UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
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ICONIX
BRAND GROUP, INC.
1450
Broadway, 3
rd
Floor
New
York, New York 10018
July 9,
2010
Dear
Fellow Stockholders:
You are
cordially invited to attend the Annual Meeting of Stockholders which will be
held on Thursday, August 19, 2010, at 10:00 A.M. local time, at the offices of
Iconix Brand Group, Inc., 1450 Broadway, 3
rd
Floor,
New York, New York 10018.
The
Notice of Annual Meeting and Proxy Statement, which follow, describe the
business to be conducted at the meeting.
Your vote
is very important. Whether or not you plan to attend the meeting in person, we
will appreciate a prompt submission of your vote. We hope to see you at the
meeting.
Cordially,
Neil
Cole
Chairman
of the Board,
President
and
Chief
Executive Officer
ICONIX
BRAND GROUP, INC.
1450
Broadway, 3
rd
Floor
New
York, New York 10018
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON AUGUST 19, 2010
To the
Stockholders of ICONIX BRAND GROUP, INC.:
NOTICE IS
HEREBY GIVEN that the Annual Meeting of Stockholders of Iconix Brand Group, Inc.
(the “Company”) will be held on Thursday, August 19, 2010, at 10:00 A.M. local
time, at the Company’s offices at 1450 Broadway, 3
rd
Floor,
New York, New York 10018, for the following purposes:
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1.
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To
elect seven directors to hold office until the next Annual Meeting of
Stockholders and until their respective successors have been duly elected
and qualified;
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2.
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To
ratify the appointment of BDO Seidman, LLP as the Company’s independent
registered public accountants for the fiscal year ending December 31,
2010; and
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3.
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To
transact such other business as may properly come before the meeting or
any adjournment or adjournments
thereof.
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Only
stockholders of record at the close of business on June 23, 2010 are entitled to
notice of and to vote at the Company’s Annual Meeting of Stockholders or any
adjournments or postponements thereof.
PLEASE
NOTE THAT ATTENDANCE AT THE ANNUAL MEETING WILL BE LIMITED TO STOCKHOLDERS OF
ICONIX BRAND GROUP, INC. AS OF THE RECORD DATE (OR THEIR AUTHORIZED
REPRESENTATIVES) HOLDING EVIDENCE OF OWNERSHIP. IF YOUR SHARES ARE
HELD BY A BANK OR BROKER, PLEASE BRING TO THE MEETING YOUR BANK OR BROKER
STATEMENT EVIDENCING YOUR BENEFICIAL OWNERSHIP OF ICONIX BRAND GROUP, INC.
COMMON STOCK TO GAIN ADMISSION TO THE MEETING.
You may
vote your shares via a toll-free telephone number or over the Internet. If you
received a proxy card by mail, you may vote by signing, dating and mailing the
proxy card in the envelope provided. Whether or not you attend the meeting, it
is important that your shares be represented and voted.
By Order
of the Board of Directors,
Neil
Cole
Chairman
of the Board, President
and Chief
Executive Officer
July 9,
2010
PROXY
STATEMENT
ICONIX
BRAND GROUP, INC.
ANNUAL
MEETING OF STOCKHOLDERS
TO
BE HELD ON AUGUST 19, 2010
This
proxy statement is furnished in connection with the solicitation of proxies by
the Board of Directors of ICONIX BRAND GROUP, INC. (the “Company”, “Iconix”,
“we”, “us” or “our”) for use at the Annual Meeting of Stockholders (the “Annual
Meeting”) to be held on August 19, 2010 at 10:00 AM local time, including any
adjournment or adjournments thereof, for the purposes set forth in the
accompanying Notice of Meeting.
Notice of
Electronic Availability of Proxy Statement and Annual Report.
As
permitted by rules adopted by the United States Securities and Exchange
Commission (the “SEC”), we are making this proxy statement and our annual report
to stockholders for the fiscal year ended December 31, 2009 available to
our stockholders electronically via the Internet instead of mailing a printed
copy of these materials to each such stockholder. On or about July 9, 2010, we
will mail to our stockholders a notice containing instructions on how to access
this proxy statement and our annual report to stockholders and vote online (the
“Notice”). If you receive a Notice by mail, you will not receive a printed copy
of the proxy materials in the mail. The Notice instructs you on how to access
and review all of the important information contained in the proxy statement and
annual report to stockholders. The Notice also instructs you on how you may
submit your proxy over the Internet. If you receive a Notice by mail and would
like to receive a printed copy of our proxy materials, you should follow the
instructions for requesting such materials included in the Notice.
If your
shares are held in the name of a bank, broker or other holder of record, you
will receive instructions from the holder of record. You must follow the
instructions of the holder of record in order for your shares to be voted.
Internet voting also will be offered to stockholders owning shares through
certain banks and brokers. If your shares are not registered in your own name
and you plan to vote your shares in person at the Annual Meeting, you should
contact your broker or agent to obtain a legal proxy or broker’s proxy card and
bring it to the Annual Meeting in order to vote.
Proxies
duly executed and returned to the management of the Company and not revoked,
will be voted at the Annual Meeting. Any proxy given may be revoked by the
stockholder at any time prior to the voting of the proxy by a subsequently dated
proxy or by voting again at a later date on the internet or by telephone, by
written notification of such revocation to the Secretary of the Company, or by
personally withdrawing the proxy at the meeting and voting in person. Only the
latest ballot or Internet or telephone proxy submitted by a stockholder prior to
the Annual Meeting will be counted.
The
address and telephone number of the principal executive offices of the Company
are:
1450
Broadway, 3
rd
Floor
New York,
New York 10018
Telephone
No.: (212) 730-0030
IF
YOUR SHARES ARE HELD IN STREET NAME THROUGH A BROKER, BANK, OR OTHER NOMINEE,
YOU NEED TO CONTACT THE RECORD HOLDER OF YOUR SHARES REGARDING HOW TO REVOKE
YOUR PROXY.
OUTSTANDING
STOCK AND VOTING RIGHTS
Only
stockholders of record at the close of business on June 23, 2010 (the “Record
Date”) are entitled to notice of and to vote at the Annual Meeting. As of the
Record Date, there were issued and outstanding 72,643,411 shares of the
Company’s common stock, $.001 par value per share (the “common stock”), the
Company’s only class of voting securities. Each share of common stock entitles
the holder to one vote on each matter submitted to a vote at the Annual
Meeting.
VOTING
PROCEDURES
The
directors will be elected by a majority of the votes “cast” (the number of
shares voted “for” a director nominee must exceed the number of votes cast as
“withheld” with respect to that nominee), provided a quorum is present. All
other matters to be voted upon at the Annual Meeting will be decided by the
affirmative vote of the holders of a majority of the shares cast “for” the
matter, provided a quorum is present. A quorum is present if at least one-third
of the shares of common stock outstanding as of the Record Date are present in
person or represented by proxy at the Annual Meeting. Votes will be counted and
certified by one or more Inspectors of Election who are expected to be one or
more employees of the Company’s transfer agent. In accordance with Delaware law,
abstentions and “broker non-votes” (
i.e.,
proxies from
brokers or nominees indicating that such persons have not received instructions
from the beneficial owner or other person entitled to vote shares as to a matter
with respect to which the brokers or nominees do not have discretionary power to
vote) will be treated as present for purposes of determining the presence of a
quorum. For purposes of determining approval of a matter presented at the
meeting, abstentions will be deemed present and entitled to vote and will,
therefore, have the same legal effect as a vote “against” a matter presented at
the meeting. Broker non-votes will be deemed not entitled to vote on the subject
matter as to which the non-vote is indicated and will, therefore, have no legal
effect on the vote on that particular matter.
Proxies
will be voted in accordance with the instructions thereon. Unless otherwise
stated, all shares represented by a proxy will be voted as instructed. Proxies
may be revoked as noted above.
PROPOSAL
I
ELECTION
OF DIRECTORS
At the
Annual Meeting, seven directors will be elected to hold office for a term
expiring at the next Annual Meeting of Stockholders, which is expected to be
held in 2011, or until their successors have been duly elected and qualified, or
until their earlier death, resignation or removal.
At the
Annual Meeting, proxies granted by stockholders will be voted individually for
the election, as directors of the Company, of the persons listed below, unless a
proxy specifies that it is not to be voted in favor of a nominee for director.
Each of the persons named below is presently a member of the Company’s Board of
Directors and has indicated to the Board that he will be available to
serve.
When
reviewing candidates to our Board of Directors (“Board”), the Corporate
Governance/Nominating Committee of our Board (the “Governance/Nominating
Committee”) and the Board consider the evolving needs of the Board and seek
candidates that fill any current or anticipated future needs. The
Governance/ Nominating Committee and the Board also believe that all directors
should possess the attributes described below under “Consideration of Director
Nominees by the Board.” While the Governance/Nominating Committee does not have
a formal policy with respect to diversity, the Board and the
Governance/Nominating Committee believe that it is important that the
Board members represent diverse viewpoints. In considering candidates
for the Board, the Governance/Nominating Committee and the Board consider the
entirety of each candidate’s credentials in the context of these
standards. With respect to the nomination of continuing directors for
re-election, the individual’s contributions to the Board are also
considered. In addition to the qualities and skills of the
directors that are referred to under “Consideration of Director
Nominees by the Board”, certain individual qualifications and skills
of our directors that contribute to the Board’s effectiveness as a whole and
what makes the individuals suitable to serve on our Board are
described in the following paragraphs.
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Position
with the Company
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Neil
Cole
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53
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Chairman
of the Board, President and Chief Executive Officer
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Barry
Emanuel
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68
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Director
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Steven
Mendelow
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67
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Director
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Drew
Cohen
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41
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Director
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F.
