UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION
STATEMENT UNDER SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF
1934
(Amendment No. 11)
P.F. CHANGS CHINA BISTRO, INC.
(Name of Subject Company)
P.F.
CHANGS CHINA BISTRO, INC.
(Name of Person Filing Statement)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
69333Y108
(CUSIP Number of Class of Securities)
Richard L. Federico
Chief Executive Officer
P.F. Changs China Bistro, Inc.
7676 East Pinnacle Peak Road
Scottsdale, Arizona 85255
(480) 888-3000
(Name, address and telephone numbers of person authorized to
receive notices and communications on behalf of the persons filing statement)
With a copy
to:
Cameron Jay Rains, Esq.
Jeffrey C. Thacker, Esq.
DLA Piper LLP (US)
4365 Executive Drive, Suite 1100
San Diego, California 92121
(858) 677-1400
¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Introduction
This Amendment No. 11 (this
Amendment
) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended or supplemented from time to time, the
Statement
) originally filed with the U.S. Securities and Exchange Commission (the
SEC
) by P.F. Changs China Bistro, Inc., a Delaware corporation (the
Company
), on May 15, 2012, and
amended on May 17, 2012, May 21, 2012, May 22, 2012, May 24, 2012, May 25, 2012, June 1, 2012, June 4, 2012, June 8, 2012, June 18, 2012 and June 20, 2012. The
Statement relates to the cash tender offer by Wok Acquisition Corp., a Delaware corporation (the
Purchaser
), and an indirect wholly-owned subsidiary of Wok Parent LLC, a Delaware limited liability company
(
Parent
), which is controlled by Centerbridge Capital Partners II, L.P., a Delaware limited partnership (
Centerbridge
), to purchase all of the issued and outstanding shares of common stock, par value $0.001 per
share, of the Company at a purchase price of $51.50 per share, net to the holder in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated
May 15, 2012, and in the related Letter of Transmittal, copies of which are attached to the Tender Offer Statement on Schedule TO filed by Centerbridge and certain of its affiliates, including Purchaser and Parent, with the SEC on May 15,
2012.
Except as otherwise set forth below, the information set forth in the original Statement remains unchanged and is
incorporated herein by reference as relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Statement.
ITEM 3.
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PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
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Item 3,
Past Contacts, Transactions, Negotiations and Agreements
, is hereby amended and supplemented by inserting
the following sentences at the end of the first paragraph of the sub-section entitled,
Arrangements with Current Executive Officers and Directors of the CompanyDirector Compensation
:
The cash portion of the annual retainer is paid in quarterly installments, and our directors have received their first quarterly
installment for 2012. Upon completion of the Offer and Merger, the Companys directors as a group would become entitled to receive the unpaid balance of the cash portion of their 2012 annual retainer, the total amount of which is
$416,250.
Item 3,
Past Contacts, Transactions, Negotiations and Agreements
, is hereby amended
and supplemented by replacing the last sentence of the first paragraph of the sub-section entitled
Arrangements with Current Executive Officers and Directors of the CompanyDirector Compensation2012 Director Equity
AwardsDirector Restricted Stock Units
with the following:
This cash amount, less required withholding
taxes, will be paid within 10 business days after the merger closing date or, to the extent applicable, at such other time as the director may have elected.
Item 3,
Past Contacts, Transactions, Negotiations and Agreements
, is hereby amended and supplemented by replacing the table at the end of the sub-section entitled,
Arrangements with Current Executive Officers and Directors of the CompanyDirector Compensation
with the following:
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Name
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2012 Cash
Retainer
($)
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Pre-2012
Options
($)
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Pre-2012
SARs ($)
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Pre-2012
Director
RSUs
($)
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Pre-2012
Director
RCUs
($)
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2012
Director
RSUs
($)
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Dividend
Equivalents
($)
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Total ($)
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Kerrii B. Anderson
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65,625
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0
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70,600
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279,027
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0
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114,021
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2,099
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531,372
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Lesley H. Howe
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73,125
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441,705
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0
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366,938
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132,664
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127,051
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3,346
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1,144,829
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Dawn E. Hudson
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65,625
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0
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9,042
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311,112
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0
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114,021
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2,270
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502,070
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M. Ann Rhoades
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69,375
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773,519
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0
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402,627
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178,551
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120,562
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3,747
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1,548,381
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James G. Shennan, Jr.
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76,875
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413,740
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0
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385,684
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139,462
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133,591
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3,518
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1,152,870
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Kenneth J. Wessels
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65,625
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382,619
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194,298
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546,364
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0
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114,021
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3,526
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1,306,453
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ITEM 8.
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ADDITIONAL INFORMATION
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Item 8,
Additional Information
, is hereby amended and supplemented as follows:
The last sentence of the first paragraph under the heading
Additional InformationLitigation
is hereby replaced with the following:
On May 21, 2012, the plaintiff filed an amended complaint to include, among other allegations, allegations that the members of
the board of directors breached their fiduciary duties on the grounds that the proxy statement and the Statement purportedly omitted material information and misstated other information. On May 29, 2012, plaintiff filed a Motion for Limited
Expedited Discovery,
1
seeking a court order requiring the Company and the other defendants to produce certain documents and make certain witnesses available for depositions on an expedited basis. On June 7, 2012,
the Company and the other defendants filed oppositions to plaintiffs Motion for Limited Expedited Discovery. On June 7, 2012, plaintiff filed an Ex Parte Application for a Temporary Restraining Order seeking an order from the court
enjoining the closing of the Offer, which plaintiff withdrew on June 8, 2012. On June 8, 2012, the court held oral argument on plaintiffs Motion for Limited Expedited Discovery. On June 20, 2012, the Court entered an order
denying plaintiffs Motion for Limited Expedited Discovery finding, among other things, the plaintiff failed to show the claims are sufficiently colorable or that there is a sufficient possibility of irreparable injury to him to warrant the
substantial burden imposed on the defendants, the public and the court by expedited discovery.
