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)
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2) Aggregate number of securities to which transaction applies:
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4) Date Filed:
3900
Lakebreeze Avenue North
Brooklyn Center, Minnesota 55429
March 29,
2011
Dear Shareholders:
You are cordially invited to attend the Caribou Coffee Company,
Inc. Annual Meeting of Shareholders on Thursday, May 12,
2011 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 the Caribou Coffee Company,
Inc. operations and respond to any questions you may have.
We are pleased to take advantage of the Securities and Exchange
Commission rule allowing companies to furnish proxy materials to
shareowners over the Internet. We believe that this
e-proxy
process expedites shareowners receipt of proxy materials,
while also lowering the costs and reducing the environmental
impact of our annual meeting. On April 1, 2011, we will
begin mailing to certain shareowners a Notice of Internet
Availability of Proxy Materials containing instructions on how
to access our 2011 proxy statement and annual report and vote
online. All other shareowners will receive the proxy statement
and annual report by mail.
Very truly yours,
Michael Tattersfield
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, INC.
3900 Lakebreeze Avenue North
Brooklyn Center, Minnesota 55429
NOTICE
OF ANNUAL MEETING OF SHAREHOLDERS
to be held
May 12, 2011
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 12, 2011,
at 10 a.m. (Central Time), or any adjournment or
postponement thereof, for the following purposes:
1. To elect nine directors nominated by the Board of
Directors to serve until the 2012 Annual Meeting of Shareholders.
2. To approve an amendment to the Companys Amended
and Restated 2005 Equity Incentive Plan to increase the number
of shares of common stock available for awards thereunder by
1,000,000 shares.
3. To ratify the selection of Ernst & Young LLP
as our independent registered public accounting firm for the
fiscal year ending January 1, 2012.
4. To consider any other business to properly come before
the meeting.
Only shareholders of record at the close of business on
March 17, 2011 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 Coffee Company Annual Report to
Shareholders for the fiscal year ended January 2, 2011.
Important Notice Regarding the Availability of Proxy
Materials for the Shareholder Meeting to Be Held on May 12,
2011:
The Caribou Coffee Company proxy statement for the
2011 Annual Meeting of Shareholders and the 2010 Annual Report
to Shareholders are available at www.proxyvote.com/ .
By Order of the Board of Directors,
Dan E. Lee
Secretary
Brooklyn Center, Minnesota
March 29, 2011
TABLE OF
CONTENTS
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A-1
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CARIBOU
COFFEE COMPANY, INC.
3900 Lakebreeze Avenue North
Brooklyn Center, Minnesota 55429
PROXY
STATEMENT
for the
2011 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 12, 2011,
at the Hotel Ivy, 201 South Eleventh Street, Minneapolis,
Minnesota, and at any adjournment or postponement thereof. The
Company will take advantage of the Securities and Exchange
Commission rule allowing companies to furnish proxy material
over the internet. On April 1, 2011, we will begin mailing
to certain shareowners of record on March 17, 2011 a notice
of internet availability of proxy materials containing
instructions on how to access our 2011 proxy statement and
annual report and vote online. All other shareowners of record
on March 17, 2011 will receive the proxy statement and
annual report by mail.
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 Broadridge Financial Solutions, Inc., 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) approval of an
amendment to the Companys Amended and Restated 2005 Equity
Incentive Plan to increase the number of shares issuable for
awards thereunder by 1,000,000 shares, (3) to ratify
the selection of Ernst & Young LLP as our independent
registered public accounting firm 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 March 17, 2011, the record date. Each share of
common stock is entitled to one vote. As of the record date, we
had 20,453,718 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 PHONE TOLL FREE
1-800-560-1965
2. VOTE BY INTERNET
http://www.proxyvote.com
3. VOTE BY MAIL Mark, sign and return the
enclosed proxy card.
1
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.
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 phone or the
Internet.
Can I
change my vote after I return my proxy card or vote by phone 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 (i) voting again over the Internet or by phone at least
24 hours prior to the Annual Meeting, (ii) executing
and delivering a later dated proxy card to the Secretary of the
Company prior to the Annual Meeting, (iii) delivering
written notice of revocation of the proxy to the Secretary of
the Company prior to the Annual Meeting or (iv) attending
and voting in person at the Annual Meeting. 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.
Registration and seating will begin at
9:45 a.m. Camera, recording devices and other similar
electronic devices will not be permitted at the meeting.
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 phone.
In order for us to conduct our meeting, a majority of our
outstanding shares of common stock as of March 17, 2011,
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. Abstentions and broker non-votes are neither counted
for or against in a plurality.
How many
votes are needed to approve the amendment to the Companys
Amended and Restated 2005 Equity Incentive Plan?
Approval of the amendment to the Companys Amended and
Restated 2005 Equity Incentive Plan requires that at least a
majority of outstanding shares of common stock cast a vote on
the proposal and that a majority of the votes cast are in favor
of its approval. Abstentions will be considered shares entitled
to vote in the tabulation of votes cast and will have the same
effect as negative votes. Broker non-votes will not be
considered votes cast on the proposal and will not have a
positive or negative effect on the outcome of this proposal.
How many
votes are needed to ratify the selection of the independent
registered public accounting firm?
The ratification of the selection of the independent registered
public accounting firm must receive a For vote from
a majority of the voting power of the shares present and
entitled to vote on the election of directors at a meeting with
a quorum is present. Abstentions will be considered shares
entitled to vote in the tabulation of votes cast and will have
the same effect as negative votes. Broker non-votes will not be
considered votes cast on the proposal and will not have a
positive or negative effect on the outcome of this proposal.
What if I
sign and return my proxy card but do not provide voting
instructions or vote by phone 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 approval of the amendment to the
Companys Amended and Restated 2005 Equity Incentive Plan,
(3) For the ratification of the selection of
Ernst & Young LLP as our independent registered public
accounting firm for the fiscal year ending January 1, 2012
(fiscal 2011), 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 phone 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 the Internet
or the phone, 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, such as the ratification
of the selection of the independent registered public accounting
firm, 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
3
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.
On non-routine matters, such as the election of
directors and the approval of the Companys 2005 Equity
Incentive Plan, as amended, including the proposed amendment, 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.
We maintain a standing Nominating and Corporate Governance
Committee, which we refer to in this section as the Committee,
comprised solely of independent directors who are responsible
for identifying individuals qualified to become Board members
and recommending director nominees to the Board. You may access
the Committees charter on our website at
www.cariboucoffee.com
under the headings
Investors and Corporate
Governance
.
Nominees for director are selected based on the following
criteria: (i) integrity; (ii) outstanding achievement
in their careers; (iii) broad experience;
(iv) independence; (v) financial expertise;
(vi) ability to make independent, analytical inquiries;
(vii) understanding of the business environment; and
(viii) willingness to devote adequate time to Board duties.
The Board believes that each director should have, and expects
the nominees to have, the capacity to obtain a basic
understanding of: (i) our principal operational and
financial objectives, plans and strategies; (ii) our
results of operations and financial condition and of any
significant subsidiaries or business segments; and
(iii) our relative standing and our business segments in
relation to our competitors. The Committee considers it
essential that the Audit Committee have at least one member who
qualifies as an audit committee financial expert.
The Committee does not have an official diversity policy;
however, the Committee seeks to nominate candidates who bring
diverse experiences and perspectives to our Board. In evaluating
candidates, the Committees practice is to consider, among
other things, diverse business experiences and the
candidates range of experiences with public companies.
Evaluations of potential candidates generally involve a review
of the candidates background and credentials by the
Committee, interviews with members of the Committee, the
Committee as a whole, or one or more other Board members, and
discussions of the Committee and the Board. The Committee then
recommends candidates to the full Board which, in turn, selects
candidates to be nominated for election by the shareholders or
to be elected by the Board to fill a vacancy.
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.
4
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.
Unless otherwise directed, the persons named in the proxy intend
to vote all proxies For the election of the nine
nominees for director to the Board. 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
March 29, 2011. There are no family relationships among any
of our directors or executive officers.
Nominees
for Directors
Kip R. Caffey,
age 55, has served as a director
since October 2005. Mr. Caffey is the Co-Managing Partner
of Cary Street Partners, LLC, an investment banking and wealth
management firm, where he has been a partner 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.
Expertise and Qualifications:
Among many
qualifications, Mr. Caffey brings significant expertise in
working with small and mid-cap companies as a result of nearly
30 years as an investment banker. In addition, he has
general management expertise from running a complex investment
banking and wealth management company. His experience includes
matters relating to strategy, public markets, finance,
accounting and general management.
Sarah Palisi Chapin
, age 49, has served as a
director since August 2007. Since March 2009 she has been the
Chief Executive Officer of Hail Merry Snacks, a manufacturer and
marketer of raw, vegan and gluten-free snacks. Ms. Palisi
Chapin was a founding partner in The Chain Gang, a restaurant
investment consultancy and advisory practice, from December 2004
to January 2009. 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 Hail Merry Snacks and PrimeSource Foodservice
Equipment, a global restaurant equipment distribution company.
Expertise and Qualifications:
Among many
qualifications, Ms. Palisi Chapin brings significant
expertise as a result of many years in the restaurant industry
with a wide variety of organizations such as Hail Merry Snacks,
The Chain Gang, Prime Source Foodservice Equipment, Grand
Metropolitan and PepsiCo, Inc. Her experience includes matters
relating to strategy, franchising, supply chain, innovation,
product development, commercial foodservice, international brand
strategy and development, technology, marketing, manufacturing
and customer relationship management. In addition,
Ms. Palisi Chapin is influenced by her experience outside
the restaurant industry with organizations such as Enersyst
Development Center.
E. Stockton Croft IV
, age 42, has been
nominated as a new member of our board. Mr. Croft is an
Executive Director and head of private equity in the United
States for Arcapita Inc., an investment firm he joined in 2004.
He currently serves on the boards of several of Arcapitas
privately-held portfolio companies, including as Chairman of The
Tensar Corporation, a provider of engineered products and site
solutions; Chairman of Varel International Energy Services,
Inc., a manufacturer of drill bits and downhole completion
products for the oil and gas industry; a director of Bijoux
Holdings, LLC, a single-price, fashion retailer; a director of
PODS Holding, Inc. a franchisor and operator of portable storage
solutions; a director of 3PD, Inc., a provider of last mile
delivery logistics services. He was formerly Chairman of the
parent company of Cajun Operating Company Inc.
dba Churchs Chicken, a quick-service franchised
restaurant, and served on the boards of Loehmanns Inc., a
chain of branded, off-price apparel stores; Yakima Inc., a
manufacturer of sport
5
racks and accessories for cars; and Ampad LLC, a manufacturer of
office products, prior to their respective sales. Prior to
joining Arcapita, Mr. Croft was a co-founder and general
partner with Argonne Capital Group, LLC, a private equity firm
focused on the restaurant industry. Prior to Argonne Capital, he
co-founded and served as President and CFO of BSC Enterprises
LLC and related entities, a manufacturer of medical and
paper-based products. He has also held positions with Donaldson,
Lufkin & Jenrette Securities Corp., Bain &
Company and National Service Industries.
Experience and Qualifications:
Among many
qualifications, Mr. Croft brings significant experience
from his leadership role in a wide range of private equity
investments in different manufacturing and consumer-based
industries, including restaurant and retail experience. His
experience in advising and overseeing many of Arcapitas
U.S. portfolio companies gives him a wide perspective on
matters including strategy, market positioning, supply chain,
manufacturing, franchising and corporate finance.
Wallace B. Doolin,
age 64, 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.
Expertise and Qualifications:
Among many
qualifications, Mr. Doolin brings significant general
management and restaurant industry expertise as a result of
successfully managing several other organizations such as Buca,
Inc., La Madeleine de Corps, Inc. and TGI Fridays, Inc. His
experience includes matters relating to strategy, innovation,
technology, marketing, manufacturing, customer relationship
management as well as transformational change. In addition, his
perspectives are influenced by serving on the boards of other
public and private organizations.
Gary A. Graves
, age 51
,
has served as our
Non-Executive Chairman since November 2007 and as a director
since August 2007. Since November 2008, he has been an
independent consultant with Huntley, Mullaney,
Spargo & Sullivan, a real estate restructuring
company. 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.
Expertise and Qualifications:
Among many
qualifications, Mr. Graves brings significant general
management expertise as a result of successfully operating
enterprises in a variety of industries such as American Laser
Centers, Inc. and La Petite Academy. In addition, he has
substantial management and industry experience from his roles
with Boston Market Corporation and PepsiCo, Inc. as well as
having been a consultant with McKinsey and Company. His
experience includes matters relating to strategy, innovation,
marketing, real estate, customer relationship management as well
as transformational change.
Kevin J. Keough
, age 51, has been nominated as a new
member of our board. Mr. Keough joined Arcapita Inc. in
February 2006, and he works with its portfolio companies on
strategic, operational, and people development issues. Prior to
joining Arcapita, Mr. Keough held a number of senior
leadership roles in the areas of operations, strategy, business
development, merger integration and corporate support with
FirstEnergy Corporation, a publicly-held diversified energy
company, from 1999 to 2005. Prior to that, Mr. Keough was a
partner in the energy practice of McKinsey & Company,
working primarily with electric power/natural gas companies
around the world. He started his career as an engineer officer
in the US Army and held several positions, including company
commander and generals aide. He presently serves on the
boards of several of Arcapitas privately-held portfolio
companies, including: 3PD, Inc. a national provider of in-home
delivery services; Cirrus Aircraft, an aircraft manufacturer;
Falcon Gas Storage, a developer and operator of underground
natural gas storage; PODS (Portable On-Demand Storage), a moving
and storage container company; and Varel International Ltd., a
manufacturer of drill bits and global supplier to the drilling
industry. He also serves on the board of Beckett Gas, Inc., a
privately-held manufacturer of oil and gas burners for
residential and commercial markets.