Peter Cuneo
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66
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Director
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Mark
Friedman
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46
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Director
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James
A. Marcum
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50
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Director
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Neil Cole
has served as Chairman of our Board and as our Chief Executive Officer
and President since our public offering in February 1993. In 2001,
Mr. Cole founded The Candie’s Foundation, for the purpose of educating teenagers
as to the risks and consequences of teen pregnancy. In April 2003, Mr. Cole,
without admitting or denying the SEC’s allegations, consented to the entry by
the SEC of an administrative order in which Mr. Cole agreed to cease and desist
from violating or causing any violations or future violation of certain books
and records and periodic reporting provisions and the anti-fraud provisions of
the Securities Exchange Act of 1934. Mr. Cole also paid a $75,000 civil monetary
fine. Mr. Cole received a Bachelor of Science degree in political science from
the University of Florida in 1978 and his Juris Doctor from Hofstra law school
in 1982. The Board believes that Mr. Cole’s global executive
leadership skills, his significant experience as an executive in our industry,
including as our Chief Executive Officer for more than the past 17 years, and
his role in transforming our company from a manufacturing company to a leading
brand management company make him uniquely qualified to sit on our Board and act
as its chairman.
Barry
Emanuel
has served on our Board since May 1993. For more than the past
five years, Mr. Emanuel has served as president of Copen Associates, Inc., a
textile manufacturer located in New York, New York. He received his
Bachelor of Science degree from the University of Rhode Island in 1962. The
Board believes that Mr. Emanuel’s more than 30 years of
experience in the apparel industry, including his service as our director for
more than 17 years, contributes valuable insight to our Board.
Steven
Mendelow
has served on our Board since December 1999. He has been a
principal with the accounting firm of Konigsberg Wolf & Co. (“KW&C”) and
its predecessor, which is located in New York, New York, since 1972. KW&C’s
clients include apparel wholesalers and licensees. He is a trustee of The
Washington Institute for Near East Studies and is actively involved with, and
currently serves as the treasurer of, the Starlight Starbright Children’s
Foundation and the Foundation for Fighting Blindness. He also serves as a
director of several privately-held companies. He received a Bachelor of Science
degree in business administration from Bucknell University in 1964 where he was
elected to Delta Mu Delta, the national Business Administration Honor Society.
The Board believes that Mr. Mendelow’s significant accounting experience with a
firm that services the apparel industry and his more than 10 years of service as
our director contribute to our Board’s strategic composition.
Drew
Cohen
has served on our Board since April 2004. Since 2007 he has
been the President of Music Theatre International, which represents the dramatic
performing rights of classic properties, such as “West Side Story” and “Fiddler
on the Roof,” and licenses over 50,000 performances a year around the world.
Before joining Music Theatre International in September 2002, Mr. Cohen was,
from July 2001, the Director of Investments for Big Wave NV, an investment
management company, and, prior to that, General Manager for GlassNote Records,
an independent record company. Mr. Cohen received a Bachelor of Science degree
from Tufts University in 1990, his Juris Doctor degree from Fordham Law School
in 1993, and a Masters degree in business administration from Harvard Business
School in 2001 The Board believes that Mr. Cohen’s legal and business background
and experience as an executive in an industry heavily involved in the licensing
business, make him well suited to serve on our Board.
F. Peter
Cuneo
has served on our Board since October 2006. From June 2004
through December 2009 Mr. Cuneo served as the Vice Chairman of the Board of
Directors of Marvel Entertainment, Inc. (“Marvel Entertainment”), a publicly
traded entertainment company active in motion pictures, television, publishing,
licensing and toys, and prior thereto, he served as the President and Chief
Executive Officer of Marvel Entertainment from July 1999 to December 2002. Mr.
Cuneo has also served as the Chairman of Cuneo & Co., L.L.C., a private
investment firm, since July 1997 and previously served on the Board of Directors
of WaterPik Technologies, Inc., a New York Stock Exchange company engaged in
designing, manufacturing and marketing health care products, swimming pool
products and water-heating systems, prior to its sale in 2006. From October 2004
to December 2005, he served on the Board of Directors of Majesco Entertainment
Company, a provider of video game products primarily for the family oriented,
mass market consumer. Mr. Cuneo received a Bachelor of Science degree from
Alfred University in 1967 and currently serves as the Vice Chairman of the
Alfred University Board of Trustees. Mr. Cuneo received a Masters
degree in business administration from Harvard Business School in
1973. The Board believes that Mr. Cuneo’s extensive business and
financial background and significant experience as an executive of Marvel
Entertainment, an owner and licensor of iconic intellectual property,
contributes important expertise to our Board.
Mark
Friedman
has served on our Board since October 2006. Mr. Friedman
has been the Managing Partner of Trilea Partners LLC, an investment and
consulting firm, since May 2006. Previously, beginning in 1996, Mr. Friedman was
with Merrill Lynch, serving in various capacities including, most recently, as
group head of its U.S. equity research retail team where he specialized in
analyzing and evaluating specialty retailers in the apparel, accessory and home
goods segments. Prior thereto, he specialized in similar services for Lehman
Brothers Inc. and Goldman, Sachs & Co. Mr. Friedman has been ranked on the
Institutional Investor All-American Research Team as one of the top-rated sector
analysts and received a Bachelor of Business Administration degree from the
University of Michigan in 1986 and a Masters degree in business administration
from The Wharton School, University of Pennsylvania in 1990. The Board believes
that Mr. Friedman’s extensive business background and investment banking
experience adds key experience and viewpoints to our Board.
James A.
Marcum
has
served on our Board since October 2007. Since February 2010, he has been the
Chief Executive Officer, President and a member of the board of Central Parking
Corporation, a nationwide provider of professional parking management. From
September 2008 to January 2010, Mr. Marcum served as Vice Chairman, Acting
President and Chief Executive Officer of Circuit City Stores, Inc., a specialty
retailer of consumer electronics, home office products and entertainment
software. Mr. Marcum has served as a member of the board of directors of Circuit
City Stores, Inc. since June 2008. Circuit City Stores, Inc. filed for
bankruptcy in November 2008. He is a limited partner of Tri-Artisan Capital
Partners, LLC, a merchant banking firm, and served as an operating partner and
operating executive of Tri-Artisan Capital Partners from 2004 until March 2008.
From January 2005 to January 2006, he served in various capacities, including
chief executive officer and director, of Ultimate Electronics, Inc., a consumer
electronics retailer. Prior thereto, Mr. Marcum has served in various senior
executive capacities for a variety of nationwide specialty
retailers. He received a Bachelor’s degree from Southern Connecticut
State University in accounting and economics in 1980. The Board believes that
Mr. Marcum’s contributions to the Board are well served by his extensive
business background, his experience as a corporate executive of national retail
establishments and his experience as a partner and executive of a merchant
banking firm.
Board
Independence
Our Board
has determined that Messrs. Cohen, Cuneo, Emanuel, Friedman, Marcum and Mendelow
are each an “independent director” under the Rules of The NASDAQ Stock Market
LLC (“NASDAQ”).
Board
Attendance at Stockholder Meetings
Members
of the Board are encouraged to attend Annual Meetings of Stockholders. All seven
of our Board members attended last year’s Annual Meeting of
Stockholders.
Communications
with the Board of Directors
Our Board
of Directors, through its Governance/Nominating Committee, has established a
process for stockholders to send communications to the Board. Stockholders may
communicate with members of the Board individually or the Board as a group by
writing to: The Board of Directors of Iconix Brand Group, Inc. c/o Corporate
Secretary, 1450 Broadway, 3
rd
Floor,
New York, NY 10018. Stockholders should identify their communication as being
from a stockholder of the Company. The Corporate Secretary may require
reasonable evidence that the communication or other submission is made by a
stockholder of the Company before transmitting the communication to the
Board.
Consideration
of Director Nominees by the Board
Stockholders
of the Company wishing to recommend director candidates to the
Governance/Nominating Committee for election to our Board at our Annual
Meeting of Stockholders must submit their recommendations in writing to the
Governance/Nominating Committee, c/o Corporate Secretary, Iconix Brand
Group, Inc., 1450 Broadway, 3
rd
Floor,
New York, NY 10018.
The
Governance/Nominating Committee will consider nominees recommended by the
Company’s stockholders provided that the recommendation contains sufficient
information for the Governance/Nominating Committee to assess the
suitability of the candidate, including the candidate’s qualifications, name,
age, business and residence addresses. Candidates recommended by stockholders
that comply with these procedures will receive the same consideration that
candidates recommended by the committee receive. The recommendations must also
state the name and record address of the stockholder who is submitting the
recommendation and the class and number of shares of the Company’s common stock
beneficially owned by the stockholder. In addition, it must include information
regarding the recommended candidate relevant to a determination of whether the
recommended candidate would be barred from being considered independent under
NASDAQ Marketplace Rule 5605(a)(2), or, alternatively, a statement that the
recommended candidate would not be so barred. Each nomination is also required
to set forth a representation that the stockholder making the nomination is a
holder of record of capital stock of the Company entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to vote for
the person or persons nominated; a description of all arrangements and
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination was
made by the stockholder; such other information regarding each nominee proposed
by such stockholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the SEC had the nominee been nominated by
the Board of Directors; and the consent of each nominee to serve as a director
of the Company if so elected. A nomination which does not comply with the above
requirements or that is not received by the deadline referred to below in
“Deadline and Procedures for Submitting Director Nominations” will not be
considered.
The
qualities and skills sought in prospective members of the Board are determined
by the Governance/Nominating Committee. The Governance/Nominating Committee
generally requires that director candidates be qualified individuals who, if
added to the Board, would provide the mix of director characteristics,
experience, perspectives and skills appropriate for the Company. Criteria for
selection of candidates will include, but not be limited to: (i) business
and financial acumen, as determined by the committee in its discretion,
(ii) qualities reflecting a proven record of accomplishment and ability to
work with others, (iii) knowledge of our industry, (iv) relevant
experience and knowledge of corporate governance practices, and
(v) expertise in an area relevant to the Company. Such persons should not
have commitments that would conflict with the time commitments of a director of
the Company.
