UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): August 2, 2011
THE CHEFS’ WAREHOUSE, INC.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-35249 | 20-3031526 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
||
100 East Ridge Road, Ridgefield, CT 06877
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (203) 894-1345
Chefs’ Warehouse Holdings, LLC
(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):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o 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
(d) Effective July 27, 2011, John Austin, Kevin Cox, and Stephen Hanson have been appointed to
the Board of Directors of The Chefs’ Warehouse, Inc. (the “Company”), thereby joining Christopher
Pappas, John Pappas, Dean Facatselis, and John Couri as the Company’s directors. Messrs. Austin,
Hanson, and Cox will serve as members of the Company’s audit committee, Messrs. Couri, Austin, and
Cox will serve as members of the Company’s compensation committee, and Messrs. Cox, Hanson, and
Couri will serve as members of the Company’s nominating and corporate governance committee.
John Austin, 49, is a founder and the chief financial officer of The Hilb Group, LLC, a
regional mid-market insurance brokerage firm formed in 2009 which focuses primarily on property and
casualty insurance and employee benefits services. Prior to joining The Hilb Group in 2009, Mr.
Austin was employed by Performance Food Group Company (“PFG”), a Richmond, Virginia-based publicly
traded foodservice distributor, from 1995 to 2009. Mr. Austin served his last six years at PFG as
that company’s chief financial officer. Prior to joining PFG, Mr. Austin spent four years as the
assistant controller for General Medical Corporation, a Richmond, Virginia-based distributor of
medical supplies. He also spent the first six years of his career in public accounting, primarily
with the Richmond, Virginia office of Deloitte & Touche. Mr. Austin brings to the Company’s Board
of Directors an extensive background and experience in finance and the operations of a public
company operating within the foodservice distribution industry.
Kevin Cox, 47, is the executive vice president of human resources at American Express Company
(“American Express”), a global provider of payment solutions and travel-related services for
consumers and businesses, a position he has held since 2005. Prior to joining American Express, Mr.
Cox spent 16 years at PepsiCo and Pepsi Bottling Group, where he held positions leading strategy,
business development, technology and human resources. He is a current member of the board of
directors of Corporate Executive Board Company, a registered public company, and Ability Beyond
Disability, and he served as a member of the board of directors of Virgin Mobile USA, Inc., a
registered public company, from 2007 to 2009. Mr. Cox holds a Master of Labor and Industrial
Relations from Michigan State University and a Bachelor of Arts from Marshall University. Mr. Cox
brings his extensive knowledge of compensation matters, including the design, implementation and
maintenance of compensation programs for publicly traded companies, as well as his experiences
gained from serving on boards of directors of other publicly traded companies, to the Company’s
Board of Directors.
Stephen Hanson, 61, is the founder and president of B.R. Guest Restaurants, a New York
multi-concept operator that began with one restaurant in 1987 and has since expanded to over 20
properties in New York City, Las Vegas and Florida. Mr. Hanson is a member of the Department of
Consumer Affairs’ Consumers Council for New York City, a position he has held since January 2011.
He also sits on the boards of directors for Publicolor, a not-for-profit organization that uses
color, collaboration, design and the painting process to empower students to transform themselves,
their schools and their communities, and City Harvest, a not-for-profit organization dedicated to
ending hunger in New York City. Mr. Hanson earned a business degree from New York University’s
Stern School of Business in 1976. Mr. Hanson brings more than twenty years of experience in the
restaurant industry, as well as his general business and investing background, to the Company’s
Board of Directors.
(e) On August 2, 2011, the Company entered into employment agreements with each of Christopher
Pappas, its President and Chief Executive Officer, and John Pappas, its Vice Chairman. Each of the
employment agreements has a three-year term and allows for the automatic extension of the term for
successive one-year terms unless either party to the agreement elects not to renew the agreement at
least 60 days prior to the end of the term. The agreements provide for an annual base salary of
$750,000
for Christopher Pappas and an annual base salary of $450,000 for John Pappas, an annual cash bonus
opportunity for each to be determined by the Board of Directors (or a committee thereof) and the
right of each to participate in the Company’s incentive plans. Additionally, the agreements provide
for four weeks of paid vacation annually, a monthly car allowance of $2,000 and participation in
the Company’s employee benefit plans and programs for salaried employees to the extent permissible
under such plans or programs.
The agreements also provide for severance benefits if Christopher Pappas or John Pappas, as
applicable, is terminated by the Company without cause. Upon such a termination, the agreements
provide for the continued payment of base salary for one year from the date of termination and the
right to receive any bonus that has been earned but remains unpaid on the date of termination. The
agreements also include a non-competition and non-solicitation provision, pursuant to which each
executive has agreed, among other things, that for one year following the termination of his
employment with the Company, he will not (i) compete with the Company or its subsidiaries; (ii)
induce a customer or supplier of the Company to cease doing business with the Company or (iii)
induce an employee of the Company to leave its employ. For purposes of the employment agreements,
“cause” is defined as (i) engaging in willful misconduct that is injurious to the Company or its
affiliates or (ii) the embezzlement or misappropriation of the Company’s, or its affiliates’, funds
or property; provided that, no act, or failure to act, is to be considered “willful” unless done,
or omitted to be done, not in good faith and without reasonable belief that the action or omission
was in the best interest of the Company.
The employment agreements with each of Christopher Pappas and John Pappas are filed herewith
as Exhibit 10.1 and Exhibit 10.2, respectively, and are incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On July 27, 2011, the Company filed its certificate of incorporation, in the form previously
filed as Exhibit 3.3 to Pre-Effective Amendment No. 5 to the Company’s Registration Statement on
Form S-1 (File No. 333-173445), with the Secretary of State of the State of Delaware and the
Company’s bylaws, in the form previously filed as Exhibit 3.4 to Pre-Effective Amendment No. 2 to
the Company’s Registration Statement on Form S-1 (File No. 333-173445), became effective. A
description of the Company’s capital stock has previously been reported by the Company in its
prospectus, dated July 28, 2011, filed pursuant to Rule 424(b) of the Securities Act of 1933, as
amended. The certificate of incorporation and the bylaws are filed herewith as Exhibit 3.1 and
Exhibit 3.2, respectively, and are incorporated herein by reference.
Item 8.01 Other Events.
On
August 2, 2011, the Company issued a press release announcing the completion of the
initial public offering of 10,350,000 of its common shares, $0.01 par value per share, which
included 4,666,667 shares offered by the Company and 5,683,333 shares offered by certain of the
Company’s existing stockholders, including 1,350,000 shares sold to the underwriters to cover
over-allotments, for cash consideration of $13.95 per share (net of underwriting discounts) to a
syndicate of underwriters led by Jefferies & Company, Inc., BMO Capital Markets Corp. and Wells
Fargo Securities, LLC as representatives of the underwriters for the offering. The other
underwriters in the syndicate were BB&T Capital Markets, a division of Scott & Stringfellow, LLC,
and Canaccord Genuity Inc. A copy of the press release is filed herewith as Exhibit 99.1.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are being filed or furnished, as applicable, herewith
to this Current Report on Form 8-K.
| Exhibit No. | Description | |||
| 3.1 | Certificate of Incorporation of The Chefs’ Warehouse, Inc. |
|||
| 3.2 | Bylaws of The Chefs’ Warehouse, Inc. |
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| 10.1 | Employment Agreement, dated August 2, 2011, by and between The
Chefs’ Warehouse, Inc. and Christopher Pappas. |
|||
| 10.2 | Employment Agreement, dated August 2, 2011, by and between The
Chefs’ Warehouse, Inc. and John Pappas. |
|||
| 99.1 | Press Release dated August 2, 2011. |
|||
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.
| THE CHEFS’ WAREHOUSE, INC. |
||||
| By: | /s/ Kenneth Clark | |||
| Name: | Kenneth Clark | |||
| Title: | Chief Financial Officer | |||
Date: August 2, 2011
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
THE CHEFS’ WAREHOUSE, INC.
OF
THE CHEFS’ WAREHOUSE, INC.
The undersigned natural person, acting as an incorporator of a corporation under the General
Corporation Law of the State of Delaware (the “DGCL”), hereby adopts the following Certificate of
Incorporation for such Corporation, which shall become effective upon filing:
ARTICLE I
The name of the corporation is The Chefs’ Warehouse, Inc. (the “Corporation”).
ARTICLE II
The address of its registered office in the State of Delaware is c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name
of its registered agent at such address is Corporation Service Company.
ARTICLE III
The purpose for which the Corporation is organized is to engage in any lawful act or activity
for which corporations may be organized under the DGCL, as from time to time amended.
ARTICLE IV
The total number of shares of all classes of capital stock which the Corporation shall have
authority to issue is 105,000,000, of which:
(i)
100,000,000 shares shall be shares of common stock, par value $.01 per share (the “Common Stock”); and
(ii)
5,000,000 shares shall be shares of preferred stock, par value $.01 per share (the “Preferred
Stock”).
Such stock may be issued from time to time by the Corporation for such consideration as may be
fixed by the Board of Directors of the Corporation.
SECTION 1. Common Stock. Except as (i) otherwise required by law or (ii) expressly
provided in this Certificate of Incorporation (as may be amended from time to time), each share of
Common Stock shall have the same powers, rights, and privileges and shall rank equally, share
ratably, and be identical in all respects as to all matters. At every annual or special meeting of
stockholders of the Corporation, each holder of Common Stock shall be entitled to cast one vote for
each share of Common Stock standing in such holder’s name on the stock transfer records of the
Corporation.
SECTION 2. Preferred Stock. The Board of Directors is authorized, subject to
limitations prescribed by law, to provide by resolution or resolutions for the issuance of all or
any of the shares of Preferred Stock in one or more classes or series, to establish the number of
shares to be included in each such class or series, and to fix the voting powers, designations,
powers, preferences, and relative, participating, optional, or other rights, if any, of the shares
of each such class or series, and any qualifications, limitations, or restrictions thereof
including, without limitation, the authority to provide that any such class or series may be (i)
subject to redemption at such time or times and at such price or prices; (ii) entitled to receive
dividends (which may be cumulative or non-cumulative) at such rates, on such conditions, and at
such times, and payable in preference to, or in such relation to, the dividends payable on any
other class or classes or any other series; (iii) entitled to such rights upon the dissolution of,
or upon any distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other series of the same
or any other class or classes of stock, of the Corporation at such price or prices or at such rates
of exchange and with such adjustments; all as may be stated in such resolution or resolutions.
Irrespective of the provisions of Section 242(b)(2) of the DGCL, the number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of
the Corporation entitled to vote, without the separate vote of the holders of the Preferred Stock
as a class.
ARTICLE V
The name and mailing address of the sole incorporator is as follows:
Alexandros Aldous
The Chefs’ Warehouse, Inc.
100 East Ridge Road
Ridgefield, CT 06877
The Chefs’ Warehouse, Inc.
100 East Ridge Road
Ridgefield, CT 06877
ARTICLE VI
The Corporation is to have perpetual existence.
ARTICLE VII
SECTION 1. Number of Directors. Subject to any rights of the holders of any class or
series of Preferred Stock to elect additional directors under specified circumstances as set forth
in a certificate of designation relating to any such class or series of Preferred Stock, the number
of directors which shall constitute the Board of Directors shall be fixed from time to time by
resolution adopted by the affirmative vote of a majority of the total number of directors then in
office.
SECTION 2. Newly Created Directorships and Vacancies. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, newly created directorships resulting
from any increase in the number of directors or any vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from office, or any other cause
shall, except as otherwise provided by law, be filled solely by a majority of the directors then in
office (although less than a quorum), or by the sole remaining director. Directors elected
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to fill a newly created directorship or other vacancies shall hold office until the next annual
meeting of the Corporation’s stockholders and until such director’s successor has been duly elected
and qualified or until his or her earlier death, resignation, disqualification or removal.
SECTION 3. Rights of Holders of Preferred Stock. Notwithstanding the provisions of
this Article VII, whenever the holders of one or more series of Preferred Stock issued by the
Corporation shall have the right, voting separately or together by series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling of vacancies, and
other features of such directorship shall be governed by the rights of such Preferred Stock as set
forth in the certificate of designations governing such series or resolutions of the Board of
Directors applicable thereto.
SECTION 4. Bylaws. The Board of Directors is expressly authorized to make, alter,
amend, change, add to or repeal the Bylaws of the Corporation by the affirmative vote of a majority
of the total number of directors then in office.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of
the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware
at such place or places as may be designated from time to time by the Board of Directors or in the
Bylaws of the Corporation. Election of directors need not be by written ballot unless the Bylaws of
the Corporation so provide.
ARTICLE IX
No
action that is required or permitted to be taken by the stockholders
of the Corporation at any annual or special meeting of stockholders
may be effected by written consent of stockholders in lieu of a
meeting.
ARTICLE X
To the fullest extent permitted by the DGCL as the same exists or may hereafter be amended, a
director of the Corporation shall not be liable to the Corporation or its stockholders for monetary
damages for a breach of fiduciary duty as a director. Any repeal or
modification of this Article X shall not adversely affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
ARTICLE XI
To the fullest extent permitted by the DGCL, as it presently exists or may hereafter be
amended from time to time, the Corporation is also authorized to provide indemnification of (and
advancement of expenses to) its directors, officers and agents of the Corporation (and any other
persons to which the DGCL permits the Corporation to provide indemnification) through Bylaw
provisions, agreements with such agents or other persons, vote of stockholders or disinterested
directors or otherwise. Any repeal or modification of this
Article XI shall not adversely affect any
right or protection of a director of the Corporation existing at the time of such repeal or
modification.
ARTICLE XII
The Corporation expressly elects not to be governed by Section 203 of the DGCL.
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ARTICLE
XIII
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation in the manner now or hereafter prescribed herein and by the
laws of the State of Delaware, and all rights conferred upon stockholders herein are granted
subject to this reservation.
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I, Alexandros Aldous, being the incorporator herein before named, for the purpose of forming a
corporation pursuant to the DGCL, do make this certificate, hereby declaring and certifying that
this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my
hand this 26 day of June, 2011.
| /s/ Alexandros Aldous | ||||
| Alexandros Aldous, Sole Incorporator | ||||
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Exhibit 3.2
THE CHEFS’ WAREHOUSE, INC.
BYLAWS
BYLAWS
ARTICLE I.
OFFICES
OFFICES
Section 1. Registered Office. The registered office of The Chefs’ Warehouse,
Inc., a Delaware corporation (the “Corporation”), shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
Section 3. Books and Records. The books and records of the Corporation may be
kept inside or outside the State of Delaware at such place or places as may from time to time be
designated by the Board of Directors.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 1. Meeting Location. All meetings of the stockholders shall be held at
such place either within or without the State of Delaware, as shall be designated from time to time
by resolution of the Board of Directors and stated in the notice of meeting. If no designation is
so made, the place of meeting shall be the principal office of the Corporation.
Section 2. Annual Meeting. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as may properly come before
the meeting shall be held at such date, time and place as shall be determined by the Board of
Directors and stated in the notice of the meeting.
Section 3. Special Meetings. Special meetings of stockholders for any purpose
or purposes shall be called pursuant to a resolution approved by the Board of Directors or the
Chairman of the Board of Directors, the Chief Executive Officer or the Secretary of the Corporation
and may not be called by any other person or persons. The only business which may be conducted at a
special meeting shall be the matter or matters set forth in the notice of such meeting.
Section 4. Adjournments. Any meeting of the stockholders, annual or special,
may be adjourned from time to time to reconvene at the same or some other place, if any, and notice
need not be given of any such adjourned meeting if the time and place, if any, thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting, the
Corporation may transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty days, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new
record date is fixed for stockholders entitled to vote at the adjourned meeting, the Board of
Directors shall fix a new record date for notice of the adjourned meeting and shall give notice of
the adjourned meeting to each stockholder of record entitled to vote at the meeting as of the
record date for notice of such adjourned meeting.
Section 5. Notice of Meetings.
(a) Written notice stating the place, day and hour of the meeting, the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such meeting, and in the case of a special meeting, the purpose for which the
meeting is called, shall be delivered to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the meeting, either personally, by
electronic transmission in the manner provided in Section 1 of Article IV of these
Bylaws and Section 232 of the General Corporation Law of the State of Delaware (the “DGCL”) (except
to the extent prohibited by Section 232(e) of the DGCL) or by mail.
(b) Except as otherwise prohibited under the DGCL, without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders given by the
Corporation under the provisions of the DGCL, the Certificate of Incorporation or these Bylaws
shall be effective if given by a single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such notice is given. Any such consent
shall be revocable by the stockholder by written notice to the Corporation. Any stockholder who
fails to object in writing to the Corporation, within 60 days of having been given written notice
by the Corporation of its intention to send the single notice, shall be deemed to have consented to
receiving such single written notice.
Section 6. List of Stockholders. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, for a period of at least ten (10) days prior to the
meeting, either on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting, or during ordinary
business hours, at the principal place of business of the Corporation. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 7. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the Certificate of Incorporation of the Corporation. The
stockholders present at a
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duly called meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall
be present or represented any business may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for more than thirty (30) days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 8. Voting. Unless otherwise provided by law, in the Certificate of
Incorporation or in these Bylaws, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted on after three (3) years from its date,
unless the proxy provides for a longer period.
If a quorum is present, the affirmative vote of the majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the
vote of a greater or lesser number is required by law, the Certificate of Incorporation or these
Bylaws, and provided that the required vote with respect to elections of directors will be as
follows:
A person nominated for election as a director shall be elected by a plurality of the votes
cast at any meeting for the election of directors at which a quorum is present; abstentions and
broker non-votes shall not be deemed to be votes cast for purposes of tabulating the vote.
Section 9. Proxies. A stockholder may vote his or her shares in person or by
proxy, executed in writing (or in such manner prescribed by the DGCL) by the stockholder, or by his
or her duly authorized attorney-in-fact. An appointment of a proxy is effective when received by
the Secretary or other officer or agent authorized to tabulate votes. An appointment is valid for
three (3) years unless another period is expressly provided in the appointment form.
Section 10. Stockholder Participation by Remote Communication. If authorized
by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as
the Board of Directors may adopt, stockholders and proxyholders not physically present at a meeting
of stockholders may, by means of remote communication: (a) participate in a meeting of stockholders
and (b) be deemed present in person and vote at a meeting of stockholders, whether such meeting is
to be held at a designated place or solely by means of remote communication, provided that (i) the
Corporation shall implement reasonable measures to verify that each person deemed present and
permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder,
(ii) the Corporation shall implement reasonable measures to provide such stockholders and
proxyholders a reasonable opportunity to participate in the meeting and to
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vote on matters submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means of remote
communication, a record of such vote or other action shall be maintained by the Corporation.
Section 11. Inspectors at Meetings of Stockholders. The Board of Directors, in
advance of any meeting of stockholders, may, and shall if required by law, appoint one or more
inspectors, who may be employees of the Corporation, to act at the meeting or any adjournment
thereof and make a written report thereof. The Board of Directors may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is
able to act at a meeting, the person presiding at the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability. Unless otherwise provided by the Board of
Directors, the date and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be determined by the person presiding at the meeting
and shall be announced at the meeting. No ballot, proxies, votes or any revocation thereof or
change thereto, shall be accepted by the inspectors after the closing of the polls unless the Court
of Chancery of the State of Delaware upon application by a stockholder shall determine otherwise.
No person who is a candidate for office at an election may serve as an inspector at such election.
Section 12. Fixing the Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors
so fixes a date, such date shall also be the record date for determining the stockholders entitled
to vote at such meeting unless the Board of Directors determines, at the time it fixes such record
date, that a later date on or before the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the determination of stockholders entitled to vote at the
adjourned meeting and in such case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for the determination of
stockholders entitled to vote therewith at the adjourned meeting.
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(b) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
Section 13. Advance Notice Provisions for Election of Directors.
(a) Only persons who are nominated in accordance with the procedures set forth in these Bylaws
shall be eligible to serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (i) pursuant to the
Corporation’s notice of the meeting, (ii) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (iii) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in these Bylaws, who is entitled
to vote generally in the election of directors at the meeting and who shall have complied with the
notice procedures set forth below in Section 13(b) to this Article II.
(b) In order for a stockholder to nominate a person for election to the Board of Directors of
the Corporation at a meeting of stockholders, such stockholder shall have delivered timely notice
of such stockholder’s intent to make such nomination in writing to the Secretary of the
Corporation. To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation (i) in the case of an annual
meeting, not less than ninety (90) nor more than one hundred twenty (120) days prior to the date of
the first anniversary of the previous year’s annual meeting; provided, however, that in the event
the annual meeting is scheduled to be held on a date more than thirty (30) days prior to or delayed
by more than sixty (60) days after such anniversary date, notice by the stockholder in order to be
timely must be so received not later than the close of business on the tenth (10th) day
following the earlier of the day on which notice of the date of the meeting was mailed or public
disclosure of the meeting was made and (ii) in the case of a special meeting at which directors are
to be elected, not later than the close of business on the tenth (10th) day following
the earlier of the day on which notice of the date of the meeting was mailed or public disclosure
of the meeting was made. To be in proper form, a stockholder’s notice shall set forth (i) as to
each person whom the stockholder proposes to nominate for election as a director at such meeting
(A) the name, age, business address and residence address of the person, (B) the principal
occupation or employment of the person, (C) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of record by the person, (D) any other
information relating to the person that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies for election of
directors in a contested election pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) and (E)
a
5
description of all direct and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three years, and any other material relationships,
between or among such stockholder and beneficial owner, if any, and their respective affiliates and
associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and
his or her respective affiliates and associates, or others acting in concert therewith, on the
other hand, including, without limitation all information that would be required to be disclosed
pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination and
any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate
thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and
the nominee were a director or executive officer of such registrant; and (ii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the proposal is made (A) the
name and record address of such stockholder, as it appears on the Corporation’s books, and of such
beneficial owner, if applicable, and of their respective affiliates or associates or others acting
in concert therewith, (B)(1) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder and such beneficial
owner, as applicable, and their respective affiliates or associates or others acting in concert
therewith, (2) any option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or mechanism at a price
related to any class or series of shares of the Corporation or with a value derived in whole or in
part from the value of any class or series of shares of the Corporation, any derivative or
synthetic arrangement having the characteristics of a long position in any class or series of
shares of the Corporation, or any contract, derivative, swap or other transaction or series of
transactions designed to produce economic benefits and risks that correspond substantially to the
ownership of any class or series of shares of the Corporation, including due to the fact that the
value of such contract, derivative, swap or other transaction or series of transactions is
determined by reference to the price, value or volatility of any class or series of shares of the
Corporation, whether or not such instrument, contract or right shall be subject to settlement in
the underlying class or series of shares of the Corporation, through the delivery of cash or other
property, or otherwise, and without regard of whether the stockholder of record, the beneficial
owner, if any, or any affiliates or associates or others acting in concert therewith, may have
entered into transactions that hedge or mitigate the economic effect of such instrument, contract
or right, or any other direct or indirect opportunity to profit or share in any profit derived from
any increase or decrease in the value of shares of the Corporation (any of the foregoing, a
“Derivative Instrument”) directly or indirectly owned beneficially by such stockholder, the
beneficial owner, if any, or any affiliates or associates or others acting in concert therewith,
(3) any proxy, contract, arrangement, understanding, or relationship pursuant to which such
stockholder has a right to vote any class or series of shares of the Corporation, (4) any
agreement, arrangement, understanding, relationship or otherwise, including any repurchase or
similar so-called “stock borrowing” agreement or arrangement, involving such stockholder, directly
or indirectly, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of
ownership or otherwise) of any class or series of the shares of the Corporation by, manage the risk
of share price changes for, or increase or decrease the voting power of, such stockholder with
respect to any class or series of the shares of the Corporation, or which
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provides, directly or indirectly, the opportunity to profit or share in any profit derived
from any decrease in the price or value of any class or series of the shares of the Corporation
(any of the foregoing, a “Short Interest”), (5) any rights to dividends on the shares of the
Corporation owned beneficially by such stockholder that are separated or separable from the
underlying shares of the Corporation, (6) any proportionate interest in shares of the Corporation
or Derivative Instruments held, directly or indirectly, by a general or limited partnership in
which such stockholder is a general partner or, directly or indirectly, beneficially owns an
interest in a general partner of such general or limited partnership, (7) any performance-related
fees (other than an asset-based fee) that such stockholder is entitled to based on any increase or
decrease in the value of shares of the Corporation or Derivative Instruments, if any, including
without limitation any such interests held by members of such stockholder’s immediate family
sharing the same household, (8) any significant equity interests or any Derivative Instruments or
Short Interests in any principal competitor of the Corporation held by such stockholder, and (9)
any direct or indirect interest of such stockholder in any contract with the Corporation, any
affiliate of the Corporation or any principal competitor of the Corporation (including, in any such
case, any employment agreement, collective bargaining agreement or consulting agreement), (C) a
description of all arrangements or understandings between such stockholder and/or beneficial owner,
if applicable, and each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (D) a representation that
such stockholder intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (E) any other information relating to such stockholder and beneficial
owner, if any, that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of directors pursuant
to Regulation 14A under the Exchange Act. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if elected and a
completed and signed questionnaire, representation and agreement required by Section 13(d)
of this Article II by each proposed nominee. For purposes of this section, “public
disclosure” shall mean disclosure in a Current Report on Form 8-K (or any successor form) or in a
press release reported by Dow Jones News Service, Associated Press or a comparable national news
service.
(c) No person shall be eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures set forth in this section. The presiding officer of the meeting
shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this section, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded. A stockholder seeking
to nominate a person to serve as a director must also comply with all applicable requirements of
the Exchange Act, and the rules and regulations thereunder with respect to the matters set forth in
this section.
(d) To be eligible to be a nominee for election or reelection as a director of the
Corporation, a person must deliver (in accordance with the time periods prescribed for delivery of
notice under Section 13(b) of this Article II) to the Secretary at the principal
executive offices of the Corporation a written questionnaire with respect to the background and
qualification of
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such person and the background of any other person or entity on whose behalf the nomination is
being made (which questionnaire shall be provided by the Secretary upon written request), and a
written representation and agreement (in the form provided by the Secretary upon written request)
that such person (i) is not and will not become a party to (A) any agreement, arrangement or
understanding with, and has not given any commitment or assurance to, any person or entity as to
how such person, if elected as a director of the Corporation, will act or vote on any issue or
question (a “Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting
Commitment that could limit or interfere with such person’s ability to comply, if elected as a
director of the Corporation, with such person’s fiduciary duties under applicable law, (ii) is not
and will not become a party to any agreement, arrangement or understanding with any person or
entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not
been disclosed therein, and (iii) in such person’s individual capacity and on behalf of any person
or entity on whose behalf the nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply with all applicable publicly disclosed corporate
governance, conflict of interest, confidentiality and stock ownership and trading policies and
guidelines of the Corporation. The Corporation may also require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as an independent director of the Corporation or that
could be material to a reasonable stockholder’s understanding of the independence, or lack thereof,
of such nominee.
Section 14. Advance Notice Provisions for Other Business at the Annual
Meetings.
(a) At an annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an annual meeting,
business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized committee thereof), (ii) brought
before the meeting by or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (iii) otherwise properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation and such business
must be a proper subject for stockholder action. To be timely, a stockholder’s notice to the
Secretary must be delivered to or mailed and received at the principal executive offices of the
Corporation not less than ninety (90) nor more than one hundred twenty (120) days prior to the date
of the first anniversary of the previous year’s annual meeting; provided, however, that in the
event the annual meeting is scheduled to be held on a date more than thirty (30) days prior to or
delayed by more than sixty (60) days after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the tenth (10th) day following the day on
which notice of the date of the annual meeting was mailed or public disclosure of the date of the
annual meeting was made, whichever occurs first. To be in proper form, a stockholder’s notice to
the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the annual meeting,
(ii) the name and address, as they appear on the
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Corporation’s books, of the stockholder proposing such business and the beneficial owner, if
any, and of their respective affiliates or associates or others acting in concert therewith on
whose behalf the proposal is made, (iii)(A) the class and number of shares of the Corporation which
are beneficially owned by the stockholder and beneficial owner, if applicable, and their respective
affiliates or associates or others acting in concert therewith, (B) any Derivative Instrument
directly or indirectly owned beneficially by such stockholder, the beneficial owner, if any, or any
affiliates or associates or others acting in concert therewith, (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which such stockholder has a right to vote
any class or series of shares of the Corporation, (D) any Short Interest, (E) any rights to
dividends on the shares of the Corporation owned beneficially by such stockholder that are
separated or separable from the underlying shares of the Corporation, (F) any proportionate
interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a
general or limited partnership in which such stockholder is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner of such general or limited
partnership, (G) any performance-related fees (other than an asset-based fee) that such stockholder
is entitled to based on any increase or decrease in the value of shares of the Corporation or
Derivative Instruments, if any, including without limitation any such interests held by members of
such stockholder’s immediate family sharing the same household, (H) any significant equity
interests or any Derivative Instruments or Short Interests in any principal competitor of the
Corporation held by such stockholder, and (I) any direct or indirect interest of such stockholder
in any contract with the Corporation, any affiliate of the Corporation or any principal competitor
of the Corporation (including, in any such case, any employment agreement, collective bargaining
agreement or consulting agreement), (iv) any material interest of the stockholder and/or beneficial
owner, if applicable, and of their respective affiliates or associates or others acting in concert
therewith in such business and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the meeting.
(b) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted
at an annual meeting except in accordance with the procedures set forth in this section. The
presiding officer of the annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in accordance with the
provisions of this section; if he should so determine, he shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted. For purposes of
this section, “public disclosure” shall mean disclosure in a Current Report on Form 8-K (or any
successor form) or in a press release reported by Dow Jones News Service, Associated Press or a
comparable national news service. Nothing in this section shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to,
and in compliance with the requirements of, Rule 14a-8 under the Exchange Act.
Section 15. Order of Business. The order of business of each meeting of the
stockholders of the Corporation shall be determined by the presiding officer of the meeting. The
presiding officer of the meeting shall have the right and authority to prescribe such rules,
9
regulations, and procedures and to do all such acts and things as are necessary or desirable
for the conduct of the meeting, including, without limitation, the establishment of procedures for
the dismissal of business not properly presented, the maintenance of order and safety, limitations
on the time allotted to questions or comments on the affairs of the Corporation, restrictions on
entry to such meetings after the time prescribed for commencement thereof, and opening and closing
of the voting polls.
Section 16. Presiding Officer and Secretary. Meetings of the stockholders
shall be presided over by the Chairman, or if the Chairman is not present, by the Vice Chairman, or
if the Vice Chairman is not present, by the Chief Executive Officer, or if the Chief Executive
Officer is not present, by the President, or if the Chief Executive Officer and the President are
not present, by a chairman chosen by a majority of the stockholders entitled to vote at such
meeting. The Secretary or, in his or her absence, an Assistant Secretary shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is present, a majority of
the stockholders entitled to vote at such meeting shall choose any person present to act as
secretary of the meeting.
ARTICLE III.
DIRECTORS
DIRECTORS
Section 1. Powers of Directors. The business and affairs of the Corporation
shall be managed by its Board of Directors, which may exercise all powers of the Corporation and do
all lawful acts and things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.
Section 2. Number and Qualification. The number of directors which shall
constitute the Board of Directors shall be not less than three and not more than fifteen, with such
exact number within such range, and shall be fixed from time to time by resolution of the Board of
Directors. No decrease shall have the effect of shortening the term of any incumbent director.
Section 3. Election and Term. Each director shall hold office until a
successor is duly elected and qualified or until the director’s earlier death, resignation,
disqualification or removal.
Section 4. Filling Vacancies. Any vacancy occurring in the Board of Directors
by reason of death, resignation, or removal shall be filled by the remaining directors as set forth
in the Certificate of Incorporation. A director elected to fill a vacancy shall hold office until
the next annual meeting of the Corporation’s stockholders and until such director’s successor has
been duly elected and qualified or until such director’s earlier death, resignation,
disqualification or removal as herein provided. Any directorship to be filled by reason of an
increase in the number of directors may be filled by election at a regular meeting or a special
meeting of the Board of Directors called for that purpose, or at an annual meeting or a special
meeting of stockholders called for that purpose.
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Section 5. Resignation of Directors. Any director may resign at any time by
delivering a written resignation to the Secretary, such resignation to specify whether it will be
effective at a particular time, upon receipt by the Secretary or at the pleasure of the Board of
Directors. If no such specification is made, it shall be deemed effective at the pleasure of the
Board of Directors.
Section 6. Removal of Directors. Unless otherwise restricted by the
Certificate of Incorporation or by law, any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
Section 7. Place of Meetings. Regular or special meetings of the Board of
Directors may be held either within or without the State of Delaware.
Section 8. Meeting of Newly Elected Board of Directors. The first meeting of
each newly elected Board of Directors shall be held immediately following each annual meeting of
stockholders and no notice of such meeting shall be necessary to the newly elected directors in
order legally to constitute the meeting, provided a quorum shall be present.
Section 9. Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall from time to time be determined by the Board of
Directors. The Board of Directors shall meet at least annually.
Section 10. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board of Directors, the Vice Chairman, the Chief Executive Officer
or the President and shall be called by the Secretary on the written request of at least two (2)
directors. Notice of any special meeting of directors shall be given to each director. If mailed by
first-class mail, such notice shall be deposited in the United States mails so addressed, with
postage thereon prepaid, at least three (3) days before such meeting. If by overnight mail or
courier service, such notice shall be delivered to the overnight mail or courier service company at
least thirty-six (36) hours before such meeting. If given personally or by facsimile or other
electronic transmission (including e-mail), such notice shall be given or transmitted at least
twelve (12) hours before such meeting. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be specified in the notice of
such meeting. A meeting may be held at any time without notice if all the directors are present or
if those not present waive notice of the meeting.
Section 11. Telephone Meetings. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors, or any committee,
by means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
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Section 12. Quorum of Directors. At all meetings of the Board of Directors, a
majority of the directors shall constitute a quorum for the transaction of business and the act of
a majority of the directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by law or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting of the directors, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 13. Action by Written Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all members of the Board of Directors or the committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or the committee.
Section 14. Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation as appointed by the Board of Directors.
The Board of Directors shall designate the directors who shall serve as members of the committees
and may designate one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolutions of the Board of Directors, shall
have and may exercise all the powers and authority of the Board of Directors in the management of
the business and affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board of Directors.
Section 15. Committee Minutes. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
Section 16. Compensation of Directors. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to
fix the compensation of directors, which may be paid in cash, securities of the Corporation or a
combination of both cash and such securities. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like compensation for attending
committee meetings.
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ARTICLE IV.
NOTICES
NOTICES
Section 1. Notice. Whenever under the provisions of these Bylaws, the
Certificate of Incorporation or the law, written notice is required to be given to any director,
officer or stockholder, it shall not be construed to mean personal notice, but such notice will be
deemed given by depositing the same in the United States mail, postage prepaid, addressed to such
stockholder, officer, or director at such address as appears on the Corporation’s current record of
stockholders, and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice to an officer or director may also be given by
overnight mail or courier service and shall be deemed to be given when the notice is delivered to
the overnight mail or courier service company. Written notice to an officer or director also may be
given personally or by facsimile or other electronic transmission (including e-mail). Written
notice to stockholders also may be given personally or by a form of electronic transmission
(including e-mail) consented to by the stockholder to whom the notice is given. If notice to a
stockholder is provided by electronic transmission, such notice shall be deemed given: (a) if by
facsimile, when directed to a number at which the stockholder has consented to receive notice; (b)
if by e-mail, when directed to an e-mail address at which the stockholder has given consent to
receive notice; (c) if by posting on an electronic network together with separate notice to the
stockholder of such specific posting upon the later of (i) such posting and (ii) the giving of such
separate notice; and (d) if by any other electronic transmission, when directed to the stockholder.
Section 2. Waiver of Notice. Whenever under the provisions of these Bylaws,
the Certificate of Incorporation or the law, notice is required to be given to any director,
officer or stockholder, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V.
OFFICERS
OFFICERS
Section 1. Qualifications. The officers of the Corporation shall be elected by
the Board of Directors and may consist of a president, a secretary and such other officers as the
Board of Directors may determine, including a chairman, a vice chairman, a chief executive officer,
one or more vice presidents, a chief financial officer, or a treasurer. The Board of Directors may
also choose additional vice presidents, and one or more assistant secretaries and assistant
financial officers. Any number of offices may be held by the same person, except that the offices
of president and secretary may not be held by the same person. The Board of Directors may appoint
such other officers and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors.
Section 2. Term and Vacancies. The officers of the Corporation shall hold
office until their successors are chosen and qualified or until such officer’s earlier death,
resignation or
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removal. An officer may resign at any time by delivering notice to the Corporation. Such
resignation is effective when such notice is delivered unless such notice specifies a later
effective date. An officer’s resignation does not affect the Corporation’s contract rights, if any,
with the officer. Any officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of Directors.
Section 3. General Authority of Officers. The Board of Directors, except as
otherwise provided in these Bylaws, may authorize any officer to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the Corporation, and such authority may
be general or confined to specific instances. Unless so authorized, no officer, agent or employee
shall have any power or authority to bind the Corporation by any contract or engagement or to
pledge its credit or to render it liable pecuniarily for any purpose or in any amount.
Section 4. Chairman. The Chairman, if such an officer be elected, shall, if
present, preside at all meetings of the stockholders and the Board of Directors, shall see that all
orders and resolutions of the Board of Directors are carried into effect and shall perform such
other duties as the Board of Directors may from time to time prescribe.
Section 5. Vice Chairman. The Vice Chairman, if such an officer be elected,
shall have such powers and perform such duties as the Board of Directors may from time to time
prescribe.
Section 6. Chief Executive Officer. The Chief Executive Officer, if such an
officer be elected, shall, subject to the powers of the Board of Directors, be in the general and
active charge of the entire business and affairs of the Corporation, and shall be its chief policy
making officer. He or she shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or provided in these Bylaws. Whenever the President is unable
to serve, by reason of sickness, absence or otherwise, the Chief Executive Officer shall perform
all the duties and responsibilities and exercise all the powers of the President.
Section 7. President. The President of the Corporation, subject to the powers
of the Board of Directors and the Chief Executive Officer, shall have general charge of the
business affairs and property of the Corporation, and control over its officers, agents and
employees, and shall see that all orders and resolutions of the Board of Directors are carried into
effect. The President shall have such other powers and perform such other duties as may be
prescribed by the Chief Executive Officer, the Board of Directors or as may be provided in these
Bylaws.
Section 8. Vice Presidents. Each Vice President shall perform such duties and
have such powers as the Board of Directors may from time to time prescribe.
14
Section 9. Secretary. The Secretary shall attend all meetings of the
stockholders and see that records of all the proceedings of the meetings of the Corporation and of
the Board of Directors are kept in a book for that purpose. He or she shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the Board of Directors.
He or she shall have charge of the corporate seal (if any) and the stock records of the Corporation
and such other books and papers as the Board of Directors may direct, and shall perform such other
duties as may be prescribed by the Board of Directors or the President, under whose supervision he
or she shall be.
Section 10. Assistant Secretary. The Assistant Secretary, if any, or if there
be more than one, the assistant secretaries in the order determined by the Board of Directors (or
if there be no such determination, then in the order of their election) shall, in the absence of
the Secretary or in the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
Section 11. Chief Financial Officer. The Chief Financial Officer, if such an
officer be elected, shall be responsible for the general supervision of the Corporation’s financial
policies and affairs and shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 12. Treasurer. The Treasurer, if such an officer be elected, shall
exercise general supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Corporation to be deposited in such banks as may be
authorized by the Board of Directors, or in such banks as may be designated as depositaries in the
manner provided by resolution of the Board of Directors. He or she shall perform such other duties
and have such other powers as the Board of Directors may from time to time prescribe.
ARTICLE VI.
CERTIFICATES
CERTIFICATES
Section 1. Certificates For Stock; Uncertificated Shares. The shares of the
Corporation shall be represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or all classes or
series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the Corporation. Except as
otherwise provided by law, the rights and obligations of the holders of uncertificated shares and
the rights and obligations of the holders of shares represented by certificates of the same class
and series shall be identical. Every holder of stock represented by certificates shall be entitled
to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman
of the Board of Directors, or the President or Vice President, and by the Chief Financial Officer
or Treasurer, or the Secretary or an assistant secretary of such Corporation representing the
number of shares registered in certificated form. Any or all of the signatures on the certificate
15
may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or registrar at the date
of issue. The Corporation shall not have power to issue a certificate in bearer form.
Section 2. Replacement of Certificates. The Board of Directors may direct a
new certificate or certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates or uncertificated shares, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to affirm the same in such manner as it
shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 3. Transfer of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books. Upon receipt of proper transfer instructions from the
registered owner of uncertificated shares, such uncertificated shares shall be canceled and
issuance of new equivalent uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the Corporation.
Section 4. Record Ownership Conclusive. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII.
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, and applicable law, may be
declared by the Board of Directors at any regular or special meeting. Dividends may be paid in
cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate
of Incorporation.
16
Section 2. Stock Held by the Corporation. Shares of voting stock or other
equity interests issued by another entity and held in the name of the Corporation may be voted by
the Chairman, Vice Chairman, Chief Executive Officer, President or Secretary on behalf of the
Corporation, on any issue submitted to the stockholders or equity holders of such other entity with
respect to which the Corporation is entitled to vote.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be set by the
Board of Directors.
Section 4. Contracts. The Board of Directors may authorize any officer or
officers, or any agent or agents, of the Corporation to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the Corporation, and such authority may be
general or confined to specific instances.
Section 5. Inconsistent Provisions. In the event that any provision of these
Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the law,
the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but
shall otherwise be given full force and effect.
ARTICLE VIII.
INDEMNIFICATION
INDEMNIFICATION
Section 1. Indemnification of Directors and Officers in Third Party
Proceedings. Subject to the other provisions of this Article VIII, the Corporation
shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect, any
person 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 (a
“Proceeding”) (other than an action by or in the right of the Corporation) by reason of the fact
that such person is or was a director of the Corporation or an officer of the Corporation, or while
a director of the Corporation or officer of the Corporation is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such Proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe such person’s conduct was unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that such person’s
conduct was unlawful.
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Section 2. Indemnification of Directors and Officers in Actions by or in the Right
of the Corporation. Subject to the other provisions of this Article VIII, the
Corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in
effect, any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director of the Corporation or officer
of the Corporation, or while a director of the Corporation or officer of the Corporation is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Successful Defense. To the extent that a present or former director
of the Corporation or officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described in Section 1 or Section 2 of
this Article VIII, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection therewith.
Section 4. Indemnification of Others. Subject to the other provisions of this
Article VIII, the Corporation shall have power to indemnify its employees and its agents to
the extent not prohibited by the DGCL or other applicable law. The Board of Directors shall have
the power to delegate the determination of whether employees or agents shall be indemnified to such
person or persons as the Board of Directors determines.
Section 5. Advanced Payment of Expenses. Expenses (including attorneys’ fees)
incurred by an officer of the Corporation or director of the Corporation in defending any
Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding
upon receipt of a written request therefor (together with documentation reasonably evidencing such
expenses) and an undertaking by or on behalf of the person to repay such amounts if it shall
ultimately be determined that the person is not entitled to be indemnified under this Article
VIII or the DGCL. Such expenses (including attorneys’ fees) incurred by former directors of the
Corporation and officers of the Corporation or other employees and agents may be so paid upon such
terms and conditions, if any, as the Corporation deems reasonably appropriate and shall be subject
to the Corporation’s expense guidelines. The right to advancement of expenses shall not apply to
any claim for which indemnity is excluded pursuant
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to these Bylaws, but shall apply to any Proceeding referenced in Section 6(b) or
Section 6(c) of this Article VIII prior to a determination that the person is not
entitled to be indemnified by the Corporation.
Section 6. Limitation on Indemnification. Subject to the requirements in
Section 3 of this Article VIII and the DGCL, the Corporation shall not be obligated
to indemnify any person pursuant to this Article VIII in connection with any Proceeding (or
any part of any Proceeding):
(a) for which payment has actually been made to or on behalf of such person under any statute,
insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond
the amount paid;
(b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the 1934 Act, or
similar provisions of federal, state or local statutory law or common law, if such person is held
liable therefor (including pursuant to any settlement arrangements);
(c) for any reimbursement of the Corporation by such person of any bonus or other
incentive-based or equity-based compensation or of any profits realized by such person from the
sale of securities of the Corporation, as required in each case under the 1934 Act (including any
such reimbursements that arise from an accounting restatement of the Corporation pursuant to
Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the
Corporation of profits arising from the purchase and sale by such person of securities in violation
of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including
pursuant to any settlement arrangements);
(d) initiated by such person against the Corporation or its directors, officers, employees,
agents or other indemnitees, unless (i) the Board of Directors authorized the Proceeding (or the
relevant part of the Proceeding) prior to its initiation, (ii) the Corporation provides the
indemnification, in its sole discretion, pursuant to the powers vested in the Corporation under
applicable law, (iii) otherwise required to be made under Section 7 of this Article
VIII or (iv) otherwise required by applicable law; or
(e) if prohibited by applicable law; provided, however, that if any provision or provisions of
this Article VIII shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this
Article VIII (including, without limitation, each portion of any paragraph or clause
containing any such provision held to be invalid, illegal or unenforceable, that is not itself held
to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and
(ii) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of any paragraph or clause containing any such provision held
to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforcebable.
Section 7. Determination; Claim. If a claim for indemnification or advancement
of expenses under this Article VIII is not paid in full within ninety (90) days after
receipt by the Corporation of the written request therefor, the claimant shall be entitled to an
adjudication by a court of competent jurisdiction of his or her entitlement to such indemnification
or advancement
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of expenses. The Corporation shall indemnify such person against any and all expenses that are
incurred by such person in connection with any action for indemnification or advancement of
expenses from the Corporation under this Article VIII, to the extent such person is
successful in such action, and to the extent not prohibited by law. In any such suit, the
Corporation shall, to the fullest extent not prohibited by law, have the burden of proving that the
claimant is not entitled to the requested indemnification or advancement of expenses.
Section 8. Non-Exclusivity of Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under the Certificate of Incorporation or these Bylaws or any statute, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such office. The Corporation
is specifically authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advancement of expenses, to the
fullest extent not prohibited by the DGCL or other applicable law.
Section 9. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, limited liability company, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as such, whether or not the Corporation would
have the power to indemnify such person against such liability under the provisions of the DGCL.
Section 10. Survival. The rights to indemnification and advancement of
expenses conferred by this Article VIII shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Effect of Repeal or Modification. Any amendment, alteration or
repeal of this Article VIII shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to such amendment, alteration or
repeal.
Section 12. Certain Definitions. For purposes of this Article VIII,
references to the “Corporation” shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article VIII with respect to
the resulting or surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this Article VIII,
references to “officers” shall include the Chairman,
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Vice Chairman, President, Chief Executive Officer, Chief Financial Officer, Chief Operating
Officer, Chief Information Officer, Executive Vice President of Human Resources, and Legal Services
Director, or such other officers serving equivalent functions. For purposes of this Article
VIII, references to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on a person with respect to an employee benefit
plan; and references to “serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article VIII.
ARTICLE IX.
AMENDMENTS
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed or new bylaws may be
adopted by the stockholders or by the Board of Directors, when such power is conferred upon the
Board of Directors by the Certificate of Incorporation, at any regular meeting of the stockholders
or of the Board of Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in
the notice of such special meeting. If the power to adopt, amend or repeal bylaws is conferred
upon the Board of Directors by the Certificate of Incorporation it shall not divest or limit the
power of the stockholders to adopt, amend or repeal bylaws.
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Exhibit 10.1
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “Agreement”), dated as of
August 2, 2011 is by
and between The Chefs’ Warehouse, Inc., a Delaware corporation with its principal place of business
at 100 East Ridge Road, Ridgefield, Connecticut (together with its subsidiaries, the
“Company”), and Christopher Pappas, a resident of Ridgefield, Connecticut (the
“Executive”).
W I T N E S S E T H:
WHEREAS, the Company and the Executive are parties to an Employment Letter, as amended by that
certain First Amendment to Employment Letter, dated as of December 12, 2008, (as amended, the
“Employment Letter”); and
WHEREAS, the Company and the Executive now desire to enter into this Agreement, which
supersedes and replaces the Letter Agreement and sets forth the terms and conditions of the
Executive’s continuing employment with the Company.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises and covenants
set forth below and other good and valuable consideration, receipt of which is hereby acknowledged,
the Company and the Executive do hereby agree as follows:
1. Employment. The Company hereby continues to employ the Executive and the Executive
hereby accepts continued employment with the Company, upon the terms and subject to the conditions
set forth herein. The Executive shall continue to serve as President and Chief Executive Officer of
the Company and such other office or offices to which Executive may be appointed or elected by the
Board of Directors of the Company (the “Board of Directors”). Subject to the direction and
supervision of the Board of Directors, the Executive shall perform such duties as are customarily
associated with the offices of President and Chief Executive Officer and such other offices to
which Executive may be appointed or elected by the Board of Directors and such additional duties as
the Board of Directors may determine. The Executive will report directly to the Board of Directors.
During the term of employment, the Executive will devote the Executive’s best efforts and full time
and attention during normal business hours to the business and affairs of the Company. The
Executive agrees to serve, without any additional compensation, as a director of the Company and as
a member of the board of directors and/or as an officer of any subsidiary or affiliated entity of
the Company. If the Executive’s employment terminates for any reason, whether such termination is
voluntary or involuntary, the Executive will resign as a director of the Company (and as a director
and/or officer of any of the Company’s subsidiaries or affiliated entities), such resignation to be
effective no later than the date of termination of the Executive’s employment with the Company.
2. Term. Subject to the provisions of termination as hereinafter provided, the initial
term of the Executive’s employment under this Agreement shall begin on the date hereof and shall
terminate on the third anniversary of the date hereof (the “Initial Term”). Unless the
Company notifies the Executive that his employment under this Agreement will not be extended or the
Executive notifies the Company that he is not willing to extend his employment, the term of his
employment under this Agreement shall automatically be extended for additional one (1)
year periods on the same terms and conditions as set forth herein (individually and
collectively, the “Renewal Term”). The Initial Term and the Renewal Term are sometimes
referred to collectively herein as the “Term.”
3. Notice of Non-Renewal. If the Company or the Executive elects not to extend the
Executive’s employment under this Agreement, the electing party shall do so by notifying the other
party in writing not less than sixty (60) days prior to the expiration of the Initial Term or any
Renewal Term.
4. Compensation.
4.1 Base Salary. Until termination of the Executive’s employment with the Company
pursuant to this Agreement, the Company shall pay the Executive a base salary (“Base
Salary”) of seven hundred fifty thousand dollars ($750,000.00) per annum, which shall be
payable to the Executive in regular installments in accordance with the Company’s general payroll
policies and practices. The Executive’s compensation will be reviewed periodically by the Board of
Directors of the Company, or a committee or subcommittee thereof to which compensation matters have
been delegated, and after taking into consideration both the performance of the Company and the
personal performance of the Executive, the Board of Directors of the Company, or any such committee
or subcommittee, in their sole discretion, may increase the Executive’s compensation to any amount
it may deem appropriate.
4.2 Bonus. In the event either the Company or the Executive, or both, respectively
achieve certain financial performance and personal performance targets of the Company (as
established by the Board of Directors, or a committee or subcommittee thereof to which compensation
matters have been delegated) pursuant to a cash compensation incentive plan or similar plan or
arrangement established by the Company, the Company shall pay to the Executive an annual cash bonus
during the Term of this Agreement pursuant to the terms of such plan or arrangement. This bonus, if
any, shall be paid to the Executive by March 15 of the year following the year in which the
services which gave rise to the bonus were performed. The Board of Directors of the Company (or
applicable committee or subcommittee) may review and revise the terms of the cash compensation
incentive plan or similar plan referenced above at any time, after taking into consideration both
the performance of the Company and the personal performance of the Executive, among other factors,
and may, in their sole discretion, amend the cash compensation incentive or similar plan or
arrangement in any manner it may deem appropriate; provided, however, that any such amendment to
the plan or arrangement shall not affect the Executive’s right to participate in such amended plan
or plans.
4.3 Benefits. The Executive shall be entitled to four (4) weeks of paid vacation
annually. In addition, the Executive shall be entitled to participate in all compensation or
employee benefit plans or programs and receive all benefits and perquisites for which any salaried
employees are eligible under any existing or future plan or program established by the Company for
salaried employees. The Executive will participate to the extent permissible under the terms and
provisions of such plans or programs in accordance with program provisions. These may include group
hospitalization, health, dental care, life or other insurance, tax qualified pension, savings,
thrift and profit sharing plans, termination pay programs, sick leave plans, travel or accident
insurance, disability insurance, and equity-based incentive plans. Nothing in
2
this Agreement shall preclude the Company from amending or terminating any of the plans or
programs applicable to salaried or senior executives as long as such amendment or termination is
applicable to all salaried employees or senior executives. In addition, the Executive shall be
reimbursed by the Company up to two thousand dollars ($2,000.00) per month for a leased motor
vehicle for the Executive’s use in connection with the Executive’s duties as an executive officer
of the Company.
4.4 Expenses Incurred in Performance of Duties. The Company shall pay or promptly
reimburse the Executive for all reasonable travel and other business expenses incurred by the
Executive in the performance of the Executive’s duties under this Agreement in accordance with the
Company’s policies in effect from time to time with respect to business expenses. Notwithstanding
any other provision of this Section 4.4, the Executive shall be reimbursed for such
expenses no later than December 31 of the year following the year in which such expenses were
incurred.
4.5 Withholdings. All compensation payable hereunder shall be subject to withholding
for federal income taxes, FICA and all other applicable federal, state and local withholding
requirements.
4.6 Recoupment. Notwithstanding any other provision contained herein, any amounts paid
or payable to the Executive pursuant to this Agreement or otherwise by the Company, including any
equity compensation granted to the Executive, may be subject to forfeiture or repayment to the
Company pursuant to any clawback policy as adopted by the Board of Directors from time to time and
applicable to senior executives of the Company, and Executive hereby agrees to be bound by any such
policy.
5. Termination of Agreement.
5.1 General. During the term of this Agreement, the Company may, at any time and in
its sole discretion, terminate this Agreement with or without Cause, effective as of the date of
provision of written notice to the Executive thereof.
5.2 Effect of Termination with Cause. If the Executive’s employment with the Company
shall be terminated with Cause during the Term of this Agreement: (i) the Company shall pay to the
Executive the Base Salary earned through the date of termination of the Executive’s employment with
the Company (the “Termination Date”); and (ii) the Company shall not have any further
obligations to the Executive under this Agreement except those required to be provided by law or
under the terms of any other agreement between the Company and the Executive. For purposes of this
Agreement, “Cause” shall mean: (i) the engaging by the Executive in willful misconduct that
is injurious to the Company or its affiliates, or (ii) the embezzlement or misappropriation of
funds or property of the Company or its affiliates by the Executive; provided that, no act, or
failure to act, on the Executive’s part shall be considered “willful” unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that the Executive’s action
or omission was in the best interest of the Company.
5.3 Effect of Termination without Cause. If the Executive’s employment with the
Company shall be terminated by the Company without Cause during the Term of this
3
Agreement: (i) the Company shall pay to the Executive the Base Salary earned through the
Termination Date; and (ii) the Company shall pay to the Executive an amount equal to the
Executive’s Base Salary, as in effect on the Termination Date, payable for a period of one (1) year
from the Termination Date and on the same terms and with the same frequency as the Executive’s Base
Salary was paid prior to such termination. In addition to such Base Salary continuation, if the
Executive’s employment with the Company is terminated by the Company without Cause, then Executive
shall be entitled to receive any bonus payment described in Section 4.2 previously earned
by the Executive (but not paid), payable as provided in Section 4.2. For the avoidance of
doubt, no bonus payment shall be “earned” within the meaning of the previous sentence unless the
performance period applicable to such bonus has fully elapsed.
5.4 Resignation by the Executive. The Executive shall be entitled to resign the
Executive’s employment with the Company at any time during the Term of this Agreement. If the
Executive resigns during the Term of this Agreement: (i) the Company shall pay to the Executive the
Base Salary earned through the Termination Date; and (ii) the Company shall not have any further
obligations to the Executive under this Agreement except those required to be provided by law or
under the terms of any other agreement between the Company and the Executive.
5.5 Section 409A. It is intended that (1) each installment of the payments provided
under this Agreement is a separate “payment” for purposes of Section 409A of the United States
Internal Revenue Code of 1986 (the “Code”) and (2) that the payments satisfy, to the
greatest extent possible, the exemptions from the application of Section 409A of the Code provided
under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v).
Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on
the date Executive’s employment with the Company terminates or at such other time that the Company
determines to be relevant, the Executive is a “specified employee” (as such term is defined under
Treasury Regulation 1.409A-1(i)(1)) of the Company and (ii) that any payments to be provided to the
Executive pursuant to this Agreement are or may become subject to the additional tax under Section
409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code
(“Section 409A Taxes”) if provided at the time otherwise required under this Agreement then
(A) such payments shall be delayed until the date that is six months after the date of Executive’s
“separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) with the
Company, or such shorter period that, as determined by the Company, is sufficient to avoid the
imposition of Section 409A Taxes (the “Payment Delay Period”) and (B) such payments shall
be increased by an amount equal to interest on such payments for the Payment Delay Period at a rate
equal to the prime rate in effect as of the date the payment was first due (for this purpose, the
prime rate will be based on the rate published from time to time in The Wall Street Journal). Any
payments delayed pursuant to this Section 5.5 shall be made in a lump sum on the first day
of the seventh month following the Executive’s “separation from service” (as such term is defined
under Treasury Regulation 1.409A-1(h)), or such earlier date that, as determined by the Committee,
is sufficient to avoid the imposition of any Section 409A Taxes.
4
6. Non-Competition, Non-Solicitation, Confidentiality and Non-Disclosure.
6.1 Non-Competition and Non-Solicitation. The Executive hereby covenants and agrees
that during the Term of the Executive’s employment hereunder and for a period of one (1) year
thereafter, Executive shall not, directly or indirectly: (i) own any interest in, operate, join,
control or participate as a partner, director, principal, officer or agent of, enter into the
employment of, act as a consultant to, or perform any services for any entity (each a
“Competing Entity”) which has material operations which compete with any business in which
the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of the
Executive, proposes to engage; (ii) solicit any customer or client of the Company or any of its
subsidiaries (other than on behalf of the Company) with respect to any business in which the
Company or any of its subsidiaries is then engaged or, to the then existing knowledge of the
Executive, proposes to engage; or (iii) induce or encourage any employee of the Company or any of
its subsidiaries or affiliated entities to leave the employ of the Company or any of its
subsidiaries or affiliated entities; provided, that the Executive may, solely as an investment,
hold equity securities of the Company and not more than five percent (5%) of the combined voting
securities of any publicly-traded corporation or other business entity. The foregoing covenants and
agreements of the Executive are referred to herein as the “Restrictive Covenant.” The
Executive acknowledges that he has carefully read and considered the provisions of the Restrictive
Covenant and, having done so, agrees that the restrictions set forth in this Section 6.1,
including without limitation the time period of restriction set forth above, are fair and
reasonable and are reasonably required for the protection of the legitimate business and economic
interests of the Company. The Executive further acknowledges that the Company would not have
entered into this Agreement absent Executive’s agreement to the foregoing.
In the event that, notwithstanding the foregoing, any of the provisions of this Section
6.1 or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions
or parts hereof shall nevertheless continue to be valid and enforceable as though the invalid or
unenforceable portions or parts had not been included herein. In the event that any provision of
this Section 6.1 relating to the time period and/or the area of restriction and/or related
aspects shall be declared by a court of competent jurisdiction to exceed the maximum
restrictiveness such court deems reasonable and enforceable, the time period and/or area of
restriction and/or related aspects deemed reasonable and enforceable by such court shall become and
thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive
Covenant shall remain enforceable to the fullest extent deemed reasonable by such court.
6.2 Confidential Information.
(a) Obligation to Maintain Confidentiality. The Executive acknowledges that the
continued success of the Company depends upon the use and protection of a large body of
confidential and proprietary information, including confidential and proprietary information now
existing or to be developed in the future. “Confidential Information” will be defined as
all information of any sort (whether merely remembered or embodied in a tangible or intangible
form) that is (i) related to the Company’s prior, current or potential business and (ii) not
generally or publicly known. Therefore, the Executive agrees not to disclose or use for the
Executive’s own account any of such Confidential Information, except as reasonably necessary for
the performance of the Executive’s duties as an employee or director of the Company,
5
without prior
written consent of the Board of Directors, unless and to the extent that any Confidential
Information (i) becomes generally known to and available for use by the public
other than as a result of the Executive’s improper acts or omissions to act or (ii) is
required to be disclosed pursuant to any applicable law, regulatory action or court order;
provided, however, that the Executive must give the Company prompt written notice of any such legal
requirement, disclose no more information than is so required, and cooperate fully with all efforts
by the Company (at the Company’s sole expense) to obtain a protective order or similar
confidentiality treatment for such information. Upon the termination of the Executive’s employment
with the Company, the Executive agrees to deliver to the Company, upon request, all memoranda,
notes, plans, records, reports and other documents (including copies thereof and electronic media)
relating to the business of the Company (including, without limitation, all Confidential
Information) that the Executive may then possess or have under the Executive’s control, other than
such documents as are generally or publicly known (provided, that such documents are not known as a
result of the Executive’s breach or actions in violation of this Agreement); and at any time
thereafter, if any such materials are brought to the Executive’s attention or the Executive
discovers them in the Executive’s possession, the Executive shall deliver such materials to the
Company immediately upon such notice or discovery.
(b) Ownership of Intellectual Property. If the Executive creates, invents, designs,
develops, contributes to or improves any works of authorship, inventions, materials, documents or
other work product or other intellectual property, either alone or in conjunction with third
parties, at any time during the time that the Executive is employed by the Company
(“Works”), to the extent that such Works were created, invented, designed, developed,
contributed to, or improved with the use of any Company resources and/or within the scope of such
employment (collectively, the “Company Works”), the Executive shall promptly and fully
disclose such Company Works to the Company. Any copyrightable work falling within the definition of
Company Works shall be deemed a “work made for hire” as such term is defined in 17 U.S.C. § 101.
The Executive hereby (i) irrevocably assigns, transfers and conveys, to the extent permitted by
applicable law, all right, title and interest in and to the Company Works on a worldwide basis
(including, without limitation, rights under patent, copyright, trademark, trade secret, unfair
competition and related laws) to the Company or such other entity as the Company shall designate,
to the extent ownership of any such rights does not automatically vest in the Company under
applicable law, and (ii) waives any moral rights therein to the fullest extent permitted under
applicable law. The Executive agrees not to use any Company Works for the Executive’s personal
benefit, the benefit of a competitor, or for the benefit of any person or entity other than the
Company. The Executive agrees to execute any further documents and take any further reasonable
actions requested by the Company to assist it in validating, effectuating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of its rights hereunder, all at the
Company’s sole expense.
(c) Third Party Information. The Executive understands that the Company will receive
from third parties confidential or proprietary information (“Third Party Information”)
subject to a duty on the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. During the time that the Executive is employed by the
Company or serves on the Company’s Board of Directors and at all times thereafter, the Executive
will hold information which the Executive knows, or reasonably should know, to be Third Party
Information in the strictest confidence and will not disclose to anyone
6
(other than personnel of
the Company who need to know such information in connection with their work for the Company) or
use, except in connection with the Executive’s work for the
Company, Third Party Information unless expressly authorized in writing by the Board of
Directors or the information (i) becomes generally known to and available for use by the public
other than as a result of the Executive’s improper acts or omissions or (ii) is required to be
disclosed pursuant to any applicable law, regulatory action or court order.
(d) Use of Information of Prior Employers. During the Term, the Executive shall not
use or disclose any Confidential Information including trade secrets, if any, of any former
employers or any other person to whom the Executive has an obligation of confidentiality, and shall
not bring onto the premises of the Company any unpublished documents or any property belonging to
any former employer or any other person to whom the Executive has an obligation of confidentiality
unless consented to in writing by the former employer or person. The Executive shall use in the
performance of the Executive’s duties only information that is (i) generally known and used by
persons with training and experience comparable to the Executive’s and that is (x) common knowledge
in the industry or (y) is otherwise legally in the public domain, (ii) otherwise provided or
developed by the Company or (iii) in the case of materials, property or information belonging to
any former employer or other person to whom the Executive has an obligation of confidentiality,
approved for such use in writing by such former employer or person.
(e) Disparaging Statements. During the time that the Executive is employed by the
Company or serves on the Company’s Board of Directors and at all times thereafter, the Executive
shall not disparage the Company or any of its officers, directors, employees, agents or
representatives, or any of such entities’ products or services; provided, that the foregoing shall
not prohibit the Executive from making any general competitive statements or communications about
the Company or their businesses in the ordinary course of competition. The Company agrees that (i)
it shall not issue any public statements disparaging the Executive and (ii) it shall take
reasonable steps to ensure that the senior executive officers of the Company shall not disparage
the Executive. Notwithstanding the foregoing, nothing in this Section 6.2(e) shall prevent
the Executive or the Company from enforcing any rights under this Agreement or any other agreement
to which the Executive and the Company are party, or otherwise limit such enforcement.
6.3 Enforcement. The parties hereto agree that money damages would not be an adequate
remedy for any breach of Section 6.1 or 6.2 by the Executive or any breach of
Section 6.2(e) by the Company, and any breach of the terms of Section 6.1 or
6.2 by the Executive or Section 6.2(e) by the Company would result in irreparable
injury and damage to the other party for which such party would have no adequate remedy at law.
Therefore, in the event of a breach or threatened breach of Section 6.1 or 6.2 by
the Executive or of Section 6.2(e) by the Company, the Company or its successors or assigns
or the Executive, as applicable, in addition to other rights and remedies existing in their or the
Executive’s favor, shall be entitled to specific performance and/or immediate injunctive or other
equitable relief from a court of competent jurisdiction in order to enforce, or prevent any
violations of, the provisions of Section 6.1 or 6.2 (in the case of a breach by the
Executive) or Section 6.2(e) (in the case of a breach by the Company) (without posting a
bond or other security), without having to prove damages, and to the payment by the breaching party
of all of the other party’s costs and expenses, including
7
reasonable attorneys’ fees and costs, in
addition to any other remedies to which the other party may be entitled at law or in equity. The
terms of this Section shall not prevent either party from
pursuing any other available remedies for any breach or threatened breach hereof, including
but not limited to the recovery of damages from the other party.
7. Indemnification. The Company shall indemnify the Executive to the fullest extent
that would be permitted by law (including a payment of expenses in advance of final disposition of
a proceeding) as in effect at the time of the subject act or omission, or by the Certificate of
Incorporation of the Company as in effect at such time, or by the terms of any indemnification
agreement between the Company and the Executive, whichever affords greatest protection to the
Executive, and the Executive shall be entitled to the protection of any insurance policies the
Company may elect to maintain generally for the benefit of its officers or, during the Executive’s
service in such capacity, directors (and to the extent the Company maintains such an insurance
policy or policies, in accordance with its or their terms to the maximum extent of the coverage
available for any company officer or director), against all costs, charges and expenses whatsoever
incurred or sustained by the Executive (including but not limited to any judgment entered by a
court of law) at the time such costs, charges and expenses are incurred or sustained, in connection
with any action, suit or proceeding to which the Executive may be made a party by reason of his
being or having been an officer or employee of the Company, or serving as an officer or employee of
an affiliate of the Company, at the request of the Company, other than any action, suit or
proceeding brought against the Executive by or on account of his breach of the provisions of any
employment agreement with a third party that has not been disclosed by the Executive to the
Company. The provisions of this Section 7 shall specifically survive the expiration or
earlier termination of this Agreement.
8. Notices. Any notice required or desired to be given under this Agreement shall be
in writing and shall be delivered personally, transmitted by facsimile or mailed by registered
mail, return receipt requested, or delivered by overnight courier service and shall be deemed to
have been given on the date of its delivery, if delivered, and on the third (3rd) full business day
following the date of the mailing, if mailed, to each of the parties thereto at the following
respective addresses or such other address as may be specified in any notice delivered or mailed as
above provided:
| (i) | If to the Executive, to: | |||
| Christopher Pappas | ||||
| Ridgefield, Connecticut 06877 | ||||
| (ii) | If to the Company, to: | |||
| The Chefs’ Warehouse, Inc. | ||||
| 100 East Ridge Road | ||||
| Ridgefield, Connecticut 06877 | ||||
| Attention: Alexandros Aldous | ||||
| Facsimile: (203) 894-9108 |
8
9. Waiver of Breach. The waiver by either party of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach by the other party. No
waiver of any provision of this Agreement shall be implied from any course of dealing between the
parties hereto or from any failure by either party hereto to assert any rights hereunder on any
occasion or series of occasions.
10. Assignment. The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of the Company. The
Executive acknowledges that the services to be rendered by him are unique and personal, and the
Executive may not assign any of his rights or delegate any of his duties or obligations under this
Agreement.
11. Entire Agreement; Amendment. This Agreement contains the entire agreement of the
parties relating to the subject matter herein and supersedes in full and in all respects any prior
oral or written agreement, arrangement or understanding between the parties with respect to
Executive’s employment with the Company, including without limitation the Letter Agreement. For the
avoidance of doubt, the covenants contained herein are separate and apart from any covenants not to
compete or solicit set forth in any non-competition and non-solicitation agreement between the
Executive and the Company. This Agreement may not be amended or changed orally but only by an
agreement in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
12. Controlling Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of Delaware.
13. Jurisdiction and Venue. This Agreement will be deemed performable by all parties
in, and venue will exclusively be in the state or federal courts located in the State of
Connecticut. The Executive and the Company hereby consent to the personal jurisdiction of these
courts and waive any objections that such venue is objectionable or improper.
14. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE
PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL),
EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING
TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY. The losing party
in any lawsuit or proceeding relating to or arising in any way from this Agreement or the matters
contemplated hereby shall pay the reasonable attorneys’ fees and costs of the prevailing party in
such lawsuit or proceeding.
15. Severability. If any provision of this Agreement or the application of any such
provision to any party or circumstances will be determined by any court of competent jurisdiction
to be invalid and unenforceable to any extent, the remainder of this Agreement or the
9
application
of such provision to such person or circumstances other than those to which it is so
determined to be invalid and unenforceable, will not be affected thereby, and each provision
hereof will be validated and will be enforced to the fullest extent permitted by law.
16. Headings. The sections, subjects and headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
[signature page to follow]
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IN WITNESS WHEREOF, the parties have hereto executed this Agreement as of the day and year
first written above.
| EXECUTIVE: | ||||||
| CHRISTOPHER PAPPAS | ||||||
| /s/ Christopher Pappas | ||||||
| COMPANY: | ||||||
| THE CHEFS’ WAREHOUSE, INC. | ||||||
| By: | /s/ Alexandros Aldous | |||||
| Name: Alexandros Aldous | ||||||
| Title: Legal Services Director | ||||||
Exhibit 10.2
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “Agreement”), dated as of
August 2, 2011 is by
and between The Chefs’ Warehouse, Inc., a Delaware corporation with its principal place of business
at 100 East Ridge Road, Ridgefield, Connecticut (together with its subsidiaries, the
“Company”), and John Pappas, a resident of Upper Brookville, New York (the
“Executive”).
W I T N E S S E T H:
WHEREAS, the Company and the Executive are parties to an Employment Letter, as amended by that
certain First Amendment to Employment Letter, dated as of December 12, 2008, (as amended, the
“Employment Letter”); and
WHEREAS, the Company and the Executive now desire to enter into this Agreement, which
supersedes and replaces the Letter Agreement and sets forth the terms and conditions of the
Executive’s continuing employment with the Company.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises and covenants
set forth below and other good and valuable consideration, receipt of which is hereby acknowledged,
the Company and the Executive do hereby agree as follows:
1. Employment. The Company hereby continues to employ the Executive and the Executive
hereby accepts continued employment with the Company, upon the terms and subject to the conditions
set forth herein. The Executive shall continue to serve as Vice Chairman of the Company and such
other office or offices to which Executive may be appointed or elected by the Board of Directors of
the Company (the “Board of Directors”). Subject to the direction and supervision of the
Board of Directors, the Executive shall perform such duties as are customarily associated with the
office of Vice Chairman and such other offices to which Executive may be appointed or elected by
the Board of Directors and such additional duties as the Board of Directors may determine. The
Executive will report directly to the Board of Directors. During the term of employment, the
Executive will devote the Executive’s best efforts and full time and attention during normal
business hours to the business and affairs of the Company. The Executive agrees to serve, without
any additional compensation, as a director of the Company and as a member of the board of directors
and/or as an officer of any subsidiary or affiliated entity of the Company. If the Executive’s
employment terminates for any reason, whether such termination is voluntary or involuntary, the
Executive will resign as a director of the Company (and as a director and/or officer of any of the
Company’s subsidiaries or affiliated entities), such resignation to be effective no later than the
date of termination of the Executive’s employment with the Company.
2. Term. Subject to the provisions of termination as hereinafter provided, the initial
term of the Executive’s employment under this Agreement shall begin on the date hereof and shall
terminate on the third anniversary of the date hereof (the “Initial Term”). Unless the
Company notifies the Executive that his employment under this Agreement will not be extended or the
Executive notifies the Company that he is not willing to extend his employment, the term of his
employment under this Agreement shall automatically be extended for additional one (1) year periods
on the same terms and conditions as set forth herein (individually and collectively,
the “Renewal Term”). The Initial Term and the Renewal Term are sometimes referred to
collectively herein as the “Term.”
3. Notice of Non-Renewal. If the Company or the Executive elects not to extend the
Executive’s employment under this Agreement, the electing party shall do so by notifying the other
party in writing not less than sixty (60) days prior to the expiration of the Initial Term or any
Renewal Term.
4. Compensation.
4.1 Base Salary. Until termination of the Executive’s employment with the Company
pursuant to this Agreement, the Company shall pay the Executive a base salary (“Base
Salary”) of four hundred fifty thousand dollars ($450,000.00) per annum, which shall be
payable to the Executive in regular installments in accordance with the Company’s general payroll
policies and practices. The Executive’s compensation will be reviewed periodically by the Board of
Directors of the Company, or a committee or subcommittee thereof to which compensation matters have
been delegated, and after taking into consideration both the performance of the Company and the
personal performance of the Executive, the Board of Directors of the Company, or any such committee
or subcommittee, in their sole discretion, may increase the Executive’s compensation to any amount
it may deem appropriate.
4.2 Bonus. In the event either the Company or the Executive, or both, respectively
achieve certain financial performance and personal performance targets of the Company (as
established by the Board of Directors, or a committee or subcommittee thereof to which compensation
matters have been delegated) pursuant to a cash compensation incentive plan or similar plan or
arrangement established by the Company, the Company shall pay to the Executive an annual cash bonus
during the Term of this Agreement pursuant to the terms of such plan or arrangement. This bonus, if
any, shall be paid to the Executive by March 15 of the year following the year in which the
services which gave rise to the bonus were performed. The Board of Directors of the Company (or
applicable committee or subcommittee) may review and revise the terms of the cash compensation
incentive plan or similar plan referenced above at any time, after taking into consideration both
the performance of the Company and the personal performance of the Executive, among other factors,
and may, in their sole discretion, amend the cash compensation incentive or similar plan or
arrangement in any manner it may deem appropriate; provided, however, that any such amendment to
the plan or arrangement shall not affect the Executive’s right to participate in such amended plan
or plans.
4.3 Benefits. The Executive shall be entitled to four (4) weeks of paid vacation
annually. In addition, the Executive shall be entitled to participate in all compensation or
employee benefit plans or programs and receive all benefits and perquisites for which any salaried
employees are eligible under any existing or future plan or program established by the Company for
salaried employees. The Executive will participate to the extent permissible under the terms and
provisions of such plans or programs in accordance with program provisions. These may include group
hospitalization, health, dental care, life or other insurance, tax qualified pension, savings,
thrift and profit sharing plans, termination pay programs, sick leave plans, travel or accident
insurance, disability insurance, and equity-based incentive plans. Nothing in this Agreement shall
preclude the Company from amending or terminating any of the plans or
2
programs applicable to salaried or senior executives as long as such amendment or termination
is applicable to all salaried employees or senior executives. In addition, the Executive shall be
reimbursed by the Company up to two thousand dollars ($2,000.00) per month for a leased motor
vehicle for the Executive’s use in connection with the Executive’s duties as an executive officer
of the Company.
4.4 Expenses Incurred in Performance of Duties. The Company shall pay or promptly
reimburse the Executive for all reasonable travel and other business expenses incurred by the
Executive in the performance of the Executive’s duties under this Agreement in accordance with the
Company’s policies in effect from time to time with respect to business expenses. Notwithstanding
any other provision of this Section 4.4, the Executive shall be reimbursed for such
expenses no later than December 31 of the year following the year in which such expenses were
incurred.
4.5 Withholdings. All compensation payable hereunder shall be subject to withholding
for federal income taxes, FICA and all other applicable federal, state and local withholding
requirements.
4.6 Recoupment. Notwithstanding any other provision contained herein, any amounts paid
or payable to the Executive pursuant to this Agreement or otherwise by the Company, including any
equity compensation granted to the Executive, may be subject to forfeiture or repayment to the
Company pursuant to any clawback policy as adopted by the Board of Directors from time to time and
applicable to senior executives of the Company, and Executive hereby agrees to be bound by any such
policy.
5. Termination of Agreement.
5.1 General. During the term of this Agreement, the Company may, at any time and in
its sole discretion, terminate this Agreement with or without Cause, effective as of the date of
provision of written notice to the Executive thereof.
5.2 Effect of Termination with Cause. If the Executive’s employment with the Company
shall be terminated with Cause during the Term of this Agreement: (i) the Company shall pay to the
Executive the Base Salary earned through the date of termination of the Executive’s employment with
the Company (the “Termination Date”); and (ii) the Company shall not have any further
obligations to the Executive under this Agreement except those required to be provided by law or
under the terms of any other agreement between the Company and the Executive. For purposes of this
Agreement, “Cause” shall mean: (i) the engaging by the Executive in willful misconduct that
is injurious to the Company or its affiliates, or (ii) the embezzlement or misappropriation of
funds or property of the Company or its affiliates by the Executive; provided that, no act, or
failure to act, on the Executive’s part shall be considered “willful” unless done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that the Executive’s action
or omission was in the best interest of the Company.
5.3 Effect of Termination without Cause. If the Executive’s employment with the
Company shall be terminated by the Company without Cause during the Term of this Agreement: (i) the
Company shall pay to the Executive the Base Salary earned through the
3
Termination Date; and (ii) the Company shall pay to the Executive an amount equal to the
Executive’s Base Salary, as in effect on the Termination Date, payable for a period of one (1) year
from the Termination Date and on the same terms and with the same frequency as the Executive’s Base
Salary was paid prior to such termination. In addition to such Base Salary continuation, if the
Executive’s employment with the Company is terminated by the Company without Cause, then Executive
shall be entitled to receive any bonus payment described in Section 4.2 previously earned
by the Executive (but not paid), payable as provided in Section 4.2. For the avoidance of
doubt, no bonus payment shall be “earned” within the meaning of the previous sentence unless the
performance period applicable to such bonus has fully elapsed.
5.4 Resignation by the Executive. The Executive shall be entitled to resign the
Executive’s employment with the Company at any time during the Term of this Agreement. If the
Executive resigns during the Term of this Agreement: (i) the Company shall pay to the Executive the
Base Salary earned through the Termination Date; and (ii) the Company shall not have any further
obligations to the Executive under this Agreement except those required to be provided by law or
under the terms of any other agreement between the Company and the Executive.
5.5 Section 409A. It is intended that (1) each installment of the payments provided
under this Agreement is a separate “payment” for purposes of Section 409A of the United States
Internal Revenue Code of 1986 (the “Code”) and (2) that the payments satisfy, to the
greatest extent possible, the exemptions from the application of Section 409A of the Code provided
under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v).
Notwithstanding anything to the contrary in this Agreement, if the Company determines (i) that on
the date Executive’s employment with the Company terminates or at such other time that the Company
determines to be relevant, the Executive is a “specified employee” (as such term is defined under
Treasury Regulation 1.409A-1(i)(1)) of the Company and (ii) that any payments to be provided to the
Executive pursuant to this Agreement are or may become subject to the additional tax under Section
409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code
(“Section 409A Taxes”) if provided at the time otherwise required under this Agreement then
(A) such payments shall be delayed until the date that is six months after the date of Executive’s
“separation from service” (as such term is defined under Treasury Regulation 1.409A-1(h)) with the
Company, or such shorter period that, as determined by the Company, is sufficient to avoid the
imposition of Section 409A Taxes (the “Payment Delay Period”) and (B) such payments shall
be increased by an amount equal to interest on such payments for the Payment Delay Period at a rate
equal to the prime rate in effect as of the date the payment was first due (for this purpose, the
prime rate will be based on the rate published from time to time in The Wall Street Journal). Any
payments delayed pursuant to this Section 5.5 shall be made in a lump sum on the first day
of the seventh month following the Executive’s “separation from service” (as such term is defined
under Treasury Regulation 1.409A-1(h)), or such earlier date that, as determined by the Committee,
is sufficient to avoid the imposition of any Section 409A Taxes.
4
6. Non-Competition, Non-Solicitation, Confidentiality and Non-Disclosure.
6.1 Non-Competition and Non-Solicitation. The Executive hereby covenants and agrees
that during the Term of the Executive’s employment hereunder and for a period of one (1) year
thereafter, Executive shall not, directly or indirectly: (i) own any interest in, operate, join,
control or participate as a partner, director, principal, officer or agent of, enter into the
employment of, act as a consultant to, or perform any services for any entity (each a
“Competing Entity”) which has material operations which compete with any business in which
the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of the
Executive, proposes to engage; (ii) solicit any customer or client of the Company or any of its
subsidiaries (other than on behalf of the Company) with respect to any business in which the
Company or any of its subsidiaries is then engaged or, to the then existing knowledge of the
Executive, proposes to engage; or (iii) induce or encourage any employee of the Company or any of
its subsidiaries or affiliated entities to leave the employ of the Company or any of its
subsidiaries or affiliated entities; provided, that the Executive may, solely as an investment,
hold equity securities of the Company and not more than five percent (5%) of the combined voting
securities of any publicly-traded corporation or other business entity. The foregoing covenants and
agreements of the Executive are referred to herein as the “Restrictive Covenant.” The
Executive acknowledges that he has carefully read and considered the provisions of the Restrictive
Covenant and, having done so, agrees that the restrictions set forth in this Section 6.1,
including without limitation the time period of restriction set forth above, are fair and
reasonable and are reasonably required for the protection of the legitimate business and economic
interests of the Company. The Executive further acknowledges that the Company would not have
entered into this Agreement absent Executive’s agreement to the foregoing.
In the event that, notwithstanding the foregoing, any of the provisions of this Section
6.1 or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions
or parts hereof shall nevertheless continue to be valid and enforceable as though the invalid or
unenforceable portions or parts had not been included herein. In the event that any provision of
this Section 6.1 relating to the time period and/or the area of restriction and/or related
aspects shall be declared by a court of competent jurisdiction to exceed the maximum
restrictiveness such court deems reasonable and enforceable, the time period and/or area of
restriction and/or related aspects deemed reasonable and enforceable by such court shall become and
thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive
Covenant shall remain enforceable to the fullest extent deemed reasonable by such court.
6.2 Confidential Information.
(a) Obligation to Maintain Confidentiality. The Executive acknowledges that the
continued success of the Company depends upon the use and protection of a large body of
confidential and proprietary information, including confidential and proprietary information now
existing or to be developed in the future. “Confidential Information” will be defined as
all information of any sort (whether merely remembered or embodied in a tangible or intangible
form) that is (i) related to the Company’s prior, current or potential business and (ii) not
generally or publicly known. Therefore, the Executive agrees not to disclose or use for the
Executive’s own account any of such Confidential Information, except as reasonably necessary for
the performance of the Executive’s duties as an employee or director of the Company,
5
without prior
written consent of the Board of Directors, unless and to the extent that any Confidential
Information (i) becomes generally known to and available for use by the public
other than as a result of the Executive’s improper acts or omissions to act or (ii) is
required to be disclosed pursuant to any applicable law, regulatory action or court order;
provided, however, that the Executive must give the Company prompt written notice of any such legal
requirement, disclose no more information than is so required, and cooperate fully with all efforts
by the Company (at the Company’s sole expense) to obtain a protective order or similar
confidentiality treatment for such information. Upon the termination of the Executive’s employment
with the Company, the Executive agrees to deliver to the Company, upon request, all memoranda,
notes, plans, records, reports and other documents (including copies thereof and electronic media)
relating to the business of the Company (including, without limitation, all Confidential
Information) that the Executive may then possess or have under the Executive’s control, other than
such documents as are generally or publicly known (provided, that such documents are not known as a
result of the Executive’s breach or actions in violation of this Agreement); and at any time
thereafter, if any such materials are brought to the Executive’s attention or the Executive
discovers them in the Executive’s possession, the Executive shall deliver such materials to the
Company immediately upon such notice or discovery.
(b) Ownership of Intellectual Property. If the Executive creates, invents, designs,
develops, contributes to or improves any works of authorship, inventions, materials, documents or
other work product or other intellectual property, either alone or in conjunction with third
parties, at any time during the time that the Executive is employed by the Company
(“Works”), to the extent that such Works were created, invented, designed, developed,
contributed to, or improved with the use of any Company resources and/or within the scope of such
employment (collectively, the “Company Works”), the Executive shall promptly and fully
disclose such Company Works to the Company. Any copyrightable work falling within the definition of
Company Works shall be deemed a “work made for hire” as such term is defined in 17 U.S.C. § 101.
The Executive hereby (i) irrevocably assigns, transfers and conveys, to the extent permitted by
applicable law, all right, title and interest in and to the Company Works on a worldwide basis
(including, without limitation, rights under patent, copyright, trademark, trade secret, unfair
competition and related laws) to the Company or such other entity as the Company shall designate,
to the extent ownership of any such rights does not automatically vest in the Company under
applicable law, and (ii) waives any moral rights therein to the fullest extent permitted under
applicable law. The Executive agrees not to use any Company Works for the Executive’s personal
benefit, the benefit of a competitor, or for the benefit of any person or entity other than the
Company. The Executive agrees to execute any further documents and take any further reasonable
actions requested by the Company to assist it in validating, effectuating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of its rights hereunder, all at the
Company’s sole expense.
(c) Third Party Information. The Executive understands that the Company will receive
from third parties confidential or proprietary information (“Third Party Information”)
subject to a duty on the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. During the time that the Executive is employed by the
Company or serves on the Company’s Board of Directors and at all times thereafter, the Executive
will hold information which the Executive knows, or reasonably should know, to be Third Party
Information in the strictest confidence and will not disclose to anyone
6
(other than personnel of
the Company who need to know such information in connection with their work for the Company) or
use, except in connection with the Executive’s work for the
Company, Third Party Information unless expressly authorized in writing by the Board of
Directors or the information (i) becomes generally known to and available for use by the public
other than as a result of the Executive’s improper acts or omissions or (ii) is required to be
disclosed pursuant to any applicable law, regulatory action or court order.
(d) Use of Information of Prior Employers. During the Term, the Executive shall not
use or disclose any Confidential Information including trade secrets, if any, of any former
employers or any other person to whom the Executive has an obligation of confidentiality, and shall
not bring onto the premises of the Company any unpublished documents or any property belonging to
any former employer or any other person to whom the Executive has an obligation of confidentiality
unless consented to in writing by the former employer or person. The Executive shall use in the
performance of the Executive’s duties only information that is (i) generally known and used by
persons with training and experience comparable to the Executive’s and that is (x) common knowledge
in the industry or (y) is otherwise legally in the public domain, (ii) otherwise provided or
developed by the Company or (iii) in the case of materials, property or information belonging to
any former employer or other person to whom the Executive has an obligation of confidentiality,
approved for such use in writing by such former employer or person.
(e) Disparaging Statements. During the time that the Executive is employed by the
Company or serves on the Company’s Board of Directors and at all times thereafter, the Executive
shall not disparage the Company or any of its officers, directors, employees, agents or
representatives, or any of such entities’ products or services; provided, that the foregoing shall
not prohibit the Executive from making any general competitive statements or communications about
the Company or their businesses in the ordinary course of competition. The Company agrees that (i)
it shall not issue any public statements disparaging the Executive and (ii) it shall take
reasonable steps to ensure that the senior executive officers of the Company shall not disparage
the Executive. Notwithstanding the foregoing, nothing in this Section 6.2(e) shall prevent
the Executive or the Company from enforcing any rights under this Agreement or any other agreement
to which the Executive and the Company are party, or otherwise limit such enforcement.
6.3 Enforcement. The parties hereto agree that money damages would not be an adequate
remedy for any breach of Section 6.1 or 6.2 by the Executive or any breach of
Section 6.2(e) by the Company, and any breach of the terms of Section 6.1 or
6.2 by the Executive or Section 6.2(e) by the Company would result in irreparable
injury and damage to the other party for which such party would have no adequate remedy at law.
Therefore, in the event of a breach or threatened breach of Section 6.1 or 6.2 by
the Executive or of Section 6.2(e) by the Company, the Company or its successors or assigns
or the Executive, as applicable, in addition to other rights and remedies existing in their or the
Executive’s favor, shall be entitled to specific performance and/or immediate injunctive or other
equitable relief from a court of competent jurisdiction in order to enforce, or prevent any
violations of, the provisions of Section 6.1 or 6.2 (in the case of a breach by the
Executive) or Section 6.2(e) (in the case of a breach by the Company) (without posting a
bond or other security), without having to prove damages, and to the payment by the breaching party
of all of the other party’s costs and expenses, including
7
reasonable attorneys’ fees and costs, in
addition to any other remedies to which the other party may be entitled at law or in equity. The
terms of this Section shall not prevent either party from
pursuing any other available remedies for any breach or threatened breach hereof, including
but not limited to the recovery of damages from the other party.
7. Indemnification. The Company shall indemnify the Executive to the fullest extent
that would be permitted by law (including a payment of expenses in advance of final disposition of
a proceeding) as in effect at the time of the subject act or omission, or by the Certificate of
Incorporation of the Company as in effect at such time, or by the terms of any indemnification
agreement between the Company and the Executive, whichever affords greatest protection to the
Executive, and the Executive shall be entitled to the protection of any insurance policies the
Company may elect to maintain generally for the benefit of its officers or, during the Executive’s
service in such capacity, directors (and to the extent the Company maintains such an insurance
policy or policies, in accordance with its or their terms to the maximum extent of the coverage
available for any company officer or director), against all costs, charges and expenses whatsoever
incurred or sustained by the Executive (including but not limited to any judgment entered by a
court of law) at the time such costs, charges and expenses are incurred or sustained, in connection
with any action, suit or proceeding to which the Executive may be made a party by reason of his
being or having been an officer or employee of the Company, or serving as an officer or employee of
an affiliate of the Company, at the request of the Company, other than any action, suit or
proceeding brought against the Executive by or on account of his breach of the provisions of any
employment agreement with a third party that has not been disclosed by the Executive to the
Company. The provisions of this Section 7 shall specifically survive the expiration or
earlier termination of this Agreement.
8. Notices. Any notice required or desired to be given under this Agreement shall be
in writing and shall be delivered personally, transmitted by facsimile or mailed by registered
mail, return receipt requested, or delivered by overnight courier service and shall be deemed to
have been given on the date of its delivery, if delivered, and on the third (3rd) full business day
following the date of the mailing, if mailed, to each of the parties thereto at the following
respective addresses or such other address as may be specified in any notice delivered or mailed as
above provided:
| (i) | If to the Executive, to: | ||
| John Pappas Upper Brookville, New York 11771 |
|||
| (ii) | If to the Company, to: | ||
| The Chefs’ Warehouse, Inc. 100 East Ridge Road Ridgefield, Connecticut 06877 Attention: Alexandros Aldous Facsimile: (203) 894-9108 |
8
9. Waiver of Breach. The waiver by either party of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach by the other party. No
waiver of any provision of this Agreement shall be implied from any course of dealing between
the parties hereto or from any failure by either party hereto to assert any rights hereunder on any
occasion or series of occasions.
10. Assignment. The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of the Company. The
Executive acknowledges that the services to be rendered by him are unique and personal, and the
Executive may not assign any of his rights or delegate any of his duties or obligations under this
Agreement.
11. Entire Agreement; Amendment. This Agreement contains the entire agreement of the
parties relating to the subject matter herein and supersedes in full and in all respects any prior
oral or written agreement, arrangement or understanding between the parties with respect to
Executive’s employment with the Company, including without limitation the Letter Agreement. For the
avoidance of doubt, the covenants contained herein are separate and apart from any covenants not to
compete or solicit set forth in any non-competition and non-solicitation agreement between the
Executive and the Company. This Agreement may not be amended or changed orally but only by an
agreement in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
12. Controlling Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of Delaware.
13. Jurisdiction and Venue. This Agreement will be deemed performable by all parties
in, and venue will exclusively be in the state or federal courts located in the State of
Connecticut. The Executive and the Company hereby consent to the personal jurisdiction of these
courts and waive any objections that such venue is objectionable or improper.
14. Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE
PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL),
EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING
TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY. The losing party
in any lawsuit or proceeding relating to or arising in any way from this Agreement or the matters
contemplated hereby shall pay the reasonable attorneys’ fees and costs of the prevailing party in
such lawsuit or proceeding.
15. Severability. If any provision of this Agreement or the application of any such
provision to any party or circumstances will be determined by any court of competent jurisdiction
to be invalid and unenforceable to any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances other than those to which it is so
9
determined to
be invalid and unenforceable, will not be affected thereby, and each provision hereof will be
validated and will be enforced to the fullest extent permitted by law.
16. Headings. The sections, subjects and headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
[signature page to follow]
10
IN WITNESS WHEREOF, the parties have hereto executed this Agreement as of the day and year
first written above.
| EXECUTIVE: | ||||||||
| JOHN PAPPAS | ||||||||
| /s/ John Pappas | ||||||||
| COMPANY: | ||||||||
| THE CHEFS’ WAREHOUSE, INC. | ||||||||
| By: | /s/ Alexandros Aldous | |||||||
| Name: | Alexandros Aldous | |||||||
| Title: | Legal Services Director | |||||||
11
Exhibit 99.1
The Chefs’ Warehouse, Inc. Successfully Completes its Initial Public Offering
Ridgefield, CT, August 2, 2011 — The Chefs’ Warehouse, Inc. (NASDAQ: CHEF), a premier
distributor of specialty food products in the United States, today announced that it successfully
completed its initial public offering of 10,350,000 shares of common stock at $15.00 per share,
which included 4,666,667 shares sold by The Chefs’ Warehouse and 5,683,333 shares sold by
certain of The Chefs’ Warehouse’s existing stockholders, including 1,350,000 shares sold to the
underwriters to cover over-allotments. The common stock began trading on The NASDAQ Global Market
on July 28, 2011 under the symbol “CHEF”.
Total net proceeds to The Chefs’ Warehouse from the offering, after deducting underwriter discounts
and commissions and estimated offering expenses, were approximately $63.1 million. The Chefs’
Warehouse will use the net proceeds from the offering to repay indebtedness.
Jefferies & Company, Inc., BMO Capital Markets Corp. and Wells Fargo Securities, LLC are acting as
joint book-running managers of this offering. The co-managers are BB&T Capital Markets and
Canaccord Genuity Inc. The offering will be made only by means of a prospectus. A copy of the final
prospectus related to this offering may be obtained by contacting Jefferies & Company, Inc., 520
Madison Avenue, 12th Floor, New York, NY 10022, Attention: Equity Syndicate Prospectus
Department, or by calling toll-free (877) 547-6340 or by email to
prospectus_department@jefferies.com, or BMO Capital Markets Corp, Attention: Equity Syndicate
Department 3 Times Square, New York, NY 10036 or by calling (800) 414-3627 or by email to
bmoprospectus@bmo.com, or Wells Fargo Securities, LLC, Attention: Equity Syndicate Department, 375
Park Avenue, New York, NY 10152, or by calling toll-free (800) 326-5897 or by email to
cmclientsupport@wellsfargo.com. The final prospectus may also be obtained on the Securities and
Exchange Commission’s Web site at www.sec.gov.
About The Chefs’ Warehouse
The Chefs’ Warehouse (www.chefswarehouse.com) is a premier distributor of specialty
food products in the United States focused on serving the specific needs of chefs who own and/or
operate some of the nation’s leading menu-driven independent restaurants, fine dining
establishments, country clubs, hotels, caterers, culinary schools and specialty food stores. The
Chefs’ Warehouse carries and distributes more than 11,500 products to more than 7,000
customer locations throughout the United States.
Contacts:
Investor Relations
Don Duffy, (718) 684-8415
Don Duffy, (718) 684-8415
Media Relations
Ted Lowen, (646) 277-1238
Ted Lowen, (646) 277-1238