<PAGE> 1
Registration No. 333- _________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
P.F. CHANG'S CHINA BISTRO, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 86-0815086
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
5090 NORTH 40TH STREET, SUITE 160
PHOENIX, ARIZONA 85018
(Address of principal executive offices) (Zip code)
P.F. CHANG'S CHINA BISTRO, INC.
1996 EMPLOYEE STOCK OPTION PLAN,
1997 RESTAURANT MANAGEMENT STOCK OPTION PLAN,
1998 STOCK OPTION PLAN,
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
ROBERT T. VIVIAN
CHIEF FINANCIAL OFFICER
P.F. Chang's China Bistro, Inc.
5090 North 40th Street, Suite 160
Phoenix, Arizona 85018
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (602) 957-8986
This registration statement shall hereafter become effective in
accordance with Rule 462 promulgated under the Securities Act of 1933, as
amended.
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities registered (2) offering price aggregate registration fee
to be per share (3) offering price
registered (1) (3)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1996 Employee Stock Option Plan
Common Stock 956,510 $ 3.58 $ 3,425,748
Par Value $0.001
1997 Restaurant Management
Stock Option Plan
Common Stock 56,875 $ 8.11 $ 461,250
Par Value $0.001
1998 Stock Option Plan
Common Stock 122,250 $ 12.00 $ 1,467,000
Par Value $0.001 157,750 $ 21.50 $ 3,391,625
1998 Employee Stock Purchase Plan
Common Stock 400,000 $ 18.28 $ 7,312,000
Par Value $0.001
TOTALS 1,693,385 $ 16,057,623 $ 4,464.68
</TABLE>
(1) The securities to be registered include options and rights to acquire such
common stock.
(2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this
registration statement also covers any additional securities that may be
offered or issued in connection with any stock split, stock dividend or
similar transaction.
(3) The offering price is estimated pursuant to Rule 457 solely for purposes of
calculating the registration fee. As to the shares subject to outstanding
but unexercised options, the price is computed on the basis of the average
exercise price for the options outstanding under the applicable plan. As to
the remaining shares under the 1998 Stock Option Plan, the price is based
upon the average of the high and low prices of the common stock on February
19, 1999 as reported on the Nasdaq National Market. The 1998 Employee Stock
Purchase Plan establishes a purchase price equal to 85% of the fair market
value of the Company's common stock and, therefore, the price for shares
issuable under this plan is based upon 85% of the average of the high and
low prices of the common stock on February 19, 1999 as reported on the
Nasdaq National Market.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by P.F. Chang's China Bistro, Inc. (the "Company") are
incorporated by reference in this Registration Statement:
(a) The Company's Prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended (the "Securities Act"), containing
audited financial statements for the Company's latest fiscal year ended
December 28, 1997 filed with the Commission on December 4, 1998
(registration number 333-59749).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the fiscal year covered by the registrant document referred to in
(a) above.
(c) The description of the Company's common stock contained in its
Registration Statement on Form 8-A filed with the Commission under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all shares of common stock offered pursuant to
this Registration Statement have been sold or which deregisters all shares of
common stock then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or
<PAGE> 4
rescission. The statute has no effect on a director's duty of loyalty or
liability for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, illegal payment of dividends or stock
redemptions or repurchases, or for any transaction from which the director
derives an improper personal benefit. As permitted by the statute, the Company
has adopted provisions in its Certificate of Incorporation which eliminate to
the fullest extent permissible under Delaware law the personal liability of its
directors to the Company and its stockholders for monetary damages for breach or
alleged breach of their duty of care.
Section 145 of the Delaware General Corporation Law provides generally that
a corporation shall have the power, and in some cases is required, to indemnify
an agent, including an officer or director, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, against certain expenses, judgments, fines, settlements, and other
amounts under certain circumstances.
The Company's By-laws provide for indemnification (to the full extent
permitted by the Delaware General Corporation Law) of directors, officers,
employees and other agents of the Company against all expenses, liability and
loss (including attorney's fees, judgment, fines, ERISA excise taxes or
penalties, amounts paid or to be paid in settlement and amounts expended in
seeking indemnification granted to such person under applicable law, this By-Law
or any agreement with the Company) reasonably incurred or suffered by such
person in connection therewith, subject to certain provisions. The Company's
By-Laws also empower it to maintain directors and officers liability insurance
coverage and to enter into indemnification agreements with its directors,
officers, employees or agents.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Company's officers and directors for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act.
Under the form of Underwriting Agreement filed as Exhibit 1.1 to the
Registration Statement on Form S-1 (Reg. No. 333-59749), initially filed on July
24, 1998, and as amended through the date hereof, the Underwriters are obligated
under certain circumstances, to indemnify directors and officers of the Company
against certain liabilities, including liabilities under the Securities Act.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
<PAGE> 5
Item 9. Undertakings
(a) Rule 415 Offering
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) Filing incorporating subsequent Exchange Act documents by reference
The undersigned Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
<PAGE> 6
(h) Request for acceleration of effective date or filing of registration
statement on Form S-8
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Securities Act the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Phoenix, State of Arizona, on February 26, 1999.