Deadline
and Procedures for Submitting Director Nominations
A
stockholder wishing to nominate a candidate for election to our Board of
Directors at the Annual Meeting of Stockholders is required to give written
notice containing the required information specified above addressed to the
Governance/Nominating Committee, c/o Secretary of the Company, Iconix Brand
Group, Inc., 1450 Broadway, 3
rd
Floor,
New York, NY 10018 of his or her intention to make such a nomination. The notice
of nomination and other required information must be received by our corporate
Secretary not less than 50 nor more than 75 days prior to the meeting unless
less than 65 days notice or prior public disclosure of the date of the meeting
is given or made to stockholders, in which case the notice and other required
information must be received not later than the close of business on the tenth
day following the date on which the notice of the date of the meeting was mailed
or other public disclosure of the date of the meeting was made.
CORPORATE
GOVERNANCE
Board
Leadership Structure
Currently,
the Board believes our current leadership structure, where our Chief Executive
Officer also serves as our Chairman, provides the most efficient and effective
leadership model by enhancing the Chairman and Chief Executive Officer’s ability
to provide insight and direction of business strategies and plans to
both the Board and management. The Board believes our business strategies are
best served if the Chairman is also a member of our management team. The Board
believes that a single person, acting in the capacities of Chairman and Chief
Executive Officer, provides unified leadership and focus. We do not
have a lead independent director; however, all of our Board committees are
comprised of independent directors. We believe the independent nature
of our Board committees, as well as the practice of our independent directors to
meet in executive session without Mr. Cole and the other members of our
management present, ensures that our Board maintains a level of independent
oversight of management that is appropriate for our Company.
Risk
Management
The
Board has an active role, as a whole and also at the committee level, in
overseeing management of the Company’s risks. The Board regularly reviews
information regarding the Company’s credit, liquidity and operations, as well as
the risks associated with each. The Company’s Compensation Committee is
responsible for overseeing the management of risks relating to the Company’s
executive compensation plans and arrangements. The Audit Committee oversees
management of financial risks and potential conflicts of interest with related
parties. The Governance/Nominating Committee manages risks associated with the
independence of the Board of Directors. While each committee is responsible for
evaluating certain risks and overseeing the management of such risks, the entire
Board of Directors is regularly informed through committee reports, or
otherwise, about such risks.
Corporate
Governance Policies
We have
adopted a written code of business conduct that applies to our officers,
directors and employees, responsive to Section 406 of the Sarbanes-Oxley
Act of 2002 and the rules of the SEC. In addition, we have established an ethics
web site at
www.ethicspoint.com
.
To assist individuals in upholding the code of conduct and to facilitate
reporting, we have established an on-line anonymous and confidential reporting
mechanism that is hosted at
www.ethicspoint.com
,
and an anonymous and confidential telephone hotline at 800-963-5864. Copies of
our code of business conduct are available, without charge, upon written request
directed to our corporate Secretary at Iconix Brand Group, Inc., 1450 Broadway,
3
rd
Floor, New York, NY 10018.
Committees
of the Board of Directors
Our bylaws
authorize our Board to appoint one or more committees, each consisting of one or
more directors. Our Board currently has three standing committees: an Audit
Committee, Governance/Nominating Committee and a Compensation Committee, each of
which has adopted written charters and which are currently available on
our website. We are not incorporating any of the information on our web
site into this proxy statement. Each member of the Audit Committee,
Governance/Nominating Committee and Compensation Committee is, and is
required to be, an “independent director” under the Marketplace Rules of
NASDAQ.
Audit
Committee
Our Audit
Committee’s responsibilities include:
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appointing,
replacing, overseeing and compensating the work of a firm to serve as
the
registered independent public accounting firm to audit our financial
statements;
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discussing
the scope and results of the audit with the independent registered public
accounting
firm
and reviewing with management and the independent registered public
accounting firm our
interim
and year-end operating
results;
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considering
the adequacy of our internal accounting controls and audit procedures;
and
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approving
(or, as permitted, pre-approving) all audit and non-audit services to be
performed
by the independent registered public accounting
firm.
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The
members of our Audit Committee are Messrs. Mendelow, Cuneo, Cohen and Marcum,
and Mr. Mendelow currently serves as its chairperson. In addition to being
an “independent director” under the Marketplace Rules of NASDAQ, each member of
the Audit Committee is an independent director under applicable SEC rules under
the Securities Exchange Act of 1934. Our Board of Directors has also determined
that Mr. Mendelow is the “audit committee financial expert,” as that term
is defined under applicable SEC rules and NASDAQ Marketplace Rules, serving on
the audit committee.
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Governance/Nominating
Committee
|
Our
Governance/Nominating Committee’s responsibilities include:
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identifying,
evaluating and recommending nominees to serve on the Board and
committees
of the Board;
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conducting
searches for appropriate directors and evaluating the performance of the
Board
and of individual directors;
and
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reviewing
developments in corporate governance practices, evaluating the adequacy
of
our corporate governance practices and reporting and making
recommendations
to
the Board concerning corporate governance
matters.
|
The
members of our Governance/Nominating committee are Messrs. Cohen, Emanuel,
Friedman and Marcum. Mr. Cohen currently serves as its
chairperson.
Compensation
Committee
Our
Compensation Committee’s responsibilities include:
|
•
|
setting
the compensation and negotiating the employment arrangements for the
chief
executive officer;
|
|
•
|
reviewing
and recommending approval of the compensation of our other
executive
officers;
|
|
•
|
administering
our stock option and stock incentive
plans;
|
|
•
|
reviewing
and making recommendations to the Board with respect to our
overall
compensation objectives, policies and practices, including with respect to
incentive
compensation and equity plans;
and
|
|
•
|
evaluating
the chief executive officer’s performance in light of corporate
objectives.
|
The
members of our Compensation Committee are Messrs. Mendelow, Cuneo, Emanuel and
Friedman. Mr. Friedman currently serves as its chairperson.
From time
to time, management provides to the compensation committee proposals concerning
total compensation for officers. The Committee Considers recommendations from
our president and chief executive officer regarding total compensation for such
officers. The committee also approves grants of equity awards to
employees.
Under its
charter, the Compensation Committee may form and delegate authority to
subcommittees or individuals, including, but not limited to, a subcommittee
composed of one or more members of the Board or an executive to grant and
administer stock, option and other equity awards under the Company’s equity
incentive plans.
Meetings
of the Board of Directors and its Committees during the Year Ended
December 31, 2009
The Board
of Directors held eight meetings (including eight executive sessions of the
independent Board members) during the fiscal year ended December 31, 2009
(“2009”), and it also took action by unanimous written consent in lieu of
meetings. In addition, during 2009, the Audit committee held four meetings, the
Governance/Nominating Committee held two meetings and the Compensation Committee
held six meetings. During 2009, each of the Company’s directors attended at
least seventy-five percent of the aggregate of: (i) the total number of
meetings of the Board of Directors; and (ii) the total number of meetings
of all committees of the Board on which they served.
Section 16(a)
Beneficial Ownership Reporting Compliance
Section 16(a)
of the Securities Exchange Act of 1934 requires our officers and directors,
and persons who beneficially own more than 10% of a registered class of
our equity securities, to file reports of ownership and changes in
ownership with the SEC. Officers, directors and greater than 10% owners are
required by certain SEC regulations to furnish us with copies of all
Section 16(a) forms they file.
Based
solely on our review of the copies of such forms received by it, we believe
that during 2009, there was compliance with the filing requirements applicable
to its officers, directors and 10% common stockholders.
Director
Compensation
The
compensation committee determined that for each full year of service as a
director of our company during 2009, each non-employee member of the Board
would receive a cash payment of $40,000, payable 50% on or about January 1
and 50% on or about July 1, and 4,000 restricted shares of common stock
vesting 100% on July 1 of each year. In addition, the compensation
committee determined that the audit committee chair would receive an annual
stipend of $15,000, and the chairs of the compensation committee and nominating
and governance committee would receive an annual stipend of $10,000, each
payable each July 1.
The
following table sets forth compensation information for 2009 for each member of
our Board of Directors who is not also an executive officer. An executive
officer who serves on our Board does not receive additional compensation for
serving on the Board. See Summary Compensation Table and Grants of Plan-Based
Awards Table for disclosures related to our chairman of the board, president and
chief executive officer, Neil Cole.
|
|
Fees
Earned
or Paid
in Cash
($)
|
|
|
Stock
Awards
($)
(1)(2)
|
|
|
Option
Awards
($)
(2)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)
|
|
|
Change in
Pension Value
and Nonqualified
Deferred
Compensation
Earnings
|
|
|
All Other
Compensation
($)
|
|
|
Total
($)
|
|
Barry
Emanuel
|
|
|
40,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
78,240
|
|
Steven
Mendelow
|
|
|
55,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
93,240
|
|
Drew
Cohen
|
|
|
50,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
88,240
|
|
F.
Peter Cuneo
|
|
|
40,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
78,240
|
|
Mark
Friedman
|
|
|
50,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
88,240
|
|
James
A. Marcum
|
|
|
40,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
78,240
|
|
(1)
|
Represents
the aggregate grant date fair
value.
|
(2)
|
At
December 31, 2009 Mr. Marcum had 5,272 shares of restricted
stock that had not vested. In addition, at December 31, 2009 our
non-employee directors owned the following unexercised options - Drew
Cohen 50,000; Barry Emanuel - 191,173; and Steven Mendelow -
100,250.
|
Director
Compensation for 2010. For 2010, each non-employee member of the
Board will receive an annual cash payment of $50,000, and an award of 7,776
restricted shares of our common stock vesting on July 1, 2010.
