UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 23, 2012
P.F. Changs China Bistro, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 0-25123 | 86-0815086 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
7676 E. Pinnacle Peak Road, Scottsdale, Arizona | 85255 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (480) 888-3000
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
x | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
As previously disclosed, P.F. Changs China Bistro, Inc. (the Company) and Lane Cardwell have mutually agreed that Mr. Cardwell would step down from his role as President of the P.F. Changs China Bistro concept, effective May 17, 2012.
On May 23, 2012, Mr. Cardwells employment agreement was amended by mutual agreement to provide for continuation of his employment in an executive capacity reporting to Richard L. Federico, the Companys Chief Executive Officer and Chairman of the Board, through May 17, 2013. Mr. Cardwell will continue to serve as a member of the Board of Directors. Mr. Cardwell will receive a base salary of $350,000 for the term and reimbursement for up to $50,000 in relocation expenses incurred in calendar year 2012. Mr. Cardwell is no longer entitled to receive future base salary increases or participate in any short-term, annual or long-term incentive compensation plans or programs. In addition, Mr. Cardwell has waived his rights under all of his 2012 equity awards. In consideration, the Company has waived Mr. Cardwells non-competition covenant and reduced the period during which he is prohibited from soliciting customers, prospective customers, or employees of the Company to one year following the date he ceases to render services to the Company. Mr. Cardwells amended employment agreement provides that if he is terminated by the Company without Cause (as defined in such amended employment agreement), he is entitled to continued payment of his base salary through May 17, 2013, payment of the Companys share of the premiums required to continue Mr. Cardwells group health insurance coverage through May 17, 2013 under the applicable provisions of COBRA, subject to certain exceptions, reimbursement for eligible relocation expenses incurred in calendar year 2012 up to a maximum of $50,000 minus the amount of any prior relocation related reimbursements, subject to certain exceptions. Payment of the foregoing severance benefits is subject to his execution, delivery to the Company and his non-revocation of a general release of claims in a form attached to his amended employment agreement.
The foregoing description is qualified in its entirety by reference to the amended employment agreement, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
Item 8.01. | Other Events |
The information included in Item 5.02 is incorporated by reference herein.
Forward Looking Statements
This document may contain forward-looking statements that involve significant risks and uncertainties. All statements other than statements of historical fact are statements that could be deemed forward-looking statements, including all statements regarding information regarding the intent, belief or current expectation of the Company and members of its senior management team. Forward-looking statements include, without limitation, statements regarding business combinations and similar transactions, prospective performance and opportunities and the outlook for the Companys businesses, performance and opportunities and regulatory approvals, the anticipated timing of filings and approvals relating to the transaction; the expected timing of the completion of the transaction; the ability to complete the transaction considering the various closing conditions; and any assumptions underlying any of the foregoing. Investors are cautioned that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties and are cautioned not to place undue reliance on these forward-looking statements. Actual results may differ materially from those currently anticipated due to a number of risks and uncertainties. Risks and uncertainties that could cause the actual results to differ from expectations contemplated by forward looking statements include: uncertainties as to the completion of the tender offer and the completion and timing of the merger; uncertainties as to how many of the Companys stockholders will tender their stock in the offer; the possibility that competing offers will be made; the possibility that various closing conditions for the transaction may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the transaction; the effects of disruption from the transaction making it more difficult to maintain relationships with employees, customers, other business partners or governmental entities; other business effects, including the effects of industry, economic or political conditions outside of the Companys control; transaction costs; actual or contingent liabilities. In addition, the Companys actual performance and financial results may differ materially from those currently anticipated due to a number of risk and uncertainties, including, but not limited to, failure of the Companys existing or new restaurants to achieve expected results; damage to the Companys brands or reputation; inability to successfully expand the Companys operations; changes in general economic conditions and dependence on sales concentrated in
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certain geographic areas; intense competition in the restaurant industry; changes in government legislation that may increase labor costs; litigation; adverse public or medical opinions about the health effects of consuming the Companys products; failure to comply with governmental regulations; changes in food costs; the inability to retain key personnel; federal and state tax rules could negatively impact results of operations and financial position; fluctuating insurance requirements and costs; seasonality of the Companys business; adverse impact if information technology and computer systems do not perform properly. More detailed information about the Company and the risk factors that may affect the realization of any forward-looking statements is set forth in the Companys filings with the Securities and Exchange Commission (the SEC), including its Annual Report on Form 10-K and its Quarterly Reports on Form 10-Q, as well as the tender offer documents filed by Wok Acquisition Corp. (Purchaser) and certain of its affiliates and the solicitation/recommendation statement filed by the Company. All of the materials related to the offer (and all other offer documents filed with the SEC) are available at no charge from the SEC through its website at www.sec.gov. Investors and security holders may also obtain free copies of the documents filed by the Company with the SEC by contacting the Company Investor Relations at 7676 E. Pinnacle Peak Road, Scottsdale, AZ 85255, telephone number (480) 888-3000 or investorrelations@pfcb.com. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. The Company does not undertake any obligation to update any forward-looking statements as a result of new information, future developments or otherwise, except as expressly required by law.
