AMENDED AND RESTATED
P.F. CHANG’S CHINA BISTRO, INC.
NON-EMPLOYEE DIRECTOR COMPENSATION PLAN
1.
Establishment and Objectives of the Plan
P.F. Chang’s China Bistro, Inc., a
Delaware corporation (the “Company”), by action of its
Board of Directors (the “Board”), adopted this P.F.
Chang’s China Bistro, Inc. Non-Employee Director Compensation
Plan (the “Plan”) for the benefit of Non-Employee
Directors of the Company, effective April 17, 2008 and amended
and restated the Plan effective April 28, 2009 (the
“Effective Date”). The Plan is a deferred compensation
plan intended to advance the interests of the Company by providing
the Company an advantage in attracting and retaining Non-Employee
Directors and by providing Non-Employee Directors with additional
incentive to serve the Company by increasing their proprietary
interest in the success of the Company. All equity-based awards
under this Plan shall be made pursuant to an Equity
Plan.
As used in the Plan, the following definitions
apply to the terms indicated below.
(a) “ Account ” means a
bookkeeping reserve account to which Restricted Stock Units and
Stock-Based Awards shall be credited on behalf of Non-Employee
Directors.
(b) “ Affiliate ” means
any entity, whether now or hereafter existing, which controls, is
controlled by, or is under common control with, the Company
(including, but not limited to, joint ventures, limited liability
companies and partnerships), as determined by the Board.
(c) “ Annual Meeting ”
means the annual meeting of stockholders of the Company held on the
relevant Annual Meeting Date.
(d) “ Annual Meeting Date
” means the date of the Company’s Annual Meeting for
the relevant Plan Year.
(e) “ Annual Retainer ”
means the retainer fee established by the Board in accordance with
Section 4.1 and payable to a Non-Employee Director for
services performed as a member of the Board of
Directors.
(f) “ Appointment Date ”
means the date that a New Director first joins the Board as a
Non-Employee Director, provided such date is not an Annual Meeting
Date.
(g) “ Award ” means a
Cash-Settled Stock Appreciation Right or Stock-Based Award, as
applicable, granted under the Equity Plan as provided in this Plan,
and an Option or Restricted Stock Unit granted under the Equity
Plan as provided in this Plan prior to its amendment and
restatement as set forth herein.
(h) “ Board ” or “
Board of Directors ” means the Board of Directors of
the Company.
(i) “Cash-Settled Stock
Appreciation Right” means a Stock Appreciation Right as
defined under the Equity Plan that is settled and paid in
cash.
(j) “ Change in Control
” means the occurrence of any of the following:
(1) an Ownership Change Event or a series
of related Ownership Change Events (collectively, a
“Transaction”) in which the stockholders of the Company
immediately before the Transaction do not retain immediately after
the Transaction, in substantially the same proportions as their
ownership of shares of the Company’s voting stock immediately
before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of
the outstanding voting securities of the Company or, in the case of
an Ownership Change Event, the entity to which the assets of the
Company were transferred (the “Transferee”) as the case
may be; or
(2) the
liquidation of the Company.
For purposes of
the preceding sentence, indirect beneficial ownership shall
include, without limitation, an interest resulting from ownership
of the voting securities of one or more corporations or other
business entities which own the Company or the Transferee, as the
case may be, either directly or through one or more subsidiary
corporations or other business entities. The Board shall have the
right to determine whether multiple sales or exchanges of the
voting securities of the Company or multiple Ownership Change
Events are related, and its determination shall be final, binding
and conclusive.
(k) “ Change in Control Event
” shall have the meaning ascribed thereto under Code Section
409A(a)(2)(A)(v) with respect to a change in the ownership or
effective control of the Company, or in the ownership of a
substantial portion of the assets of the Company.
(l) “ Code ” means the
Internal Revenue Code of 1986, as amended, and the regulations and
guidance promulgated thereunder.
(m) “ Common Stock ”
means the Company’s common stock, par value $0.001 per
share.
(n) “ Company ” means
P.F. Chang’s China Bistro, Inc., a Delaware
corporation.
(o) “ Disability ” or
“ Disabled ” means the inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment that is expected to
result in death or last for a continuous period of not less than
twelve months, as determined in accordance with Code
Section 409A.
(p) “ Effective Date ”
means April 28, 2009.
(q) “ Elected Payment Date
” means the date (if any) elected by a Non-Employee Director
pursuant to Section 5 of this Plan for the payment of vested
Restricted Stock Units or Stock-Based Awards.
(r) “Election Form”
means the form approved by the Board for use by a Non-Employee
Director to select the form of payment of the Annual Retainer and
an Elected Payment Date, if applicable.
(s) “ Election ” mean a
Non-Employee Director’s election as to the method of payment
of the Annual Retainer and Payment Election, if
applicable.
(t) “ Equity Plan ”
means any equity compensation plan that has been approved by the
Company’s stockholders, from time to time, provided that such
equity compensation plan provides for the applicable
Award.
(u) “ Fair Market Value
” means the closing price of a share of Common Stock as
quoted on such national or regional securities exchange or market
system constituting the primary market for the Common Stock on the
last trading day prior to the day of determination, as reported in
The Wall Street Journal or such other source as the Company deems
reliable.
(v) “ New Director ”
means a Non-Employee Director of the Company who first becomes a
member of the Board of Directors on a date that is not an Annual
Meeting Date.
(w) “ Non-Employee Director
” means a member of the Board who, at the time of his or her
service, is not an employee of the Company or any
Affiliate.
(x) “ Option ” means a
nonstatutory stock option to purchase one share of Common Stock
granted pursuant to the Equity Plan and the Plan prior to the
amendment and restatement of the Plan as set forth
herein.
(y) “ Ownership Change Event
” means any of the following which occurs with respect to the
Company: (i) the direct or indirect sale or exchange in a
single or series of related transactions by the stockholders of the
Company of more than 50% of the voting stock of the Company;
(ii) a merger or consolidation in which the Company is a
party; or (iii) the sale, exchange or transfer of all or
substantially all, as determined by the Board in its discretion, of
the assets of the Company.
(z) “ Payment Date ”
means the date on which the first of the events set forth in
Section 4.3(c)(iii) shall occur.
(aa) “ Payment Election
” means a written election made in accordance with the
provisions of Section 5 to select an Elected Payment Date with
regard to an award of Restricted Stock Units or Stock-Based
Awards.
(bb) “ Plan ” means this
Amended and Restated P.F. Chang’s China Bistro, Inc.
Non-Employee Director Compensation Plan.
(cc) “ Plan Year ” means
the twelve-month period coinciding with the calendar
year.
(dd) “ Prorated Amount ”
means, with respect to a New Director, an amount equal to:
(1) the Annual Retainer reduced by the product of
(x
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