6
Experience and Qualifications:
Among many
qualifications, Mr. Keough brings substantial expertise
from his work advising Arcapitas portfolio companies on
strategic, operational, and people development issues. He will
also bring his experience as a public company executive to bear
on his advice and leadership as a member of our board of
directors.
Charles H. Ogburn,
age 55, 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.
Expertise and Qualifications:
Among many
qualifications, Mr. Ogburn brings significant private
equity investment banking, legal and general management
expertise as a result of many years in the investment banking
industry as well as in private legal practice. In addition, his
experience and perspectives are informed by his years of
experience overseeing and advising the management of Arcapita
Bank B.S.C.(c)s portfolio companies in a variety of
industries, including communications, health care,
manufacturing, retail and restaurants.
Philip H. Sanford,
age 57, has served as a director
since April, 2009. Since August of 2010 Mr. Sanford has
served as the President and Chief Executive Officer of Jackson
Hewitt Tax Service Inc., a tax return preparation and electronic
filing services company. From January 2009 to December 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, an owner, operator and
franchisor of quick-service restaurants. Mr. Sanford was
the Chairman of the Compensation Committee and Lead Director of
Chattem, Inc., a publicly traded marketer and manufacturer of
over-the-counter
healthcare products, toiletries and dietary supplements, until
the sale of the company in March 2010.
Expertise and Qualifications:
Among many
qualifications, Mr. Sanford brings significant general
management expertise as a result of his significant management
roles in a variety of other organizations in the hospitality,
quick-service restaurant and healthcare products industries such
as Value Place, LLC, The Krystal Company and Chattem, Inc. His
experience includes matters relating to strategy, innovation,
finance, marketing, manufacturing and customer relationship
management. In addition, Mr. Sanford has significant
experience on public company boards from service as the Chairman
of The Krystal Company and the Chairman of the Compensation
Committee and the Lead Director of Chattem, Inc.
Michael Tattersfield,
age 45, has served as a
director since April 2009. Mr. Tattersfield has also served
as the President and Chief Executive Officer of the Company
since August 2008. From 2006 to 2008, Mr. Tattersfield
served as Chief Operating Offer and Executive Vice President of
lululemon athletica, a yoga-inspired athletic apparel company
based in Vancouver, British Columbia. From 2005 to 2006,
Mr. Tattersfield served as Vice President Store Operations
for The Limited Brands, Inc., and 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.
Expertise and Qualifications:
Among many
qualifications, Mr. Tattersfield brings significant general
management expertise as a result of his significant management
roles in a variety of organizations in the retail and restaurant
industries such as lululemon athletica, The Limited Brands and
YUM! Brands. His experience includes matters relating to
strategy, finance, accounting, innovation, marketing, real
estate, franchising and customer relationship management. In
addition, his perspectives are influenced by years in direct
management as well as serving on the board of another company.
THE BOARD RECOMMENDS THAT SHAREHOLDERS VOTE
FOR
THE
ELECTION OF THE NINE NOMINEES TO THE BOARD.
7
Affirmative
Determinations Regarding Director Independence and Other
Matters
The Board has determined that Kip R. Caffey, Wallace B. Doolin,
Gary A. Graves, Philip H. Sanford and Sarah Palisi Chapin are
independent directors as defined under the
applicable NASDAQ Global Market (NASDAQ) rules.
Mr. Coles and Mr. Griffith, who serve on our board but
are not standing for reelection, are not independent directors.
In addition, Mr. Croft and Mr. Keogh, who have been
nominated to serve on our board would not be independent
directors under NASDAQ rules.
In this proxy statement the directors who have been
affirmatively determined by the Board to be independent
directors under this rule are referred to individually as
an Independent Director and collectively 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
During fiscal 2010, 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. Each
of these committees operates pursuant to a written charter. 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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Wallace B. Doolin
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Kip R. Caffey
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Sarah Palisi Chapin
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Gary A. Graves
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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 2010, the Board held five meetings, the Audit
Committee held five meetings and the Compensation Committee held
six meetings. All business conducted by the Nominating and
Corporate Governance Committee was accomplished through written
consent. Each director attended at least 80% of the meetings of
the Board of Directors and the meetings of each committee on
which the director served during fiscal 2010. We have not
adopted a formal policy regarding Board members attendance
at Annual Meetings; however, all Board members attended the 2010
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:
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identification of individuals qualified to become Board members
and recommendation of director nominees to the Board prior to
each Annual Meeting of Shareholders;
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recommendation of nominees for committees of the Board; and
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matters concerning corporate governance practices.
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To carry out its nominating function, the Committee has the
following responsibilities and duties:
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Retain, as deemed necessary, 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.
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Determine desired board skills and attributes. The
Committee shall consider personal and professional integrity,
ability and judgment and such other factors deemed appropriate.
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Actively seek individuals whose skills and attributes reflect
those desired and evaluate and propose nominees for election to
the Board.
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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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Make recommendations to the full Board for appointments to fill
vacancies of any unexpired term on the Board.
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Annually recommend to the Board nominees for submission to
shareholders for approval at the time of the Annual Meeting of
Shareholders.
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Annually review committee chairs and membership and recommend
any changes to the full Board.
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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.
The Nominating and Corporate Governance Committee uses a variety
of sources in order to identify new candidates. New candidates
may be identified through recommendations from independent
directors or members of management, search firms, discussions
with other persons who may know of suitable candidates to serve
on the Board and shareholder recommendations. Messrs. Croft
and Keogh were recommended to the Nominating and Corporate
Governance Committee by one of our significant shareholders.
Evaluations of prospective candidates typically include a review
of the candidates background and qualifications by the
Nominating and Corporate Governance Committee, interviews with
the Nominating and Corporate Governance Committee as a whole,
one or more members of the Nominating and Corporate Governance
Committee, or one or more other Board members, and discussions
of the Nominating and Corporate Governance Committee and the
full Board. The Nominating and Corporate Governance Committee
then recommends candidates to the full Board, with the full
Board selecting the candidates to be nominated for election by
the shareholders or to be elected by the Board to fill a vacancy.
Board
Leadership Structure
Since November 2007, we have separated the role of President and
Chief Executive Officer from the role of Chairman of the Board,
and Mr. Graves has served as our Non-Executive Chairman of
the Board. We believe this current board leadership structure is
best for our Company and our shareholders.
The President and Chief Executive Officer is responsible for the
day-to-day
leadership and management of the Company, and the Non-Executive
Chairmans responsibility is to provide oversight,
direction and leadership of the Board, such as the following:
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facilitating communication among the directors and the flow of
information between our management and directors on a regular
basis;
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setting Board meeting agendas in consultation with the President
and Chief Executive Officer;
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presiding at Board meetings, Board executive sessions and
shareholder meetings; and
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providing input to the Boards annual self-evaluation and
committee composition and leadership.
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We believe having a Non-Executive Chairman provides strong
leadership for our Board, while also positioning our Chief
Executive Officer as the leader of the Company in the eyes of
our business partners, employees, shareholders and other
stakeholders.
Boards
Role in Risk Oversight
Our Board is responsible for overseeing our risk management. The
Board delegates some of its risk oversight role to the Audit
Committee. Under its charter, the Audit Committee is responsible
for discussing with management our exposure to risk and major
financial risk exposures. The Audit Committee oversees our
corporate compliance programs, as well as the internal audit
function. In addition to the Audit Committees work in
overseeing risk management, our full Board regularly engages in
discussions of the most significant risks that the Company is
facing and how these risks are being managed, and the Board
receives reports on risk management from senior officers of the
Company and from the Chairman of the Audit Committee, as well as
from outside advisors. The Board believes that the work
undertaken by the Audit Committee, together with the work of the
full Board and management, enables the Board to effectively
oversee the Companys risk management function.
Corporate
Governance Materials
The following materials related to our corporate governance are
available publicly on our website at
www.cariboucoffee.com/aboutus/investorrelations.asp
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: Vice
President, General Counsel and Secretary, Caribou Coffee
Company, Inc., 3900 Lakebreeze Avenue North, Brooklyn Center,
Minnesota, 55429. Please specify which documents you would like
to receive.
10
COMPENSATION
OF DIRECTORS
Our directors who are not our employees 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 $3,000 per member for serving as a
chairperson on any chartered standing committees of our Board,
except for the Chairman of the Audit Committee who receives
$6,000 annually. Members of the board who serve on chartered
standing committees of the Board receive $750 per meeting in
which they participate as an official voting committee member.
In addition, under our 2005 Equity Incentive Plan, each
non-employee director receives an initial option grant
immediately after joining the Board to purchase
2,500 shares of our common stock that vests in full on the
first anniversary of the date of grant with a per share exercise
price equal to the closing market price on the date of grant. In
fiscal 2010, under our 2005 Equity Incentive Plan, each
non-employee director was granted 5,000 shares of
restricted stock that vests on the first anniversary of the date
of grant. We have agreed to reimburse all of our directors for
reasonable expenses incurred in connection with their duties as
directors.
The table below sets forth, for each non-employee director that
served during fiscal 2010, the amount of compensation paid for
his or her service.
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Fees
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Earned
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or Paid
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Stock
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in Cash
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Awards
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Total
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Name
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($)
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($)(1)(2)
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($)
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Kip R. Caffey
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44,250
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35,350
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79,600
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Sarah Palisi Chapin
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38,250
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35,350
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73,600
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Michael J. Coles
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30,000
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35,350
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65,350
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Wallace B. Doolin
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40,500
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35,350
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75,850
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Gary A. Graves
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33,000
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35,350
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68,350
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Charles L. Griffith
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30,000
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35,350
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65,350
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Charles H. Ogburn
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30,000
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35,350
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65,350
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Philip H. Sanford
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38,250
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35,350
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73,600
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(1)
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The amount shown represents the grant date fair value of
restricted stock granted during the year calculated as the
closing price of our common stock on the date of grant, in
accordance with ASC Topic 718.
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(2)
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At the end of fiscal 2010, the aggregate number of shares of
common stock awards subject to vesting was:
Mr. Caffey 8,750; Ms. Palisi
Chapin 8,750; Mr. Coles 8,750;
Mr. Doolin 8,750; Mr. Graves
8,750; Mr. Griffith 5,000; and
Mr. Ogburn 5,000.
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11
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 equity incentive plan.
The following discussion summarizes the philosophies and methods
the Compensation Committee uses in establishing and
administering our executive compensation and incentive programs.
Named
Executive Officers for 2010
Since we are a smaller reporting company, our named executive
officers include our principal executive officer (Michael J.
Tattersfield, President and Chief Executive Officer) and the
next two most highly compensated executive officers during the
last fiscal year (Timothy J. Hennessy, Chief Financial Officer,
and Daniel J. Hurdle, Senior Vice President, Operations).
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 equity incentive compensation,
consisting of stock options and restricted stock 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, our Compensation Committee approves any signing
bonus and equity grants in connection with the initial
employment arrangements with our executive officers.
Decisions regarding the level of base salary, performance-based
cash bonus and long-term equity incentive compensation for our
executive officers are primarily based upon (1) individual
experience and technical capability needed to administer and
execute the responsibilities of the positions,
(2) competitive practices for executive talent in our
industry and company size, and (3) our operating
performance.
Compensation
Consultant
The Compensation Committee has engaged Towers Watson &
Co. as its independent compensation consultant to assist the
Compensation Committee in creating and implementing executive
compensation strategies and programs. Towers Watson 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 Watsons work is done at the direction of or on
behalf of the Compensation Committee. 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.
12
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 annual financial and
personal performance objectives 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 Senior Vice President of Operations, an
opportunity to earn a target cash bonus ranging from 50% to 100%
of base salary, upon the achievement of performance goals set by
the Compensation Committee. The Compensation Committee set the
performance goals of a specific Net Revenue and Net Income
targets. Net Revenue and Net Income are defined in Item 6,
Selected Financial Data, in our annual report on
Form 10-K
filed on March 24, 2011. The plan requires a minimum Net
Revenue and Net Income be achieved before any bonus is paid. If
the actual fiscal year Net Revenue
and/or
Net
Income is greater than the minimum Net Revenue
and/or
Net
Income but less than the target Net Revenue
and/or
Net
Income, the plan allows for a portion of the bonuses to be paid.
No bonus will be paid if we do not achieve the minimum Net
Income. The plan also allows for an enhanced bonus if we achieve
a Net Revenue
and/or
Net
Income greater than the target Net Revenue
and/or
Net
Income.
Our Senior Vice President of Operations is eligible to receive a
performance-based cash bonus designed to motivate and reinforce
the commitment to growing our retail business. This position has
the opportunity to earn a cash bonus of 50% of base salary based
on performance goals. The plan for this individual has four
separate components which require minimum Retail Net Revenue and
Retail Operating Income. The third and fourth components are
tied to the Company Net Revenue and Net Income.
In fiscal 2010, based on our achievement of Net Income and Net
Revenue relative to target, annual incentive awards were earned
by Messrs. Tattersfield, Hennessy, and Hurdle of $437,423,
$185,331 and $135,383, respectively.
Long-Term
Equity Incentive Compensation
Our long-term incentive compensation, which is comprised of
stock option and restricted stock 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 equity grants
have value only if the price of our shares increases, the
Compensation Committee believes that equity grants are a means
of encouraging our executive officers to increase long-term
shareholder value.
In fiscal 2010, the Compensation Committee approved the grant of
the following equity awards to the named executive officers:
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For Mr. Tattersfield, 22,000 shares of restricted
stock granted on March 12, 2010 that vests 25% on each
anniversary of the grant date.
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For Mr. Hennessy, 20,000 shares of restricted stock
granted on March 12, 2010 that vests 25% on each
anniversary of the grant date.
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For Mr. Hurdle, 20,000 shares of restricted stock
granted on March 12, 2010 that vests 25% on each
anniversary of the grant date.