The last sentence of the
second paragraph under the heading
Additional InformationLitigation
is hereby replaced with the following:
On May 17, 2012, the plaintiff in
Jeanty v. Anderson et al.
, filed an amended complaint to include, among other allegations, allegations that the members of the board of directors
breached their fiduciary duties on the grounds that the proxy statement and the Statement purportedly omitted material information and misstated other information.
The third sentence of the third paragraph under the heading
Additional InformationLitigation
is hereby replaced with the following:
The complaint alleges that the members of the Company Board breached their fiduciary duties to the Companys stockholders by,
among other things, agreeing to sell the Company to Centerbridge Partners, L.P. for an inadequate price and pursuant to an unfair process, omitting material information and misstating other information in the proxy statement and the Statement, and
acting to put their personal interests ahead of the interests of the Companys stockholders.
The following is
hereby added to the end of the third paragraph under the heading
Additional InformationLitigation
:
On May 24, 2012, the Company filed a Motion to Proceed in One Jurisdiction, Dismiss or Stay Litigation in Other Jurisdiction,
and Organize Counsel for the Putative Class (the
Single Jurisdiction Motion
). In response to the Single Jurisdiction Motion, on June 4, 2012, plaintiffs counsel submitted a letter to the court explaining that plaintiff
reached an agreement with the plaintiffs counsel in the above referenced actions pending in the Superior Court of the State of Arizona, County of Maricopa (the
Arizona Actions
) to litigate alongside the plaintiffs in the
Arizona Actions and requesting dismissal of the
Coyne
action. On June 6, 2012, the Court of Chancery in the State of Delaware entered an order dismissing the
Coyne
action without prejudice.
Requests for consolidation of the Arizona Actions and appointment of co-lead counsel and liaison counsel currently are pending before the
Arizona court.
The following subsection is hereby added after the first paragraph under
Additional
Information
:
Amendment to Merger Agreement
On June 22, 2012 the Company announced the execution by Purchaser of a senior notes note purchase agreement and Purchasers entry into a credit agreement relating to the financing of the Offer and
the Merger. In connection therewith, on June 22, 2012, the Company, Parent and Purchaser entered into an amendment (the
Agreement
Amendment
) to the Merger Agreement. Pursuant to the Agreement Amendment, it is no longer a
condition precedent to the completion of the Offer that Purchaser receive any debt financing proceeds. In addition, the Agreement Amendment provides Purchaser with the right to extend (or re-extend) the Offer and the expiration date of the Offer for
one or more periods, in consecutive increments of up to ten business days each, the length of each such period to be determined by Parent in its sole discretion (or such longer period as Parent and the Company may mutually agree), provided that if
the proceeds of the committed debt financing (or the proceeds of any alternative debt financing obtained in accordance with the terms of the Merger Agreement) have been received by Purchaser or Parent or would be received by Purchaser or Parent at
the Offer closing or the Merger closing, as applicable, Purchaser shall only have a one-time right to extend (or re-extend) the Offer and such extension shall be for a period of not less than five business days. In addition, the Company will have
the right to require Purchaser to extend the Offer beyond the expiration date if the proxy statement has not been cleared by the SEC prior to such expiration date and all of the Offer conditions have been satisfied or, to the extent waivable, have
been waived by Purchaser or Parent, but the proceeds of the committed debt financing (or the proceeds of any alternative debt financing obtained in accordance with the terms of the Merger Agreement) have not been received by Purchaser or Parent or
would not be received by Purchaser or Parent at the Offer closing or the Merger closing, as applicable, and neither Purchaser nor Parent has exercised the right to extend (or re-extend) the Offer prior to such time.
The foregoing description of the Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the
Agreement Amendment, which is filed as Exhibit (e)(15) to the Statement and is incorporated herein by reference.
2
Item 9,
Exhibits
is hereby amended and supplemented by inserting the following exhibits thereto:
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Exhibit
No.
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Description
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(a)(5)(W)
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Press Release issued by P.F. Changs China Bistro, Inc. on June 22, 2012 (incorporated by reference to Exhibit 99.1 to the P.F. Changs China Bistro, Inc. Current
Report on Form 8-K filed with the SEC on June 22, 2012).
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(a)(5)(X)
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Joint Press Release issued by P.F. Changs China Bistro, Inc. and Centerbridge Partners, L.P. on June 22, 2012 (incorporated by reference to Exhibit 99.2 to the P.F.
Changs China Bistro, Inc. Current Report on Form 8-K filed with the SEC on June 22, 2012).
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(e)(15)
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Amendment No. 1 to Agreement and Plan of Merger, dated June 22, 2012, by and among Wok Parent LLC, Wok Acquisition Corp. and P.F. Changs China Bistro, Inc. (incorporated
by reference to Exhibit 2.1 to the P.F. Changs China Bistro, Inc. Current Report on Form 8-K filed with the SEC on June 22, 2012).
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3
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.
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P.F. CHANGS CHINA BISTRO, INC.
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By:
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/s/ Richard L. Federico
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Name:
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Richard L. Federico
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Title:
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Chairman and Chief Executive Officer
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Dated: June 22, 2012
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