Notice to Investors
This document is neither an offer to purchase nor a solicitation of an offer to sell any securities. The solicitation and the offer to buy shares of the Company common stock has been made pursuant to a tender offer statement on Schedule TO, containing an Offer to Purchase and related tender offer documents, filed by Purchaser and certain of its affiliates with the SEC on May 15, 2012. The Company filed a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the tender offer with the SEC on May 15, 2012. These documents, as amended from time to time, contain important information that should be read carefully and considered before any decision is made with respect to the tender offer. The tender offer materials will be sent free of charge to all stockholders of the Company. In addition, all of these materials (and all other materials filed by the Company with the SEC) may be obtained at no charge by directing a request by mail to Georgeson Inc., at 199 Water Street, 26th Floor, New York, NY 10038-3560, or by calling toll-free at (866) 300-8594.
Additional Information about the Merger and Where to Find It
In connection with the proposed transaction, the Company has filed a proxy statement with the SEC. Additionally, the Company has and will file other relevant materials with the SEC in connection with the proposed acquisition of the Company pursuant to the terms of an Agreement and Plan of Merger, dated as of May 1, 2012, by and among the Company, Wok Parent LLC, a Delaware limited liability company (Parent), and Purchaser, a Delaware corporation and an indirect wholly-owned subsidiary of Parent. The materials filed by the Company with the SEC may be obtained free of charge at the SECs web site at www.sec.gov. After the Companys filing thereof, investors and stockholders will also be able to obtain free copies of the proxy statement from the Company by contacting the Company Investor Relations at 7676 E. Pinnacle Peak Road, Scottsdale, AZ 85255, telephone number (480) 888-3000 or investorrelations@pfcb.com. INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THE PROXY STATEMENT AND THE OTHER RELEVANT MATERIALS WHEN THEY BECOME AVAILABLE BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE PROPOSED MERGER BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE MERGER AND THE PARTIES TO THE MERGER.
The Company and its respective directors, executive officers and other members of their management and employees, under the SEC rules, may be deemed to be participants in the solicitation of proxies of the Company stockholders in connection with the proposed transaction. Investors and security holders may obtain more detailed information regarding the names, affiliations and interests of certain of the Companys executive officers and directors in the solicitation by reading the Companys proxy statement for its 2012 annual meeting of stockholders, the Annual Report on Form 10-K for the fiscal year ended January 1, 2012, and the proxy statement and other relevant materials which have been filed with the SEC in connection with the transaction. Information concerning the interests of the Companys potential participants, which may, in some cases, be different than those of the Companys stockholders generally, are set forth in the proxy statement relating to the transaction.
Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit No. |
Description | |
10.1 | Amendment and Waiver to the Executive Employment Agreement dated as of April 20, 2011 by and between P.F. Changs China Bistro, Inc. and Lane Cardwell dated as of May 23, 2012 and effective as of May 17, 2012. |
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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 hereunto duly authorized.
Date: May 25, 2012 | P.F. Changs China Bistro, Inc. | |||||
/s/ Richard L. Federico | ||||||
Richard L. Federico | ||||||
Chief Executive Officer |
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Exhibit 10.1
AMENDMENT AND WAIVER TO
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDMENT to the Executive Employment Agreement dated as of April 20, 2011 (the Employment Agreement) by and between P.F. Changs China Bistro, Inc. (Company) and Lane Cardwell (Executive), dated as of May 23,2012 (the Amendment Date), shall be effective as of May 17, 2012.