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Equity
Grant Policies
The Compensation Committee has been given oversight
responsibility for our equity incentive plan by our Board of
Directors. The general terms of our equity grants have been
pre-established by the Compensation Committee, including the
life of the options (10 years) and the vesting schedule
(25% per year commencing on the first anniversary of the date of
grant) of both options and restricted shares. The Compensation
Committee is therefore primarily concerned with the number of
options and restricted shares granted, to whom they are granted
to and the timing of such grants. The exercise price for all
stock option grants is the closing market price of our common
stock on the date of grant. We do not back-date or re-price
stock options.
13
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. 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 provide
relocation benefits to our executive officers. We do not provide
any other perquisites to our executive officers.
Role of
Executive Officers in Compensation Decisions
The Compensation Committee determines the total compensation of
our CEO and oversees the design and administration of
compensation and benefit plans for all of the Companys
employees. Generally, our CEO makes recommendations to the
Compensation Committee as it relates to the compensation of the
other executive officers. In addition, our executive officers,
including our CEO, CFO and Vice President of Human Resources,
provide input and make proposals regarding the design,
operation, objectives and values of the various components of
compensation in order to provide appropriate performance and
retention incentives for other key employees. These proposals
may be made on the initiative of the executive officers or upon
the request of the Compensation Committee. In addition, our
internal human resources personnel have met with the
Compensation Committee to present topical issues for discussion
and education as well as specific recommendations for review.
The Compensation Committee may also obtain input from our legal,
finance and tax functions, as appropriate, as well as one or
more executive compensation-consulting firms regarding matters
under consideration. The Compensation Committee has delegated to
management certain responsibilities related to employee benefit
matters.
Summary
The Compensation Committee believes that the total compensation
package has been designed to motivate key management to improve
the operations and financial performance of the Company, thereby
increasing the market value of our common stock. The tables in
this Executive Compensation section reflect the compensation
structure established by the Compensation Committee.
14
Summary
Compensation Table
The following table sets forth compensation information for our
named executive officers for Fiscal Years 2010 and 2009:
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Non-Equity
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Incentive Plan
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Stock
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Compensation
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All Other
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Name and Principal Position
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Year
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Salary ($)(1)
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Bonus ($)
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Awards ($)(2)
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($)(3)
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Compensation ($)(4)
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Total ($)
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Michael J. Tattersfield
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2010
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439,385
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155,540
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439,385
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277
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1,034,587
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President and Chief
Executive Officer
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2009
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441,346
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429,000
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662,019
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312
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1,532,677
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Timothy J. Hennessy
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2010
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308,885
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141,400
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185,331
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412
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636,028
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Chief Financial Officer
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2009
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311,538
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348,323
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280,385
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1,015
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941,261
|
|
Daniel J. Hurdle
|
|
|
2010
|
|
|
|
256,346
|
|
|
|
|
|
|
|
141,400
|
|
|
|
135,385
|
|
|
|
228
|
|
|
|
533,357
|
|
Senior V.P. Operations
|
|
|
2009
|
|
|
|
259,615
|
|
|
|
|
|
|
|
48,144
|
|
|
|
145,385
|
|
|
|
686
|
|
|
|
453,830
|
|
|
|
|
(1)
|
|
Represents base salary paid during the year.
|
|
(2)
|
|
Represents the grant date fair value of restricted stock granted
during the year calculated as the closing price of our common
stock on the date of grant, in accordance with ASC Topic 718.
|
|
(3)
|
|
Represents amounts earned under our performance-based cash plan
for performance during the applicable year.
|
|
(4)
|
|
All Other Compensation consists of the items detailed in the
table below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Relocation
|
|
Total All Other
|
|
|
|
|
Life Insurance
|
|
Fringe
|
|
Awards
|
|
Compensation
|
Name
|
|
Year
|
|
($)
|
|
Benefits
|
|
($)
|
|
($)
|
|
Michael J. Tattersfield
|
|
|
2010
|
|
|
|
277
|
|
|
|
|
|
|
|
|
|
|
|
277
|
|
|
|
|
2009
|
|
|
|
312
|
|
|
|
|
|
|
|
|
|
|
|
312
|
|
Timothy J. Hennessy
|
|
|
2010
|
|
|
|
260
|
|
|
|
152
|
|
|
|
|
|
|
|
412
|
|
|
|
|
2009
|
|
|
|
467
|
|
|
|
547
|
|
|
|
|
|
|
|
1,015
|
|
Daniel J. Hurdle
|
|
|
2010
|
|
|
|
228
|
|
|
|
|
|
|
|
|
|
|
|
228
|
|
|
|
|
2009
|
|
|
|
240
|
|
|
|
446
|
|
|
|
|
|
|
|
686
|
|
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
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 bonuses paid to
Mr. Tattersfield.
|
However, if Mr. Tattersfield is a specified
employee (as defined in Section 409A(a)(2)(B)(i) of
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 after
the date of Mr. Tattersfields termination.
15
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.
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 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:
|
|
|
|
|
one times Mr. Hennessys annual base salary then in
effect; and
|
|
|
|
the average of the two most recent annual bonuses paid to
Mr. Hennessy.
|
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 after the date of
Mr. Hennessys termination.
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.
Daniel J.
Hurdle
We have not entered into an employment agreement with
Mr. Hurdle.
16
Retirement
Benefits
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 employer
contribution.
Outstanding
Equity Awards at January 2, 2011
The following table sets forth information with respect to
outstanding equity awards for each of the Named Executive
Officers as of January 2, 2011. All awards were granted
under the 2005 Equity Incentive Plan.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Awards
|
|
|
Option Awards
|
|
Number
|
|
Market
|
|
|
Number of
|
|
Number of
|
|
|
|
|
|
of Shares
|
|
Value of
|
|
|
Securities
|
|
Securities
|
|
|
|
|
|
or Units
|
|
Shares or
|
|
|
Underlying
|
|
Underlying
|
|
|
|
|
|
of Stock
|
|
Units of
|
|
|
Unexercised
|
|
Unexercised
|
|
Option
|
|
Option
|
|
That
|
|
Stock That
|
|
|
Options (#)
|
|
Options (#)
|
|
Exercise
|
|
Expiration
|
|
Have Not
|
|
Have Not
|
Name
|
|
Exercisable
|
|
Unexercisable
|
|
Price ($)
|
|
Date
|
|
Vested (#)
|
|
Vested ($)
|
|
Michael J. Tattersfield
|
|
|
250,000
|
|
|
|
250,000
|
(1)
|
|
$
|
1.74
|
|
|
|
8/01/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
97,000
|
(3)
|
|
|
977,760
|
|
Timothy J. Hennessy
|
|
|
137,500
|
|
|
|
137,500
|
(2)
|
|
|
3.22
|
|
|
|
9/09/2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,055
|
(4)
|
|
|
524,704
|
|
Daniel J. Hurdle
|
|
|
50,000
|
|
|
|
50,000
|
(5)
|
|
|
1.60
|
|
|
|
12/0/2018
|
|
|
|
30,200
|
(6)
|
|
|
278,444
|
|
|
|
|
(1)
|
|
Mr. Tattersfields unexercisable options become
exercisable as follows: 125,000 on August 1, 2011 and
125,000 on August 1, 2012.
|
|
(2)
|
|
Mr. Hennessys unexercisable options become
exercisable as follows: 68,750 on September 9, 2011 and
68,750 on September 9, 2012.
|
|
(3)
|
|
Mr. Tattersfields unvested restricted stock vests as
follows: 5,500 shares on March 12, 2011,
37,500 shares on August 1, 2011, 5,500 shares on
March 12, 2012, 37,500 shares on August 1, 2012,
5,500 shares on March 12, 2013, and 5,500 shares
on March 12, 2014.
|
|
(4)
|
|
Mr. Hennessys unvested restricted stock vests as
follows: 5,000 shares on March 12, 2011,
10,685 shares on August 21, 2011, 5,000 shares on
March 12, 2012, 10,685 shares on August 21, 2012,
5,000 shares on March 12, 2013, 10,685 shares on
August 21, 2013, and 5,000 shares on March 12,
2014.
|
|
(5)
|
|
Mr. Hurdles unexercisable options become exercisable
as follows: 25,000 on December 1, 2011 and 25,000 on
December 1, 2012.
|
|
(6)
|
|
Mr. Hurdles unvested restricted stock vests as
follows: 5,000 shares on March 12, 2011,
3,400 shares on April 28, 2011, 5,000 shares on
March 12, 2012, 3,400 shares on April 28, 2012,
5,000 shares on March 12, 2013, 3,400 shares on
April 28, 2013 and 5,000 shares on March 12, 2014.
|
Potential
Payments Upon Termination or 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.
Pursuant to our Amended and Restated 2005 Equity Incentive Plan
all unexercisable stock options will become exercisable and all
unvested restricted stock vests upon a change in control.
17
Definition
of a Change in Control
Under the terms of our Amended and Restated 2005 Equity
Incentive Plan, a change in control is generally deemed to have
occurred as a result of any one of the following events:
|
|
|
|
|
A person becomes the beneficial owner, directly or indirectly,
of securities representing 50% or more of our outstanding shares
or of the combined voting power of our outstanding securities
for the election of directors;
|
|
|
|
A majority of the members of our board of directors are replaced
within a
12-month
period by directors whose appointment or election is not
endorsed by a majority of the members of the board prior to the
date of appointment or election;
|
|
|
|
The consummation of a reorganization, merger or consolidation,
unless the persons who were our shareholders immediately before
the effective date of the reorganization, merger or
consolidation own, directly or indirectly, at least 50%
beneficial ownership of the surviving corporation, no person
owns 50% or more of the surviving corporation (excepting
previous 50% shareholders), and at least a simple majority of
our board of directors before the reorganization, merger, or
consolidation continues to serve on the surviving companys
board after the transaction;
|
|
|
|
A person or group acquires 50% or more of our total assets,
based on fair market value, within a
12-month
period; or
|
|
|
|
A person or group becomes the beneficial owner of our securities
representing 30% or more of the total voting power of our
company within a
12-month
period.
|
18
BENEFICIAL
OWNERSHIP OF COMMON STOCK
The following table sets forth information as of March 17,
2011, concerning the beneficial ownership of common stock of
(i) 5% beneficial owners of our outstanding common stock,
(ii) the directors and nominees for director,
(iii) the named executive officers and (iv) all
current 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.
|
|
|
|
|
|
|
|
|
|
|
Amount and Nature of
|
|
Percent of
|
Name and Address of Beneficial Owner
|
|
Beneficial Ownership
|
|
Class(1)
|
|
Caribou Holding Company Limited
|
|
|
5,922,245
|
(2)
|
|
|
29.4
|
%
|
c/o Arcapita,
Inc.
75 Fourteenth Street, 24th Floor
Atlanta, GA 30309
|
|
|
|
|
|
|
|
|
Arcapita Investment Management Limited
|
|
|
5,922,245
|
(2)
|
|
|
29.4
|
%
|
c/o Paget
Brown & Company Ltd.
West Wind Building
P.O. Box 1111
Grand Cayman
Cayman Islands, B.W.I.
|
|
|
|
|
|
|
|
|
Arcapita Bank B.S.C.(c)
|
|
|
5,922,245
|
(3)
|
|
|
29.4
|
%
|
P.O. Box 1406
Manama, Bahrain
|
|
|
|
|
|
|
|
|
Kip R. Caffey
|
|
|
39,000
|
(5)
|
|
|
*
|
|
Sarah Palisi Chapin
|
|
|
20,800
|
(8)
|
|
|
*
|
|
Michael J. Coles
|
|
|
299,822
|
(4)
|
|
|
1.5
|
%
|
E. Stockton Croft.
|
|
|
1,478
|
(13)
|
|
|
*
|
|
Wallace B. Doolin
|
|
|
30,000
|
(6)
|
|
|
*
|
|
Charles L. Griffith
|
|
|
14,000
|
|
|
|
*
|
|
Gary Graves
|
|
|
40,836
|
(7)
|
|
|
*
|
|
Kevin J. Keogh
|
|
|
15,000
|
|
|
|
*
|
|
Charles H. Ogburn
|
|
|
91,364
|
|
|
|
*
|
|
Philip H. Sanford
|
|
|
10,000
|
(9)
|
|
|
*
|
|
Michael J. Tattersfield
|
|
|
583,928
|
(10)
|
|
|
2.9
|
%
|
Timothy J. Hennessy
|
|
|
213,524
|
(11)
|
|
|
1.1
|
%
|
Daniel J. Hurdle
|
|
|
96,021
|
(12)
|
|
|
*
|
|
All current directors and executive officers as a group
(15 persons)
|
|
|
1,676,567
|
|
|
|
8.3
|
%
|
|
|
|
*
|
|
Less than 1%
|
|
(1)
|
|
Based on 20,453,718 shares of Common Stock outstanding on
March 17, 2011. Shares issuable pursuant to the exercise of
options within 60 days of March 17, 2011 are deemed
outstanding for computing the percentage of the person holding
such options but are not deemed outstanding for computing the
percentage of any other person.
|
|
(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
|
19
|
|
|
|
|
Cayman Entities are owned by approximately 50 international
investors (the International Investors). Each of the
Voting Cayman Entities owns
6
2
/
3
%
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.
|
|
(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.
|
|
(4)
|
|
Includes 18,180 shares subject to options.
|
|
(5)
|
|
Includes 15,000 shares subject to options.
|
|
(6)
|
|
Includes 15,000 shares subject to options.
|
|
(7)
|
|
Includes 22,500 shares subject to options.
|
|
(8)
|
|
Includes 7,500 shares subject to options.
|
|
(9)
|
|
Includes 5,000 shares subject to options.
|
|
(10)
|
|
Includes 250,000 shares subject to options.
|
|
(11)
|
|
Includes 137,500 shares subject to options.
|
|
(12)
|
|
Includes 50,000 shares subject to options.
|
|
(13)
|
|
Represents shares indirectly held through an affiliate of
Arcapita, Inc. These shares are included in the Arcapita
holdings reported elsewhere in this table.
|
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 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.