EXECUTIVE
OFFICERS
All
officers serve at the discretion of our Board of Directors. The Board elects our
officers on an annual basis and our officers serve until their successors are
duly elected and qualified.
In
addition to Mr. Cole, our other executive officers their positions with us
and certain other information with respect to these officers, as of the Record
Date, are set forth below:
|
|
Age
|
|
|
Warren Clamen
|
|
45
|
|
Executive
Vice President and Chief Financial Officer
|
|
|
|
|
|
Andrew Tarshis
|
|
44
|
|
Executive
Vice President and General Counsel
|
|
|
|
|
|
Yehuda
Shmidman
|
|
28
|
|
Executive
Vice President of Operations
|
|
|
|
|
|
David
Blumberg
|
|
51
|
|
Executive
Vice President - Head of Strategic
Development
|
Warren
Clamen
has served as our Executive Vice President and Chief
Financial Officer since November 11, 2008. Prior to that, Mr. Clamen served as
our Chief Financial Officer since joining our company in March 2005. From June
2000 until March 2005, Mr. Clamen served as Vice President of Finance for
Columbia House, one of the world’s largest licensees of content for music and
film, and from December 1998 to June 2000, he was Vice President of Finance of
Marvel Entertainment, Inc., a publicly traded entertainment company active in
motion pictures, television, publishing, licensing and toys. Prior to that time,
Mr. Clamen served as the director, international management for Biochem Pharma
Inc., a biopharmaceutical company located in Montreal, Canada, and as a senior
manager at Richter, Usher and Vineberg, an accounting firm also located in
Montreal, Canada. Mr. Clamen is a certified public accountant and a chartered
accountant. He received a Bachelor of Commerce degree in 1986 and a Graduate
Diploma in public accounting in 1988, each from McGill University in
Montreal.
Andrew
Tarshis
has served as our Executive Vice President and General
Counsel since November 11, 2008. Prior to that, Mr. Tarshis served as our Senior
Vice President and General Counsel since September 2006. From July 2005, when he
joined our company in connection with our acquisition of the Joe Boxer brand,
until September 2006, he served as our Senior Vice President, Business Affairs
and Associate Counsel. Prior to joining our company, from May 2001 to July 2005,
Mr. Tarshis served as Senior Vice President and General Counsel to Windsong
Allegiance Group, LLC and, from December 1998 to May 2001, he served as a
general attorney for Toys R Us, Inc. Mr. Tarshis received a Bachelor of Arts
degree from the University of Michigan, Ann Arbor in 1988 and his Juris Doctor
degree from the University of Connecticut School of Law in 1992.
Yehuda
Shmidman
has served as our Executive Vice President, Operations
since August 2009 and has held various titles in our business development
department since joining us in October 2005. Prior to joining our
company, Mr. Shmidman held corporate development positions at licensing agencies
based in New York, where he was involved with launching several direct-to-retail
brands, including Isaac Mizrahi at Target, “Merch” Vintage Rock at Kmart, and
Fieldcrest at Target. Mr. Shmidman graduated magna cum laude from
Yeshiva University with a Bachelor’s degree in Political Science.
David
Blumberg
has served as our Head of Strategic Development since
February 2009 and has served as our Executive Vice President – Head of Strategic
Development since August 2009. From November 2006 through January
2009, Mr. Blumberg served our company as a full-time consultant overseeing our
merger and acquisition activities. Prior to joining our company as a consultant,
during 2005 through October 2006, Mr. Blumberg worked as a consultant to LF
Management Ltd., an affiliate of Li & Fung Limited/ LF USA. Prior to joining
Li & Fung, from January 1997 to November 1999, Mr.
Blumberg was president and managing director-investment banking of Wit Capital,
Inc., an online investment bank. From 1981 to 1993, Mr. Blumberg was
a managing director and senior vice president of Merrill Lynch Interfunding Inc.
and Merrill Lynch Capital Markets- Investment Bank, respectively. Mr. Blumberg
received a Bachelor of Science, cum laude in economics from Colgate University
in 1981 and a Masters degree in business administration in corporate finance
from New York University in 1987.
Executive
Compensation
Compensation
Discussion and Analysis
The purpose of this Compensation
Discussion and Analysis is to provide the information necessary for
understanding the compensation philosophy, policies and decisions which are
material to the compensation of our principal executive officer, our principal
financial officer and our three other most highly compensated executive officers
(we refer to these officers as our “named executive officers”) during 2009. This
Compensation Discussion and Analysis will place in context the information
contained in the tables and accompanying narratives that follow this
discussion.
Philosophy
and Objectives
Our compensation philosophy is to offer
our named executive officers compensation that is fair, reasonable and
competitive, and that meets our goals of attracting, retaining and motivating
highly skilled management personnel so that we can be in a position to achieve
our financial, operational and strategic objectives to create long-term value
for our stockholders. We seek to deliver fair, reasonable and competitive
compensation for our employees and executives, including our named executive
officers, by structuring compensation around one fundamental goal: incentivizing
our executives to build stockholder value over the short and long term. Our
ability to attract, motivate and retain employees and executives with the
requisite skills and experience to develop, expand and execute business
opportunities for us is essential to our growth and success. We believe that we
offer attractive career opportunities and challenges for our employees, but
remain mindful that the best talent will always have a choice as to where they
wish to pursue their careers, and fair and competitive compensation is an
important element of job satisfaction.
Our compensation program includes
short-term elements, such as annual base salary, and in some cases, an annual
incentive cash bonus, and long term elements such as equity-based awards through
grants of restricted stock, restricted stock units and stock options. We believe
that our compensation program incentivizes our named executive officers and
other employees to execute on our goals and perform their job functions with
excellence and integrity. We also take into account the roles played by each of
our named executive officers and endeavor to individually customize their
compensation packages to align the amount and mix of their compensation to their
contributions to, and roles within, our organization. The compensation packages
and structure for our chief executive officer, Mr. Neil Cole, and for our
executive vice president, head of strategic development, David Blumberg, differ
from those of our other named executive officers in light of the distinct role
and responsibilities each such executive has within the Company. As Mr. Cole
makes executive decisions that influence our direction and growth initiatives,
his total compensation is intended to be strongly aligned with objective
financial measures, including an annual bonus determined by criteria set forth
in his employment agreement based upon our performance. As Mr. Blumberg is
responsible for overseeing our merger and acquisition activities that influence
our growth, a substantial portion of his total compensation is intended to be
tied to our consummation of acquisitions that meet specified objective financial
measures as set forth in his employment agreement.
We enter into employment agreements
with senior officers, including our named executive officers, when the
compensation committee determines that an employment agreement is in order for
us to obtain a degree of certainty as to an executive’s continued employment in
light of prevailing market conditions and competition for the particular
position held by the officer, or where the compensation committee determines
that an employment agreement is appropriate to attract an executive in light of
market conditions, the prior experience of the executive or practices at our
company with respect to other similarly situated executives. Based on these and
any other factors then deemed relevant, in 2008 we entered into new
employment agreements with Messrs. Neil Cole, Warren Clamen and Andrew Tarshis,
all of whom were executive officers at the time. We also entered into
a new employment agreement in February 2009 with Mr. Blumberg, our executive
vice president and head of strategic development, and we entered into a new
employment agreement in November 2009 with Mr. Shmidman, our executive vice
president of operations. Messrs. Blumberg and Shmidman became executive officers
in August 2009.
Forms
of Compensation Paid to Named Executive Officers During 2009
During the last fiscal year, we
provided our named executive officers with the following forms of
compensation:
Base salary
. Base salary
represents amounts paid during the fiscal year to named executive officers as
direct guaranteed compensation under their employment agreements for their
services to us.
Equity-based awards
. Awards
of restricted stock units, shares of restricted stock and stock options are made
under our 2006 Equity Incentive Plan and our 2009 Equity Incentive Plan, which
was approved by our stockholders in August 2006 and August 2009, respectively.
Shares of restricted stock that were issued subject to a vesting schedule cannot
be sold until and to the extent the shares have vested. In 2009, we awarded
shares of restricted stock, or in the case of Mr. Cole, performance-based stock
units, to our named executive officers. Some of the awards granted in
2009 related to employment agreements entered into during the year ended
December 31, 2008 (“2008”), and were subject to stockholder approval of our 2009
Equity Incentive Plan due to the limited number of shares remaining for issuance
under the 2006 Equity Incentive Plan. While we have not formally adopted any
policies with respect to cash versus equity components in the mix of executive
compensation, we feel that it is important to provide for a compensation mix
that allows for acquisition of a meaningful level of equity ownership by our
named executive officers in order to help align their interests with those of
our stockholders.
Cash bonuses
. Messrs. Cole,
Clamen, Tarshis, Shmidman and Blumberg received cash bonuses in
2009. Mr. Cole received a contractually guaranteed amount of
$1,500,000 based upon the Company’s achievement of certain performance
goals. In May 2008, our stockholders adopted the Executive Incentive
Bonus Plan discussed below.