P.F. CHANG'S CHINA BISTRO, INC.
By: /s/ Robert T. Vivian
--------------------------
Robert T. Vivian
Chief Financial Officer
<PAGE> 8
POWER OF ATTORNEY
Each of the undersigned officers and directors of P.F. Chang's China
Bistro, Inc., hereby constitutes and appoints Robert T. Vivian and Richard L.
Federico his or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, with power to act alone, to sign and execute
on behalf of the undersigned any amendment or amendments to this Registration
Statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on February 26, 1999.
Signature Title
/s/ Richard L. Federico
- -----------------------
Richard L. Federico President, Chief Executive Officer and
Director (Principal Executive Officer)
/s/ Robert T. Vivian
- -------------------------
Robert T. Vivian Chief Financial Officer and Secretary (Principal
Financial and Accounting Officer)
/s/ Paul M. Fleming
- -------------------------
Paul M. Fleming Director
- -------------------------
J. Michael Chu Director
- -------------------------
Gerald R. Gallagher Director
/s/ R. Michael Welborn
- -------------------------
R. Michael Welborn Director
/s/ James G. Shennan, Jr.
- -------------------------
James G. Shennan, Jr. Director
- -------------------------
Yves Sisteron Director
<PAGE> 9
EXHIBIT INDEX
Ex. # Description
4.1 Certificate of Incorporation of the Company, as amended, is
incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission
on July 24, 1998 (File No. 333-59749)
4.2 By-Laws of the Company are incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on July 24, 1998 (File No.
333-59749)
4.3 P.F. Chang's China Bistro, Inc. 1996 Employee Stock Option Plan is
incorporated by reference to Exhibit 10.4 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission
on July 24, 1998 (File No. 333-59749)
4.4 P.F. Chang's China Bistro, Inc. 1997 Restaurant Management Stock Option
Plan is incorporated by reference to Exhibit 10.3 to the Company's
Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on July 24, 1998 (File No. 333-59749)
4.5 P.F. Chang's China Bistro, Inc.'s 1998 Stock Option Plan is
incorporated by reference to Exhibit 10.2 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission
on July 24, 1998 (File No. 333-59749)
4.6 P.F. Chang's China Bistro, Inc. 1998 Employee Stock Purchase Plan is
incorporated by reference to Exhibit 10.5 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission
on July 24, 1998 (File No. 333-59749)
5.1 Opinion re. legality
23.1 Consent of Gray Cary Ware Freidenrich LLP (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (Included in signature pages to this registration
statement)
<PAGE> 1
EXHIBIT 5
February 26, 1999
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
RE: P.F. CHANG'S CHINA BISTRO, INC. 1996 EMPLOYEE STOCK OPTION PLAN, 1997
RESTAURANT MANAGEMENT STOCK OPTION PLAN, 1998 STOCK OPTION PLAN AND 1998
EMPLOYEE STOCK PURCHASE PLAN - REGISTRATION STATEMENT ON FORM S-8
Gentlemen and Ladies:
As legal counsel for P.F. Chang's China Bistro, Inc., a Delaware
corporation (the "Company"), we are rendering this opinion in connection with
the registration under the Securities Act of 1933, as amended, of up to
1,693,385 shares of the Company's common stock, $0.001 par value, which may be
issued pursuant to the P.F. Chang's China Bistro, Inc. 1996 Employee Stock
Option Plan, 1997 Restaurant Management Stock Option Plan, 1998 Stock Option
Plan, and 1998 Employee Stock Purchase Plan (collectively, the "Plans") pursuant
to a registration statement on Form S-8 (the "Registration Statement").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California, the Delaware General Corporation Law and the federal law of the
United States. As to matters of Delaware General Corporation Law, we have based
our opinion solely upon examination of such laws and the rules and regulations
of the authorities administering such laws, all as reported in standard,
unofficial compilations. We have not obtained opinions of counsel licensed to
practice in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 1,693,385
shares of common stock which may be issued pursuant to the Plans are duly
authorized shares of the Company's common stock, and, when issued against
payment of the purchase price therefor in accordance with the provisions of the
Plans will be validly issued, fully paid and non-assessable.
<PAGE> 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ GRAY CARY WARE & FREIDENRICH LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in Form S-8 pertaining to the P.F.
Chang's China Bistro, Inc. 1996 Employee Stock Option Plan, 1997 Restaurant
Management Stock Option Plan, 1998 Stock Option Plan, 1998 Employee Stock
Purchase Plan of P.F. Chang's China Bistro, Inc. of our report dated January 26,
1998, except for Note 11 as to which the date is August 27, 1998, with respect
to the consolidated financial statements of P.F. Chang's China Bistro, Inc.
included in the Company's Prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended, for the fiscal year ended December 28, 1997,
filed with the Securities and Exchange Commission on December 4, 1998
(registration number 333-59749).
Phoenix, Arizona /s/ Ernst & Young LLP
February 25, 1999