WHEREAS, Company and Executive are parties to the Employment Agreement; and
WHEREAS, the parties agree that Executive shall step down from the position of President of the China Bistro concept but shall remain employed by Company in an executive capacity under new terms and conditions and wish to amend the Employment Agreement to reflect such changes.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Company and Executive hereby agree as follows:
1. Section 1 of the Employment Agreement shall be deleted in its entirety and the following substituted in its place:
1. Employment. Company hereby agrees to continue to employ Executive in an executive capacity and Executive hereby accepts such employment, upon the terms and conditions set forth herein.
2. Section 2.1 of the Employment Agreement shall be deleted in its entirety and the following substituted in its place:
2.1 Position. Executive is employed in an executive capacity reporting directly to Companys Chief Executive Officer and having such duties and responsibilities as may be reasonably assigned by Company from time to time. Executive shall perform faithfully and diligently all duties assigned to Executive. Company reserves the right to modify Executives position and duties at any time in its sole and absolute discretion.
3. Section 3 of the Employment Agreement shall be deleted in its entirety and the following substituted in its place:
3. Term. The employment relationship pursuant to this Agreement shall be for a term commencing on May 17, 2012 and continuing until May 17, 2013 (the Term) unless sooner terminated in accordance with Section 7.
4. Section 4.2 of the Employment Agreement shall be deleted in its entirety and the following substituted in its place.
4.2 Relocation Expenses. Executive shall be eligible to receive reimbursement for the reasonable and appropriate expenses of relocation incurred in calendar year 2012 up to a maximum of $50,000; provided that Executive submits a request for payment (including invoices evidencing such expenses) within sixty (60) days following the date the expenses were incurred and Company pays Executive the amount specified in such request within thirty (30) days following the date it is received.
5. Section 7 of the Employment Agreement shall be deleted in its entirety and the following substituted in its place:
7. Termination of Executives Employment. Either party may terminate Executives employment under this Agreement at any time.
(a) Termination Without Cause. In the event Executives employment is terminated by Company without Cause, Executive shall be entitled to receive:
(i) continued payments of his Base Salary for the remainder of the Term payable in accordance with the normal payroll practices of Company as in effect from time to time; provided that the first installment shall be made on the next regularly scheduled payroll date of the Company following the thirtieth (30th) day after the effective date of Executives termination and shall include payment of any amounts that would otherwise be due prior thereto;
(ii) payment of Companys share of the premiums required to continue Executives group health care coverage for the remainder of the Term under the applicable provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA); provided that Executive elects to continue and remains eligible for these benefits under COBRA, and does not obtain health coverage through another employer during this period; and
(iii) reimbursement for the reasonable and appropriate expenses of relocation incurred in calendar year 2012 up to a maximum amount equal to $50,000 minus the amount of any prior reimbursements under Section 4.2; provided that Executive submits a request for payment (including invoices evidencing such expense) within sixty (60) days following the date such expenses are incurred and Company pays Executive the amount specified in such request within thirty (30) days following the date it is received;
provided that Executive shall be eligible to receive (or continue to receive) the payments and benefits described in (i), (ii) and (ii) so long as Executive: (x) complies with all surviving provisions of this Agreement as specified in subsection 14.8 below and (y) executes and delivers to Company within twenty-two (22) days following the effective date of Executives termination and does not revoke (within the applicable revocation period specified therein) a full general release in the form attached hereto as Exhibit A; provided further that, if necessary, such general release may be updated and revised by Company to comply with applicable law to achieve its intent.
(b) Cause. For purposes of this Agreement, Cause is defined as: (i) Executives theft, dishonesty, or falsification of any Company documents or records; (ii) Executives improper use or disclosure of Companys confidential or proprietary information (iii) any action by Executive which has a detrimental effect on Companys reputation or business; (iv) Executives failure to perform any reasonable assigned duties after written notice from Company of, and a reasonable opportunity to cure, such failure; (v) any material breach by Executive of this Agreement, which breach is not cured after written notice from Company of, and a reasonable opportunity to cure such breach; or (vi) Executives conviction (including any plea of guilty or nolo contendere) of any criminal act which impairs Executives ability to perform Executives duties with Company.