Perquisites and other personal
benefits
. During 2009, our named executive officers received, to varying
degrees, a limited amount of perquisites and other personal benefits that we
paid on their behalf. These included, among other things:
·
|
payments
of life insurance premiums; and
|
Objectives
of Our Compensation Program
The
compensation paid to our named executive officers is primarily structured into
two broad categories:
·
|
incentive
compensation, either in the form of equity-based awards under our various
equity incentive and stock option plans; cash payments tied to the
satisfaction of specified performance criteria set forth in the executive
officers employment agreement and to a lesser degree certain of our named
executive officers also have received discretionary cash bonuses not tied
to specific pre established performance
criteria.
|
Our
overall compensation program with respect to our named executive officers is
designed to achieve the following objectives:
·
|
to
attract, retain and motivate highly qualified executives through both
short-term and long-term incentives that reward company and individual
performance;
|
·
|
to
emphasize equity-based compensation to more closely align the interests of
executives with those of our
stockholders;
|
·
|
to
support and encourage our financial growth and
development;
|
·
|
to
motivate our named executive officers to continually provide excellent
performance throughout the year;
|
·
|
to
ensure continuity of services of named executive officers so that they
will contribute to, and be a part of, our long-term success;
and
|
·
|
to
manage fixed compensation costs through the use of performance and
equity-based compensation.
|
Determination
of Compensation for Named Executive Officers
Compensation of chief executive
office
r. During 2009, the compensation of Mr. Cole, our chairman,
president and chief executive officer was based on Mr. Cole’s employment
agreement dated January 28, 2008, as amended on December 24, 2008, which
agreement was effective as of January 1, 2008. In determining the salary and
other forms of compensation for Mr. Cole, the compensation committee took into
consideration Mr. Cole’s contribution to our growth over the past several years
under his leadership, and his substantial experience and performance in the
industry in general and with us in particular. The compensation committee also
considered the increased responsibilities of Mr. Cole as a result of our
diversification and the substantial growth experienced by our company during his
tenure. The compensation committee believes that Mr. Cole’s compensation for
2009 as our principal executive officer reflects our performance during 2009 and
his significant contributions to that performance.
See “Executive Compensation - Narrative
to Summary Compensation Table and Plan-Based Awards Table - Employment
Agreements” for further description of Mr. Cole’s employment
agreement.
Overall compensation program
.
Compensation of our executive officers, including the named executive officers,
has been determined by the Board of Directors pursuant to recommendations made
by the chief executive officer and the compensation committee. The compensation
committee is responsible for, among other things, reviewing and recommending
approval of the compensation of our executive officers; administering our equity
incentive and stock option plans; reviewing and making recommendations to the
Board of Directors with respect to incentive compensation and equity incentive
and stock option plans, evaluating our chief executive officer’s performance in
light of corporate objectives, and setting our chief executive officer’s
compensation based on the achievement of corporate objectives.
With respect to the named executive
officers, their compensation is based upon what we believe is a competitive base
salary in view of our recent change of business strategy and accelerated growth
goals. In conjunction with our compensation committee, we have assessed our
total compensation program, and its components, and believe that it operates
well to serve both our goals and the current, short-term and long-term
compensation needs of the executive officers. We have implemented a stockholder
approved Executive Incentive Bonus Plan in conformance with Section 162(m) of
the Internal Revenue Code of 1986 (“Internal Revenue Code” or “Code”) for our
named executive officers and other senior executives. In 2009, only
Mr. Cole received an award under the Executive Incentive Bonus
Plan.
Compensation amounts for named
executive officers are determined according to the level of seniority and
position of the named executive officer. Generally, relatively greater emphasis
is typically placed on the equity-based components of compensation so as to put
a greater portion of total pay based on Company and individual
performance. We believe the combination of a competitive base
compensation, coupled with an opportunity to significantly enhance overall
individual compensation if individual and Company performance warrant such
enhancement, yields an attractive compensation program that facilitates our
recruitment and retention of talented executive personnel.
The total compensation amount for our
named executive officers is also established relative to officers at levels
above and below them, which we believe rewards them for increased levels of
knowledge, experience and responsibility.
Base salary.
The base salary
of each of our named executive officers is fixed pursuant to the terms of their
respective employment agreements with us and, when a contract is up for, or
otherwise considered for, renewal, upon a review of the executive’s abilities,
experience and performance, as well as a review of salaries for executives in
the marketplace for comparable positions at corporations which either compete
with us in its business or of comparable size and scope of operations. The
recommendations to the Board of Directors by the compensation committee with
respect to base salary are based primarily on informal judgments reasonably
believed to be in our best interests. In determining the base salaries of
certain of our executives whose employment agreements were up for, or otherwise
considered for, renewal, the compensation committee considered our performance
and growth plans. Base salaries are used to reward superior individual
performance of each named executive officer on a day-to-day basis during the
year, and to encourage them to perform at their highest levels. We also use our
base salary as an incentive to attract top quality executives and other
management employees from other companies. Moreover, base salary (and increases
to base salary) are intended to recognize the overall experience, position
within our company, and expected contributions of each named executive officer
to us.
The following were contractual
increases in the base salaries of our named executive officers from 2008 to 2009
as set forth on the table below:
|
|
2008 Base
Salary
|
|
|
2009 Base
Salary
|
|
|
Change in
Base
|
|
|
Percentage of
2008 Base Salary
|
|
Neil
Cole
|
|
$
|
1,000,000
|
|
|
$
|
1,000,000
|
|
|
$
|
-
|
|
|
|
0
|
%
|
Warren
Clamen
|
|
|
350,000
|
|
|
|
400,000
|
|
|
|
50,000
|
|
|
|
14
|
%
|
Andrew
Tarshis
|
|
|
350,000
|
|
|
|
400,000
|
|
|
|
50,000
|
|
|
|
14
|
%
|
Yehuda
Shmidman
|
|
|
250,000
|
|
|
|
350,000
|
|
|
|
100,000
|
|
|
|
40
|
%
|
David
Blumberg
|
|
|
*
|
|
|
|
400,000
|
|
|
|
-
|
|
|
|
0
|
%
|
* Mr.
Blumberg’s employment with us commenced in 2009.
Equity-based awards.
We
currently make equity awards to our named executive officers pursuant to our
2009 Equity Incentive Plan and, to the extent available, under our 2006 Equity
Incentive Plan, both of which provide for awards in the form of stock options,
stock appreciation rights, restricted stock, unrestricted stock, stock units
including restricted stock units, and performance awards to eligible persons.
The mix of cash and equity-based awards, as well as the types of equity-based
awards, granted to our named executive officers varies from year to year.
Consideration has been given to various factors, such as the relative merits of
cash and equity as a device for retaining and motivating the named executive
officers, individual performance, an individual’s pay relative to others,
contractual commitments pursuant to employment or other agreements, and the
value of already-outstanding grants of equity in determining the size and type
of equity-based awards to each named executive officer. As of
December 31, 2009, the number of shares remaining for issuance under the 2006
Equity Incentive Plan and 2009 Equity Incentive Plan was 76,653 and 2,173,978,
respectively.
In 2009, we continued to utilize
restricted stock as the primary form of equity compensation primarily because of
the increased stock-based compensation expense associated with stock options and
similar instruments under Accounting Standards Codification Topic 718 - Stock
Compensation. This accounting standard, which we adopted as of January 1, 2006,
requires us to record as compensation expense the grant date fair value of
restricted stock over the life of the grant.
As described above, we provide a
substantial portion of named executive officer compensation in the form of
equity awards because the compensation committee has determined that such awards
serve to encourage our executives to create value for our company over the
long-term, which aligns the interests of named executive officers with those of
our stockholders.
Generally,
we make three types of equity-based grants to our named executive
officers:
|
·
|
initial
grants when a named executive officer is
hired;
|
|
·
|
annual
performance based grants; and
|
|
·
|
retention
grants, which are typically made in connection with new
employment
|
An initial grant when an executive
officer is hired or otherwise becomes a named executive officer serves to help
us to recruit new executives and to reward existing officers upon promotion to
higher levels of management. Because these initial grants are structured as an
incentive for employment, the amount of these grants may vary from executive to
executive depending on the particular circumstances of the named executive
officer and are usually recommended by the chief executive officer and approved
by the appropriate committee. No grants were awarded to any of our
newly hired or appointed named executive officers at the time of their hire or
appointment in 2009 although as noted below, restricted share grants were made
later in 2009 to both Mr. Blumberg and Mr. Shmidman as well as to other of our
executive officers under the terms of their respective employment agreements.
Annual, time-vested grants of equity awards, as well as retention grants made in
connection with renewals of employment agreements are designed so as to
compensate our named executive officers for their contributions to our long-term
performance.
Generally, restricted stock and stock
option awards granted to named executive officers as either initial or annual
performance grants or in connection with employment agreement renewals vest in
equal installments over the term of the agreement, or a period determined by the
nominating/governance committee or compensation committee, typically beginning
on the first anniversary of the date of grant. Restricted stock grants for 2009
were as follows: Mr. Cole – 472,674 performance-based restricted stock units,
Mr. Clamen – 72,166 shares of restricted stock, Mr. Tarshis – 72,166 shares of
restricted stock, Mr. Shmidman – 76,954 shares of restricted stock, and Mr.
Blumberg – 35,826 performance-based shares of restricted
stock. These grants vest over a one to three year
period. In addition, in 2009 Mr. Blumberg was granted an aggregate of
30,000 options as a result of the Company’s consummation of two acquisitions
that met certain specified performance criteria set forth in his employment
agreement; these options vested immediately.
Cash bonuses
. In May 2008 our
stockholders approved the Executive Incentive Bonus Plan, referred to as the
bonus plan. The purpose of the bonus plan is to promote the
achievement of our short-term, targeted business objectives by providing
competitive incentive reward opportunities to our executive officers who can
significantly impact our performance towards those objectives. Further, the
bonus plan enhances our ability to attract, develop and motivate individuals as
members of a talented management team. The bonus plan is administered, and can
be amended, by the compensation committee. All awards are paid in
cash. Awards made under the bonus plan are subject to a participant
achieving one or more performance goals established by the compensation
committee. The performance goals may be based on our overall performance, and
also may recognize business unit, team and/or individual performance. No payment
will be made under the bonus plan unless the compensation committee certifies
that at least the minimum objective performance measures have been met. Such
performance measures may include specific or relative targeted amounts of, or
changes in: earnings before interest, taxes, depreciation and amortization,
herein referred to as EBITDA; revenues; expenses; net income; operating income;
equity; return on equity, assets or capital employed; working capital;
stockholder return; production or sales volumes; or certain other objective
criteria. In 2009, only our chairman, president and chief
executive officer received a bonus under the bonus plan.