The Audit Committee is also 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, or one of our
principal shareholders. Although we have not entered into any
such transactions since January 2, 2006 that meet the
requirements for proxy statement disclosure, if there were to be
such a transaction, we would need the approval of our Audit
Committee prior to entering into such transaction.
SECTION 16(A)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our 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 each such persons beneficial
ownership of our equity securities. To the Companys
knowledge, based solely on a review of the reports filed by
persons who beneficially own more than 10% of our common stock
and the reports filed on behalf of its directors and executive
officers by us and written representations from such persons
that no other reports were required, all applicable
Section 16(a) filing requirements for fiscal 2010 were met.
AUDIT
COMMITTEE REPORT
During fiscal 2010, Messrs. Kip R. Caffey, Wallace B.
Doolin, Philip H. Sanford, and Gary A. Graves served on the
Audit Committee. Messrs. Caffey, Doolin, Sanford and Graves
(i) meet the independence criteria prescribed by the
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
20
expert under SEC rules. The audit committee helps ensure
the integrity of our financial statements and the qualifications
and independence of our independent auditors.
The audit committee:
|
|
|
|
|
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;
|
|
|
|
reviews our financial statements;
|
|
|
|
review 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
Audititng 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 applicable requirements regarding their
independence, the Audit Committee recommended to the Board that
the audited consolidated financial statements for the fiscal
year ended January 2, 2011, 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
TO APPROVE AN AMENDMENT TO THE COMPANYS AMENDED AND
RESTATED 2005 EQUITY INCENTIVE PLAN
On February 22, 2011, the Companys Board of Directors
approved, subject to stockholder approval, an amendment (the
Amendment) to the Companys Amended and
Restated 2005 Equity Incentive Plan (the Plan). The
Amendment would increase the aggregate number of split-adjusted
shares reserved and available for issuance as awards under the
Plan from 665,000 to 1,665,000. NASDAQ requires us to obtain
shareholder approval of the Amendment.
Reasons
for Approval of the Amendment
The Plan is designed to assist the Company in attracting,
retaining, motivating and rewarding key employees and directors,
and promoting the creation of long-term value for stockholders
of the Company by closely aligning the interests of key
employees, and directors with those of the Companys
stockholders. Of the shares originally available under the Plan,
only 414,208 remain available for grant. The Amendment is
important because equity compensation remains a significant
component of the Companys compensation strategy and the
continued use of equity will help retain the Companys key
employees (including executive officers) and recruit new
employees.
21
Key
Data
The following table includes information regarding outstanding
equity awards and shares available for future awards under the
Companys equity incentive plans as of January 2, 2011
(without giving effect to approval of the Amendment):
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2005 Plan
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Prior Plan(1)
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Total shares underlying outstanding options
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1,271,743
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194,085
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Weighted average exercise price of outstanding options
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$
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3.16
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$
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7.74
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Weighted average remaining contractual life of outstanding
options
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7.4 years
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3.7 years
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Total shares underlying outstanding unvested time-based RSUs
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404,968
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Total shares currently available for grant
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414,208
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(1)
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Prior Plan refers to the Caribou Coffee Company, Inc. 2001 Stock
Option Plan, as amended.
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Broad-based equity compensation is an essential and
long-standing element of the Companys culture and success.
It continues to be a critical element to attract and retain the
most talented officers, employees and directors available to
execute the Companys long-term goals. As shown in the
following table, the Companys three-year average annual
burn rate has been 2.8%, which is below the Institutional
Shareholder Services (ISS) burn rate threshold of
4.8% applied to our industry.
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Number of
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Burn Rate = Total
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Time-Based
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Common
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Granted/Common
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Options
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RSUs
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Shares
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Shares
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Year
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Granted
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Granted
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Total
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Outstanding(1)
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Outstanding
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2010
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215,300
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215,300
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19,735,677
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1.1
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%
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2009
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10,450
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187,763
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198,213
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19,513,239
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1.0
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%
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2008
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1,236,271
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150,000
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1,386,271
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19,370,590
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6.4
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%
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Three-Year Average
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2.8
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%
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(1)
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Common shares outstanding excludes unvested Restricted Stock
Units.
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Plan
Summary
The following summary of the material terms of the Plan does not
purport to be complete and is qualified in its entirety by
reference to the complete text of the Plan, which is set forth
as
Appendix A
to this proxy statement.
Administration
The Compensation Committee administers the Plan. Subject to the
express terms of the Plan, the Compensation Committee has full
power and authority to do all things that it determines to be
necessary or appropriate in connection with the administration
of the Plan, including to determine when and to whom awards will
be granted, including the type, amount, form of payment and
other terms and conditions of each award. In addition, the
Compensation Committee has the authority to interpret the Plan
and the awards granted under the Plan, and establish rules and
regulations for the administration of the Plan. All decisions,
determinations, and interpretations of the Compensation
Committee regarding the Plan and awards granted under the Plan
are final and binding on all participants and all other persons.
Participants
Only Eligible Employees who are employed by the Company or a
Subsidiary or Parent shall be eligible for the grant of ISOs
under the Plan. All Eligible Employees and all Directors shall
be eligible for the grant of nonqualified stock options
(NQSOs) and Stock Appreciation Rights
(SARs) and for Stock Grants and Stock Unit Grants
under the Plan.
22
Shares Subject
to the Plan and to Awards
The aggregate number of shares of Caribou Coffee Company, Inc.
common stock, par value $0.01 per share (the Common
Stock), remaining available to be issued under the Plan
was 414,208 shares, as of January 2, 2011. This number
decreases if any shares subject to options previously granted
that are terminated, expire unexercised or are otherwise
forfeited. We are seeking shareholder approval of an additional
1,000,000 shares of Common Stock available to be issued
under the Plan pursuant to this proxy statement. The shares
issued pursuant to awards granted under the Plan may be shares
that are authorized and unissued or issued shares that were
reacquired by the Company. As of March 22, 2011, the
closing price of a share of the Common Stock on NASDAQ was $9.39.
Stock
Options
The holder of an option is entitled to purchase a number of
shares of Common Stock at a specified exercise price during a
specified time period, all as determined by the Compensation
Committee. The Compensation Committee establishes the exercise
price per share under each option, which is not less than the
fair market value (or 110% of the fair market value in the case
of ISOs granted to individuals who own more than 10% of the
Common Stock) of a share on the date the option is granted. The
Administrator will establish the term of each option, which in
no case may exceed a period of ten (10) years from the date
of grant (or five (5) years in the case of ISOs granted to
individuals who own more than 10% of the Companys common
stock). Options granted under the Plan may be either ISOs or
NQSOs.
Options issued under the Plan may not be repriced except with
the prior approval of the Companys shareholders or in
connection with a change in the Companys capitalization.
Stock
Appreciation Rights
A SAR provides the holder with the right to receive the monetary
equivalent of the increase in value of a specified number of
shares over a specified period of time after the right is
granted. SARs may be granted to participants either in
connection with an award of options (tandem SARs) or
not in connection with an award of options (freestanding
SARs). The holder of a tandem SAR is entitled to elect
between the exercise of the underlying option for shares of
Common Stock or the surrender of the option in exchange for the
receipt of a cash payment equal to the excess of the fair market
value on the surrender date over the aggregate exercise price
payable for such shares. The holder of stand-alone SARs will be
entitled to receive the excess of the fair market value (on the
exercise date) over the exercise price for such shares. The
Compensation Committee establishes the terms and conditions of
SARs. The Compensation Committee establishes the exercise price
per share under each stand-alone SAR, which is not less than the
fair market value of a share on the date the SAR is granted. The
Compensation Committee also establishes the term of each SAR,
which in no case may exceed a period of ten (10) years from
the date of grant.
Restricted
Stock and Restricted Stock Units
Restricted stock is an award or issuance of shares where the
grant, issuance, retention, vesting
and/or
transferability of which is subject during specified periods of
time to such conditions and terms (including continued
employment or performance conditions) as the Compensation
Committee deems appropriate. RSUs are awards denominated in
units of shares under which the settlement of the award is
subject to such conditions and terms (including continued
employment or performance conditions) as the Compensation
Committee deems appropriate. RSUs may be settled in shares of
Common Stock, cash or a combination of the foregoing, as
determined by the Compensation Committee on the grant date.
Method
of Payment for Awards
The Compensation Committee determines the form of payment, if
any, for any shares of Common Stock issued in exercise or
settlement of an award under the Plan, which may include cash,
shares of Common Stock owned by the participant, withholding of
shares of Common Stock otherwise issuable upon exercise or
settlement or a cashless exercise.
23
Termination
of Service
Unless otherwise provided by the Compensation Committee and
except in the event of a change of control as described below,
unvested Awards granted under the Plan will expire, terminate,
or otherwise be forfeited immediately upon termination of a
participants service for any reason (except that unvested
options will accelerate in the event of a participants
retirement or death), and vested awards granted under the Plan
will expire, terminate, or otherwise be forfeited three months
after a participants termination of service, including
voluntary termination by the participant and immediately upon
termination of a participants service for misconduct.
Change
of Control
In the event of a change of control of the Company (as defined
in the Plan), subject to certain limitations and restrictions as
more fully described in the Plan:
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options and SARs will become fully vested and immediately
exercisable;
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restriction periods and restrictions imposed on restricted stock
and RSUs will lapse; and
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restrictions and deferral limitations and other conditions
applicable to other awards will lapse, and the awards will
become free of restrictions, limitations or conditions and
become fully vested and transferable.
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Accelerated vesting or lapse of restrictions on awards held by a
non-employee director will occur upon the occurrence of a change
of control.
Transferability
of Awards
No Option, Stock Grant, Stock Unit Grant or SAR shall (absent
the Compensation Committees consent) be transferable by an
Eligible Employee or a Director other than by will or by the
laws of descent and distribution, and any Option or SAR shall
(absent the Compensation Committees consent) be
exercisable during a Eligible Employees or Directors
lifetime only by the Eligible Employee or Director. The person
or persons to whom an Option or Stock Grant or Stock Unit Grant
or Stock Appreciation Right is transferred by will or by the
laws of descent and distribution (or with the Compensation
Committees consent) thereafter shall be treated as the
Eligible Employee or Director.
Shareholder
Rights
No Eligible Employee or Director shall have any rights as a
shareholder of the Company as a result of the grant of an Option
or a Stock Appreciation Right pending the actual delivery of the
Stock subject to such Option or Stock Appreciation Right to such
Eligible Employee or Director. An Eligible Employees or a
Directors rights as a shareholder in the shares of Stock
which remain subject to forfeiture shall be set forth in the
related Stock Grant Certificate.
Compliance
with Law
The issuance and delivery of shares pursuant to an award under
the Plan will be subject to all relevant provisions of law,
including, without limitation, the federal securities laws, the
rules and regulations promulgated under such laws, and the
requirements of any stock exchange or quotation system upon
which the Common Stock may then be listed or quoted, and will be
further subject to the approval of counsel for the Company with
respect to such compliance.
Amendment
and Termination
The Plan may be amended by the Board from time to time to the
extent that the Board deems necessary or appropriate; provided,
however, (a) no amendment shall be made absent the approval
of the shareholders of the Company to the extent such approval
is required under applicable law or the rules of the stock
exchange on which shares of Stock are listed and (b) no
amendment shall be made to Change in Control provisions on or
after the date of any Change in Control which might adversely
affect any rights which otherwise would vest on the related
Change Effective Date.
24
Effective
Date and Termination of the Plan
The Amendment was adopted by the Board on February 22,
2011, subject to shareholder approval. The Plan will terminate
on October 4, 2015, unless extended by an amendment
approved by the Companys shareholders. No awards may be
made after the termination date. However, unless otherwise
expressly provided in an applicable award agreement, the term of
any award granted prior to the expiration of the Plan may extend
beyond such expiration through the awards normal
expiration date.
Federal
Income Tax Treatment
The following tax discussion is a general summary as of the date
of this proxy statement of the U.S. federal income tax
consequences to the Company and the participants in the Plan.
The discussion is intended solely for general information and
does not make specific representations to any participant. The
discussion does not address state, local or foreign income tax
rules or other U.S. tax provisions, such as estate or gift
taxes. A recipients particular situation may be such that
some variation of the basic rules is applicable to him or her.
In addition, the federal income tax laws and regulations
frequently have been revised and may be changed again at any
time. Therefore, each recipient is urged to consult a tax
advisor before exercising any award or before disposing of any
shares acquired under the Plan both with respect to federal
income tax consequences as well as any foreign, state or local
tax consequences.
Stock
Options
ISOs and NQSOs are treated differently for federal income tax
purposes. ISOs are intended to comply with the requirements of
Section 422 of the Code. NQSOs are not intended to comply
with such requirements.
A participant is not taxed on the grant or exercise of an ISO.
The difference between the exercise price and the fair market
value of the shares on the exercise date will, however, be a
preference item for purposes of the alternative minimum tax. If
a participant holds the shares acquired upon exercise of an ISO
until the later of two years following the option grant date and
one year following exercise, the participants gain, if
any, upon a subsequent disposition of such shares is long-term
capital gain. The measure of the gain is the difference between
the proceeds received on disposition and the participants
basis in the shares (which generally equals the exercise price).
If a participant disposes of stock acquired pursuant to exercise
of an ISO before satisfying these holding periods, the
participant will recognize ordinary income in the year of
disposition in an amount equal to the excess of the fair market
value of the shares at the time of exercise (or, if less, the
amount realized on the disposition of the shares), over the
exercise price paid for the shares, and capital gain or loss for
any other difference between the sale price and the exercise
price. The Company is not entitled to an income tax deduction on
the grant or exercise of an ISO or on the participants
disposition of the shares after satisfying the holding period
requirement described above. If the holding periods are not
satisfied, the Company will be entitled to a deduction in the
year the participant disposes of the shares in an amount equal
to the ordinary income recognized by the participant.
In order for an option to qualify for ISO tax treatment, the
grant of the option must satisfy various other conditions more
fully described in the Code. The Company does not guarantee that
any option will qualify for ISO tax treatment even if the option
is intended to qualify for such treatment. In the event an
option intended to be an ISO fails to so qualify, it will be
taxed as a NQSO described below.
A participant is not taxed on the grant of a NQSO. On exercise,
the participant recognizes ordinary income equal to the
difference between the exercise price and the fair market value
of the shares acquired on the date of exercise. The Company is
entitled to an income tax deduction in the year of exercise in
the amount recognized by the participant as ordinary income. The
participants gain (or loss) on subsequent disposition of
the shares is long-term capital gain (or loss) if the shares are
held for at least one year following exercise, and otherwise is
short-term capital gain (or loss). The measure of the gain (or
loss) on disposition is the difference between the proceeds
received on disposition and the participants basis in the
shares (which generally equals the stock price on the exercise
date). The Company does not receive a deduction for any such
capital gain.
25
Stock
Appreciation Rights
Generally, the holder of a freestanding SAR will not recognize
any taxable income at the time a freestanding SAR is granted. If
a freestanding SAR is settled in cash, the cash will be taxable
as ordinary income to the holder at the time that it is
received. If a freestanding SAR is settled in shares, the holder
will recognize ordinary income equal to the excess of the fair
market value of the shares on the day they are received over any
amounts paid by the holder for the shares.
With respect to tandem SARs, if a holder elects to surrender the
underlying option in exchange for cash or stock equal to the
appreciation inherent in the underlying option, the tax
consequences to the holder will be the same as discussed above
relating to freestanding SARs. If the holder elects to exercise
the underlying option, the holder will be taxed at the time of
exercise as if he or she had exercised a NQSO (discussed above).
The Company will be entitled to a deduction equal to the amount
of ordinary income that the holder is required to recognize as a
result of the exercise of a SAR.
Restricted
Stock and Restricted Stock Units
Grantees of restricted stock or RSUs generally do not recognize
income at the time of grant. When the award vests or is paid,
grantees generally recognize ordinary income in an amount equal
to the fair market value of the stock or units at such time, and
the Company will receive a corresponding deduction. However, no
later than 30 days after a participant receives an award of
restricted stock, pursuant to Section 83(b) of the Code,
the participant may elect to recognize taxable ordinary income
in an amount equal to the fair market value of the shares at the
time of receipt. Provided that the election is made in a timely
manner, when the restrictions on the shares lapse, the
participant will not recognize any additional income. If the
participant forfeits the shares to the Company (e.g., upon the
participants termination prior to vesting), the
participant may not claim a deduction with respect to the income
recognized as a result of the election. Dividends (if any) paid
with respect to unvested shares of restricted stock generally
will be taxable as ordinary income to the participant at the
time the dividends are received.
New Plan
Benefits
Future awards to be received by or allocated to particular
participants under the Plan are not presently determinable.
EQUITY
COMPENSATION PLAN INFORMATION
The following table provides information as of January 2,
2011 regarding shares outstanding and available for issuance
under the Companys equity compensation plans.
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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-
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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
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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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Equity compensation plans approved by security holders(a)
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1,465,828
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$
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3.77
|
|
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414,208
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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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1,465,828
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|
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$
|
3.77
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|
|
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414,208
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(a)
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Represents the Companys 2005 Equity Incentive Plan.
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26
PROPOSAL 3
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 2011. Ernst & Young
audited our consolidated financial statements for fiscal 2010. A
representative of Ernst & Young is expected to 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 2011.
Independent
Registered Public Accounting Firm Fees
The following table sets forth the aggregate fees billed to the
Company for fiscal 2010 and fiscal 2009 by Ernst &
Young LLP:
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Fiscal 2010
|
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Fiscal 2009
|
|
|
Audit Fees
|
|
$
|
405,000
|
|
|
$
|
481,847
|
|
Audit Related Fees
|
|
|
100,000
|
|
|
|
|
|
Tax Fees
|
|
|
158,260
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|
|
|
60,000
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|
|
|
|
|
|
|
|
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Total
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$
|
663,280
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|
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$
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541,487
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Audit Fees
for fiscal 2010 and 2009 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.
Audit Related Fees
for fiscal 2010 consist of fees paid
to Ernst & Young LLP for professional services
provided as part of the Companys secondary offering and
related prospectus dated November 16, 2010.
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 2010 and 2009, all audit
and non-audit services were pre-approved.
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 2012
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 November 30, 2011 in order to
be considered for inclusion in the proxy statement and form of
proxy to be distributed by the Board in connection with such
meeting.
Shareholder proposals brought before our 2012 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 12, 2012. However, if the
date of the 2012 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
27
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 2012 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 (1) we do not receive notice of the proposal
on or prior to April 11, 2011, or (2) we receive
written notice of the proposal on or prior to April 11,
2011, describe the proposal in our proxy statement relating to
the 2012 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
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 Exchange Act, 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 phone at
(763) 592-2200.
28
ANNUAL
REPORT TO SHAREHOLDERS AND
FORM 10-K
The 2010 Annual Report including our fiscal 2010
Form 10-K
(the 2010
10-K)
(which is not a part of the proxy soliciting materials) is being
mailed to shareholders with this proxy statement. The 2010
Form 10-K
and the exhibits filed with it are available at our website at
www.cariboucoffee.com/aboutus/investorrelations.asp
under
Corporate Governance, or upon request by any shareholder to
Investor Relations at:
Investor Relations
Integrated Corporate Relations
Raphael Gross
(203) 803-8535
ir@cariboucoffee.com
A copy of any or all exhibits to the 2010
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
Secretary
Brooklyn Center, Minnesota
March 29, 2011
29
APPENDIX A
CARIBOU
COFFEE COMPANY, INC.
AMENDED
AND RESTATED 2005
EQUITY INCENTIVE PLAN
(as amended and restated effective as of February 22, 2011)
A-1
TABLE OF
CONTENTS
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Page
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Section 1
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BACKGROUND AND PURPOSE
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4
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Section 2
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DEFINITIONS
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4
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2
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.1
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Affiliate
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4
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2
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.2
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Board
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4
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2
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.3
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Change Effective Date
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4
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2
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.4
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Change in Control
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4
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2
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.5
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Code
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5
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2
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.6
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Committee
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5
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2
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.7
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Company
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5
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2
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.8
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Director
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5
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2
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.9
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Eligible Employee
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5
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2
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.10
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Fair Market Value
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5
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2
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.11
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ISO
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5
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2
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.12
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1933 Act
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5
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2
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.13
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1934 Act
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5
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2
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.14
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Non-ISO
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6
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2
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.15
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Option
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6
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2
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.16
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Option Certificate
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6
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2
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.17
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Option Price
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6
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2
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.18
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Parent
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6
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2
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.19
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Plan
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6
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2
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.20
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Preexisting Plan
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6
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2
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.21
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Rule 16b-3
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6
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2
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.22
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SAR Value
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6
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2
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.23
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Stock
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6
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2
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.24
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Stock Appreciation Right
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6
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2
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.25
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Stock Appreciation Right Certificate
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6
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2
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.26
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Stock Grant
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6
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2
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.27
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Stock Grant Certificate
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6
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2
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.28
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Stock Unit Grant
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6
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2
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.29
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Subsidiary
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6
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2
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.30
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Ten Percent Shareholder
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6
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Section 3
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SHARES AND GRANT LIMITS
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6
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3
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.1
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Shares Reserved
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7
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3
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.2
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Source of Shares
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7
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3
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.3
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Use of Proceeds
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7
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3
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.4
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Grant Limits
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7
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3
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.5
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Preexisting Plan
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7
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Section 4
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EFFECTIVE DATE
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7
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Section 5
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COMMITTEE
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7
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Section 6
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ELIGIBILITY
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7
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A-2
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Page
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Section 7
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OPTIONS
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8
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7
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.1
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Committee Action
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8
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7
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.2
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$100,000 Limit
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8
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7
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.3
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Option Price
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8
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7
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.4
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Payment
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8
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7
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.5
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Exercise
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8
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Section 8
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STOCK APPRECIATION RIGHTS
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9
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8
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.1
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Committee Action
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9
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8
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.2
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Terms and Conditions
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9
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8
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.3
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Exercise
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9
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Section 9
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STOCK GRANTS
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10
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9
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.1
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Committee Action
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10
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9
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.2
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Conditions
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10
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9
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.3
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Dividends, Voting Rights and Creditor Status
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11
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9
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.4
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Satisfaction of Forfeiture Conditions
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11
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9
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.5
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Income Tax Deduction
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11
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Section 10
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NON-TRANSFERABILITY
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12
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Section 11
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SECURITIES REGISTRATION
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12
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Section 12
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LIFE OF PLAN
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13
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Section 13
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ADJUSTMENT
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13
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13
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.1
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Capital Structure
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13
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13
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.2
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Available Shares
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13
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13
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.3
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Transactions Described in Section 424 of the Code
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14
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13
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.4
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Fractional Shares
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14
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Section 14
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CHANGE IN CONTROL
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14
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Section 15
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AMENDMENT OR TERMINATION
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14
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Section 16
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MISCELLANEOUS
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15
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16
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.1
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Shareholder Rights
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15
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16
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.2
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No Contract of Employment
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15
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16
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.3
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Withholding
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15
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16
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.4
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Construction
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15
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16
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.5
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Other Conditions
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15
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16
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.6
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Rule 16b-3
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15
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16
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.7
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Coordination with Employment Agreements and Other Agreements
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15
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16
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.8
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Misconduct
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16
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16
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.9
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Compliance with Code Section 409A
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16
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A-3
Section 1.
BACKGROUND AND PURPOSE
The purpose of this Plan is to promote the interest of the
Company by authorizing the Committee to grant Options and Stock
Appreciation Rights and to make Stock Grants and Stock Unit
Grants to Eligible Employees and Directors in order (1) to
attract and retain Eligible Employees and Directors, (2) to
provide an additional incentive to each Eligible Employee or
Director to work to increase the value of Stock and (3) to
provide each Eligible Employee or Director with a stake in the
future of the Company which corresponds to the stake of each of
the Companys shareholders.
Section 2.
DEFINITIONS
2.1
Affiliate
means any organization
(other than a Subsidiary) that would be treated as under common
control with the Company under Section 414(c) of the Code
if 50 percent were substituted for
80 percent in the income tax regulations under
Section 414(c) of the Code.
2.2
Board
means the Board of Directors
of the Company.
2.3
Change Effective Date
means either
the date which includes the closing of the
transaction which makes a Change in Control effective if the
Change in Control is made effective through a transaction which
has a closing or the date a Change in Control is
reported in accordance with applicable law as effective to the
Securities and Exchange Commission if the Change in Control is
made effective other than through a transaction which has a
closing.
2.4
Change in Control
means that any of
the following events has occurred with respect to the Company,
and the effective date of the Change of Control Event shall be
as of the first day that any one or more of the following events
shall have been fully and unconditionally effected:
(a) The acquisition by any Person other than Caribou
Holding Company Limited or any of its Affiliates or any
combination thereof of Beneficial Ownership of 50% or more of
either (i) the then outstanding shares of Stock, or
(ii) the combined voting power of the outstanding voting
securities of the Company entitled to vote generally in the
election of Directors; provided, however, that for purposes of
this subsection, the following transactions shall not constitute
a Change of Control Event: (A) any acquisition of such
Stock or voting power directly from the Company through a public
offering of shares of Stock of the Company, (B) any
acquisition of such Stock or voting power by the Company,
(C) any acquisition of such Stock or voting power by any
employee benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the Company,
(D) any acquisition of such Stock or voting power by any
Person who, prior to such acquisition, had Beneficial Ownership
of 50% or more of (i) the then outstanding shares of Stock,
or (ii) the combined voting power of the outstanding voting
securities of the Company entitled to vote generally in the
election of Directors, or (E) any acquisition by any
corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c)
below;
(b) A majority of the members of the Board is replaced
during any twelve (12) month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Board prior to the date of appointment or
election;
(c) The consummation of a reorganization, merger or
consolidation (
Business Combination
) unless,
following such Business Combination, (i) all or
substantially all of the individuals and entities who were the
Beneficial Owners, respectively, of the outstanding shares of
Stock of the Company and the outstanding voting securities of
the Company immediately before such Business Combination
Beneficially Own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of Stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of Directors, as the
case may be, of the Company resulting from or surviving such
Business Combination
A-4
(including, without limitation, a corporation which as a result
of such transaction owns the Company either directly or through
one or more subsidiaries) in substantially the same proportions
as their ownership immediately before such Business Combination
of the outstanding shares of Stock and the outstanding voting
securities of the Company, as the case may be; (ii) no
Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from or surviving such
Business Combination) beneficially owns, directly or indirectly,
50% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from or surviving such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the
extent that such ownership existed as to the Company before the
Business Combination; and (iii) at least a simple majority
of the members of the board of directors of the corporation
resulting from or surviving such Business Combination were
members of the Companys Board of Directors at the time of
the execution of the initial agreement, or of the action of the
Companys Board of Directors, providing for such Business
Combination;
(d) The acquisition by any one person or more than one
person acting as a group (or the acquisition during the twelve
(12) month period ending on the date of the most recent
acquisition by such person or persons) of assets from the
Company that have a total gross fair market value equal to or
more than fifty percent (50%) of the Companys total
assets; or
(e) The acquisition by one person or more than one person
acting as a group (or the acquisition during the twelve
(12) month period ending on the date of the most recent
acquisition by such person or persons) of ownership of Stock of
the Company equal to thirty percent (30%) or more of the total
voting power of the Stock.
2.5
Code
means the Internal Revenue Code
of 1986, as amended.
2.6
Committee
means a committee of the
Board which shall have at least 2 members, each of whom shall be
appointed by and shall serve at the pleasure of the Board and
shall come within the definition of a non-employee
director under
Rule 16b-3
and an outside director under Section 162(m) of
the Code, provided, that, at any time the Board may take any
action the Committee is required or permitted to take under this
Plan.
2.7
Company
means Caribou Coffee
Company, Inc. and any successor to Caribou Coffee Company, Inc.
2.8
Director
means any member of the
Board who is not an employee of the Company or a Parent or
Subsidiary or affiliate (as such term is defined in
Rule 405 of the 1933 Act) of the Company.
2.9
Eligible Employee
means an employee
of the Company or any Subsidiary or Parent or Affiliate to whom
the Committee decides for reasons sufficient to the Committee to
make a grant under this Plan.
2.10
Fair Market Value
means either
(a) the closing price on any date for a share of Stock as
reported by The Wall Street Journal or, if The Wall Street
Journal no longer reports such closing price, such closing price
as reported by a newspaper or trade journal selected by the
Committee or, if no such closing price is available on such
date, (b) such closing price as so reported in accordance
with Section 2.10(a) for the immediately preceding business
day, or, if no newspaper or trade journal reports such closing
price or if no such price quotation is available, (c) the
price which the Committee acting in good faith determines
through any reasonable valuation method that a share of Stock
might change hands between a willing buyer and a willing seller,
neither being under any compulsion to buy or to sell and both
having reasonable knowledge of the relevant facts.
2.11
ISO
means an option granted under
this Plan to purchase Stock which is intended to satisfy the
requirements of Section 422 of the Code.
2.12
1933 Act
means the Securities
Act of 1933, as amended.
2.13
1934 Act
means the Securities
Exchange Act of 1934, as amended.
A-5
2.14
Non-ISO
means an option granted
under this Plan to purchase Stock which is intended to fail to
satisfy the requirements of Section 422 of the Code.
2.15
Option
means an ISO or a Non-ISO
which is granted under Section 7.
2.16
Option Certificate
means the
certificate (whether in electronic or written form) which sets
forth the terms and conditions of an Option granted under this
Plan.
2.17
Option Price
means the price which
shall be paid to purchase one share of Stock upon the exercise
of an Option granted under this Plan.
2.18
Parent
means any corporation which
is a parent corporation (within the meaning of
Section 424(e) of the Code) of the Company.
2.19
Plan
means this Caribou Coffee
Company, Inc. 2005 Equity Incentive Plan as may be amended from
time to time thereafter.
2.20
Preexisting Plan
means each of the
following plans, as each such plan has been amended from time to
time up to the date this Plan is effective: Caribou Coffee
Company, Inc. 1994 Stock Awards Plan and the Caribou Coffee
Company, Inc. 2001 Stock Option Plan.
2.21
Rule 16b-3
means the exemption under
Rule 16b-3
to Section 16(b) of the 1934 Act or any successor to
such rule.
2.22
SAR Value
means the value assigned
by the Committee to a share of Stock in connection with the
grant of a Stock Appreciation Right under Section 8.
2.23
Stock
means the common stock, par
value $.01 per share, of the Company.
2.24
Stock Appreciation Right
means a
right which is granted under Section 8 to receive the
appreciation in a share of Stock.
2.25
Stock Appreciation Right Certificate
means the certificate (whether in electronic or written
form) which sets forth the terms and conditions of a Stock
Appreciation Right which is not granted as part of an Option.
2.26
Stock Grant
means a grant under
Section 9 which is designed to result in the issuance of
the number of shares of Stock described in such grant rather
than a payment in cash based on the Fair Market Value of such
shares of Stock.
2.27
Stock Grant Certificate
means the
certificate (whether in electronic or written form) which sets
forth the terms and conditions of a Stock Grant or a Stock Unit
Grant.
2.28
Stock Unit Grant
means a grant
under Section 9 which is designed to result in the payment
of cash based on the Fair Market Value of the number of shares
of Stock described in such grant rather than the issuance of the
number of shares of Stock described in such grant.
2.29
Subsidiary
means a corporation
which is a subsidiary corporation (within the meaning of
Section 424(f) of the Code) of the Company.
2.30
Ten Percent Shareholder
means a
person who owns (after taking into account the attribution rules
of Section 424(d) of the Code) more than ten percent of the
total combined voting power of all classes of stock of either
the Company, a Subsidiary or Parent.
Section 3.
SHARES AND GRANT LIMITS
3.1
Shares Reserved
. There
shall (subject to Section 13) be reserved for issuance
under this Plan (a)
1,665,000
shares of Stock,
provided, however, (b) no more than the number of shares of
Stock described in Section 3.1(a) shall be issued in
connection with the exercise of ISOs and (c) nothing in
this Plan shall affect
A-6
any grants under any Preexisting Plan which are outstanding on
the effective date of this Plan until such time, if any, that
any shares of Stock subject to such grants are forfeited or
grants respecting any shares of Stock expire on or after such
effective date in accordance with the terms of such grants;
provided, further, however, that shares of Stock issuable
pursuant to grants under any Preexisting Plan that are forfeited
shall increase the shares of Stock that may be issued under this
Plan as provided in Section 3.2.
3.2
Source of Shares
. The shares
of Stock described in Section 3.1 shall be reserved to the
extent that the Company deems appropriate from authorized but
unissued shares of Stock and from shares of Stock which have
been reacquired by the Company. All shares of Stock described in
Section 3.1 shall remain available for issuance under this
Plan until issued pursuant to the exercise of an Option or a
Stock Appreciation Right or issued pursuant to a Stock Grant,
and any such shares of stock which are issued pursuant to an
Option, a Stock Appreciation Right or a Stock Grant which are
forfeited thereafter shall again become available for issuance
under this Plan. Finally, if the Option Price under an Option is
paid in whole or in part in shares of Stock or if shares of
Stock are tendered to the Company in satisfaction of any
condition to a Stock Grant, such shares thereafter shall become
available for issuance under this Plan and shall be treated the
same as any other shares available for issuance under this Plan.
Any shares of Stock that are issuable pursuant to a grant under
a Preexisting Plan that are forfeited shall increase the number
of shares of Stock that may be issued under this Plan on a
one-for-one
basis.
3.3
Use of Proceeds
. The proceeds
which the Company receives from the sale of any shares of Stock
under this Plan shall be used for general corporate purposes and
shall be added to the general funds of the Company.
3.4
Grant Limits
. No Eligible
Employee or Director in any calendar year shall be granted an
Option to purchase (subject to Section 13) more than
100,000 shares of Stock or a Stock Appreciation Right based
on the appreciation with respect to (subject to
Section 13) more than 100,000 shares of Stock,
and no Stock Grant or Stock Unit Grant shall be made to any
Eligible Employee or Director in any calendar year where the
Fair Market Value of the Stock subject to such grant on the date
of the grant exceeds $5,000,000. No more than 250,000
non-forfeitable shares of Stock shall (subject to
Section 13) be issued pursuant to Stock Grants under
Section 9.
3.5
Preexisting Plan
. No grants
shall be made under any Preexisting Plan on or after the date
this Plan becomes effective.
Section 4.
EFFECTIVE
DATE
This Plan shall be effective as of the first date of which
(1) the shareholders of the Company (acting at a duly
called meeting of such shareholders) have approved the adoption
of this Plan and (2) the Companys initial public
offering of its Stock pursuant to a Registration Statement on
Form S-1
(Registration
No. 333-126691)
shall have closed.
Section 5.
COMMITTEE
This Plan shall be administered by the Committee. The Committee
acting in its absolute discretion shall exercise such powers and
take such action as expressly called for under this Plan and,
further, the Committee shall have the power to interpret this
Plan and (subject to Section 14 and Section 15 and
Rule 16b-3)
to take such other action in the administration and operation of
this Plan as the Committee deems equitable under the
circumstances, which action shall be binding on the Company, on
each affected Eligible Employee or Director and on each other
person directly or indirectly affected by such action.
Furthermore, the Committee as a condition to making any grant
under this Plan to any Eligible Employee shall have the right to
require him or her to execute an agreement which makes the
Eligible Employee subject to non-competition provisions and
other restrictive covenants which run in favor of the Company.
A-7
Section 6.
ELIGIBILITY
Only Eligible Employees who are employed by the Company or a
Subsidiary or Parent shall be eligible for the grant of ISOs
under this Plan. All Eligible Employees and all Directors shall
be eligible for the grant of Non-ISOs and Stock Appreciation
Rights and for Stock Grants and Stock Unit Grants under this
Plan.
Section 7.
OPTIONS
7.1
Committee Action
. The
Committee acting in its absolute discretion shall have the right
to grant Options to Eligible Employees and to Directors under
this Plan from time to time to purchase shares of Stock, but the
Committee shall not (subject to Section 13) take any
action, whether through amendment, cancellation, replacement
grants, or any other means, to reduce the Option Price of any
outstanding Options absent the approval of the Companys
shareholders. Each grant of an Option to a Eligible Employee or
Director shall be evidenced by an Option Certificate, and each
Option Certificate shall set forth whether the Option is an ISO
or a Non-ISO and shall set forth such other terms and conditions
of such grant as the Committee acting in its absolute discretion
deems consistent with the terms of this Plan; however,
(a) if the Committee grants an ISO and a Non-ISO to a
Eligible Employee on the same date, the right of the Eligible
Employee to exercise the ISO shall not be conditioned on his or
her failure to exercise the Non-ISO and (b) if the only
condition to exercise of the Option is the completion of a
period of service, such period of service shall be no less than
the one (1) year period which starts on the date as of
which the Option is granted unless the Committee determines that
a shorter period of service (or no period of service) better
serves the Companys interest.
7.2
$100,000 Limit
. No Option
shall be treated as an ISO to the extent that the aggregate Fair
Market Value of the Stock subject to the Option which would
first become exercisable in any calendar year exceeds $100,000.
Any such excess shall instead automatically be treated as a
Non-ISO. The Committee shall interpret and administer the ISO
limitation set forth in this Section 7.2 in accordance with
Section 422(d) of the Code, and the Committee shall treat
this Section 7.2 as in effect only for those periods for
which Section 422(d) of the Code is in effect.
7.3
Option Price
. The Option Price
for each share of Stock subject to an Option shall be no less
than the Fair Market Value of a share of Stock on the date the
Option is granted; provided, however, if the Option is an ISO
granted to an Eligible Employee who is a Ten Percent
Shareholder, the Option Price for each share of Stock subject to
such ISO shall be no less than 110% of the Fair Market Value of
a share of Stock on the date such ISO is granted.
7.4
Payment
. The Option Price
shall be payable in full upon the exercise of any Option and, at
the discretion of the Committee, an Option Certificate can
provide for the payment of the Option Price either in cash, by
check or in Stock which has been held for at least 6 months
and which is acceptable to the Committee, or through any
cashless exercise procedures that are from time to time approved
by the Committee, or in any combination of such forms of
payment. Any payment made in Stock shall be treated as equal to
the Fair Market Value of such Stock on the date the certificate
for such Stock (or proper evidence of such certificate) is
presented to the Committee or its delegate in such form as
acceptable to the Committee.
7.5
Exercise
.
(a) Exercise Period. Each Option granted under this Plan
shall be exercisable in whole or in part at such time or times
as set forth in the related Option Certificate, but no Option
Certificate shall make an Option exercisable on or after the
earlier of
(1) the date which is the fifth anniversary of the date the
Option is granted, if the Option is an ISO and the Eligible
Employee is a Ten Percent Shareholder on the date the Option is
granted, or
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(2) the date which is the tenth anniversary of the date the
Option is granted, if the Option is (a) a Non-ISO or
(b) an ISO which is granted to an Eligible Employee who is
not a Ten Percent Shareholder on the date the Option is granted.
(b) Termination of Status as Eligible Employee or Director.
Subject to Section 7.5(a), and except as otherwise provided in
an Option Certificate:
(1) in the event of the death or retirement of an Eligible
Employee or Director, all unvested Options shall become fully
vested, and
(2) for all other events in which a loss of status as an
Eligible Employee or Director occurs, (a) all unvested
Options shall be forfeited, and (b) all vested Options
shall be forfeited unless exercised within three (3) months.
Section 8.
STOCK
APPRECIATION RIGHTS
8.1
Committee Action
. The
Committee acting in its absolute discretion shall have the right
to grant Stock Appreciation Rights to Eligible Employees and to
Directors under this Plan from time to time, and each Stock
Appreciation Right grant shall be evidenced by a Stock
Appreciation Right Certificate or, if such Stock Appreciation
Right is granted as part of an Option, shall be evidenced by the
Option Certificate for the related Option.
8.2
Terms and Conditions
.
(a)
Stock Appreciation Right Certificate
. If a Stock
Appreciation Right is granted independent of an Option, such
Stock Appreciation Right shall be evidenced by a Stock
Appreciation Right Certificate, and such certificate shall set
forth the number of shares of Stock on which the Eligible
Employees or Directors right to appreciation shall
be based and the SAR Value of each share of Stock. Such SAR
Value shall be no less than the Fair Market Value of a share of
Stock on the date that the Stock Appreciation Right is granted.
The Stock Appreciation Right Certificate shall set forth such
other terms and conditions for the exercise of the Stock
Appreciation Right as the Committee deems appropriate under the
circumstances, but no Stock Appreciation Right Certificate shall
make a Stock Appreciation Right exercisable on or after the date
which is the tenth anniversary of the date such Stock
Appreciation Right is granted.
(b)
Option Certificate
. If a Stock Appreciation
Right is granted together with an Option, such Stock
Appreciation Right shall be evidenced by an Option Certificate,
the number of shares of Stock on which the Eligible
Employees or Directors right to appreciation shall
be based shall be the same as the number of shares of Stock
subject to the related Option, and the SAR Value for each such
share of Stock shall be no less than the Option Price under the
related Option. Each such Option Certificate shall provide that
the exercise of the Stock Appreciation Right with respect to any
share of Stock shall cancel the Eligible Employees or
Directors right to exercise his or her Option with respect
to such share and, conversely, that the exercise of the Option
with respect to any share of Stock shall cancel the Eligible
Employees or Directors right to exercise his or her
Stock Appreciation Right with respect to such share. A Stock
Appreciation Right which is granted as part of an Option shall
be exercisable only while the related Option is exercisable. The
Option Certificate shall set forth such other terms and
conditions for the exercise of the Stock Appreciation Right as
the Committee deems appropriate under the circumstances.
(c)
Minimum Period of Service
. If the only condition
to exercise of a Stock Appreciation Right is the completion of a
period of service, such period of service shall be no less than
the one (1) year period which starts on the date as of
which the Stock Appreciation Right is granted unless the
Committee determines that a shorter period of service (or no
period of service) better serves the Companys interest.
8.3
Exercise
.
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(a)
Exercise Period
. A Stock Appreciation Right
shall be exercisable only when the Fair Market Value of a share
of Stock on which the right to appreciation is based exceeds the
SAR Value for such share, and the payment due on exercise shall
be based on such excess with respect to the number of shares of
Stock to which the exercise relates. An Eligible Employee or
Director upon the exercise of his or her Stock Appreciation
Right shall receive a payment from the Company in cash or in
Stock issued under this Plan, or in a combination of cash and
Stock, and the number of shares of Stock issued shall be based
on the Fair Market Value of a share of Stock on the date the
Stock Appreciation Right is exercised.
(b)
Termination of Status as Eligible Employee or
Director
. Except as otherwise provided in a Stock
Appreciation Right Certificate:
(1) in the event of the death or retirement of an Eligible
Employee or Director, all unvested Stock Appreciation Right(s)
shall become fully vested, and
(2) for all other events in which a loss of status as an
Eligible Employee or Director occurs, (a) all unvested
Stock Appreciation Right(s) shall be forfeited, and (b) all
vested Stock Appreciation Right(s) shall be forfeited unless
exercised within three (3) months.
Section 9.
STOCK GRANTS
9.1
Committee Action
. The
Committee acting in its absolute discretion shall have the right
to make Stock Grants and Stock Unit Grants to Eligible Employees
and to Directors. Each Stock Grant and each Stock Unit Grant
shall be evidenced by a Stock Grant Certificate, and each Stock
Grant Certificate shall set forth the conditions, if any, under
which Stock will be issued under the Stock Grant or cash will be
paid under the Stock Unit Grant and the conditions under which
the Eligible Employees or Directors interest in any
Stock which has been issued will become non-forfeitable.
9.2
Conditions
.
(a)
Conditions to Issuance of Stock
. The Committee
acting in its absolute discretion may make the issuance of Stock
under a Stock Grant subject to the satisfaction of one, or more
than one, condition which the Committee deems appropriate under
the circumstances for Eligible Employees or Directors generally
or for an Eligible Employee or a Director in particular, and the
related Stock Grant Certificate shall set forth each such
condition and the deadline for satisfying each such condition.
Stock subject to a Stock Grant shall be issued in the name of an
Eligible Employee or Director only after each such condition, if
any, has been timely satisfied, and any Stock which is so issued
shall be held by the Company pending the satisfaction of the
forfeiture conditions, if any, under Section 9.2(b) for the
related Stock Grant.
(b)
Conditions on Forfeiture of Stock or Cash
Payment
. The Committee acting in its absolute discretion may
make any cash payment due under a Stock Unit Grant or Stock
issued in the name of an Eligible Employee or Director under a
Stock Grant non-forfeitable subject to the satisfaction of one,
or more than one, objective employment, performance or other
condition that the Committee acting in its absolute discretion
deems appropriate under the circumstances for Eligible Employees
or Directors generally or for an Eligible Employee or a Director
in particular, and the related Stock Grant Certificate shall set
forth each such condition, if any, and the deadline, if any, for
satisfying each such condition. An Eligible Employees or a
Directors non-forfeitable interest in the shares of Stock
underlying a Stock Grant or the cash payable under a Stock Unit
Grant shall depend on the extent to which he or she timely
satisfies each such condition. If a share of Stock is issued
under this Section 9.2(b) before a Eligible Employees or
Directors interest in such share of Stock is
non-forfeitable, (1) such share of Stock shall not be
available for re-issuance under Section 3 until such time,
if any, as such share of Stock thereafter is forfeited as a
result of a failure to timely satisfy a forfeiture condition and
(2) the Company shall have the right to condition any such
issuance on the Eligible Employee or Director first signing an
irrevocable stock power in favor of the Company with respect to
the forfeitable shares of Stock issued to such
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Eligible Employee or Director in order for the Company to effect
any forfeiture called for under the related Stock Grant
Certificate.
(c)
Minimum Period of Service
. If the only condition
to the forfeiture of a Stock Grant or a Stock Unit Grant is the
completion of a period of service, such period of service shall
be no less than the one (1) year period which starts on the
date as of which the Stock Grant or Stock Unit Grant is made
unless the Committee determines that a shorter period of service
(or no period of service) better serves the Companys
interest.
9.3
Dividends, Voting Rights and Creditor
Status
.
(a)
Cash Dividends
. Except as otherwise set forth in
a Stock Grant Certificate, if a dividend is paid in cash on a
share of Stock after such Stock has been issued under a Stock
Grant but before the first date that an Eligible Employees
or a Directors interest in such Stock (1) is
forfeited completely or (2) becomes completely
non-forfeitable, the Company shall pay such cash dividend
directly to such Eligible Employee or Director.
(b)
Stock Dividends
. If a dividend is paid on a
share of Stock in Stock after such Stock has been issued under a
Stock Grant but before the first date that an Eligible
Employees or a Directors interest in such Stock
(1) is forfeited completely or (2) becomes completely
non-forfeitable, the Company shall hold such dividend Stock
subject to the same conditions under Section 9.2(b) as the
related Stock Grant.
(c)
Other
. If a dividend (other than a dividend
described in Section 9.3(a) or Section 9.3(b)) is paid
with respect to a share of Stock after such Stock has been
issued under a Stock Grant but before the first date that an
Eligible Employees or a Directors interest in such
Stock (1) is forfeited completely or (2) becomes
completely non-forfeitable, the Company shall distribute or hold
such dividend in accordance with such rules as the Committee
shall adopt with respect to each such dividend.
(d)
Voting
. Except as otherwise set forth in a Stock
Grant Certificate, an Eligible Employee or a Director shall have
the right to vote the Stock issued under his or her Stock Grant
during the period which comes after such Stock has been issued
under a Stock Grant but before the first date that an Eligible
Employees or Directors interest in such Stock
(1) is forfeited completely or (2) becomes completely
non-forfeitable.
(e)
General Creditor Status
. Each Eligible Employee
and each Director to whom a Stock Unit grant is made shall be no
more than a general and unsecured creditor of the Company with
respect to any cash payable under such Stock Unit Grant.
9.4
Satisfaction of Forfeiture
Conditions
.
A share of Stock shall
cease to be subject to a Stock Grant at such time as an Eligible
Employees or a Directors interest in such Stock
becomes non-forfeitable under this Plan, and the certificate or
other evidence of ownership representing such share shall be
transferred to the Eligible Employee or Director as soon as
practicable thereafter.
9.5
Income Tax Deduction
.
(a)
General
. The Committee shall (where the
Committee under the circumstances deems in the Companys
best interest) either (1) make Stock Grants and Stock Unit
Grants to Eligible Employees subject to at least one condition
related to one, or more than one, performance goal based on the
performance goals described in Section 9.5(b) which seems
likely to result in the Stock Grant or Stock Unit Grant
qualifying as performance-based compensation under
Section 162(m) of the Code or (2) make Stock Grants
and Stock Unit Grants to Eligible Employees under such other
circumstances as the Committee deems likely to result in an
income tax deduction for the Company with respect such Stock
Grant or Stock Unit Grant. A performance goal may be set in any
manner determined by the Committee, including looking to
achievement on an absolute or relative basis in relation to peer
groups or indexes, and no change may be made to a performance
goal after the goal has been set.
(b)
Performance Goals
. A performance goal is
described in this Section 9.5(b) if such goal relates to
(1) the Companys return over capital costs or
increases in return over capital costs, (2) the
Companys
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total earnings or the growth in such earnings, (3) the
Companys consolidated earnings or the growth in such
earnings, (4) the Companys earnings per share or the
growth in such earnings, (5) the Companys net
earnings or the growth in such earnings, (6) the
Companys earnings before interest expense, taxes,
depreciation, amortization and other cash or non-cash items or
the growth in such earnings, (7) the Companys
earnings before interest and taxes or the growth in such
earnings, (8) the Companys consolidated net income or
the growth in such income, (9) the value of the
Companys stock or the growth in such value, (10) the
Companys stock price or the growth in such price,
(11) the Companys return on assets or the growth on
such return, (12) the Companys cash flow or the
growth in such cash flow, (13) the Companys total
shareholder return or the growth in such return, (14) the
Companys expenses or the reduction of such expenses,
(15) the Companys sales growth, including growth in
comparable store sales, (16) the Companys overhead
ratios or changes in such ratios, (17) the Companys
expense-to-sales
ratios or the changes in such ratios, or (18) the
Companys number of store locations or growth in such
number.
(c)
Adjustments
. When the Committee certifies
whether a performance goal has been satisfied for any period,
the Committee where the Committee deems appropriate may make
such determination using calculations which alternatively
include and exclude one, or more than one, extraordinary
items as determined under U.S. generally accepted
accounting principles, and the Committee may determine whether a
performance goal has been satisfied for any period taking into
account the alternative which the Committee deems appropriate
under the circumstances. The Committee also may take into
account any other unusual or non-recurring items, including,
without limitation, the charges or costs associated with
restructurings of the Company, discontinued operations, and the
cumulative effects of accounting changes and, further, may take
into account any unusual or non-recurring events affecting the
Company, changes in applicable tax laws or accounting principles
or such other factors as the Committee may determine reasonable
and appropriate under the circumstances (including, without
limitation, any factors that could result in the Companys
paying non-deductible compensation to an Eligible Employee).
Section 10.
NON-TRANSFERABILITY
No Option, Stock Grant, Stock Unit Grant or Stock Appreciation
Right shall (absent the Committees consent) be
transferable by an Eligible Employee or a Director other than by
will or by the laws of descent and distribution, and any Option
or Stock Appreciation Right shall (absent the Committees
consent) be exercisable during a Eligible Employees or
Directors lifetime only by the Eligible Employee or
Director. The person or persons to whom an Option or Stock Grant
or Stock Unit Grant or Stock Appreciation Right is transferred
by will or by the laws of descent and distribution (or with the
Committees consent) thereafter shall be treated as the
Eligible Employee or Director.
Section 11.
SECURITIES
REGISTRATION
As a condition to the receipt of shares of Stock under this
Plan, the Eligible Employee or Director shall, if so requested
by the Company, agree to hold such shares of Stock for
investment and not with a view of resale or distribution to the
public and, if so requested by the Company, shall deliver to the
Company a written statement satisfactory to the Company to that
effect. Furthermore, if so requested by the Company, the
Eligible Employee or Director shall make a written
representation to the Company that he or she will not sell or
offer for sale any of such Stock unless a registration statement
shall be in effect with respect to such Stock under the
1933 Act and any applicable state securities law or he or
she shall have furnished to the Company an opinion in form and
substance satisfactory to the Company of legal counsel
satisfactory to the Company that such registration is not
required. Certificates or other evidence of ownership
representing the Stock transferred upon the exercise of an
Option or Stock Appreciation Right or upon the lapse of the
forfeiture conditions, if any, on any Stock Grant may at the
discretion of the Company bear a legend to the effect that such
Stock has
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not been registered under the 1933 Act or any applicable
state securities law and that such Stock cannot be sold or
offered for sale in the absence of an effective registration
statement as to such Stock under the 1933 Act and any
applicable state securities law or an opinion in form and
substance satisfactory to the Company of legal counsel
satisfactory to the Company that such registration is not
required.
Section 12.
LIFE OF PLAN
No Option or Stock Appreciation Right shall be granted or Stock
Grant or Stock Unit Grant made under this Plan on or after the
earlier of:
(1) the tenth anniversary of the effective date of this
Plan (as determined under Section 4), in which event this
Plan otherwise thereafter shall continue in effect until all
outstanding Options and Stock Appreciation Rights have been
exercised in full or no longer are exercisable and all Stock
issued under any Stock Grants under this Plan have been
forfeited or have become non-forfeitable, or
(2) the date on which all of the Stock reserved under
Section 3 has (as a result of the exercise of Options or
Stock Appreciation Rights granted under this Plan or the
satisfaction of the forfeiture conditions, if any, on Stock
Grants) been issued or no longer is available for use under this
Plan, in which event this Plan also shall terminate on such date.
Section 13.
ADJUSTMENT
13.1
Capital Structure
.
The grant
caps described in Section 3.4, the number, kind or class
(or any combination thereof) of shares of Stock subject to
outstanding Options and Stock Appreciation Rights granted under
this Plan and the Option Price of such Options and the SAR Value
of such Stock Appreciation Rights as well as the number, kind or
class (or any combination thereof) of shares of Stock subject to
outstanding Stock Grants and Stock Unit Grants made under this
Plan shall be adjusted by the Committee in a reasonable and
equitable manner to preserve immediately after
(a) any equity restructuring or change in the
capitalization of the Company, including, but not limited to,
spin offs, stock dividends, large non-reoccurring dividends,
rights offerings or stock splits, or
(b) any other transaction described in Section 424(a)
of the Code which does not constitute a Change in Control of the
Company
the aggregate intrinsic value of each such outstanding Option,
Stock Appreciation Right, Stock Grant and Stock Unit Grant
immediately before such restructuring or recapitalization or
other transaction.
Any adjustments under this Section 13.1 shall be
accomplished in a manner that permits the Option, Stock
Appreciation Right, Stock Grant or Stock Grant Unit to be exempt
from Code Section 409A.
13.2
Available Shares
.
If any
adjustment is made with respect to any outstanding Option, Stock
Appreciation Right, Stock Grant or Stock Unit Grant under
Section 13.1, then the Committee shall adjust the number,
kind or class (or any combination thereof) of shares of Stock
reserved under Section 3.1 so that there is a sufficient
number, kind and class of shares of Stock available for issuance
pursuant to each such Option, Stock Appreciation Right, Stock
Grant and Stock Unit Grant as adjusted under Section 13.1
without seeking the approval of the Companys shareholders
for such adjustment unless such approval is required under
applicable law or the rules of the stock exchange on which
shares of Stock are traded. Furthermore, the Committee shall
have the absolute discretion to further adjust such number, kind
or class (or any combination thereof) of shares of Stock
reserved under Section 3.1 in light of any of the events
described in Section 13.1(a) and Section 13.1(b) to
the extent the Committee acting in good faith determinates that
a further adjustment would be appropriate and proper under the
circumstances and in keeping with the purposes of this Plan
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without seeking the approval of the Companys shareholders
for such adjustment unless such approval is required under
applicable law or the rules of the stock exchange on which
shares of Stock are traded.
13.3
Transactions Described in Section 424 of
the Code
.
If there is a corporate transaction
described in Section 424(a) of the Code which does not
constitute a Change in Control of the Company, the Committee as
part of any such transaction shall have right to make Stock
Grants, Stock Unit Grants and Option and Stock Appreciation
Right grants (without regard to any limitations set forth under
3.4 of this Plan) to effect the assumption of, or the
substitution for, outstanding stock grants, stock unit grants
and option and stock appreciation right grants previously made
by any other corporation to the extent that such corporate
transaction calls for such substitution or assumption of such
outstanding stock grants, stock unit grants and stock option and
stock appreciation right grants. Furthermore, if the Committee
makes any such grants as part of any such transaction, the
Committee shall have the right to increase the number of shares
of Stock available for issuance under Section 3.1 by the
number of shares of Stock subject to such grants without seeking
the approval of the Companys shareholders for such
adjustment unless such approval is required under applicable law
or the rules of the stock exchange on which shares of Stock are
traded.
13.4
Fractional Shares
.
If any
adjustment under this Section 13 would create a fractional
share of Stock or a right to acquire a fractional share of Stock
under any Option, Stock Appreciation Right or Stock Grant, such
fractional share shall be disregarded and the number of shares
of Stock reserved under this Plan and the number subject to any
Options or Stock Appreciation Right grants and Stock Grants
shall be the next lower number of shares of Stock, rounding all
fractions downward. An adjustment made under this
Section 13 by the Committee shall be conclusive and binding
on all affected persons.
Section 14.
CHANGE IN
CONTROL
If there is a Change in Control of the Company, then as of the
Change Effective Date for such Change in Control any and all
conditions to the exercise of all outstanding Options and Stock
Appreciation Rights on such date and any and all outstanding
issuance and forfeiture conditions on any Stock Grants and Stock
Unit Grants on such date automatically shall be deemed 100%
satisfied as of such Change Effective Date, and the Board shall
have the right (to the extent expressly required as part of such
transaction) to cancel such Options, Stock Appreciation Rights,
Stock Grants and Stock Unit Grants after providing each Eligible
Employee and Director a reasonable period to exercise his or her
Options and Stock Appreciation Rights and to take such other
action as necessary or appropriate to receive the Stock subject
to any Stock Grants and the cash payable under any Stock Unit
Grants; provided, if any issuance or forfeiture condition
described in this Section 14 relates to satisfying any
performance goal and there is a target for such goal, such
issuance or forfeiture condition shall be deemed satisfied under
this Section 14 only to the extent of such target unless
such target has been exceeded before the Change Effective Date,
in which event such issuance or forfeiture condition shall be
deemed satisfied to the extent such target had been so exceeded.
Section 15.
AMENDMENT OR
TERMINATION
This Plan may be amended by the Board from time to time to the
extent that the Board deems necessary or appropriate; provided,
however, (a) no amendment shall be made absent the approval
of the shareholders of the Company to the extent such approval
is required under applicable law or the rules of the stock
exchange on which shares of Stock are listed and (b) no
amendment shall be made to Section 14 on or after the date
of any Change in Control which might adversely affect any rights
which otherwise would vest on the related Change Effective Date.
The Board also may suspend granting Options or Stock
Appreciation Rights or making Stock Grants or Stock Unit Grants
under this Plan at any time and may terminate this Plan at any
time; provided, however, the Board shall not have the right in
connection with any such suspension or termination to
unilaterally modify, amend or cancel any Option or Stock
Appreciation Right granted or Stock Grant unless
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(1) the Eligible Employee or Director consents in writing
to such modification, amendment or cancellation or
(2) there is a dissolution or liquidation of the Company or
a transaction described in Section 14.
Section 16.
MISCELLANEOUS
16.1
Shareholder Rights
.
No
Eligible Employee or Director shall have any rights as a
shareholder of the Company as a result of the grant of an Option
or a Stock Appreciation Right pending the actual delivery of the
Stock subject to such Option or Stock Appreciation Right to such
Eligible Employee or Director. An Eligible Employees or a
Directors rights as a shareholder in the shares of Stock
which remain subject to forfeiture under Section 9.2(b)
shall be set forth in the related Stock Grant Certificate.
16.2
No Contract of
Employment
.
The grant of an Option or a Stock
Appreciation Right or a Stock Grant or Stock Unit Grant to an
Eligible Employee or Director under this Plan shall not
constitute a contract of employment or a right to continue to
serve on the Board and shall not confer on an Eligible Employee
or Director any rights upon his or her termination of employment
or service in addition to those rights, if any, expressly set
forth in this Plan or the related Option Certificate, Stock
Appreciation Right Certificate, or Stock Grant Certificate.
16.3
Withholding
.
Each Option,
Stock Appreciation Right, Stock Grant and Stock Unit Grant shall
be made subject to the condition that the Eligible Employee or
Director consents to whatever action the Committee directs to
satisfy the minimum statutory federal and state tax withholding
requirements, if any, which the Company determines are
applicable to the exercise of such Option or Stock Appreciation
Right or to the satisfaction of any forfeiture conditions with
respect to Stock subject to a Stock Grant or Stock Unit Grant
issued in the name of the Eligible Employee or Director. No
withholding shall be effected under this Plan which exceeds the
minimum statutory federal and state withholding requirements.
16.4
Construction
.
All references
to sections (Section) are to sections (Section) of this Plan
unless otherwise indicated. This Plan shall be construed under
the laws of the State of Minnesota. Each term set forth in
Section 2 shall, unless otherwise stated, have the meaning
set forth opposite such term for purposes of this Plan and, for
purposes of such definitions, the singular shall include the
plural and the plural shall include the singular. Finally, if
there is any conflict between the terms of this Plan and the
terms of any Option Certificate, Stock Appreciation Right
Certificate or Stock Grant Certificate, the terms of this Plan
shall control.
16.5
Other Conditions
.
Each Option
Certificate, Stock Appreciation Right Certificate or Stock Grant
Certificate may require that an Eligible Employee or a Director
(as a condition to the exercise of an Option or a Stock
Appreciation Right or the issuance of Stock subject to a Stock
Grant) enter into any agreement or make such representations
prepared by the Company, including (without limitation) any
agreement which restricts the transfer of Stock acquired
pursuant to the exercise of an Option or a Stock Appreciation
Right or a Stock Grant or provides for the repurchase of such
Stock by the Company.
16.6
Rule 16b-3
.
The
Committee shall have the right to amend any Option, Stock Grant
or Stock Appreciation Right to withhold or otherwise restrict
the transfer of any Stock or cash under this Plan to an Eligible
Employee or Director as the Committee deems appropriate in order
to satisfy any condition or requirement under
Rule 16b-3
to the extent Rule 16 of the 1934 Act might be
applicable to such grant or transfer.
16.7
Coordination with Employment Agreements and
Other Agreements
.
If the Company enters into
an employment agreement or other agreement with an Eligible
Employee or Director which expressly provides for the
acceleration in vesting of an outstanding Option, Stock
Appreciation Right, Stock Grant or Stock Unit Grant or for the
extension of the deadline to exercise any rights under an
outstanding Option, Stock Appreciation Right, Stock Grant or
Stock Unit Grant, any such acceleration or extension shall be
deemed effected pursuant to, and in accordance with, the terms
of such outstanding Option, Stock Appreciation Right, Stock
Grant or Stock Unit Grant and this Plan even if such employment
agreement or other agreement is first
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effective after the date the outstanding Option or Stock
Appreciation Right was granted or the Stock Grant or Stock Unit
Grant was made.
16.8
Misconduct
.
An Eligible
Employee or Director shall forfeit all rights in his or her
outstanding Option, Stock Appreciation Right, Stock Grant or
Stock Unit Grant under the Plan, and all such outstanding awards
shall automatically terminate and lapse if the Committee
determines that an Eligible Employee or Director has
(i) used, for profit or disclosed to unauthorized persons,
confidential information or trade secrets of the Company,
(ii) breached any contract with or violated any fiduciary
obligation to the Company, including without limitation, a
violation of any Company code of conduct, (iii) engaged in
unlawful trading in the securities of the Company or of another
company based on information gained as a result of that Eligible
Employee or Directors employment or other relationship
with the Company, or (iv) committed a felony or other
serious crime.
16.9
Compliance with Code
Section 409A
.
The Plan is intended to
satisfy the requirements of Code Section 409A and any
regulations or guidance that may be adopted thereunder from time
to time, including any transition relief available under
applicable guidance related to Code Section 409A.
Accordingly, to ensure the exemption from Code Section 409A
of potentially exempt Awards and the compliance with Code
Section 409A of other Awards, any payment that under the
terms of the Plan or an Award agreement is to be made as soon as
practicable relative to a date shall be made not later than
60 days after such date, and the Participant may not
determine the time of payment. Pursuant to Section 5, the
Plan may be amended or interpreted by the Committee as it
determines necessary or appropriate in accordance with Code
Section 409A and to avoid a plan failure under Code
Section 409A(a)(1).
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CARIBOU COFFEE COMPANY, INC.
3900 LAKE BREEZE AVENUE NORTH
BROOKLYN CENTER, MN 55429
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic delivery of
information up until 11:59 P.M. Eastern Time the day before the meeting date.
Have your proxy card in hand when you access the web site and follow the
instructions to obtain your records and to create an electronic voting instruction
form.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59
P.M. Eastern Time the day before the meeting date. Have your proxy card in hand
when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we
have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way,
Edgewood, NY 11717.
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TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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KEEP THIS PORTION FOR YOUR RECORDS
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DETACH AND RETURN THIS PORTION ONLY
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THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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The Board of Directors recommends you vote
FOR the following:
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For
All
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Withhold
All
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For All
Except
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To withhold authority to vote for any
individual nominee(s), mark For All
Except and write the number(s) of the
nominee(s) on the line below.
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o
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Nominees
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01
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Kip R. Caffey
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02
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Sarah Palisi Chapin
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03
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E. Stockton Croft
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04
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Wallace B. Doolin
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05
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Gary A. Graves
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06
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Kevin J. Keogh
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07
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Charles H. Ogburn
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08
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Philip H. Sanford
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09
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Michael J. Tattersfield
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The Board of Directors
recommends you vote FOR proposals 2, 3 and 4.
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For
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Against
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Abstain
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2
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To approve the Company's Amended and Restated 2005 Equity Incentive Plan.
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3
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To ratify the
selection of Ernst & Young LLP as our independent registered public accounting firm for the fiscal year ending
January 1, 2012.
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o
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4
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To consider any other business to properly come before the meeting
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NOTE:
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 matter directed by
the person(s) signed below. If you make no choice, your proxy
will be voted "FOR" proposals 1,2,3, and 4.
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For address change/comments,
mark here.
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(see reverse for instructions)
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Please sign exactly as your name(s) appear(s) hereon. When signing as
attorney, executor, administrator, or other fiduciary, please give full
title as such. Joint owners should each sign personally. All holders must
sign. If a corporation or partnership, please sign in full corporate or
partnership name, by authorized officer.
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Signature [PLEASE SIGN WITHIN BOX]
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Date
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Signature (Joint Owners)
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Date
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Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Annual Report,
Notice & Proxy Statement is/are available at
www.proxyvote.com
.
CARIBOU COFFEE COMPANY, INC.
Annual Meeting of Shareholders
May 12, 2011 10:00 AM
This proxy is solicited by the Board of Directors
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The shares of stock you hold in your account will be voted as
you specify on the reverse side
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If no choice is specified, the proxy will be voted FOR proposals 1,2, 3, and 4.
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By signing this proxy, you revoke all prior proxies and appoint Timmothy J. Hennessy and Dan E. Lee, and each with the 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.
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Address changes/comments:
(If you noted
any Address Changes and/or Comments above, please mark corresponding box
on the reverse side.)
Continued and to be signed on reverse side
Caribou Coffee Company, Inc. (MM) (NASDAQ:CBOU)
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