(c) Other Termination of Employment. In the event Executives employment is terminated by Company for any reason other than without Cause, or by Executive for any reason (or no reason), Executive shall be entitled to receive only (i) the unpaid and accrued Base Salary then in effect and accrued to the effective date of termination, payable within thirty (30) days following the effective date of Executives termination; and (ii) reimbursement for the reasonable and appropriate expenses of relocation incurred in calendar year 2012 up to a maximum amount equal to $50,000 minus the amount of any prior reimbursements under Section 4.2; provided that Executive submits a request for payment (including invoices evidencing such expense) within sixty (60) days following the date such expenses are incurred and Company pays Executive the amount specified in such request within thirty (30) days following the date it is received. All other Company obligations to Executive pursuant to this Agreement will become automatically terminated and completely extinguished. Executive will not be entitled to receive the severance package described in subsection (a) above.
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6. Section 9 of the Employment Agreement shall be deleted in its entirety and the following substituted in its place:
9. [Omitted].
7. The following new Section 11.3 shall be added to the Employment Agreement.
11.3 Definition of Covenant Period. For purposes of the Agreement, the term Covenant Period shall mean the period equal to the greater of the remainder of the Term or one (1) year following the date Executive ceases to render services to Company.
8. The following new Sections 17, 18 and 19 shall be added to the Employment Agreement:
17. Waiver Of Rights Related to 2012 Equity Awards. Executive waives any and all rights to and interests in each of the following equity awards granted under Companys Amended & Restated 2006 Equity Incentive Plan on April 18, 2012: (a) 17,573 options to purchase common stock of Company on the terms and conditions set forth in the 2012 Stock Option Agreement, (b) 3,322 executive restricted stock units on the terms and conditions set forth in the 2012 Executive Restricted Stock Unit Agreement, and (c) 3,322 performance-based restricted stock units on the terms and conditions set forth in the 2012 Performance-Based Restricted Stock Unit Agreement. The parties agree that all of the above-referenced 2012 award agreements terminate on May 17, 2012.
18. Release. Executive hereby forever releases and discharges any and all claims and causes of action against Company, Wok Parent LLC, Wok Acquisition LLC, the past, present and future subsidiaries, affiliates, related entities and divisions of each of them, as well as the past, present and future directors, officers, agents, attorneys, employees, executives, shareholders, members, managers, trustees, fiduciaries, representatives, principals, accountants, insurers, successors and assigns of, or any benefit plans sponsored by, such companies, including without limitation, claims, cross-claims and causes of action of any kind or nature whatsoever, known or unknown, fixed or contingent, whether in law or in equity, suit, debts, liens, contracts, agreements, promises, liabilities, claims, demands, damages, losses, attorneys fees, or costs in respect of the released claims.
19. Other. Executive acknowledges and agrees that (i) notwithstanding anything to the contrary contained in the Agreement, during the Term Executive shall not be eligible (x) for any increase in his Base Salary as in effect as of May 17, 2012 and (y) to participate in any short-term, annual or long-term incentive compensation plans or programs of Company or any of its affiliates, and Executive waives any and all rights to the foregoing, (ii) Executive has no right, title or interest in the 1,216 restricted stock units granted to Executive on December 14, 2010 or any dividend equivalent rights which may have been granted in respect thereof, and Executive affirms his prior waiver of the foregoing and (iii) after May 17, 2012, the only equity or equity-based awards of Executive which remain outstanding are the 7,500 restricted cash units granted to Executive on August 1, 2011.
9. In all other respects, the parties reconfirm the terms of the Employment Agreement.
10. Executive acknowledges that he has the right to consult with an attorney prior to signing this amendment.
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WHEREFORE the parties have read the foregoing amendment and fully understand each and every provision contained herein and have executed this amendment to the Employment Agreement effective as of the day and year written above.
Lane Cardwell | ||
/s/ Lane Cardwell | ||
| ||
P.F. Changs China Bistro, Inc. | ||
By: |
/s/ Richard L. Federico | |
Title: |
Chief Executive Officer |
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EXHIBIT A
GENERAL RELEASE AGREEMENT
This General Release Agreement (the Agreement), is made and effective as of , by and between Lane Cardwell (Cardwell) and P. F. Changs China Bistro, Inc. (Company).
WHEREAS, Cardwells employment with Company has terminated and severance payments under Section 7 of the Employment Agreement between Cardwell and Company (the Parties) dated as of April 20, 2011, which subsequently was amended as of May 23, 2012 with an effective date of May 17, 2012 (collectively, the Employment Agreement) are conditioned upon Cardwells execution of a full general release.
NOW, THEREFORE, in consideration of the payments and other benefits due Cardwell under the Employment Agreement, Cardwell and Company hereby agree as follows:
1. In consideration of Cardwells right to receive the payments set forth in Section 7 of the Employment Agreement, Cardwell, for himself and his spouse, attorneys, heirs, agents, executors, administrators, trustees, legal representatives, successors, assigns, legal representatives, personal representatives, and administrators (hereinafter collectively referred to for purposes of this Section 1 as Cardwell) hereby irrevocably and unconditionally waives, generally release and forever discharges the Company and each of its past, present and future parent companies, subsidiary companies, affiliates, related entities, divisions, shareholders, members, predecessors, directors, officers, managers, agents, attorneys, employees, trustees, fiduciaries, executives, representatives, principals, accountants, insurers, successors and assigns of, or any benefit plans sponsored by, such companies (collectively the Company Releasees) from any and all rights, claims, charges, demands, sums of money, actions, rights, promises, agreements, causes of action, obligations, losses, suits, costs, counsel fees, and liabilities of any kind or nature whatsoever, at law or in equity, whether known or unknown, existing or contingent, suspected or unsuspected, apparent or concealed, foreign or domestic, which Cardwell has now or in the future may claim to have against any or all of the Company Releasees based upon, arising out of, or in any way relating to any facts, acts, conduct, omissions, transactions, occurrences, contracts, claims, events, causes, matters or things of any conceivable kind or character existing or occurring or claimed to exist or to have occurred prior to Cardwells execution of this Agreement (including, without limitation, claims that are in any way based upon, arising under or relating to Cardwells employment with the Company, the termination of Cardwells employment with the Company, the Employment Agreement, or Cardwells services as an officer, director, or employee of the Company) (hereinafter collectively referred to as the Released Claims). The Released Claims include, without limitation, claims based on, arising under, or relating to Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., as amended; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended (including the Civil Rights Act of 1991); the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., as amended; the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., as amended; the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., as amended; the Equal Pay Act of 1963, 29 U.S.C. § 206(d), as amended; Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C. § 1681 et seq., as amended; the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq., as amended; the Labor Management Relations Act 29 U.S.C. §§ 141 et seq., as amended, the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq., as amended; the Racketeer Influenced and Corrupt Organizations Act , 18 U.S.C. §§ 1961 et seq., as amended; the Sarbanes Oxley Act of 2002; the Sabine Pilot Doctrine or the American Jobs Creation Act of 2004; any other federal, state or local statutory laws relating to employment, discrimination in employment, termination of employment, wages, benefits or otherwise; or any other federal, state or local constitution, statute, rule, or regulation, including, but not limited to, any ordinance addressing fair employment practices; any claims for employment or reemployment by the Company Released Parties; any common law claims, including but not limited to actions in tort, defamation, fraud (including fraudulent inducement into this Agreement), promissory estoppel, negligence, and breach of contract; any claims or damages for wrongful discharge or retaliatory discharge; and any claims
arising under any common law theory or any federal, state or local statute or ordinance not expressly referenced above. This Agreement is intended as a full settlement and compromise of the Released Claims; no claim of any sort is reserved. Other than the sums and benefits set forth in the Employment Agreement, there are no other sums payable to Cardwell by the Company. This Agreement does not apply to claims for the following: payment of any benefits to which Cardwell may be entitled under a Company sponsored tax qualified retirement or savings plan; any rights of Cardwell to indemnification under the Articles of Incorporation or by-laws of the Company; or to any claims that cannot be released or waived by law. Except as specifically provided herein, it is expressly understood and agreed that this Agreement shall operate as a clear and unequivocal waiver by Cardwell of any claim for accrued or unpaid wages, benefits or any other type of payment other than as provided to Cardwell under the Employment Agreement and payment of any benefits to which Cardwell may be entitled under any tax qualified retirement or savings plan of the Company in which Cardwell is a participant. It is the intention of the parties to make this Agreement as broad and as general as the law permits as to the claims released hereunder.
2. Cardwell acknowledges that he may hereafter discover claims in addition to or different from those which he now knows or believes to exist with respect to the subject matter of this Agreement and which, if known or suspected at the time of executing this Agreement, may have materially affected his decision to execute this Agreement. Cardwell hereby waives any such claims.
3. Cardwell shall have 21 days from the date specified above to sign the Agreement and seven working days from the date he signs the Agreement to revoke it. Such revocation should be made in writing and delivered so that it is received by no later than 4:30 p.m. on the seventh working day after signing the Agreement. Payments pursuant to Section 7 of the Employment Agreement shall not be made until the seven-day revocation period has elapsed.
4. Cardwell, on behalf of himself and his spouse, attorneys, heirs, executors, administrators, trustees, legal representatives, agents, successors and assigns, hereby covenants forever not to, whether directly or indirectly or whether individually or collectively, initiate, assert, file, prosecute, maintain, commence, institute, sponsor, encourage, assist, volunteer, advise, represent, cooperate with, or facilitate any complaint, action, proceeding, investigation, arbitration, lawsuit, or claim or any legal, equitable or administrative proceeding of any nature, against any of the Company Releasees in connection with the Released Claims, and represents and warrants that no other person or entity has initiated or, to the extent within his control, will initiate any such proceeding on his or their behalf.
5. It is understood that nothing in this Agreement is to be construed as an admission on behalf of the Company Releasees of any wrongdoing with respect to Cardwell, any such wrongdoing being expressly denied.
6. Both parties acknowledge that they have read this Agreement; that they fully understand it; that they accept its provisions in their entirety; and agree to comply with its terms and conditions.
7. The parties agree that this Agreement and the substance thereof are to remain strictly confidential. Accordingly, neither of the parties shall make any statements or provide any information to any person (including but not limited to any former, current, or future employees of the Company Releasees) concerning this Agreement, or the substance thereof, except to make such disclosures (a) as may be legally required in litigation or (b) that are necessary for the purpose of obtaining legal or tax advice.
8. IN SIGNING THIS GENERAL RELEASE AGREEMENT,
CARDWELL ACKNOWLEDGES THAT HE HAS BEEN INFORMED OF THE FOLLOWING RIGHTS AVAILABLE TO HIM UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, 29 U.S.C. § 621 et seq., as amended (ADEA):
(A) HE HAS READ AND UNDERSTANDS THIS AGREEMENT AND IS HEREBY ADVISED IN WRITING HE HAS THE RIGHT TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
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AGREEMENT;
(B) HE HAS SIGNED THIS AGREEMENT VOLUNTARILY AND UNDERSTANDS THAT THIS AGREEMENT CONTAINS A FULL AND FINAL RELEASE OF ALL OF HIS CLAIMS;
(C) HE HAS BEEN OFFERED AT LEAST TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT;
(D) THIS AGREEMENT IS NOT MADE IN CONNECTION WITH AN EXIT INCENTIVE OR OTHER EMPLOYEE TERMINATION PROGRAM OFFERED TO A GROUP OR CLASS OF EMPLOYEES; AND
(E) HE DOES NOT WAIVE RIGHTS OR CLAIMS UNDER THE ADEA THAT MIGHT ARISE AFTER THE DATE THIS WAIVER IS EXECUTED.
9. This Agreement and any and all claims arising out of, under, pursuant to, or in any way related to this Agreement, including but not limited to any and all claims (whether sounding in contract or tort) as to this Agreements scope, validity, enforcement, interpretation, construction, and effect shall be governed by and construed in accordance with the laws of the United States and the State of Arizona.
10. To the fullest extent permitted by law, Cardwell and the Company agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement. For the purpose of this agreement to arbitrate, references to Company include all parent, subsidiary or related entities and their employees, supervisors, officers, directors, agents, pension or benefit plans, pension or benefit plan sponsors, fiduciaries, administrators, affiliates and all successors and assigns of any of them, and this agreement shall apply to them to the extent Cardwells claims arise out of or relate to their actions on behalf of Company.
(A) The mutual promise by the Company and Cardwell to arbitrate any and all disputes between them rather than litigate them before the courts or other bodies, provides the consideration for this agreement to arbitrate.
(B) Either party may exercise the right to arbitrate by providing the other party with written notice in accordance with Section 14.7 of the Employment Agreement of any and all claims forming the basis of such right in sufficient detail to inform the other party of the substance of such claims. In no event shall the request for arbitration be made after the date when institution of legal or equitable proceedings based on such claims would be barred by the applicable statute of limitations.
(C) The arbitration will be conducted in Phoenix, Arizona by a single neutral arbitrator and in accordance with the then current rules for resolution of employment disputes of the American Arbitration Association (AAA). The parties are entitled to representation by an attorney or other representative of their choosing. The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Arizona, and only such power, and shall follow the law. The parties agree to abide by and perform any award rendered by the arbitrator. The arbitrator shall issue the award in writing and therein state the essential findings and conclusions on which the award is based. Judgment on the award may be entered in any court having jurisdiction thereof.
(D) The Company shall bear the costs of the arbitration filing and hearing fees and the cost of the arbitrator.
11. CARDWELL ACKNOWLEDGES THAT, BY SIGNING THIS AGREEMENT, HE IS WAIVING ANY RIGHT THAT HE MAY HAVE TO A JURY TRIAL OR A COURT TRIAL RELATED TO THIS AGREEMENT.
12. Each of the parties agrees that, except for the covenants and obligations pursuant to Sections 7 (Termination of Executives Employment), 10 (Confidentiality and Proprietary Rights), 11 (Nonsolicitation), 12 (injunctive Relief), 13 (Agreement to Arbitrate), 14 (General Provisions), 15 (Section 409A) and 16 (Entire Agreement) of the Employment Agreement (the Surviving Sections),
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the Employment Agreement is terminated effective as of expiration of the employment term or the termination Cardwells employment, and except for the Surviving Sections, shall be of no further force and effect with no further liability or obligation of any party thereto thereunder. The Surviving Sections of the Employment Agreement survive termination of the Employment Agreement and remain in full force and effect. Cardwell expressly and specifically acknowledges, ratifies, and reaffirms his obligations under the Surviving Sections of the Employment Agreement.
13. There shall be no presumption that any ambiguity in this Agreement should be resolved in favor of one party hereto and against another party hereto. Any controversy concerning the construction of this Agreement shall be decided neutrally without regard to authorship.
14. This Agreement may be executed in any number of counterparts, each of which so executed will be deemed to be an original, and such counterparts will, when executed by the parties hereto, together constitute but one agreement. Facsimile and electronic signatures shall be deemed to be the equivalent of manually signed originals.
15. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective successors and permitted assigns. Neither this Agreement nor any rights or obligations hereunder may be assigned by Cardwell, other than by will or the laws of descent or distribution.
16. All provisions of this Agreement are intended to be severable. In the event any provision or restriction contained herein is held to be invalid or unenforceable in any respect, in whole or in part, such finding shall in no way affect the validity or enforceability of any other provision of this Agreement. The parties hereto further agree that any such invalid or unenforceable provision shall be deemed modified so that it shall be enforced to the greatest extent permissible under law, and to the extent that any court or arbitrator of competent jurisdiction determines any restriction herein to be unreasonable in any respect, such court or arbitrator may limit this Agreement to render it reasonable in the light of the circumstances in which it was entered into and specifically enforce this Agreement as limited.
17. Any modification or amendment of this Agreement must be made in writing and signed by both parties. No term or condition of this Agreement will be deemed to have been waived except in writing by the party charged with waiver. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
THE UNDERSIGNED HAVE CAREFULLY READ THE FOREGOING AGREEMENT, KNOW THE CONTENTS THEREOF, FULLY UNDERSTAND IT, AND SIGN THE SAME AS HIS OR ITS OWN FREE ACT
AGREED AND ACCEPTED: | ||||||||
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Lane Cardwell | Date of Execution | |||||||
P. F. CHANGS CHINA BISTRO, INC. |
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By: |
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Name: |
Date of Execution | |||||||
Title: |
A-4
CERTIFICATION OF NON-REVOCATION OF
SEPARATION AND GENERAL RELEASE AGREEMENT
I hereby certify and represent that seven (7) calendar days have passed since I signed the General Release Agreement with P. F. Changs China Bistro, Inc. and that I have NOT exercised my right to revoke such General Release Agreement pursuant to the Older Workers Benefit Protection Act of 1990. I understand that P. F. Changs China Bistro, Inc. in providing me with benefits under the Employment Agreement dated as of April 20, 2011 and amended effective May 17, 2012, is relying on this Certificate, and that I can no longer revoke the General Release Agreement.
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Lane Cardwell | Date of Execution | |||
IMPORTANT:
This Certificate should be signed, dated and returned to no earlier than on the eighth (8th) calendar day after the Agreement is executed by both Parties.
A-5