The amount of any award under the bonus
plan may vary based on the level of actual performance. The amount of any award
for a given year is determined for each participant by multiplying the
individual participant’s actual base salary in effect at the end of that year by
a target percentage (from 0% to 200%), related to the attainment of one or more
performance goals, determined by the compensation committee. In the event that
an award contains more than one performance goal, participants in the bonus plan
will be entitled to receive the portion of the target percentage allocated to
the performance goal achieved. In the event that we do not achieve at least the
minimum performance goals established, no award payment will be
made.
Additionally, cash bonuses are also
covered by employment agreements with our executive officers. Under
his employment agreement, in 2009 our chairman, president and chief executive
officer received two separate cash performance based bonuses pursuant to his
employment agreement and the Executive Bonus Plan which aggregated to
$1,500,000. Mr. Cole earned $1,000,000 based on the Company’s
achievement of approximately $163.1 million of EBITDA, which represents 100% of
the targeted EBITDA established by the Board of Directors. Also under
his employment agreement, Mr. Cole earned $500,000 based on the Company’s
revenue growth of approximately 7%, which puts it in the upper 50
th percentile of companies compiled in the Standard & Poors Small
Cap Retailing Index for 2009. Also in 2009, Messrs. Clamen, Tarshis,
and Shmidman received discretionary cash bonuses of $100,000, $100,000, and
$216,667, respectively. These bonuses were based upon both the
individual performance of the executives and our overall performance but were
not tied to any specified performance criteria. Further, in 2009 Mr. Blumberg
received cash payments of $500,000 as a result of the Company’s consummation of
two acquisitions that met certain specified performance criteria set forth in
his employment agreement.
Post-termination
compensation
. We have entered into employment agreements with each of the
named executive officers. Each of these agreements had provided for
certain payments and other benefits if the executive’s employment terminated
under certain circumstances, including, in the event of a “change in control”.
See “Executive Compensation - Narrative to Summary Compensation Table and
Plan-Based Awards Table - Employment Agreements” and “Executive Compensation -
Potential Payments Upon Termination or Change in Control” for a description of
the severance and change in control benefits.
Perquisites
. The perquisites
provided to some or all of our executive officers are described below.
Perquisites are generally provided, as applicable, in accordance with the
executives’ employment agreements. Below is a list of material perquisites,
personal benefits and other items of compensation we provided to our named
executive officers in 2009, the total amount of each such item paid to all named
executive officers and an explanation as to why we chose to pay the
item.
Perquisite, Other Benefit or
Other Item of Compensation (1)
|
|
Aggregate
Amount of This
Perquisite Paid to
All Named
Executive Officers
in 2009
|
|
Additional Explanation for Offering Certain Perquisites
|
Car
allowances
|
|
$
|
92,791
|
|
Serves
to defray the cost of owning and operating an automobile often used for
business purposes; prevents us from having to own and maintain a fleet of
automobiles and is a taxable benefit for the named executive
officer.
|
Life Insurance Premiums
|
|
$
|
22,000
|
|
Reduces
risk to the beneficiaries of executives in the event of the death of the
executive.
|
|
(1)
|
Perquisites
are generally granted as part of our executive recruitment and retention
efforts.
|
Other matters
. The
compensation committee has not historically engaged consultants with respect to
executive compensation matters. However, in 2007 and 2008, the compensation
committee engaged an outside consulting firm, James F. Reda & Associates LLC
for advice in connection with the negotiation of the employment agreement for
our chief executive officer, which agreement was entered into in January 2008
and amended in December 2008. James F. Reda & Associates LLC was not engaged
by the compensation committee in 2009 and did not otherwise provide services to
us during 2009. Our board of directors has not established a policy for the
adjustment of any compensation award or payment if the relevant performance
measures on which they are based are restated or adjusted. Our board of
directors has not established any security ownership guidelines for executive
officers.
Tax
Deductibility and Accounting Ramifications
The compensation committee generally
takes into account the various tax and accounting ramifications of compensation
paid to our executives. When determining amounts of equity-based grants to
executives the compensation committee also considers the accounting expense
associated with the grants.
Our 2009 Equity Incentive Plan, our
2006 Equity Incentive Plan, our 2008 Executive Incentive Bonus Plan and our
other plans are intended to allow us to make awards to executive officers that
are deductible under the Section 162(m) of the Code, which otherwise sets limits
on the tax deductibility of compensation paid to a company’s most highly
compensated executive officers. The compensation committee will continue to seek
ways to limit the impact of Section 162(m). However, the compensation committee
also believes that the tax deduction limitation should not compromise our
ability to maintain incentive programs that support the compensation objectives
discussed above or compromise our ability to attract and retain executive
officers. Achieving these objectives and maintaining flexibility in this regard
may therefore result in compensation that is not deductible by Iconix for
federal income tax purposes.
Summary
In summary, we believe that our mix of
salary, cash incentives for short-term and long-term performance and the
potential for additional equity ownership in Iconix motivates our management to
produce significant returns for our stockholders. Moreover, we also believe that
our compensation program strikes an appropriate balance between our interests
and needs in operating and further developing our business and suitable
compensation levels that can lead to the enhancement of stockholder
value.
Compensation
Committee Interlocks and Insider Participation
None of the directors on our
compensation committee is or was formerly an officer or employee of the Company
or had any relationship or related person transaction requiring disclosure under
the rules of the Securities and Exchange Commission. During 2009, none of our
executive officers served on the board of directors or the compensation (or
equivalent) committee of any other entity that has officers that serve on our
Board of Directors or on our compensation committee. In addition, none of the
members of our compensation committee were formerly, or during 2009, employed by
us in the capacity as an officer or otherwise.
The members of our compensation
committee are, and during 2009 were, Messrs. Mendelow, Cuneo, Emanuel and
Friedman. Mr. Friedman currently serves as its chairperson.
Compensation
Committee Report
The compensation committee of our Board
of Directors has reviewed and discussed with management the Compensation
Discussion and Analysis for 2009 appearing in this proxy
statement. Based on such reviews and discussions, the compensation
committee recommended to our Board of Directors that the Compensation Discussion
and Analysis be included in this proxy statement for filing with the
SEC.
COMPENSATION
COMMITTEE
Mark
Friedman, Chairperson
Steven
Mendelow
Barry
Emanuel
Drew
Cohen
F. Peter
Cuneo
SUMMARY
COMPENSATION TABLE
The
following table includes information for 2009, 2008, and 2007 with respect to
our named executive officers.
Summary
Compensation Table
|
|
|
|
Salary
|
|
|
Bonus
|
|
|
Stock
Awards
|
|
|
Option
Awards
|
|
|
Non-Equity
Incentive Plan
Compensation
|
|
|
Change in
Pension Value
and Non-
qualified
Deferred
Compensation
Earnings
|
|
|
All Other
Compensation
|
|
|
Total
|
|
Name and
|
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
Principal Position
|
|
Year
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
(d)
|
|
|
(e)
|
|
|
(f)
|
|
|
(g)
|
|
|
(h)
|
|
Neil
Cole
|
|
2009
|
|
$
|
1,000,000
|
|
|
$
|
-
|
|
|
$
|
8,309,609
|
|
|
$
|
-
|
|
|
$
|
1,500,000
|
|
|
$
|
-
|
|
|
$
|
42,791
|
(1)
|
|
$
|
10,852,400
|
|
President
and Chief
|
|
2008
|
|
$
|
1,000,000
|
|
|
$
|
500,000
|
|
|
$
|
30,400,008
|
|
|
$
|
-
|
|
|
$
|
500,000
|
|
|
$
|
-
|
|
|
$
|
53,264
|
(1)
|
|
$
|
32,453,272
|
|
Executive
Officer
|
|
2007
|
|
$
|
600,000
|
|
|
$
|
649,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
40,904
|
(1)
|
|
$
|
1,289,904
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warren
Clamen(3)
|
|
2009
|
|
$
|
356,806
|
|
|
$
|
100,000
|
|
|
$
|
1,235,494
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
1,710,369
|
|
Executive
Vice President and
|
|
2008
|
|
$
|
306,250
|
|
|
$
|
50,000
|
|
|
$
|
80,501
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
454,751
|
|
Chief
Financial Officer
|
|
2007
|
|
$
|
279,167
|
|
|
$
|
-
|
|
|
$
|
100,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
397,167
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew
Tarshis(3)
|
|
2009
|
|
$
|
356,806
|
|
|
$
|
100,000
|
|
|
$
|
1,235,494
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
1,710,369
|
|
Executive
Vice President
|
|
2008
|
|
$
|
306,250
|
|
|
$
|
50,000
|
|
|
$
|
80,501
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
454,751
|
|
and
General Counsel
|
|
2007
|
|
$
|
281,250
|
|
|
$
|
-
|
|
|
$
|
100,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
399,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Yehuda
Shmidman(4)
|
|
2009
|
|
$
|
262,121
|
|
|
$
|
216,667
|
|
|
$
|
956,219
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
1,453,007
|
|
Executive
Vice President,
|
|
2008
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
Operations
|
|
2007
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David
Blumberg(5)
|
|
2009
|
|
$
|
400,000
|
|
|
$
|
-
|
|
|
$
|
453,915
|
|
|
$
|
220,465
|
|
|
$
|
500,000
|
|
|
$
|
-
|
|
|
$
|
18,000
|
(2)
|
|
$
|
1,592,380
|
|
Executive
Vice President,
|
|
2008
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
Head
of Strategic Development
|
|
2007
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
(a)
Salary includes, as applicable, base salary, pro-rated salaries for
changes made to base salary during the year, as defined in the employment
agreements.
