as of December 7, 2022, to the Term Loan Facility (incorporated by reference to Exhibit 10.2 0 to the Company's Form 10-K filed on February 28, 2023).

10.21† Amendment No.

10 , dated as of November 6, 2023 , to the Term Loan Facility .

10.22 Credit Agreement, dated as of June 29, 2018, by and among Chefs’ Warehouse Parent, LLC and Dairyland USA Corporation, as Borrowers, and The Chefs’ Warehouse, Inc., The Chefs’ Warehouse Mid-Atlantic, LLC, Bel Canto Foods, LLC, The Chefs’ Warehouse West Coast, LLC, The Chefs’ Warehouse Of Florida, LLC, Michael’s Finer Meats, LLC, Michael’s Finer Meats Holdings, LLC, The Chefs’ Warehouse Midwest, LLC, Fells Point Holdings, LLC and other Loan Parties party thereto as Guarantors, the Lenders party thereto and BMO Harris Bank N.A., as Administrative Agent and Swing Line Lender (the “ABL Facility”) (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on July 2, 2018).

2 unchanged sentences

10.24 Amendment No.

2, dated as of February 24, 2021, to the ABL Facility .

2, dated as of February 24, 2021, to the ABL Facility (incorporated by reference to Exhibit 10.23 to the Company's Form 10-K filed on February 28, 202 3 ).

10.25 Amendment No.

3 unchanged sentences

10.27 Amendment No.

5, dated as of December 7, 2022 to the ABL Facility.

5, dated as of December 7, 2022 to the ABL Facility (incorporated by reference to Exhibit 10.26 to the Company's Form 10-K filed on February 28, 202 3 ).

10.28 Amendment No.

6, dated as of July 7, 2023, to the ABL Facility (incorporated by reference to Exhibit 10.

1 to the Company's Form 10- Q filed on August 2, 2023).

10.29* Offer Letter, dated October 17, 2017, by and between The Chefs’ Warehouse, Inc.

21 unchanged sentences

10.39* The Chefs’ Warehouse, Inc 2020 Cash Incentive Plan (incorporated by reference to Exhibit 10.41 to the Company’s Form 10-K filed on February 23, 2021).

10.38* 2021 Form of Restricted Share Award Agreement - Directors (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed on July 28, 2021).

10.40* 2021 Form of Restricted Share Unit Award Agreement - Directors (incorporated by reference to Exhibit 10.

1 to the Company’s Form 10-Q filed on July 28, 2021).

10.41* 2021 Non-Employee Director Deferral Plan (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed on July 28, 2021).

10.40† The Chefs’s Warehouse, Inc.

Seventh Amended and Restated Compensation and Human Capital Committee Charter as adopted by the Board of Directors, November 1, 2022.

10.42 The Chefs ’ Warehouse, Inc.

Seventh Amended and Restated Compensation and Human Capital Committee Charter as adopted by the Board of Directors, November 1, 2022 (incorporated by reference to Exhibit 10.40 to the Company's Form 10-K filed on February 28, 202 3 ).

10.43* The Chefs’ Warehouse, Inc.

Employee Stock Purchase Plan (incorporated by reference to Exhibit 99.1 to the Company’s Form S-8 filed on August 11, 2023).

10.44*† Form of Amended and Restated Executive Severance Agreement .

14.1 The Chefs’ Warehouse, Inc.

Code of Business Conduct and Ethics (incorporated by reference to Exhibit 14.1 to the Company’s Form 10-Q filed on August 6, 2013).

42 unchanged sentences

/s/ Aylwin Lewis Director February 27, 2024

/s/ Debra Walton-Ruskin Director February 27, 2024

Debra Walton-Ruskin

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures