UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
Caribou Coffee Company, Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount
on which the filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of
its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
3900
Lakebreeze Avenue North
Brooklyn Center, Minnesota 55429
April 17,
2009
Dear Shareholders:
You are cordially invited to attend the Caribou Coffee Company
Annual Meeting of Shareholders on Thursday, May 21, 2009 at
10 a.m. (Central Time). The meeting will be held at the
Hotel Ivy, 201 South Eleventh Street, Minneapolis, Minnesota.
The matters to be acted upon are described in the accompanying
Notice of Annual Meeting of Shareholders and proxy statement. At
the meeting, we will also report on Caribou Coffee
Companys operations and respond to any questions you may
have.
Very truly yours,
Michael J. Tattersfield
President and Chief Executive Officer
YOUR VOTE IS VERY IMPORTANT
Whether or not you plan to attend the Annual Meeting of
Shareholders, we urge you to vote your proxy by telephone, the
Internet or by mail in order to ensure the presence of a quorum.
If you attend the meeting, you can revoke your proxy and vote
your shares in person. If you hold your shares through a broker,
bank or other nominee, please follow the instructions you
receive from them to vote your shares.
CARIBOU
COFFEE COMPANY
3900 Lakebreeze Avenue North
Brooklyn Center, Minnesota 55429
NOTICE
OF ANNUAL MEETING OF SHAREHOLDERS
to be held
May 21, 2009
The Annual Meeting of Shareholders of Caribou Coffee Company,
Inc. will be held at the Hotel Ivy, 201 South Eleventh
Street, Minneapolis, Minnesota, on Thursday, May 21, 2009,
at 10 a.m. (Central Time) for the following purposes:
1. To elect nine directors nominated by the Board of
Directors to serve until the 2010 Annual Meeting of Shareholders.
2. To ratify the selection of Ernst & Young LLP
as our independent registered public accounting firm for the
fiscal year ending January 3, 2010.
3. To approve the Option Exchange Program.
4. To consider any other business to properly come before
the meeting.
Only shareholders of record at the close of business on
April 9, 2009 will be entitled to notice of, and to vote,
at the Annual Meeting of Shareholders and any adjournments or
postponements of the meeting.
Our proxy statement is attached to this Notice of Annual Meeting
of Shareholders. Financial and other information concerning us
is contained in the Caribou Annual Report to Shareholders for
the fiscal year ended December 28, 2008.
Important Notice Regarding the Availability of Proxy Materials
for the Shareholder Meeting to Be Held on May 21, 2009: The
Caribou Coffee Company proxy statement for the 2009 Annual
Meeting of Shareholders and the 2008 Annual Report to
shareholders are available at
http://materials.proxyvote.com//142042.
By Order of the Board of Directors,
Dan E. Lee
Vice President, General Counsel and Secretary
Brooklyn Center, Minnesota
April 17, 2009
TABLE OF
CONTENTS
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CARIBOU
COFFEE COMPANY
3900 Lakebreeze Avenue North
Brooklyn Center, Minnesota 55429
PROXY
STATEMENT
for the
2009 ANNUAL MEETING OF SHAREHOLDERS
This proxy statement is furnished by and on behalf of the Board
of Directors (the Board) of Caribou Coffee Company,
Inc., a Minnesota corporation (we, us,
our, Caribou or the
Company), in connection with the solicitation of
proxies for use at the Annual Meeting of Shareholders to be held
at 10 a.m. (Central Time) on Thursday, May 21, 2009,
at the Hotel Ivy, 201 South Eleventh Street, Minneapolis,
Minnesota, and at any adjournment or postponement thereof. This
proxy statement and the enclosed proxy card will be first mailed
on or about April 17, 2009, to our shareholders of record
on April 9, 2009.
We will bear the expense of preparing, printing and mailing this
proxy statement and the proxies we are soliciting. Proxies will
be solicited by mail and may also be solicited by directors,
officers and other Caribou employees, without additional
remuneration, in person or by telephone or facsimile
transmission. We will also request brokerage firms, banks,
nominees, custodians and fiduciaries to forward proxy materials
to the beneficial owners of shares of common stock as of the
record date and will reimburse such persons for the cost of
forwarding the proxy materials in accordance with customary
practice. Your cooperation in promptly voting your shares and
submitting your proxy by telephone, the Internet or by
completing and returning the enclosed proxy card will help to
avoid additional expense. Proxies and ballots will be received
and tabulated by Wells Fargo Shareowner Services, the
Companys transfer agent and the inspector of elections for
the Annual Meeting.
ABOUT THE
MEETING
What am I
voting on?
You will be voting on the following: (1) to elect nine
directors nominated by the Board, (2) to ratify the
selection of Ernst & Young LLP as our independent
registered public accounting firm, (3) to approve the
Option Exchange Program, and (4) to transact such other
business as may properly come before the meeting or any
adjournment or postponement thereof. No cumulative rights are
authorized, and dissenters rights are not applicable to
the matters being voted upon.
Who is
entitled to vote?
You may vote if you owned our common stock as of the close of
business on April 9, 2009, the record date. Each share of
common stock is entitled to one vote. As of the record date, we
had 19,370,590 shares of common stock outstanding.
How do I
vote if I do not plan to attend the meeting?
Whether or not you plan to attend the Annual Meeting, you can
arrange for your shares to be voted at the meeting. There are
three ways to vote your proxy:
1. VOTE BY TELEPHONE TOLL FREE
1-800-560-1965
2. VOTE BY INTERNET
http://www.eproxy.com/cbou/
3. VOTE BY MAIL Mark, sign and return the
enclosed proxy card.
If your shares are held in the name of your broker, bank or
another nominee, you should follow the instructions provided by
your broker, bank or other nominee to vote your shares.
1
Can I
vote at the meeting?
You may vote your shares at the meeting if you attend in person
and the shares are registered in your name. If your shares are
held in street name by your broker, bank or another
nominee, you may not vote your shares in person at the meeting
unless you obtain a signed proxy from your broker, bank or
another nominee. Even if you plan to attend the meeting, we
encourage you to vote your shares by completing, signing and
returning the enclosed proxy card or voting by telephone or the
Internet.
Can I
change my vote after I return my proxy card or vote by telephone
or the Internet?
If you are a shareholder of record, you may change your vote at
any time before the polls close at the meeting. You may do this
by:
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voting again over the Internet or by telephone at least
24 hours prior to the Annual Meeting;
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signing and returning another proxy card with a later date;
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giving written notice to the Corporate Secretary; or
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voting in person at the Annual Meeting.
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Attendance at the Annual Meeting, in and of itself, will not
constitute a revocation of a proxy. If you hold your shares in
street name, you may submit new voting instructions
by contacting your broker, bank or other nominee.
What does
it mean if I receive more than one proxy card?
It means that you have multiple accounts with brokers, banks or
other nominees. Please vote all of these shares. We recommend
that you contact the record holder of your shares to consolidate
as many accounts as possible under the same name and address.
How can I
attend the meeting?
The Annual Meeting is open to all holders of our common stock as
of the record date. To attend the meeting, you will need to
bring evidence of your stock ownership. If your shares are
registered in your name, your admission card is included with
this proxy statement. You will need to bring the admission card
together with valid picture identification. If your shares are
held in the name of your broker, bank or another nominee or you
received your proxy materials electronically, you will need to
bring evidence of your stock ownership, such as your most recent
brokerage account statement, and valid picture identification.
May
shareholders ask questions at the meeting?
Yes. Representatives of the Company will answer
shareholders questions of general interest at the end of
the meeting. In order to give a greater number of shareholders
an opportunity to ask questions, individuals or groups will be
allowed to ask only one question and no repetitive or
follow-up
questions will be permitted.
How many
votes must be present to hold the meeting?
Your shares are counted as present at the meeting if you attend
the meeting in person, if you properly return the enclosed proxy
card or if you grant a proxy to vote by the Internet or
telephone. In order for us to conduct our meeting, a majority of
our outstanding shares of common stock as of April 9, 2009,
must be present in person or by proxy at the meeting. This is
referred to as a quorum. Abstentions and broker non-votes will
be counted for purposes of establishing a quorum at the meeting.
2
How may I
vote for the nominees for election to director, and how many
votes must the nominee receive to be elected?
With respect to the election of directors, you may:
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vote FOR the election of the nine nominees for director;
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vote FOR the election of the nine nominees for director, except
as marked; or
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vote WITHHELD for all nine nominees for director.
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The nine nominees that receive the greatest number of votes
For will be elected as directors. This is called a
plurality.
How may I
vote for the approval of the Option Exchange Program and the
ratification of the selection of the independent registered
public accounting firm? How many votes must the proposals
receive to pass?
With respect to the proposals to approve the Option Exchange
Program and ratify the selection of the independent registered
public accounting firm, you may:
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vote FOR the proposals;
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vote AGAINST the proposals; or
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ABSTAIN from voting on the proposals.
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The proposals must receive a For vote from a
majority of the voting power of the shares present and entitled
to vote at a meeting with a quorum. If you abstain from the
vote, it will have the same effect as a vote Against
the proposal. Broker non-votes will have no effect on the
outcome of the vote.
What if I
sign and return my proxy card but do not provide voting
instructions or vote by telephone or the Internet?
If the enclosed proxy card is signed and returned (and not
revoked) prior to the Annual Meeting, but does not provide
voting instructions, the shares of common stock represented
thereby will be voted: (1) For the election of
the nine director candidates nominated by the Board;
(2) For the ratification of the selection of
Ernst & Young LLP as our independent registered public
accounting firm for the fiscal year ending January 3, 2010
(fiscal 2009); (3) For the Option
Exchange Program, and (4) in accordance with the best
judgment of the named proxies on any other matters properly
brought before the Annual Meeting.
Will my
shares be voted if I do not sign and return my proxy card, vote
over the Internet, vote by telephone or vote in person at the
Annual Meeting?
If you are a registered shareholder, meaning that your shares
are registered in your name, and you do not vote by using the
Internet, by telephone, by signing and returning your proxy card
or by voting in person at the Annual Meeting, then your shares
will not be voted and will not count in deciding the matters
presented for consideration in this proxy statement.
If your shares are held in street name through a
broker, bank or other nominee and you do not provide voting
instructions, your broker, bank or other nominee may vote your
shares on your behalf under certain circumstances.
On certain routine matters, including the election
of directors and the ratification of the appointment of the
independent registered public accounting firm described in this
proxy statement, brokerage firms may vote their customers
shares if their customers do not provide voting instructions.
When a brokerage firm votes its customers shares on a
routine matter without receiving voting instructions, these
shares are counted both for establishing a quorum to conduct
business at the Annual Meeting and in determining the number of
shares voted For or Against the routine
matter.
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On non-routine matters, if the brokerage firm has
not received instructions from the shareholder, the brokerage
firm cannot vote the shares on that proposal. This is called a
broker non-vote. Broker non-votes are only counted
for establishing a quorum and will have no effect on the outcome
of the vote.
We encourage you to provide instructions to your brokerage firm
by voting your proxy. This action ensures your shares will be
voted at the Annual Meeting.
Can my
shares be voted on matters other than those described in this
proxy statement?
Yes. We have not received proper notice of, and are not aware
of, any business to be transacted at the meeting other than as
indicated in this proxy statement. If any other item or proposal
properly comes before the meeting, the proxies received will be
voted on those matters in accordance with the discretion of the
proxy holders.
PROPOSAL 1
ELECTION OF DIRECTORS
In accordance with our Amended and Restated Bylaws, the number
of directors to constitute the Board shall be determined from
time to time by resolution of the Board. The number of directors
that constitute the Board is currently set at nine.
Nominees for director are elected to serve for a term of one
year and until their respective successors have been elected and
qualified. Each director shall hold office until the next
regular meeting of the shareholders after such directors
election and until a successor is elected and has qualified, or
until the earlier death, resignation, removal or
disqualification of the director.
The terms of the current nine directors, Messrs. Caffey,
Coles, Doolin, Graves, Griffith, Ogburn, Sanford and
Tattersfield and Ms. Palisi Chapin, expire upon the
election and qualification of the directors to be elected at the
Annual Meeting. The Board has nominated the current nine
directors for reelection to the Board as directors at the Annual
Meeting, to serve until the 2010 Annual Meeting of Shareholders.
Unless otherwise directed, the persons named in the proxy intend
to vote all proxies For the election of the nine
nominees for director. The nominees have consented to serve as
directors if elected. If, at the time of the Annual Meeting, any
of the nominees is unable or declines to serve as a director,
the discretionary authority provided in the enclosed proxy will
be exercised to vote for a substitute candidate designated by
the Board. The Board has no reason to believe any of the
nominees will be unable or will decline to serve as a director.
Set forth below is certain information furnished to us by the
director nominees. The ages provided for each nominee are as of
April 9, 2009. There are no family relationships among any
of our directors or executive officers.
Nominees
for Directors
Kip R. Caffey
, age 53, has served as a director
since October 2005. Mr. Caffey has been Managing Director
of Cary Street Partners, LLC, an investment banking and wealth
management firm, since July 2004. From July 1999 to March 2004,
Mr. Caffey was employed by SunTrust Robinson Humphrey and
its predecessor firm, The Robinson-Humphrey Company, Inc., where
he was Senior Managing Director and co-head of Investment
Banking.
Michael J. Coles
, age 65, has served as a director
since June 2003. Mr. Coles has been a private investor
since November 2007. He previously served as our Chief Executive
Officer from June 2003 until November 2007 and as the Chairman
of our Board from July 2005 to November 2007. From June 2003
until March 2007, Mr. Coles served as our President. From
1987 until 2003, Mr. Coles served on the Board of Charter
Bank & Trust, of which he was a founder, and from 1998
to 2001, Mr. Coles was Chairman of the Board. From 1999
through 2003, Mr. Coles was a consultant and private
investor providing strategic and management advice to a number
of private companies and served on the Boards of several
not-for-profit organizations.
4
Wallace B. Doolin
, age 62, has served as a director
since October 2005. Mr. Doolin is the founder and Chairman
of Black Box Intelligence, a restaurant industry business
intelligence company, since January 2009 and is the Vice
Chairman of ESP Systems a hospitality technology company since
June 2008. Mr. Doolin was the Chairman of the Board of
Directors of Buca, Inc., an owner and operator of full service
restaurants, from November 2004 to September 2008.
Mr. Doolin is also the former Chief Executive Officer and
President of Buca, Inc. From May 2002 to October 2004,
Mr. Doolin was Chief Executive Officer, President and a
board member of La Madeleine de Corps, Inc., a French
restaurant and bakery company.
Gary A. Graves,
age 49, has served as our
Non-Executive Chairman since November 2007 and as a director
since August 2007. Since November 2008, Mr. Graves has been
an independent consultant for Huntley, Mullaney, Spargo and
Sullivan. From February 2007 to November 2008, Mr. Graves
was the Chief Executive Officer of American Laser Centers, Inc.
From August 2002 to January 2007, Mr. Graves served as
President and Chief Executive Officer for La Petite
Academy, a preschool educational facility.
Charles L. Griffith
, age 54, has served as a
director since July 2005. Mr. Griffith has been an
Executive Director of Arcapita Bank B.S.C. (c) since
February 2005. From 2003 until 2004, he served as Group
President for Johns Manville, a Berkshire Hathaway-owned company
that manufactures insulation and building products. From 2002
until 2003, Mr. Griffith served as Executive Vice President
of Electronic Data Systems Corporation, a global technology
services company.
Charles H. Ogburn
, age 53, has served as a director
since January 2003. Mr. Ogburn has been an Executive
Director of Arcapita Bank B.S.C. (c) since March 2001.
Prior to joining Arcapita, Mr. Ogburn spent more than
15 years at the investment banking firm of The
Robinson-Humphrey Company, Inc., most recently as Senior
Managing Director and co-head of Investment Banking. Mr. Ogburn
currently serves on the Board of Directors of Crawford &
Company, an insurance Claims management and related services
provider.
Sarah Palisi Chapin
, age 47, has served as a
director since August 2007. Since 2004, Ms. Palisi Chapin
has been a founding partner in The Chain Gang, a private equity
and business development advisory practice. From 1995 to 2003,
Ms. Palisi Chapin was Chief Executive Officer of Enersyst
Development Center, a research and development, intellectual
property, food and technology incubator, and from 2002 to 2003,
Ms. Palisi Chapin served as Chair. She currently serves on
the Board of Directors of Sandstone, PrimeSource Foodservice
Equipment and Baker Bros.
Philip H. Sanford,
age 55, has served as a director
since April 2, 2009. Since January 2009, Mr. Sanford
has been the President and Chief Operating Officer of Value
Place, LLC, an extended stay hotel chain. From August 2003 to
present, Mr. Sanford has been the Principal of Port Royal
Holdings, LLC, a private equity firm. From July 1997 to August
2003, he was the Chairman and Chief Executive Officer of The
Krystal Company, owner, operator and franchisor of quick-service
restaurants. Mr. Sanford currently serves on the Board of
Directors of Chattem, Inc., a marketer and manufacturer of
over-the-counter healthcare products, toiletries and dietary
supplements.
Michael J. Tattersfield,
age 43, has served as a
director since April 2, 2009. Mr. Tattersfield has
also served as our President and Chief Executive Officer since
August 2008. From 2006 to 2008, Mr. Tattersfield was Chief
Operating Officer and Executive Vice President of lululemon
athletica, inc., a yoga-inspired athletic apparel company. From
2005 to 2006, Mr. Tattersfield served as Vice President
Store Operations for Limited Brands, Inc., an operator of
specialty stores that sell apparel, personal care, beauty and
lingerie products. From 2003 to 2005, Mr. Tattersfield was
President of A&W All American Food Restaurants of Yum!
Brands, Inc., a quick service restaurant company, and from 1992
to 2002, Mr. Tattersfield served in various positions for
Yum! Brands, Inc.
THE BOARD RECOMMENDS THAT SHAREHOLDERS VOTE
FOR
THE
ELECTION OF THE NINE NOMINEES TO THE BOARD.
Affirmative
Determinations Regarding Director Independence and Other
Matters
The Board has determined that Kip R. Caffey, Wallace B. Doolin,
Gary A. Graves, Sarah Palisi Chapin and Philip H. Sanford are
independent directors as defined under the
applicable Nasdaq Global Market (Nasdaq) rules.
5
In this proxy statement the directors who have been
affirmatively determined by the Board to be independent
directors under this rule are referred to as the
Independent Directors.
The Board has also determined that each member of the three
committees of the Board meets the independence requirements
applicable to those committees prescribed by Nasdaq and the
Securities and Exchange Commission (SEC). The Board
has further determined that Mr. Caffey is an audit
committee financial expert as such term is defined by SEC
rules.
Board
Committees
The Board had three standing committees: the Compensation
Committee, the Audit Committee and the Nominating and Corporate
Governance Committee. Committee and committee chair assignments
are made annually by the Board at its meeting immediately
following the Annual Meeting of Shareholders. The current
composition of each Board committee is as follows.
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Nominating and Corporate
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Audit
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Compensation
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Governance
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Kip R. Caffey (Chair)
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Sarah Palisi Chapin (Chair)
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Wallace B. Doolin (Chair)
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Gary A. Graves
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Kip R. Caffey
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Sarah Palisi Chapin
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Wallace B. Doolin
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Wallace B. Doolin
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Gary A. Graves
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Philip H. Sanford
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Philip H. Sanford
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Philip H. Sanford
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The Board committee assignments are not expected to change
following the Annual Meeting.
Board and
Committee Meetings
During fiscal 2008, the Board held six meetings, the Audit
Committee held five meetings, the Compensation Committee held
ten meetings and the Nominating and Corporate Governance
Committee held one meeting. All directors attended 75% of the
aggregate of all Board and committee meetings on which he or she
served in fiscal 2008, except for Charles L. Griffith. We have
not adopted a formal policy regarding Board members
attendance at the Annual Meetings; however, all Board members
attended the 2008 Annual Meeting.
The
Responsibilities and Duties of the Nominating and Corporate
Governance Committee
The purpose of the Nominating and Corporate Governance Committee
is to assist the Board in fulfilling its responsibilities
relating to:
A. identification of individuals qualified to become Board
members and recommendation of director nominees to the Board
prior to each Annual Meeting of Shareholders;
B. recommendation of nominees for committees of the
Board; and
C. matters concerning corporate governance practices.
To carry out its nominating function, the Committee has the
following responsibilities and duties:
1. Retain, as deemed necessary, and terminate any search
firm to be used to identify director candidates. The Committee
has sole authority to select such search firm and approve its
fees and other retention terms.
2. Determine desired board skills and attributes. The
Committee shall consider personal and professional integrity,
ability and judgment and such other factors deemed appropriate.
3. Actively seek individuals whose skills and attributes
reflect those desired and evaluate and propose nominees for
election to the Board.
4. Review the slate of directors who are to be re-nominated
to determine whether they are meeting the Boards
expectations of them.
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5. Make recommendations to the full Board for appointments
to fill vacancies of any unexpired term on the Board.
6. Annually recommend to the Board nominees for submission
to shareholders for approval at the time of the Annual Meeting
of Shareholders.
7. Annually review committee chairs and membership and
recommend any changes to the full Board.
The Nominating and Corporate Governance Committee has not
adopted a specific policy regarding the consideration of
shareholder director nominees, but its general policy is to
welcome future nominees recommended by shareholders.
Shareholders who wish to recommend individuals for consideration
by the Nominating and Corporate Governance Committee to become
nominees for election to our Board may do so by submitting a
written recommendation to Caribou Coffee Company, Inc., 3900
Lakebreeze Avenue North, Brooklyn Center, Minnesota 55429,
Attention: Secretary. Submissions must include sufficient
biographical information concerning the recommended individual,
including age, five year employment history with employer names
and a description of the employers business, whether such
individual can read and understand basic financial statements
and board memberships (if any) for the Committee to consider.
The Nominating and Corporate Governance Committee does not
intend to alter the manner in which it evaluates nominees based
on whether or not the nominee was recommended by a shareholder.
Mr. Sanford initially came to our attention through a third
party search firm that we engaged to assist with the search for
a new Chief Executive Officer. The Nominating and Corporate
Governance Committee selected Mr. Sanford as a director
nominee for election at the Annual Meeting, based on the
criteria discussed above and their knowledge of
Mr. Sanfords experience and expertise.
Corporate
Governance Materials
The following materials related to our corporate governance are
available publicly on our website at
www.cariboucoffee.com
on the Investors page under
Corporate Governance.
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Audit Committee Charter
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Compensation Committee Charter
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Nominating and Corporate Governance Committee Charter
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Code of Business Conduct and Ethics
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Copies may also be obtained, free of charge, by writing to:
Caribou Coffee Company, Inc., 3900 Lakebreeze Avenue North,
Brooklyn Center, Minnesota 55429, Attention: Secretary. Please
specify which documents you would like to receive.
2008
Compensation of Directors
Our directors who are not our employees or affiliated with our
largest shareholder, an affiliate of Arcapita Bank B.S.C.(c)
(collectively, the Non-Employee Directors), receive
compensation for serving on the Board. We provide the
Non-Employee Directors $30,000 per member in cash consideration
annually for serving on our Board and an additional $5,000 per
member for serving on any committee of our Board, except for the
Chairman of the Audit Committee who receives $7,500 annually. In
addition, under our 2005 Equity Incentive Plan, each Independent
Director will receive an initial option grant immediately after
joining the Board to purchase 10,000 shares of our common
stock that will vest in four equal installments beginning on the
first anniversary of the date of grant with a per share exercise
price equal to the closing market price on the date of grant. We
have agreed to reimburse all of our directors for reasonable
expenses incurred in connection with their duties as directors.
7
The table below sets forth, for each director that served during
fiscal 2008, the amount of compensation paid for his or her
service.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
|
|
|
|
|
|
|
|
|
|
Earned
|
|
|
|
|
|
|
|
|
|
or Paid
|
|
|
Option
|
|
|
|
|
|
|
in Cash
|
|
|
Awards
|
|
|
Total
|
|
Name
|
|
($)
|
|
|
($)(1)(2)
|
|
|
($)
|
|
|
Kip R. Caffey
|
|
|
36,250
|
(3)
|
|
|
|
|
|
|
36,250
|
|
Michael J. Coles
|
|
|
28,846
|
(4)
|
|
|
|
|
|
|
28,846
|
|
Wallace B. Doolin
|
|
|
35,000
|
|
|
|
|
|
|
|
35,000
|
|
Gary A. Graves
|
|
|
35,000
|
|
|
|
3,608
|
|
|
|
38,608
|
|
Charles L. Griffith
|
|
|
|
|
|
|
|
|
|
|
|
|
Charles H. Ogburn
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey C. Neal
|
|
|
22,115
|
(5)
|
|
|
|
|
|
|
22,115
|
|
Sarah Palisi Chapin
|
|
|
35,000
|
|
|
|
|
|
|
|
35,000
|
|
Philip H. Sanford
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael J. Tattersfield
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
At the end of fiscal 2008, the aggregate number of shares of
common stock underlying outstanding option awards to directors
was: Mr. Caffey 15,000;
Mr. Coles 18,180; Mr. Doolin
15,000; Mr. Graves 30,000; and Ms. Palisi
Chapin 10,000. Mr. Coles stock options
were related to his prior service as the Companys Chief
Executive Officer.
|
|
(2)
|
|
The amount shown represents the expensed fair value of options
determined under SFAS 123(R) and not the compensation
realized by the director. The Black-Scholes option-pricing model
is used to estimate the fair value of stock options. Assumptions
used in the calculation of this amount is included in
Note 8 to our financial statements for the fiscal year
ended December 28, 2008, included in our annual report on
Form 10-K
filed with the SEC on March 20, 2009.
|
|
(3)
|
|
Mr. Caffey became Chairman of the Audit Committee in April
2008, so his director fees related to service as the Chairman of
the Audit Committee were prorated for 2008.
|
|
(4)
|
|
Mr. Coles became a Non-Employee Director on
January 11, 2008 in connection with his resignation as the
Companys Chief Executive Officer on November 12,
2008, so his director fees were prorated for 2008.
|
|
(5)
|
|
Mr. Neal resigned from our Board effective August 6,
2008, so his director fees were prorated for 2008.
|
8
EXECUTIVE
COMPENSATION
Overview
The Compensation Committee is responsible for all decisions
regarding the compensation of our executive officers. The
Compensation Committee is also responsible for the oversight of
our stock option plan.
The following discussion summarizes the philosophies and methods
the Compensation Committee uses in establishing and
administering our executive compensation and incentive programs,
including the development of compensation programs designed to
provide executive officers with ownership interests in Caribou
and motivation to build shareholder value.
Executive
Compensation Policies
Our executive compensation policies are designed to attract and
retain qualified executives, to reward individual achievement
and to align the financial interests of our executives with
those of our shareholders. To accomplish these objectives, the
executive compensation program generally is comprised of
(1) base salary, (2) an annual performance-based cash
bonus, (3) long-term incentive compensation, consisting of
stock options, and (4) other benefits that are intended to
provide competitive compensation which includes 401(k) savings,
medical and dental insurance, life insurance and short-term and
long-term disability. These four elements generally comprise our
executive officers total compensation.
In addition, in connection with the initial employment
arrangements with the Chief Executive Officer, President and
Chief Financial Officer our Compensation Committee approves any
signing bonus and equity grants.
Decisions regarding the level of base salary, performance-based
cash bonus and stock options for our executive officers are
primarily based upon (1) individual experience and
technical capability needed to administer and execute the
responsibilities of the position (2) competitive practices
for executive talent in our industry and for our size Company,
and (3) our operating performance.
Compensation
Consultant
The Compensation Committee has engaged Towers Perrin as its
independent compensation consultant to assist the Compensation
Committee in creating and implementing executive compensation
strategies and programs. Towers Perrin also provides the
Compensation Committee with information on executive
compensation trends and best practices as well as advises the
Compensation Committee with respect to the design of our
compensation program for non-employee directors. All of Towers
Perrins work is done at the direction of or on behalf of
the Compensation Committee with the Vice President of Human
Resources acting on behalf of the Compensation Committee to
facilitate communications with Towers Perrin. Although the
Compensation Committee considers the advice of its independent
consultant, the Compensation Committee has the final
decision-making authority with respect to all elements of
compensation.
Base
Salary
Base salary is designed to compensate the executive for the
individual experience and technical capability needed to
administer and execute the responsibilities of their respective
position. Given our growth objectives, consideration is given to
not only the experience and technical capability needed today
but also those experiences and technical capabilities needed to
execute the responsibilities of the executive officers
position in a larger company.
Base salaries for the executive officers are reviewed annually.
In evaluating whether an adjustment to an executives base
salary is appropriate, factors such as changes in the scope of
the individuals job responsibilities, his or her
individual performance against stated objectives and our overall
performance over the past year are considered. These evaluations
along with proposed salary adjustments for all executive
officers who report to the Chief Executive Officer are forwarded
by our Chief Executive Officer to the Compensation Committee.
Our Chief Executive Officers annual base salary review is
conducted by the Compensation
9
Committee and considers the same factors described above for our
other executive officers. Our Compensation Committee considers
the evaluations and proposed salary adjustments. The
Compensation Committee also considers market data and practices
from independent compensation consultants and applies its
experience and judgment in determining adjustments to base
salary.
Performance-Based
Cash Bonus (Non-Equity Incentive Plan)
The purpose of our performance-based cash bonus plan is to unite
the interests of our executive officers with those of our
shareholders through the attainment of shareholder value added
objective approved by the Compensation Committee at the
beginning of each year.
The performance-based cash bonus plan approved by our
Compensation Committee provides our Named Executive Officers,
excluding our Vice President of Global Franchising, an
opportunity to earn a cash bonus ranging from 20% to 100% of
base salary, upon the achievement of performance goals set by
the Compensation Committee. The Compensation Committee set the
performance goal of a specific adjusted EBITDA target. The plan
requires a minimum adjusted EBITDA be achieved before any bonus
is paid. If the actual fiscal year adjusted EBITDA is greater
than the minimum adjusted EBITDA but less than the target
adjusted EBTIDA, the plan allows for a portion of the bonuses to
be paid. The plan also allows for a payout that exceeds the
target bonus if we achieve an adjusted EBITDA greater than the
target adjusted EBITDA.
Our Vice President of Global Franchising is eligible to receive
a performance-based cash bonus designed to motivate and
reinforce the commitment to growing our global franchising
business. This position is eligible for a bonus equal to 10% of
initial franchise fees actually received up to a maximum of 50%
of base salary. Generally, the franchisees coffeehouse
must be opened before the bonus is paid.
Long-Term
Incentive Compensation
Our long-term incentive compensation, which is comprised of
stock option grants, is intended to provide a means of
encouraging an ownership interest in our Company by those
employees who have contributed, or are determined to be in a
position to contribute to our success. Because the value of
stock option grants bear a direct relationship to the price of
our shares, the Compensation Committee believes that stock
option grants are a means of encouraging our executive officers
to increase long-term shareholder value.
Equity
Grant Policies
The Compensation Committee has been given oversight
responsibility for our stock option plan by our Board. The
general terms of our stock option grants have been
pre-established by our 2005 Equity Incentive Plan (our stock
option plan), including the life of the options (10 years).
The Compensation Committee is primarily concerned with the
number of options granted, to whom the options are granted, the
date of grant and the vesting schedule. The exercise price for
all stock option grants is generally the closing market price on
the date of grant.
Historically, we typically granted options two times per year on
pre-established dates in February and September. In establishing
these semi-annual stock option grant dates, the Compensation
Committee considered the timing of our routine information
releases. If facts and circumstances indicate that a
pre-established stock option grant date is not appropriate
because of a pending release of non-routine material information
or other reason, the Compensation Committee maintains the
discretion to change the stock option grant date to a more
appropriate date. The stock option grant schedule provides for
more stock options to be granted to those positions that have
been determined to contribute more to our success. The
Compensation Committee may in its discretion, alter this grant
schedule both in terms of timing and in terms of the total
number of stock options granted.
10
Other
Benefits
Our executive officers, including our Chief Executive Officer,
may participate in our other employee benefit plans at their
discretion. These other benefit plans include our 401(k) savings
plan, medical and dental insurance, life insurance, and
short-term and long-term disability. Our executive officers
participate in these other benefit plans on the same terms,
conditions and cost that all of our other benefit eligible
employees (benefit eligibility is defined by each individual
benefit plan). We do not provide any pension plans or deferred
compensation plans to our executive officers other than our
401(k) savings plan. Our 401(k) savings plan allows a
discretionary matching contribution. We reimburse our executive
officers for relocation costs, but we do not provide any other
perquisites to our executive officers.
Named
Executive Officers for 2008
For 2008, our Named Executive Officers include:
|
|
|
|
|
Michael J. Tattersfield, President and Chief Executive Officer;
|
|
|
|
Timothy J. Hennessy, Chief Financial Officer;
|
|
|
|
Rosalyn T. Mallet, Former Interim Chief Executive Officer,
President and Chief Operating Officer;
|
|
|
|
Amy K. ONeil, Former Senior Vice President of Store
Operations;
|
|
|
|
Christopher B. Rich, Vice President of Global
Franchising; and
|
|
|
|
Dan E. Lee, Vice President, General Counsel and Secretary.
|
Since we are a smaller reporting company, our Named Executive
Officers include our principal executive officer
(Mr. Tattersfield for 2008), the two other most highly
compensated executive officers as of the end of the last fiscal
year (Messrs. Rich and Lee for 2008), and up to two
additional individuals for whom disclosure would have been
required if they were serving as an executive officer at the end
of the last fiscal year (Ms. Mallet and
Ms. ONeil for 2008). Although not required by the
applicable SEC rules, we have included Mr. Hennessy as a
Named Executive Officer, since he is the Chief Financial Officer.
11
2008
Summary Compensation Table
The following table sets forth compensation information for our
Named Executive Officers for fiscal 2008 and 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option
|
|
|
Non-Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards ($)
|
|
|
Incentive Plan
|
|
|
All Other
|
|
|
|
|
Name and Principal Position
|
|
Year
|
|
|
Salary ($)(1)
|
|
|
Bonus ($)
|
|
|
(2)
|
|
|
Compensation ($)
|
|
|
Compensation ($)(3)
|
|
|
Total ($)
|
|
|
Michael J. Tattersfield(4)
|
|
|
2008
|
|
|
|
159,753
|
|
|
|
133,385
|
(6)
|
|
|
82,522
|
|
|
|
|
|
|
|
215,223
|
|
|
|
593,883
|
|
President and Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Timothy J. Hennessy(5)
|
|
|
2008
|
|
|
|
79,615
|
|
|
|
65,604
|
(6)
|
|
|
34,696
|
|
|
|
|
|
|
|
69
|
|
|
|
139,380
|
|
Chief Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rosalyn T. Mallet(7)
|
|
|
2008
|
|
|
|
342,341
|
|
|
|
|
|
|
|
122,300
|
|
|
|
|
|
|
|
197,156
|
|
|
|
661,797
|
|
Former Interim Chief Executive Officer, President and Chief
Operating Officer
|
|
|
2007
|
|
|
|
281,882
|
|
|
|
25,000
|
(8)
|
|
|
142,741
|
|
|
|
|
|
|
|
398
|
|
|
|
450,021
|
|
Amy K. ONeil(8)
|
|
|
2008
|
|
|
|
264,039
|
|
|
|
|
|
|
|
65,375
|
|
|
|
|
|
|
|
673
|
|
|
|
330,087
|
|
Former Senior Vice President of Store Operations
|
|
|
2007
|
|
|
|
258,320
|
|
|
|
58,122
|
(10)
|
|
|
71,625
|
|
|
|
|
|
|
|
3,459
|
|
|
|
391,526
|
|
Christopher B. Rich
|
|
|
2008
|
|
|
|
261,424
|
|
|
|
|
|
|
|
60,195
|
|
|
|
54,500
|
(11)
|
|
|
585
|
|
|
|
374,704
|
|
Vice President of Global Franchising
|
|
|
2007
|
|
|
|
261,645
|
|
|
|
|
|
|
|
60,195
|
|
|
|
50,350
|
(12)
|
|
|
1,893
|
|
|
|
374,083
|
|
Dan E Lee
|
|
|
2008
|
|
|
|
187,115
|
|
|
|
30,219
|
(13)
|
|
|
30,150
|
|
|
|
|
|
|
|
378
|
|
|
|
247,862
|
|
Vice President, General Counsel and Secretary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Represents base salary paid during the year.
|
|
(2)
|
|
Represents the expensed fair value of options and restricted
stock determined under SFAS 123(R) and not compensation
realized by the Named Executive Officer. Assumptions used in the
calculation of these amounts are included in Note 8 to our
financial statements for the fiscal year ended December 28,
2008, included in our annual report on
Form 10-K
filed with the SEC on March 20, 2009.
|
|
(3)
|
|
All Other Compensation consists of the items detailed in the
table below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matching
|
|
|
Life
|
|
|
Medical
|
|
|
Termination
|
|
|
Relocation
|
|
|
Total All Other
|
|
|
|
|
|
|
Contributions
|
|
|
Insurance
|
|
|
Benefits
|
|
|
Benefits
|
|
|
Awards
|
|
|
Compensation
|
|
Name
|
|
Year
|
|
|
401(k) ($)
|
|
|
($)
|
|
|
($)
|
|
|
($)(a)
|
|
|
($)
|
|
|
($)
|
|
|
Michael J. Tattersfield
|
|
|
2008
|
|
|
|
|
|
|
|
92
|
|
|
|
|
|
|
|
|
|
|
|
215,131
|
|
|
|
215,223
|
|
Timothy J. Hennessy
|
|
|
2008
|
|
|
|
|
|
|
|
69
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
69
|
|
Rosalyn T. Mallet
|
|
|
2008
|
|
|
|
|
|
|
|
584
|
|
|
|
|
|
|
|
190,000
|
|
|
|
6,572
|
|
|
|
197,156
|
|
|
|
|
2007
|
|
|
|
|
|
|
|
398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
398
|
|
Amy K. ONeil
|
|
|
2008
|
|
|
|
|
|
|
|
232
|
|
|
|
441
|
|
|
|
|
|
|
|
|
|
|
|
673
|
|
|
|
|
2007
|
|
|
|
1,325
|
|
|
|
225
|
|
|
|
1,909
|
|
|
|
|
|
|
|
|
|
|
|
3,459
|
|
Christopher B. Rich
|
|
|
2008
|
|
|
|
|
|
|
|
585
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
585
|
|
|
|
|
2007
|
|
|
|
1,325
|
|
|
|
568
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,893
|
|
Dan E. Lee
|
|
|
2008
|
|
|
|
|
|
|
|
378
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
378
|
|
|
|
|
(a)
|
|
Represents termination benefits payable pursuant to
Ms. Mallets separation agreement.
|
|
|
|
(4)
|
|
Mr. Tattersfield joined the Company as President and Chief
Executive Officer on August 1, 2008.
|
|
(5)
|
|
Mr. Hennessy joined the Company as Chief Financial Officer
on September 9, 2008.
|
|
|
|
(6)
|
|
Represents both a earned and discretionary bonus amount awarded
to Mr. Tattersfield and Hennessy for 2008 performance. The
amount was paid in 2009. Mr. Hennessys figure
includes $25,000 related to a signing bonus granted upon his
hire.
|
|
|
|
(7)
|
|
Ms. Mallets employment with Caribou ended on
August 1, 2008.
|
|
(8)
|
|
Represents a signing bonus paid pursuant to
Ms. Mallets employment offer letter.
|
12
|
|
|
(9)
|
|
As of October 23, 2008, Ms. ONeil resigned as
the Companys Senior Vice President of Store Operations and
no longer served as an executive officer of the Company;
however, she remained an employee to provide executive and
consulting services to the Company until January 23, 2009.
|
|
(10)
|
|
Represents discretionary bonus amount awarded to
Ms. ONeil for 2007 performance. The amount was paid
in 2008.
|
|
(11)
|
|
Represents amount awarded to Mr. Rich under the Vice
President of Global Franchising Bonus Plan, $38,500 was earned
and paid in 2008 and $16,000 was earned in 2008 and paid in 2009.
|
|
(12)
|
|
Represents amount awarded to Mr. Rich under the Vice
President of Global Franchising Bonus Plan, $34,850 was earned
and paid in 2007 and $15,500 was earned in 2007 and paid in 2008.
|
|
(13)
|
|
Represents both a earned and a discretionary bonus amount
awarded to Mr. Lee for 2008 performance. The amount was
paid in 2009.
|
Employment,
Severance and Change in Control Arrangements
Employment
Arrangements
Michael
J. Tattersfield
We entered into an employment agreement, effective as of
August 1, 2008, with Michael J. Tattersfield to serve as
our President and Chief Executive Officer. The employment
agreement for Mr. Tattersfield provides for an annual base
salary of $425,000 and the grant of options to purchase
500,000 shares of our common stock at $1.74 per share that
will vest in four equal annual installments beginning on the
first anniversary of his employment agreement and expire on
August 1, 2018. The employment agreement provides that, if
Mr. Tattersfield is terminated by us without
cause or by Mr. Tattersfield for good
reason (each as defined in the employment agreement),
Mr. Tattersfield will be entitled to all base salary and
bonus, if any, which were earned and payable on the date of
termination. If upon such a termination Mr. Tattersfield
executes a general release of claims, Mr. Tattersfield will
be entitled to 18 consecutive monthly payments which, in the
aggregate, will be equal to:
|
|
|
|
|
one and one-half times Mr. Tattersfields annual base
salary then in effect; and
|
|
|
|
the average of the two most recent annual bonus paid to
Mr. Tattersfield
|
However, if Mr. Tattersfield is a specified
employee (as defined in Section 409A(a)(2)(B)(i) of
the Internal Revenue Code of 1986 (the Code)) at the
time Mr. Tattersfield has a separation from
service (as defined in Section 409A(a)(2)(A)(i) of
the Code), we will not make any of the above payments before the
date that is six months and one day after the date of
Mr. Tattersfields separation from service.
The employment agreement has an initial term of four years, and
each year thereafter, the agreement automatically extends for an
additional year unless either party to the agreement notifies
the other that it wishes to terminate the agreement at least
60 days before the scheduled expiration of the agreement.
The employment agreement provides for eligibility for target
annual bonuses to be determined by our compensation committee,
which will be equal to 100% of the then applicable average
annual base salary. Also, under the employment agreement, we
have agreed to make available to Mr. Tattersfield our
employee benefit plans, programs and policies, which are
generally available to our similarly situated senior executives.
If Mr. Tattersfields employment terminates as a
result of his death or disability, our only obligation is to pay
Mr. Tattersfield or, in the case of
Mr. Tattersfields death, Mr. Tattersfields
estate, the annual base salary and target annual bonus, if any,
which were earned and payable on the date
Mr. Tattersfields employment terminated.
The employment agreement also contains non-compete,
confidentiality and non-solicitation provisions that apply
during the term of the employment agreement and for an
18-month
period thereafter.
13
Timothy
J. Hennessy
We entered into an employment agreement, effective as of
September 9, 2008, with Mr. Hennessy to serve as our
Chief Financial Officer. The employment agreement for
Mr. Hennessy provides for an annual base salary of $300,000
and the grant of options to purchase 275,000 shares of our
common stock at $3.22 per share that will vest in four equal
annual installments beginning on the first anniversary of his
employment agreement and expire on September 9, 2018. The
employment agreement provides that, if Mr. Hennessy is
terminated by us without cause or by
Mr. Hennessy for good reason (each as defined
in the employment agreement), Mr. Hennessy will be entitled
to all base salary and bonus, if any, which were earned and
payable on the date of termination. If upon such a termination
Mr. Hennessy executes a general release of claims,
Mr. Hennessy will be entitled to 12 consecutive monthly
payments which, in the aggregate, will be equal to:
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one year of Mr. Hennessys base salary then in
effect; and
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the average of the two most recent annual bonus paid to
Mr. Hennessy
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However, if Mr. Hennessy is a specified
employee (as defined in Section 409A(a)(2)(B)(i) of
the Code) at the time Mr. Hennessy has a separation
from service (as defined in Section 409A(a)(2)(A)(i)
of the Code), we will not make any of the above payments before
the date that is six months and one day after the date of
Mr. Hennessys separation of service.
The employment agreement has an initial term of four years, and
each year thereafter, the agreement automatically extends for an
additional year unless either party to the agreement notifies
the other that it wishes to terminate the agreement at least
60 days before the scheduled expiration of the agreement.
The employment agreement provides for eligibility for target
annual bonuses to be determined by our compensation committee,
which will be equal to 60% of the then applicable average annual
base salary. Also, under the employment agreement, we have
agreed to make available to Mr. Hennessy our employee
benefit plans, programs and policies, which are generally
available to our similarly situated senior executives.
If Mr. Hennessys employment terminates as a result of
his death or disability, our only obligation is to pay
Mr. Hennessy or, in the case of Mr. Hennessys
death, Mr. Hennessys estate, the annual base salary
and target annual bonus, if any, which were earned and payable
on the date Mr. Hennessys employment terminated.
The employment agreement also contains non-compete,
confidentiality and non-solicitation provisions that apply
during the term of the employment agreement and for a
12-month
period thereafter.
Rosalyn
Mallet
On April 2, 2007, we offered employment to Rosalyn Mallet
to be our President and Chief Operating Officer. The employment
offer letter for Ms. Mallet provided for an annual base
salary of $360,000 and the opportunity to earn a target annual
bonus of up to 50% of her base salary. Additionally,
Ms. Mallet was paid a $25,000 signing bonus, and upon the
start of employment, Ms. Mallet received a grant of options
to purchase 200,000 shares of our common stock at $7.30 per
share that would vest in four equal annual installments
beginning on the first anniversary of her employment.
On November 12, 2007, Ms. Mallet began serving as our
Interim Chief Executive Officer, and on August 1, 2008,
Ms. Mallet ceased to serve as our President and Interim
Chief Executive Officer with the appointment of Michael J.
Tattersfield. On August 19, 2008, we entered into a
Separation Agreement with Ms. Mallet whereby
Ms. Mallet performed executive and consulting services
during a transition period through October 31, 2008. During
this time, Ms. Mallet was paid her regular base salary
($360,000 per annum). In consideration for entering into this
agreement, Ms. Mallet was paid the lump sum of $100,000
(less applicable withholdings) in October 2008. Ms. Mallet
will also receive payments equaling 15 months of her base
salary in two installments. The first payment of $90,000 (less
applicable withholdings) was paid in December 2008 and the
second payment of $360,000 (less applicable withholdings) will
be made on or immediately following May 1, 2009, which is
six months and one day after Ms. Mallet had a
separation from service (as defined in
Section 409A(a)(2)(A)(i) of the Code).
14
Amy K.
ONeil
Ms. ONeils resigned on October 23, 2008 as
the Companys Senior Vice President of Store Operations;
however, on November 19, 2008, we entered into a Separation
and Consulting Agreement with Ms. ONeil whereby
Ms. ONeil will provide executive and consulting
services to the Company until January 23, 2009. Through
January 23, 2009, Ms. ONeil was paid her regular
base salary ($265,282 per annum), and in addition,
Ms. ONeil will be paid the lump sum of $221,068 (less
applicable withholdings) in two installments as consideration
for entering into the Separation and Consulting Agreement. The
first installment $132,640 (less applicable withholdings) is to
be paid on July 24, 2009, and the second payment of $88,428
(less applicable withholdings) is to be paid on
November 23, 2009.
Outstanding
Equity Awards at 2008 Fiscal Year End
The following table sets forth information with respect to
outstanding stock option awards for each of the Named Executive
Officers as of December 28, 2008.
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Option Awards
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Number of
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Number of
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Securities
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Securities
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Underlying
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Underlying
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Unexercised
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Unexercised
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Option
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|
Option
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|
Options
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|
Options
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Exercise
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Expiration
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Name
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(#) Exercisable
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(#) Unexercisable
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Price ($)
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Date
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Michael J. Tattersfield(1)
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500,000
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1.74
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8/01/18
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Timothy J. Hennessy(2)
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275,000
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3.22
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09/09/18
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Rosalyn Mallet(3)
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5,000
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5,000
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8.53
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01/29/09
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50,000
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150,000
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7.54
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01/29/09
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3,648
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10,942
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6.00
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01/29/09
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35,000
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2.78
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01/29/09
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Amy K. ONeil(4)
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33,333
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5.62
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04/23/09
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33,333
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6.70
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04/23/09
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100,000
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33,000
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9.87
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04/23/09
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2,740
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2,740
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8.95
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04/23/09
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Christopher B. Rich(5)
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18,750
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6,250
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14.00
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10/4/15
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2,344
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781
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11.00
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11/14/15
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10,938
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10,938
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7.70
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9/17/16
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Dan E Lee(6)
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25,000
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8,333
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9.87
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08/15/15
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261
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261
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8.95
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03/17/16
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4,036
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12,109
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7.24
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03/30/17
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5,000
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2.54
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05/02/18
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(1)
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Mr. Tattersfields options become exercisable as
follows: 125,000 options on August 1, 2009, 125,000 on
August 1, 2010, 125,000 on August 1, 2011, 125,000 on
August 1, 2012.
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(2)
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Mr. Hennessys options become exercisable as follows:
68,750 options on September 9, 2009, 68,750 options on
September 9, 2010, 68,750 options on September 9,
2011, and 68,750 options on September 9, 2012.
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(3)
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Ms. Mallets exercisable and unexercisable options
expired as of January 29, 2009.
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(4)
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Ms. ONeils exercisable and unexercisable
options will expire on April 23, 2009.
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(5)
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Mr. Richs unexercisable options become exercisable as
follows: 5,469 options on September 17, 2009, 6,250 options
on October 4, 2009, 782 options on November 14, 2009
and 5,468 options on September 17, 2010.
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(6)
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Mr. Lees unexercisable options become exercisable as
follows: 130 options on March 17, 2009, 4,036 options on
March 17, 2009, 1,250 options on May 2, 2009, 8,333
options on August 15, 2009, 131 options on March 17,
2010, 4,036 options on March 30, 2010, 1,250 options on
May 2, 2010, 4,036 options on March 20, 2011, 1,250
options on May 2, 2011, and 1,250 options on May 2,
2012.
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15
Potential
Payments Upon Termination and Change in Control
Mr. Tattersfield and Mr. Hennessy have employment
agreements with us that provide for certain severance payments
in the event their employment is terminated without cause or
with good reason, or due to death or disability. For a
description, see Employment, Severance and Change in
Control Arrangements Employment Arrangements.
Pursuant to our 2005 Equity Incentive Plan all unexercisable
stock options will become exercisable upon a change in control.
Definition
of a Change in Control
Under the terms of our 2005 Equity Incentive Plan, a change in
control is deemed to have occurred as a result of any one of the
following events:
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A person becomes the beneficial owner, directly or indirectly,
of securities representing 50% or more of the combined voting
power of our then outstanding securities for the election of
directors (except for certain transactions identified in our
2005 Equity Incentive Plan);
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Our shareholders approve a dissolution or liquidation of our
Company;
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The consummation of a reorganization, merger or consolidation to
which we are a party, or sale or other disposition of all or
substantially all of the assets of the Company (except for
certain transactions identified in our 2005 Equity Incentive
Plan);
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The individuals who constitute the Board cease for any reason
during the period to constitute at least a simple majority of
the Board, unless the election or nomination for election of
each new member of the Board was approved by a vote of at least
a majority of the members of the Board then still in office who
were members of the Board at the beginning of the period; or
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Any other condition or event that the Compensation Committee
determines to be a change in control event and adds as a
supplement to the Option Agreement.
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Equity
Compensation Plan Information
The following table provides information as of December 28,
2008 regarding shares outstanding and available for issuance
under the Companys 2005 Equity Incentive Plan.
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(c)
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Number of Securities
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Remaining Available for
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(a)
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(b)
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Future Issuance Under
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Number of Securities
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Weighted-Average
|
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|
Equity Compensation
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to be Issued Upon
|
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Exercise Price of
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|
Plans (Excluding
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|
Exercise of
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|
|
Outstanding
|
|
|
Securities Reflected in
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Plan Category
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|
Outstanding Options.
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Options.
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Column(a))
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|
2005 Equity Incentive Plan approved by security holders
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2,451,391
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$
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5.16
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331,706
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|
Equity compensation plans not approved by security holders
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$
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Total
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2,451,301
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$
|
5.16
|
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|
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331,706
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16
BENEFICIAL
OWNERSHIP OF COMMON STOCK
The following table sets forth information as of
February 1, 2009 concerning the beneficial ownership of
common stock of (i) 5% beneficial owners of the outstanding
common stock, (ii) the directors, (iii) the Named
Executive Officers and (iv) the directors and executive
officers as a group. Except as otherwise noted, the beneficial
owners listed have sole voting and investment power with respect
to shares beneficially owned. An asterisk in the percent of
class column indicates beneficial ownership of less than 1%.
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Amount and Nature of
|
|
Percent of
|
Name of Beneficial Owner
|
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Beneficial Ownership
|
|
Class(1)
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5% Shareholder
|
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Caribou Holding Company Limited
|
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11,672,245
|
(2)
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60.3
|
%
|
c/o Arcapita,
Inc.
75 Fourteenth Street, 24th Floor
Atlanta, GA 30309
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Arcapita Investment Management Limited
|
|
|
11,672,245
|
(2)
|
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|
60.3
|
%
|
c/o Paget
Brown & Company Ltd.
West Wind Building
P.O. Box 1111
Grand Cayman
Cayman Islands, B.W.I.
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|
|
|
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|
|
Arcapita Bank B.S.C.(c)
|
|
|
11,672,245
|
(3)
|
|
|
60.3
|
%
|
P.O. Box 1406
Manama, Bahrain
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|
|
|
|
|
|
|
|
Directors and Executive Officers
|
|
|
|
|
|
|
|
|
Michael J. Coles
|
|
|
289,822
|
(4)
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|
|
1.5
|
%
|
Kip R. Caffey
|
|
|
24,000
|
(5)
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|
*
|
|
Wallace B. Doolin
|
|
|
15,000
|
(6)
|
|
|
*
|
|
Charles L. Griffith
|
|
|
9,000
|
|
|
|
*
|
|
Gary Graves
|
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|
15,836
|
(7)
|
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|
*
|
|
Charles H. Ogburn
|
|
|
86,364
|
|
|
|
*
|
|
Sarah Palisi Chapin
|
|
|
5,800
|
(8)
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|
*
|
|
Philip H. Sanford
|
|
|
10,000
|
|
|
|
*
|
|
Michael J. Tattersfield
|
|
|
161,928
|
|
|
|
*
|
|
Timothy J. Hennessy
|
|
|
13,285
|
|
|
|
*
|
|
Rosalyn T. Mallet
|
|
|
0
|
|
|
|
*
|
|
Amy K. ONeil
|
|
|
169,406
|
(9)
|
|
|
*
|
|
Christopher B. Rich
|
|
|
32,031
|
(9)
|
|
|
*
|
|
Dan E. Lee
|
|
|
34,133
|
(10)
|
|
|
*
|
|
Directors and executive officers as a group (14 persons)
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|
|
866,636
|
|
|
|
4.5
|
%
|
|
|
|
(1)
|
|
Based on 19,370,590 shares of Common Stock outstanding on
February 1, 2009.
|
|
(2)
|
|
Caribou Holding Company Limited (CHCL) has
150,600 shares of voting stock and 6,815,038 shares of
non-voting stock outstanding. 5,971,218 of the shares of
non-voting stock are held by five companies (the Five
Non-Voting Holding Companies), which are Cayman Island
entities owned by approximately 160 international investors.
Arcapita Bank B.S.C. (c) (Arcapita Bank) holds a
minority interest in three of the Five Non-Voting Holding
Companies, which each own 1,587,180 shares of the
non-voting stock of CHCL. 572,820 of the remaining shares of
non-voting stock are held by Premium Coffee Holdings Limited, an
indirect subsidiary of Arcapita Bank. The remaining
271,000 shares of non-voting stock are held by Arcapita
Incentive Plan Limited (AIPL), a Cayman Islands
entity owned by management of Arcapita Bank (including
Messrs. Ogburn and Griffith). 10,040 shares of voting
stock are held by each of the 15 separate Cayman Island entities
formed by Arcapita Bank (the Voting Cayman
Entities). The Voting
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17
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|
Cayman Entities are owned by approximately 50 international
investors (the International Investors). Each of the
Voting Cayman Entities owns
6
2
/
3
%
percent of the voting stock of CHCL. Each International Investor
has granted Arcapita Investment Management Limited
(AIML), a direct subsidiary of Arcapita Bank, a
revocable proxy to vote its shares of voting stock in the Voting
Cayman Entities on all matters. In addition, each Voting Cayman
Entity has entered into an administration agreement with AIML
pursuant to which AIML is authorized to vote the voting stock of
CHCL held by such Voting Cayman Entity. Each administration
agreement is terminable by a Voting Cayman Entity upon
60 days prior written notice to AIML by a vote of
two-thirds of its shareholders.
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(3)
|
|
Arcapita Bank does not directly own any stock of CHCL, Caribou
Coffee Company, Inc., AIPL or the Voting Cayman Entities. The
number of shares of stock shown as owned by Arcapita Bank
includes all of the shares of CHCL subject to the revocable
proxies granted to AIML as described in note (2) above.
Arcapita Bank is a Bahrain joint stock company.
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|
(4)
|
|
Includes 18,100 shares subject to options exercisable
within 60 days of February 1, 2009.
|
|
(5)
|
|
Includes 10,000 shares subject to options exercisable
within 60 days of February 1, 2009.
|
|
(6)
|
|
Includes 10,000 shares subject to options exercisable
within 60 days of February 1, 2009.
|
|
(7)
|
|
Includes 7,500 shares subject to options exercisable within
60 days of February 1, 2009.
|
|
(8)
|
|
Includes 25,000 shares subject to options exercisable
within 60 days of February 1, 2009.
|
|
(9)
|
|
Represent shares subject to options exercisable within
60 days of February 1, 2009.
|
|
(10)
|
|
Includes 33,464 shares subject to options exercisable within
60 days of February 1, 2009.
|
Certain
Relationships and Related Transactions
In accordance with our Audit Committee charter, our Audit
Committee is responsible for reviewing the terms, conditions and
arrangements involving any related party or potential conflict
of interest transaction and for overseeing our Code of Business
Conduct, which includes disclosure requirements applicable to
our employees and our directors relating to conflicts of
interest. Accordingly, the Audit Committee is responsible for
reviewing and approving the terms and conditions of all
transactions that involve the Company, one of our directors or
executive officers or any of their immediate family members.
There have been no such transactions since the beginning of
fiscal 2008.
Section 16(A)
Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as
amended, requires the Companys directors and executive
officers, and persons who beneficially own more than 10% of our
common stock, to file with the SEC certain reports with respect
to their beneficial ownership of our common stock. The Company
files Section 16(a) reports on behalf of its directors and
executive officers to report their beneficial ownership of
common stock. To the Companys knowledge, based solely on a
review of the reports filed by persons who beneficially own more
than 10% of the common stock and the reports filed on behalf of
its directors and executive officers by the Company and written
representations from such persons that no other reports were
required, all Section 16(a) filing requirements applicable
to its directors and executive officers, and persons who
beneficially own more than 10% of the common stock were complied
with for fiscal 2008.
AUDIT
COMMITTEE REPORT
During fiscal 2008, Messrs. Kip R. Caffey, Wallace B.
Doolin and Gary A. Graves served on the Audit Committee.
Messrs. Caffey, Doolin, and Graves (i) meet the
independence criteria prescribed by applicable law and the rules
of the SEC for audit committee membership and are
independent directors as defined in Nasdaq rules,
and (ii) meet Nasdaqs financial knowledge and
sophistication requirements. Mr. Caffey has been determined
by the Board to be an audit committee financial
expert under SEC rules. The audit committee will help
ensure the integrity of our financial statements and the
qualifications and independence of our independent auditors.
18
The audit committee:
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|
|
|
evaluates the independent auditors qualifications,
independence and performance;
|
|
|
|
determines the terms of engagement of the independent auditors;
|
|
|
|
approves the retention of the independent auditors to perform
any proposed permissible non-audit services;
|
|
|
|
monitors the rotation of partners of the independent auditors on
the engagement team as required by law;
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|
|
|
reviews our financial statements;
|
|
|
|
reviews our critical accounting policies and estimates; and
|
|
|
|
discusses with management and the independent auditors the
results of the annual audit and the review of our quarterly
financial statements, among other things.
|
Based upon the Audit Committees review of the audited
consolidated financial statements and its discussions with
management and the Companys independent registered public
accounting firm, including a discussion regarding Statement on
Auditing Standards No. 61, as amended, as adopted by the
Public Company Accounting Oversight Board in Rule 3200T,
and the written disclosures and letter from Ernst &
Young required by the Independence Standards Board Standard
No. 1 regarding their independence, the Audit Committee
recommended to the Board that the audited consolidated financial
statements for the fiscal year ended December 28, 2008, be
included in the Companys Annual Report on
Form 10-K
filed with the SEC.
Respectfully submitted,
Kip R. Caffey (Chair)
Gary A. Graves
Wallace B. Doolin
Philip H. Sanford
PROPOSAL 2
RATIFICATION OF SELECTION OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board requests that shareholders ratify its selection of
Ernst & Young to serve as our independent registered
public accounting firm for fiscal 2009. Ernst & Young
audited our consolidated financial statements for fiscal 2008. A
representative of Ernst & Young will be present at the
Annual Meeting, will have an opportunity to make a statement if
he or she so desires and will be available to respond to
appropriate questions by shareholders.
THE BOARD RECOMMENDS A VOTE
FOR
THE RATIFICATION OF
THE SELECTION OF ERNST & YOUNG LLP AS THE INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FOR FISCAL 2009.
Independent
Registered Public Accounting Firm Fees
The following table sets forth the aggregate fees billed to the
Company for fiscal 2008 and fiscal 2007 by Ernst &
Young LLP:
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Fiscal 2008
|
|
|
Fiscal 2007
|
|
|
Audit Fees
|
|
$
|
457,000
|
|
|
$
|
493,000
|
|
Tax Fees
|
|
|
63,000
|
|
|
|
124,100
|
|
|
|
|
|
|
|
|
|
|
Total
|
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$
|
520,000
|
|
|
$
|
617,100
|
|
19
Audit Fees
for fiscal 2008 and 2007 consist of fees paid
to Ernst & Young LLP for the audit of our annual
financial statements included in the Annual Report on
Form 10-K
and review of financial statements included in the Quarterly
Reports on
Form 10-Q.
Tax Fees
consist of fees for professional services for
tax compliance, tax advice and tax planning. These services
include assistance regarding federal, state and international
tax compliance, return preparation and tax audits.
Pursuant to its charter, our Audit Committee must pre-approve
all audit and non-audit services to be performed by our
independent auditors and will not approve any services that are
not permitted by SEC rules. In fiscal 2008 and 2007, all audit
and non-audit services were pre-approved.
PROPOSAL 3
APPROVAL OF THE OPTION EXCHANGE PROGRAM
Introduction
We are seeking your approval of the Option Exchange Program
(defined below) that would allow us to cancel out-of-the-money
or underwater stock options currently held by some
of our employees (but excluding our Named Executive Officers) in
exchange for the issuance of a lesser amount of stock options
with a lower exercise price. We are proposing this Option
Exchange Program because we believe that, by essentially
recycling already issued equity awards, we will be more
cost-effective in providing retention and incentive tools to our
key contributors rather than simply issuing incremental equity
or paying additional cash compensation. Shareholder approval is
required under the applicable Nasdaq rules to implement the
Option Exchange Program. If the Option Exchange Program is
approved by the shareholders, we intend to launch the Option
Exchange Program promptly after the Annual Meeting.
The Option Exchange Program is designed to result in no material
adverse impact to our reported earnings. As discussed herein, we
estimate a reduction in our overhang of outstanding stock
options of approximately 370,000 shares, assuming full
participation in the Option Exchange Program, market price of
our common stock of $2.01 per share, an exercise price of the
new options of $2.01 per share and exchange ratios that result
in the fair value of the new options being equal to the fair
value of the options surrendered based on valuation assumptions
made shortly before the commencement of the Option Exchange
Program.
Overview
In March 2009, the Compensation Committee recommended to our
Board and our Board approved, subject to shareholder approval, a
proposal permitting the Company to conduct a one-time option
exchange program (the Option Exchange Program).
Under the proposed Option Exchange Program, Eligible Options
(defined below) held by Eligible Participants (defined below)
would be exchanged for New Options (defined below) granted under
our 2005 Equity Incentive Plan. The key terms of the proposed
Option Exchange Program are:
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Eligible Participants
:
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-
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Employee of the Company, excluding Named Executive Officers, on
the date the Option Exchange Program commences; and
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-
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Continues to be an employee of the Company, excluding Named
Executive Officers, and has not submitted or received a notice
of termination on or prior to the grant date of the New Options
(the New Option Grant Date) under the Option
Exchange Program.
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-
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A threshold exercise price per share equal to the greater of
(a) $3.20 or (b) the closing price of our common stock
as reported on Nasdaq for the day the Option Exchange Program is
commenced;
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-
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Expiration date at least 12 months after the New Option
Grant Date; and
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20
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-
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Granted under our 1994 Stock Awards Plan, our 2001 Stock
Incentive Plan or our 2005 Equity Incentive Plan.
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-
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Exercise price per share equal to the greater of (a) the
closing price of our common stock as reported on Nasdaq for the
New Option Grant Date or (b) the average closing price over
the duration of the Option Exchange Program.
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-
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Expiration date of the New Options will be the same as the
expiration date of the surrendered Eligible Options;
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-
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Vesting schedule of the New Options will be the same as the
surrendered Eligible Options, except that the vesting schedules
for any Eligible Options (or portions of Eligible Options) that
are already vested or that will vest within 12 months of
the closing of the Option Exchange Program will be reset such
that those stock options (or portions of those stock options)
will vest upon the
12-month
anniversary of the New Option Grant Date;
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-
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Ratio of shares underlying surrendered Eligible Options to
shares underlying New Options will vary based on the relative
market value of the surrendered Eligible Options to the New
Options as we intend for the fair value of the New Options to be
equal to the fair value of the Eligible Options surrendered
based on valuation assumptions made shortly before the
commencement of the Option Exchange Program, which we believe
should result in no material adverse impact on our reported
earnings; and
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-
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Non-statutory stock options granted under our 2005 Equity
Incentive Plan.
|
We believe that, if approved by the shareholders, the Option
Exchange Program will permit us to:
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|
|
enhance long-term shareholder value by restoring competitive
incentives to the Eligible Participants so they are further
motivated to complete and deliver our important strategic and
operational initiatives, as exercise prices significantly in
excess of market price undermine the effectiveness of stock
options as an employee performance and retention
incentive; and
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reduce potential overhang, which is the number of shares
issuable upon the vesting and exercise of outstanding stock
options, by reducing the total number of outstanding stock
options.
|
If we do not obtain shareholder approval of this proposal, we
will not be able to implement the Option Exchange Program.
Reasons
for the Option Exchange Program
We believe that an effective and competitive employee incentive
program is imperative for the future growth and success of our
business. We rely on highly skilled, educated and experienced
employees to implement our strategic initiatives and expand and
develop our business. Competition for these types of employees
is intense, and many companies use stock options as a means of
attracting, motivating and retaining their best employees. As
discussed in Executive Compensation, stock options
constitute a key part of our incentive and retention programs
because our Compensation Committee believes that equity
compensation encourages employees to act like owners of the
business, motivating them to work toward our success and
rewarding their contributions by allowing them to benefit from
increases in the value of our shares.
Many of our employees now hold stock options with exercise
prices greater than the current market price of our common
stock. For example, on April 2, 2009, the closing price of
our common stock on Nasdaq was $2.01 per share and the weighted
average exercise price of the Eligible Options was $6.75.
Consequently, as of April 2, 2009, 100% of outstanding
stock options held by Eligible Participants were
underwater, meaning that the exercise price of the
outstanding stock option was greater than the market price for
our stock.
21
Although we continue to believe that stock options are an
important component of our employees total compensation,
many of our employees view their existing stock options as
having little or no value due to the difference between the
exercise prices and the current market price of our common
stock. As a result, for many employees, these stock options are
ineffective at providing the incentives and retention value that
our Compensation Committee believes is necessary to motivate our
management and our employees to complete and deliver our
important strategic and operational initiatives to increase
long-term shareholder value.
The Option Exchange Program is also designed to benefit our
shareholders by reducing the potential dilution from stock
option exercises in the future. We estimate a reduction in our
overhang of outstanding stock options of approximately
370,000 shares, assuming full participation in the Option
Exchange Program, a market price of our common stock of $2.01
per share, an exercise price of the New Options of $2.01 per
share and exchange ratios that result in the fair value of the
New Options being equal to the fair value of the Eligible
Options surrendered based on valuation assumptions made shortly
before the commencement of the Option Exchange Program. The
actual reduction in our overhang that could result from the
Option Exchange Program could vary significantly and is
dependent upon a number of factors, including the actual level
of participation in the Option Exchange Program.
Consideration
of Alternatives
When considering how best to continue to incentivize and reward
our employees who have underwater stock options, we considered
several alternatives:
Increase cash compensation.
To replace equity
incentives, we considered that we could substantially increase
base and bonus compensation. However, significant increases in
cash compensation would substantially increase our compensation
expenses and reduce our cash flow from operations, which would
adversely affect our business and operating results.
Grant additional equity compensation.
We have
historically made semiannual equity grants to our employees in
order to keep total employee compensation packages competitive
with those of our peer companies from year to year. In addition
to the semiannual equity grants, we considered granting
employees special supplemental stock option grants at current
market prices in order to restore an equivalent value of
previously granted stock options that are now underwater.
However, supplemental stock option grants would substantially
increase our overhang and potential dilution to our shareholders
and would also decrease our reported earnings, which could
negatively impact our stock price.
Implement Option Exchange Program.
Finally, we
considered implementing the Option Exchange Program. We
determined that such a program was most attractive for a number
of reasons, including the following:
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Reasonable, Balanced Incentives.
Under the
Option Exchange Program, Eligible Participants would be able to
surrender certain underwater stock options with exercise prices
equal to the greater of (a) $3.20 or (b) the closing
price of our common stock as reported on Nasdaq for the day the
Option Exchange Program is commenced. The New Options would have
vesting requirements that would be the same as the surrendered
Eligible Options, except that the vesting schedules for any
surrendered Eligible Options (or portions of such Eligible
Options) that are already vested or that will vest within
12 months of the closing date of the Option Exchange
Program will be reset such that the New Options (or the
applicable portions of such New Options) granted in exchange for
the surrendered Eligible Options will vest upon the
12-month
anniversary of the closing date of the Option Exchange Program.
In addition, we would calculate the exchange ratios to result in
a fair value, of the New Options being equal to the fair value
of the surrendered Eligible Options based on valuation
assumptions made shortly before the commencement of the Option
Exchange Program, which we believe would result in no material
adverse impact on our reported earnings. We believe the
combination of fewer shares subject to stock options issued with
no material expected adverse impact on our reported earnings,
together with a new
12-month
minimum vesting requirement, represents a reasonable and
balanced exchange program with the potential for a significant
positive impact on employee retention, motivation and
performance, while at the same time being fair to our
shareholders.
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22
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Reduction of the Number of Shares Subject to Outstanding
Options.
Not only do the underwater stock options
have little or no retention value, they cannot be removed from
our stock option overhang until they are exercised or expire
unexercised. The Option Exchange Program would reduce our
overhang of outstanding stock options by eliminating the
ineffective stock options that are currently outstanding. Under
the proposed Option Exchange Program, Eligible Participants
would receive New Options covering fewer shares than the
surrendered Eligible Options. As a result, the number of shares
subject to all outstanding equity awards will be reduced,
thereby reducing our overhang. If the Option Exchange Program
were to close at a time when the market price of our common
stock is $2.01 per share and the exercise price of the New
Options is $2.01 per share, and if all Eligible Options were
exchanged and the exchange ratios would result in the fair value
of the New Options being equal to the fair value of the Eligible
Options surrendered based on valuation assumptions made shortly
before the commencement of the Option Exchange Program, based on
the number of Eligible Options expected to be outstanding on
June 30, 2009, stock options to purchase approximately
590,000 shares would be surrendered, while New Options
covering approximately 220,000 shares would be issued,
resulting in a net cancellation and reduction in the overhang of
our outstanding stock options of approximately
370,000 shares, or approximately 2% of the number of shares
of our common stock outstanding as of April 7, 2009
.
The actual reduction in our overhang that could result from the
Option Exchange Program could vary significantly and is
dependent upon a number of factors, including the actual level
of participation in the Option Exchange Program. All Eligible
Options that are not exchanged will remain outstanding and in
effect in accordance with their existing terms.
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Reduced Need for Additional Grants.
If we are
unable to implement the Option Exchange Program, we may feel the
need to issue additional stock options or other equity based
grants to our employees at current market prices. Additional
stock option or other equity based grants would increase our
overhang. Stock option grants would more quickly exhaust the
pool of shares available for issuance under our 2005 Equity
Incentive Plan. All grants, whether stock options or other
equity based grants would also result in decreased reported
earnings, which could negatively impact our stock price.
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Participation by Our Executive Officers (Other Than Our Named
Executive Officers)
. Our executive officers work
closely as a team and are expected to be among the primary
drivers of the creation of long-term shareholder value. As a
result, the retention and motivation of our executive officers
are critical to our long-term success. Accordingly, we have
elected to include executive officers, excluding our Named
Executive Officers, as Eligible Participants in the Option
Exchange Program.
|
Description
of the Option Exchange Program
Implementing the Option Exchange Program.
If
the Option Exchange Program is approved by shareholders, it is
the Boards intent that Eligible Participants will be
offered the opportunity to participate in the Option Exchange
Program under a tender offer (an Offer to Exchange)
filed with the Securities and Exchange Commission (the
SEC) promptly following the Annual Meeting. From the
time the Offer to Exchange commences, the Eligible Participants
will be given at least 20 business days to make an election to
surrender for cancellation all or a portion of their Eligible
Options on a
grant-by-grant
basis in exchange for New Options. If an Eligible Option is
cancelled, the Eligible Participant will forfeit his or her
right to exercise such option. The New Options will be issued
promptly following the closing of the Offer to Exchange, which
we expect will be on or about June 30, 2009. Even if the
Option Exchange Program is approved by our shareholders, our
Board will retain the authority, in its sole discretion, to
commence, terminate or postpone the Option Exchange Program or
to exclude certain Eligible Options or Eligible Participants
from participating in the Option Exchange Program due to tax,
regulatory or accounting reasons or because participation would
be inadvisable or impractical. Shareholder approval of the
Option Exchange Program applies only to this exchange program.
If we were to implement a stock option exchange program in the
future, we would once again need to seek shareholder approval.
Outstanding Options Eligible for the Option Exchange
Program.
To be eligible for exchange under the
Option Exchange Program, a stock option must be held by an
Eligible Participant and have an exercise price that is equal to
the greater of (a) $3.20 or (b) the closing price of
our common stock as reported on Nasdaq
23
for the day the Option Exchange Program is commenced. As of
April 7, 2009, stock options to purchase approximately
1,835,000 shares of our common stock were outstanding, of
which stock options to purchase approximately
590,000 shares are held by Eligible Participants and would
be eligible for exchange under the Option Exchange Program.
Eligibility.
The Option Exchange Program will
be open to all of our employees who hold Eligible Options,
excluding our Named Executive Officers. In addition, directors
are not eligible to participate, because they are not employees.
To be eligible, an employee must be employed by us at the time
the Offer to Exchange commences. Additionally, in order to
receive the New Options, an Eligible Participant who surrenders
his or her Eligible Options for exchange must be an employee on
the New Option Grant Date. As of April 7, 2009,
approximately 470 Eligible Participants held Eligible Options.
Exchange Ratios.
Exchange ratios will be
designed to result in a fair value, for accounting purposes, of
the New Options that will be equal to the fair value of the
Eligible Options surrendered based on valuation assumptions made
shortly before the commencement of the Option Exchange Program.
These ratios will be designed to make the grant of New Options
accounting expense neutral. In the proposed Option Exchange
Program, Eligible Participants would be offered a one-time
opportunity to exchange their Eligible Options for New Options
covering a smaller number of shares. The actual number of shares
subject to New Options will be determined in accordance with
exchange ratios calculated using the Black-Scholes option
valuation model.
The following table shows the number of shares underlying
Eligible Options that we expect to be outstanding as of
June 30, 2009 and a hypothetical example of the exchange
ratios that could be applied to calculate the number of shares
subject to New Options to be granted in exchange for surrendered
Eligible Options. The exchange ratios set forth in the table
were calculated based on the assumption that the exercise price
of the New Options is $2.01 per share, the market price of our
common stock is $2.01 per share and using exchange ratios that
result in the fair value of the New Options being equal to the
fair value of the Eligible Options surrendered based on
valuation assumptions made shortly before the commencement of
the Option Exchange Program.
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Hypothetical
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Number
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Shares Subject to
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|
of Shares
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Outstanding
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Remaining Term
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Hypothetical
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Underlying
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Grant Date
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Exercise Price
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Option Grants
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(years)
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Exchange Ratio
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New Options
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1/2/01
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5.62
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130,663
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1.5
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3.8 to 1.0
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34,348
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3/1/02
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5.62
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6,666
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2.7
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3.1 to 1.0
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2,142
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3/1/03
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6.70
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15,996
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3.7
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3.2 to 1.0
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5,031
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9/15/03
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6.70
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66,666
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4.2
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2.7 to 1.0
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24,262
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3/1/04
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6.70
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33,331
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4.7
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2.5 to 1.0
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13,315
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5/2/05
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7.09
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89,044
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5.8
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2.5 to 1.0
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35,731
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7/1/05
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9.87
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14,393
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6.0
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3.5 to 1.0
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4,110
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8/15/05
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9.87
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4,000
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6.1
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3.5 to 1.0
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1,142
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3/17/06
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8.95
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51,941
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6.7
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3.2 to 1.0
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16,482
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5/16/06
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9.17
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11,000
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6.9
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3.2 to 1.0
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3,402
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10/24/06
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7.49
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32,901
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7.3
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2.6 to 1.0
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12,517
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2/12/07
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8.12
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10,000
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7.6
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2.8 to 1.0
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3,510
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2/23/07
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8.15
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41,646
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7.6
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2.9 to 1.0
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14,562
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3/30/07
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7.24
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13,468
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7.7
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2.5 to 1.0
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5,296
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9/7/07
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6.00
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30,267
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8.2
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2.1 to 1.0
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14,176
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9/9/08
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3.22
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42,000
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9.2
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1.3 to 1.0
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31,871
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If the Option Exchange Program is effected, the actual exchange
ratios used should result in (1) the issuance of fewer
shares subject to the New Options than were subject to the
cancelled Eligible Options surrendered in the Option Exchange
Program and (2) the fair value, of Eligible Options
surrendered being
24
equal to the fair value of the New Options replacing them. The
actual exchange ratios will be determined shortly before the
commencement of the Option Exchange Program based upon the
closing price of our common stock on such day as reported by
Nasdaq. We currently expect to close the Option Exchange Program
on or about June 30, 2009, assuming the Option Exchange
Program is approved by our shareholders. Also, New Options
granted in accordance with the actual exchange ratios will be
rounded down to the nearest whole share on a
grant-by-grant
basis. Adjustments to any of the assumptions used to calculate
the information in the above table will result in a change to
the number of shares underlying New Options that may be granted
under the Option Exchange Program.
Election to Participate.
Participation in the
Option Exchange Program will be voluntary. Eligible Participants
will be permitted to exchange all or none of their Eligible
Options for New Options on a
grant-by-grant
basis.
Exercise Price of New Options.
All New
Options will be granted under our 2005 Equity Incentive Plan
with an exercise price per share equal to the greater of
(a) the closing price of our common stock as reported on
Nasdaq for the New Option Grant Date or (b) the average
closing price over the duration of the Option Exchange
Program.
Vesting of New Options.
The New Options will
have the same vesting schedules as the surrendered Eligible
Options, except that, if any surrendered Eligible Options are
already vested or will vest within 12 months of the closing
date of the Option Exchange Program, the New Options granted in
exchange for these surrendered Eligible Options will now vest
upon the
12-month
anniversary of the closing of the Option Exchange Program.
Term of the New Options.
The expiration date
of New Options will be the same as the expiration date of the
Eligible Options surrendered.
Other Terms and Conditions of the New
Options.
The other terms and conditions of the
New Options will be set forth in a stock option agreement to be
entered into as of the New Option Grant Date. Any additional
terms and conditions will be comparable to the other terms and
conditions of the Eligible Options. All New Options will be
non-statutory stock options granted under our 2005 Equity
Incentive Plan.
Return of Eligible Options
Surrendered.
Consistent with the terms of our
2005 Equity Incentive Plan, the pool of shares available for
issuance pursuant to future awards under our 2005 Equity
Incentive Plan will be increased by that number of shares
subject to options cancelled and forfeited under our 1994 Stock
Awards Plan and our 2001 Stock Incentive Plan, as a result of
the Option Exchange Program. Shares subject to options cancelled
and forfeited under our 2005 Equity Incentive Plan, as a result
of the Option Exchange Program, will not affect the pool of
shares available for issuance pursuant to future awards under
our 2005 Equity Incentive Plan, because the pool is not reduced
for shares subject to options until the options are exercised
and the shares issued.
Accounting Treatment.
We follow the provisions
of the Financial Accounting Standards Board Statement of
Financial Accounting SFAS No. 123R regarding
accounting for share-based payments. Under
SFAS No. 123R, we will recognize the incremental
compensation cost of the New Options granted in the Option
Exchange Program. The incremental compensation cost will be
measured as the excess, if any, of the fair value of New Options
granted to employees in exchange for surrendered Eligible
Options, measured as of the close of the Option Exchange
Program, over the fair value of the Eligible Options surrendered
in exchange for the New Options, measured immediately prior to
the cancellation. This incremental compensation cost will be
recognized ratably over the vesting period of the New Options.
However, because the exchange ratios will be calculated to
result in the fair value of the New Options being equal to the
fair value of the Eligible Options surrendered, we do not expect
to recognize any material incremental compensation expense for
financial reporting purposes as a result of the Option Exchange
Program. As is the case with Eligible Options, in the event that
any of the unvested New Options are forfeited prior to their
vesting due to termination of service, the compensation cost for
the forfeited New Options will not be recognized.
Federal Income Tax Consequences.
The following
is a summary of the anticipated material federal income tax
consequences of participating in the Option Exchange Program. A
more detailed summary of the
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applicable tax considerations to participants will be provided
in the Offer to Exchange. The tax consequences of the Option
Exchange Program are not entirely certain, however, and the
Internal Revenue Service is not precluded from adopting a
contrary position, and the law and regulations themselves are
subject to change.
We believe the exchange of Eligible Options for New Options
pursuant to the Option Exchange Program should be treated as a
non-taxable exchange, and that no material income should be
recognized for federal income tax purposes by either us or our
employees as a result of the transaction. As all New Options
issued under the Option Exchange Program will be non-statutory
stock options, upon exercise of the New Options, the Eligible
Participants will recognize ordinary income equal to the excess,
if any, of the fair market value of our shares on the date the
shares are transferred pursuant to exercise over the exercise
price paid for those shares.
We will be entitled to a federal income tax deduction (provided
we satisfy applicable federal income tax reporting requirements)
in an amount equal to the ordinary income recognized by the
Eligible Participant in the year that the income is recognized
by the individual. Upon a later sale of our common stock by the
Eligible Participant, he or she will recognize short-term or
long-term capital gain or loss (depending on the applicable
holding period) in an amount equal to the difference between the
amount realized on the sale and the fair market value of the
shares when ordinary income was recognized.
All holders of Eligible Options are urged to consult their own
tax advisors regarding the tax treatment of participating in the
Option Exchange Program under all applicable laws prior to
participating in the Option Exchange Program.
Potential Modifications to Terms to Comply with Governmental
Requirements.
The terms of the Option Exchange
Program will be described in an Offer to Exchange that we will
file with the SEC. Although we do not anticipate that the SEC
will require us to modify the terms significantly, it is
possible we will need to alter the terms of the Option Exchange
Program to comply with comments from the SEC. Changes in the
terms of the Option Exchange Program may also be required for
tax purposes as the tax treatment of the Option Exchange Program
is not entirely certain.
Effect on
Shareholders
We are not able to predict the impact the Option Exchange
Program will have on your interests as a shareholder, as we are
unable to predict how many Eligible Participants will exchange
their Eligible Options or what the future market price of our
common stock will be on the New Option Grant Date. If the Option
Exchange Program is approved, the exchange ratios should result
in:
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the issuance of fewer shares subject to the New Options than
were subject to the Eligible Options surrendered in the Option
Exchange Program, and
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the fair value of the New Options being equal to the fair value
of the Eligible Options surrendered.
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As a consequence, we do not expect to recognize any incremental
compensation expense for financial reporting purposes from the
Option Exchange Program. In addition, the Option Exchange
Program is intended to reduce both our existing stock option
overhang and our need to issue supplemental stock options in the
future to remain competitive with other employers.
While we cannot predict how many Eligible Options will be
exchanged, assuming full participation in the Option Exchange
Program, market price of our common stock of $2.01 per share, an
exercise price of the New Options of $2.01 per share and
exchange ratios that result in the fair value of the New Options
being equal to the fair value of the Eligible Options
surrendered based on valuation assumptions made shortly before
the commencement of the Option Exchange Program, the total
number of shares underlying our outstanding stock options would
be reduced by approximately 370,000 shares (i.e., the net
of Eligible Options for 590,000 shares surrendered minus
New Options issued for 220,000 shares), which represents a
cancellation and reduction of approximately 2% of the number of
shares of our common stock outstanding as of April 7, 2009.
The actual reduction in our overhang that could result from the
Option Exchange Program could vary significantly and is
26
dependent upon a number of factors, including the actual level
of participation in the Option Exchange Program.
Interests
of Our Executive Officers and Directors in the Option Exchange
Program
Our directors and our Named Executive Officers are not eligible
to participate in the Option Exchange Program. However, there
are four executive officers that are Eligible Participants. The
Compensation Committee reserves the discretion to exclude any
one or all of these four executive officers from the Option
Exchange Program.
The following table shows the number of shares subject to
Eligible Options held by the four executive officers that are
Eligible Participants as of April 7, 2009 and the number of
shares subject to New Options that they may receive assuming,
for purposes of illustration only, that: (1) the market
price of our common stock is $2.01 per share; (2) each
executive officer decides to exchange all of his or her Eligible
Options; and (3) the exercise price of the New Options is
$2.01 per share.
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Hypothetical
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Number
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Maximum
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of Shares
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Number of
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Weighted
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Underlying New
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Shares
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Weighted
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Average
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Options That May
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Underlying
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Average
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Remaining
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Be Granted Based on
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Eligible
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Exercise
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Life
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Specified
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Name
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Title
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Options
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Price
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(in years)
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Assumptions
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Karen E. McBride-Raffel
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Vice President of
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68,385
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6.23
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2.9
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21,439
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Human Resources
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Henry A. Stein
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Vice President of
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50,000
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7.21
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5.9
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11,408
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Commercial Sales
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R. Paul Turek
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Vice President of
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68,538
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6.24
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3.0
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21,987
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Support Operations
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Mike Larson
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Vice President of
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10,000
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8.12
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7.6
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3,510
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Information Technology
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THE BOARD RECOMMENDS THAT SHAREHOLDERS VOTE
FOR
THE
APPROVAL OF THE OPTION EXCHANGE PROGRAM.
OTHER
BUSINESS
The Board knows of no other matters to be brought before the
Annual Meeting. If any other matters are properly brought before
the Annual Meeting, however, the persons appointed in the
accompanying proxy intend to vote the shares represented thereby
in accordance with their best judgment.
PROPOSALS OF
SHAREHOLDERS
Any shareholder proposals intended to be presented at our 2010
Annual Meeting of Shareholders in accordance with
Rule 14a-8
of the Securities Exchange Act of 1934, as amended, must be
received by us no later than December 18, 2009 in order to
be considered for inclusion in the proxy statement and form of
proxy to be distributed by the Board of Directors in connection
with such meeting.
Shareholder proposals brought before our 2010 Annual Meeting of
Shareholders other than in accordance with
Rule 14a-8
must satisfy the requirements of our Amended and Restated
Bylaws. To be timely, written notice of such proposal must be
received by us before January 21, 2010. However, if the
date of the 2010 Annual Meeting is a date that is not within
30 days before or after the anniversary date of the Annual
Meeting, notice by the shareholder of a proposal must be
received no later than the close of business on the
10th calendar day after the first public announcement of
the date of such Annual Meeting. A public announcement includes
disclosure in (1) a document filed by us with the SEC,
(2) a mailed Notice of the 2010 Annual Meeting of
Shareholders, and (3) a press release reported by a
national news service. Under applicable rules of the SEC, our
management may vote proxies in their discretion regarding these
proposals if
27
(1) we do not receive notice of the proposal on or prior to
April 10, 2009, or (2) we receive written notice of
the proposal on or prior to April 10, 2009, describe the
proposal in our proxy statement relating to the 2010 Annual
Meeting and state how the management proxies intend to vote with
respect to such proposal.
Shareholder
Communications with our Board
Shareholders wishing to communicate with the Board, any of its
committees, or one or more individual directors should send all
written communications to: Caribou Coffee Company, Inc., 3900
Lakebreeze Avenue North, Brooklyn Center, Minnesota 55429,
Attention: Secretary. Written correspondence will be forwarded
to the appropriate directors.
Householding
As permitted by the Securities Exchange Act of 1934, as amended,
only one copy of this proxy statement is being delivered to
shareholders residing at the same address, unless such
shareholders have notified us of their desire to receive
multiple copies of the proxy statement. Upon oral or written
request, we will promptly deliver a separate copy of the proxy
statement to any shareholder residing at an address to which
only one copy was mailed. Shareholders who participate in
householding will continue to receive separate proxy cards.
Also, householding will not in any way affect dividend check
mailings.
Shareholders residing at the same address and currently
receiving only one copy of the proxy statement may contact us to
request multiple copies in the future, and shareholders residing
at the same address and currently receiving multiple copies of
the proxy statement may contact us to request a single copy in
the future. All such requests should be directed to Caribou
Coffee Company, Inc., 3900 Lakebreeze Avenue North, Brooklyn
Center, Minnesota 55429, Attention: Secretary, or by telephone
at
(763) 592-2200.
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ANNUAL
REPORT TO SHAREHOLDERS AND
FORM 10-K
The 2008 Annual Report including our fiscal 2008
Form 10-K
(the 2008
10-K)
(which is not a part of the proxy soliciting materials) is being
mailed to shareholders with this proxy statement. The 2008
Form 10-K
and the exhibits filed with it are available at our website at
www.cariboucoffee.com
on the Investors page under
Corporate Governance, or upon request by any shareholder to
Investor Relations at:
Investor
Relations
Integrated Corporate Relations
Kathleen Heaney
(203) 803-8535
ir@cariboucoffee.com
A copy of any or all exhibits to the 2008
10-K
will be
furnished for a fee, which will not exceed our reasonable
expenses in furnishing the exhibits.
By Order of the Board of Directors,
Dan E. Lee
Vice President, General Counsel and Secretary
Brooklyn Center, Minnesota
April 17, 2009
29
CARIBOU COFFEE ANNUAL MEETING OF STOCKHOLDERS Thursday, May 21, 2009 10:00 a.m. (Central Time)
Hotel Ivy 201 South Eleventh Street Minneapolis, MN 55403 Caribou Coffee Company, Inc. 3900
Lakebreeze Avenue North Brooklyn Center, MN 55429 proxy This proxy is solicited by the Board of
Directors for use at the Annual Meeting on Thursday, May 21, 2009. The shares of stock you hold in
your account will be voted as you specify on the reverse side. If no choice is specified, the proxy
will be voted FOR Proposals 1, 2 and 3. By signing the proxy, you revoke all prior proxies and
appoint Timothy J. Hennessy and Dan E. Lee, and each of them with full power of substitution, to
vote your shares on the matters shown on the reverse side and any other matters which may come
before the Annual Meeting and all adjournments and postponements.
See reverse for voting
instructions.
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COMPANY # Vote by Internet, Telephone or Mail 24 Hours a Day, 7 Days a Week Your phone or Internet
vote authorizes the named proxies to vote your shares in the same manner as if you marked, signed
and returned your proxy card. ADDRESS BLOCK
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INTERNET www.eproxy.com/cbou Use the
Internet to vote your proxy until 12:00 p.m. (CT) on May 20, 2009.
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PHONE 1-800-560-1965
Use a touch-tone telephone to vote your proxy until 12:00 p.m. (CT) on May 20, 2009.
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MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope provided. If you
vote your proxy by Internet or by Telephone, you do NOT need to mail back your Voting Instruction
Card.
TO VOTE BY MAIL AS THE BOARD OF DIRECTORS RECOMMENDS ON ALL ITEMS BELOW, SIMPLY SIGN, DATE,
AND RETURN THIS PROXY CARD.
The Board of Directors Recommends a Vote FOR Items 1, 2 and 3. 1. To
elect nine (9) Directors NOMINEES: 05 Gary A. Graves n Vote FOR n Vote WITHHELD nominated by the
Board 01 Kip R. Caffey 06 Charles L. Griffith all nominees from all nominees of Directors to serve
until 02 Sarah Palisi Chapin 07 Charles H. Ogburn (except as marked) the 2010 Annual Meeting 03
Michael J. Coles 08 Philip H. Sanford of Stockholders: 04 Wallace B. Doolin 09 Michael J.
Tattersfield (Instructions: To withhold authority to vote for any indicated nominee, write the
number(s) of the nominee(s) in the box provided to the right.) 2. To ratify the selection of Ernst
& Young LLP as our independent registered n For n Against n Abstain public accounting firm for the
fiscal year ending January 3, 2010. 3. To approve the Option Exchange Program. n For n Against n
Abstain 4. To consider any other business to properly come before the meeting. In their discretion,
the Proxies are authorized to vote upon such other business as may properly come before the
meeting. A properly executed proxy will be voted in the manner directed by the person(s) signing
below. If you make no choice, your proxy will be voted FOR Proposals 1, 2 and 3. Address Change?
Mark Box n Indicate changes below: Date Signature(s) in Box Please sign
exactly as your name(s) appears at left. In the case of joint owners, each should sign. If signing
as executor, trustee, guardian or in any other representative capacity or as an officer of a
corporation, please indicate your full title.
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