(b)
Bonuses are discretionary, fixed incentive, and/or percentage incentive, as
provided for in the applicable employment agreements. For 2009, Mr.
Cole received cash performance based bonuses of $1,000,000 and
$500,000 for a total of $1,500,000, pursuant to his employment agreement and the
Executive Bonus Plan. The performance targets for 2009 were as follows:
$1,000,000 was earned for the Company’s achievement of approximately $163.1
million of EBITDA, which represents 100% of the targeted EBITDA established by
the Board of Directors; $500,000 was earned for the Company’s achievement of 7%
revenue growth, which puts it in the upper 50
th
percentile of
companies compiled in the Standard & Poors Small Cap Retailing Index for
2009. In accordance with SEC rules, the 2009 and 2008 performance-based
bonuses paid to Mr. Cole have been reflected in this table under the Non-Equity
Incentive Plan Compensation column. For 2009, Messrs. Clamen and Tarshis each
received discretionary cash bonuses of $100,000 respectively, pursuant to their
employment agreements or otherwise and Mr. Shmidman received a $150,000 cash
bonus as specified under his employment agreement and an additional
discretionary bonus of $66,667. For the year ended December 31, 2008,
Messrs. Clamen and Tarshis each received cash bonuses of $50,000 pursuant to
their employment agreements. For the year ended December 31, 2008,
Mr. Cole received a cash sign-on bonus in the amount of $500,000 in
connection with his new employment agreement. Mr. Cole also received a
cash performance based bonus of $500,000 in 2008 pursuant to his employment
agreement and the Executive Bonus Plan. The performance target for 2008 was the
Company’s achievement of approximately $150 million of EBITDA, which represents
80% of the targeted EBITDA established by the Board of Directors. For the year
ended December 31, 2007, Mr. Cole earned a cash bonus for reaching certain
EBITDA targets which were determined pursuant to the terms of his prior
employment agreement.
(c) The
amounts shown in this column represent the aggregate grant date fair value in
2009, 2008 and 2007 with respect to shares of restricted stock and stock
options. The 2007 and 2008 award values were recalculated from amounts shown in
prior filings made by us with SEC to reflect their grant date fair values, as
required by SEC rules effective for 2010. See Note 6 to Notes to the
Consolidated Financial Statements included in our Annual Report on Form 10-K for
a discussion for the relevant assumptions used in calculating grant date fair
value.
(d)
Option awards include, as applicable, Iconix options and equity-based
compensation instruments that have option-like features and amounts represent
grant date fair value.
(e) Non-equity
incentive plan compensation represents the dollar value of all amounts earned
during the fiscal year pursuant to non-equity incentive plans. There
was no such compensation for 2009, 2008 and 2007 other than the cash payments
of $250,000 Mr. Blumberg received upon the Company’s
consummation of each of two acquisitions that had a “value” (as defined in his
employment agreement) of less than $30 million and the performance-based
payments received by Mr. Cole in 2009 and 2008 described in footnote (b)
above.
(f) Change
in pension value and non-qualified deferred compensation earnings represents the
aggregate increase in actuarial value to the named executive officer of all
defined benefit and actuarial plans accrued during the year and earnings on
non-qualified deferred compensation. There were no defined benefit plans,
actuarial plans, or non-qualified deferred compensation for 2009, 2008 and
2007.
(g) All
other compensation includes, as applicable, car allowances and life insurance
premiums (see the list of perquisites above).
(h) Total
compensation represents all compensation from us earned by the named executive
officer for the year.
(1) Represents
Company paid premiums on a life insurance policy for the benefit of the
beneficiaries of Mr. Cole, as well as a car allowance.
(2) Represents
amounts paid by the Company for executives’ car allowances.
(3) Mr.
Clamen currently serves as our executive vice president and chief financial
officer. Prior to November 2008, Mr. Clamen served as our chief financial
officer. Mr. Tarshis currently serves as our executive vice president and
general counsel. Prior to November 2008, Mr. Tarshis served as our senior vice
president and general counsel.
(4) Mr.
Shmidman has served as our executive vice president of operations since August
2009. Prior to August 2009, Mr. Shmidman served as our Senior Vice
President. Compensation information for 2008 and 2007 is not provided
since Mr. Shmidman was not an executive officer during those years.
(5) Since
February 2009 Mr. Blumberg has served as our Head of Strategic Development and
he became an executive officer in August 2009 when he assumed the position of
executive vice president-head of strategic development. Prior to
February 2009, Mr. Blumberg served the Company as a full-time consultant
overseeing the Company’s mergers and acquisitions activities.
GRANTS
OF PLAN-BASED AWARDS
|
|
|
Estimated Future Payouts Under
Non-Equity Incentive Plan Awards
|
|
|
Estimated Future Payouts Under
Equity Incentive Plan Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name
|
Grant
Date
|
|
Threshold
($)
|
|
|
Target
($)
|
|
|
Maximum
($)
|
|
|
Threshold
(#)
|
|
|
Target
(#)
|
|
|
Maximum
(#)
|
|
|
All Other
Stock
Awards:
Number
of Shares
of Stock
or Units
(#)
|
|
|
All Other
Option
Awards:
Number of
Securities
Underlying
Options
(#)
|
|
|
Exercise
or
Base Price
of Option
Awards
($/Sh)
($)
|
|
|
Closing
Price of
Common
Stock
Units on
Date of
Grant
($)
|
|
|
Grant
Date
Fair
Value of
Stock and
Option
Awards
|
|
Neil
Cole
|
8/13/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
472,674
|
|
|
|
472,674
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
17.58
|
|
|
$
|
8,309,609
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warren
Clamen
|
6/5/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
1,624
|
|
|
|
-
|
|
|
|
-
|
|
|
|
15.39
|
|
|
$
|
24,993
|
|
|
9/22/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
70,542
|
|
|
|
-
|
|
|
|
-
|
|
|
|
17.16
|
|
|
$
|
1,210,501
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew
Tarshis
|
6/5/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
1,624
|
|
|
|
-
|
|
|
|
-
|
|
|
|
15.39
|
|
|
$
|
24,993
|
|
|
9/22/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
70,542
|
|
|
|
-
|
|
|
|
-
|
|
|
|
17.16
|
|
|
$
|
1,210,501
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Yehuda
Shmidman
|
6/5/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
2,166
|
|
|
|
-
|
|
|
|
-
|
|
|
|
15.39
|
|
|
$
|
33,335
|
|
|
11/18/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
74,788
|
|
|
|
-
|
|
|
|
-
|
|
|
|
12.34
|
|
|
$
|
922,884
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David
Blumberg
|
9/22/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
15,000
|
|
|
|
-
|
|
|
|
17.16
|
|
|
|
-
|
|
|
$
|
148,424
|
|
|
10/30/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
15,000
|
|
|
|
-
|
|
|
|
11.66
|
|
|
|
-
|
|
|
$
|
72,041
|
|
|
12/31/09
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
35,826
|
|
|
|
-
|
|
|
|
-
|
|
|
|
12.67
|
|
|
$
|
453,915
|
|
NARRATIVE TO SUMMARY COMPENSATION
TABLE AND PLAN-BASED AWARDS TABLE
Employment
Agreements
The compensation committee determines
the compensation, including related terms of employment agreements with us for
those who have them, for each of the named executive officers.
Neil
Cole
On January 28, 2008, we entered into a
five-year (subject to a one-year extension) employment agreement (the “new
employment agreement”), effective as of January 1, 2008, with Neil Cole,
chairman of the board, president and chief executive officer, which replaced his
prior employment agreement that expired on December 31, 2007 and is described
below. The new employment agreement also superseded and terminated the prior
non-competition and non-solicitation agreement between us and Mr. Cole, which,
among other things, provided for him to receive 5% of the sale price upon a sale
of our Company under certain circumstances.
Consistent with our philosophy on
executive compensation, Mr. Cole’s new employment agreement reflects a
substantial portion of his compensation in the form of long-term equity
incentives, including performance stock incentives that vest upon the
achievement of specific metrics defined in the agreement, particularly, growth
in EBITDA, market capitalization and stock price as measured by targets to be
established and certified by the compensation committee.
As described above, in connection with
the negotiation of the new employment agreement with Mr. Cole, the compensation
committee retained James F. Reda & Associates LLC, as its outside
compensation consulting firm to provide advice. In assisting the compensation
committee, James F. Reda & Associates LLC performed market research as to
compensation levels in similarly capitalized companies in the industry, as well
as companies that had achieved similar growth. James F. Reda & Associates
LLC also familiarized itself with the circumstances surrounding Mr. Cole’s
expiring contract and separate non-competition and non-solicitation agreement,
which provided Mr. Cole with 5% of the proceeds upon a sale of the Company under
certain circumstances. As various aspects of our business, operations and
management are unique, the compensation committee utilized the James F. Reda
& Associates LLC research as one resource, rather than a stand-alone tool,
in assessing the appropriate level of compensation and other terms under Mr.
Cole’s new employment agreement.
Under his new employment agreement, Mr.
Cole is entitled to an annual base salary of $1,000,000 and received a signing
bonus of $500,000.
Pursuant to the terms of the employment
agreement Mr. Cole has been granted 1,181,684 time-vested restricted common
stock, or RSUs, and 787,789 performance-based restricted common stock units, or
PSUs, under our 2006 Equity Incentive Plan and 2009 Equity Incentive Plan. The
RSUs vest in five substantially equal annual installments commencing on December
31, 2008, subject to Mr. Cole’s continuous employment with us on the applicable
vesting date, and the PSUs are subject to vesting based on our achievement of
the following performance goals: 50% is tied to the achievement of EBITDA
growth, 25% is tied to the achievement of market cap growth, and 25% is tied to
the achievement of stock price growth. Both grants are subject to forfeiture
upon the termination of Mr. Cole’s employment under certain circumstances. In
addition, Mr. Cole’s ability to sell or otherwise transfer the common stock
underlying the RSUs and the PSUs while he is employed by us is subject to
certain restrictions.
On December 24, 2008, we entered into
an agreement with Mr. Cole which amended his employment agreement and the
related RSU agreement to provide, among other things for the deferral of the
issuance to Mr. Cole of the 1,181,684 shares of our common stock to which he is
entitled to receive under the RSUs granted to him under the employment agreement
until the earlier of (i) the date Mr. Cole is no longer employed by either (a)
us or (b) any corporation or other entity owning, directly or indirectly, 50% or
more of our outstanding common stock, or in which we or any such corporation or
other entity owns, directly or indirectly, 50% or more of the outstanding
capital stock (determined by aggregate voting rights) or other voting interests
or (ii) a change in control (as defined in the new employment agreement). In
consideration of Mr. Cole’s agreement to delay the distribution to him of such
shares of our common stock to which he will be entitled to receive under the
RSUs as noted above, the agreement also provided for the award to Mr. Cole of an
annual cash bonus to be granted under our executive incentive bonus plan, in the
amount equal to five hundred thousand dollars ($500,000) for each of the four
completed calendar years commencing with the calendar year from January 1, 2009
through December 31, 2009, and ending with the calendar year from January 1,
2012 through December 31, 2012 if either of one of two performance measures
specified in the agreement have been satisfied. The two performance
measures are as follows: (a) if the percentage determined by dividing our EBITDA
by our revenues for the calendar year in question places us in the top 50% of
the companies contained in the Standard & Poors Small Cap Retailing Index at
the end of that calendar year or (b) if our annual revenue percentage growth for
the calendar year in question when compared to the immediately preceding
calendar year places us in the top 50% of those companies contained in the
Standard & Poors Small Cap Retailing Index at the end of that calendar
year.
Mr. Cole is also entitled to various
benefits, including benefits available to our other senior executives and
certain automobile, air travel and life insurance benefits pursuant to the new
employment agreement.
In addition to his salary and benefits,
Mr. Cole is eligible to receive an additional annual cash bonus for each
completed calendar year, including as a performance goal thereunder the targets
specified in the employment agreement. This cash bonus shall not exceed 150% of
Mr. Cole’s base salary. The bonus shall be a percentage of the base salary
determined based on the level of our consolidated earnings before interest,
taxes, depreciation and amortization of fixed assets and intangible assets
achieved for such year against a target level established for such year by the
compensation committee of our board of directors, in the compensation
committee’s sole discretion, but with prior consultation with Mr. Cole, as
follows:
Annual Level of Targeted EBITDA Achieved
|
|
% of Base Salary
|
less
than 80%
|
|
0%
|
80%
(threshold)
|
|
50%
|
90%
|
|
75%
|
100%
(target)
|
|
100%
|
105%
|
|
110%
|
110%
|
|
122.5%
|
115%
|
|
135%
|
120%
or more (maximum)
|
|
150%
|
Mr.
Cole’s annual bonus, if earned, will be paid in a lump sum cash payment in the
calendar year following the calendar year for which such bonus is
earned.
Under Mr.
Cole’s new employment agreement, if we terminate Mr. Cole’s employment for
“cause” or if Mr. Cole terminates his employment without “good reason”, he will
receive his earned and/or accrued but unpaid compensation, other than any bonus
compensation, then due to him and shares of common stock in respect of any of
his already vested restricted stock units. If we terminate Mr. Cole’s employment
without cause or if Mr. Cole terminates his employment for good reason, he will
receive, in addition to the foregoing, an amount equal to two times his base
salary then in effect plus any previously earned but unpaid annual bonus for a
prior fiscal year and a pro-rata portion of the annual bonus for the year of
termination, and, if such termination or resignation occurs prior to January 1,
2011, two times the average of the annual bonus amounts he received for the two
prior completed fiscal years. In addition, that portion of his performance-based
stock units subject to vesting in the year of termination based on performance
goals achieved as of the date of termination, and 75% of his unvested restricted
stock units, will vest. If his employment is terminated by us without cause or
by him for good reason within 12 months of a change in control, the amount of
his base salary-related payment will increase to three times, instead of two
times, his base salary then in effect and that portion of his performance-based
stock units that would vest in the year of termination or in the future based on
performance goals achieved as of the date of the change of control, and all of
his unvested restricted stock units, will vest, and if such change in control
occurs prior to January 1, 2011, Mr. Cole will also receive three, instead of
two, times the average of the annual bonus amounts he received for the three,
instead of two, prior completed fiscal years.
If Mr.
Cole’s employment terminates as a result of his disability or death, he or his
estate will be entitled to any previously earned and unpaid compensation then
due to him plus any previously earned but unpaid annual bonus for the prior
fiscal year and a pro-rata portion of the annual bonus for the year of such
termination. In addition, that portion of his performance-based stock units
subject to vesting in the year of termination based on performance goals
achieved as of the date of termination, and 100% (50% in the event of
disability) of his unvested restricted stock units, will vest.
The new
employment agreement with Mr. Cole also contains certain non-competition and
non-solicitation covenants restricting such activities for periods equal to the
term of the agreement and any renewal period plus one and two years,
respectively, after the agreement is terminated for any reason.
Pursuant
to Mr. Cole’s prior employment agreement (which expired on December 31, 2007 and
was replaced by the new employment agreement described above) with us, Neil
Cole, served as our President and Chief Executive Officer at an annualized base
salary of $500,000 in 2005, $550,000 in 2006 and $600,000 in 2007. In addition,
under Mr. Cole’s prior employment agreement, Mr. Cole received bonus payments in
2005 and 2007.
Warren
Clamen and Andrew Tarshis
On
November 11, 2008, we entered into new employment agreements with
each of the following executive officers replacing their prior employment
agreements with us: (i) Andrew Tarshis, referred to as the Tarshis
employment agreement and (ii) Warren Clamen, referred to as the Clamen
employment agreement and, together with the Tarshis employment agreement, the
Clamen/Tarshis employment agreements and each of Mr. Tarshis and Mr. Clamen are
referred to in the description of the Clamen/Tarshis employment agreements below
as an executive. The Clamen/Tarshis employment agreements provide for
the employment of Mr. Tarshis as our executive vice president and general
counsel and Mr. Clamen as our executive vice president and chief financial
officer, for three-year terms.
Under the
Clamen/Tarshis employment agreements, each executive is entitled to an annual
base salary of not less than $350,000, $400,000 and $400,000, during the first,
second and third years of the term of his employment agreement. In
addition, each executive is entitled to participate in our executive bonus
program and is eligible to receive bonuses of up to 100% of his base salary or
such maximum amount available under any executive bonus program generally
applicable to our senior executives.
Pursuant
to the terms of the Clamen/Tarshis employment agreements, they each received an
award of 70,542 shares of our common stock in 2009. The shares vest in three
equal annual installments with the first installment vesting on November 11,
2009, subject to acceleration under certain circumstances set forth in the
Clamen/Tarshis employment agreements. Each executive is also entitled to various
benefits, including benefits available to our other senior executives and
certain automobile, life insurance and medical benefits.
Under the
Clamen/Tarshis employment agreements, if either of the executive’s employment is
terminated by us for “cause” or by the executive without “good reason” (as
defined in the Clamen/Tarshis employment agreements), he will receive his earned
and unpaid base salary through the date of termination and shares of common
stock in respect of any of his already vested stock awards. If an
executive’s employment is terminated by us without cause or by the executive for
good reason, he will receive, in addition to the foregoing, an amount equal to
his applicable base salary for the remaining term of the Clamen/Tarshis
employment agreement plus any earned but unpaid annual bonus for a prior year
(“prior year bonus”) and a pro-rata portion of any bonus for the year of
termination (“pro rata bonus”). In addition, any unvested portion of
his stock award will vest. If the employment of an executive is
terminated by us without cause or by him for good reason within 12 months of a
“change in control” (as defined in the Clamen/Tarshis employment agreements), in
addition to the foregoing payments he will also receive an amount equal to $100
less than three times the executive’s “annualized includable compensation for
the base period” (as defined in the Internal Revenue Code). If an executive’s
employment terminates as a result of his disability or death, the executive or
his estate will be entitled to any earned and unpaid base salary, plus any prior
year bonus and pro rata bonus. In addition, any unvested portion of
his stock award will vest.
The
Clamen/Tarshis employment agreements also contain certain non-competition and
non-solicitation covenants restricting such activities for certain specified
periods.
The prior
employment agreements between us and each of Messrs. Clamen and Tarshis cover
periods prior to November 11, 2008, and are summarized below.
Effective
March 9, 2005, we entered into an employment agreement, subsequently amended on
October 27, 2006, with Warren Clamen, which, as amended, provided for him to
serve as our chief financial officer until October 27, 2008, subject to earlier
termination as specified in the agreement (this agreement expired on October 27,
2008. This agreement was superseded by Mr. Clamen’s new employment agreement
dated November 11, 2008. Mr. Clamen’s prior employment agreement
provided for him to receive a base salary of $275,000 per year for the year
ending October 27, 2007 and no less than $300,000 for the year ending October
27, 2008, plus certain fringe benefits. In addition, under the prior employment
agreement Mr. Clamen was eligible to participate in any executive bonus program
that we had in effect during the term of the employment agreement. Pursuant to
this prior employment agreement, in March 2005, we granted Mr. Clamen ten-year
stock options to purchase 200,000 shares of our common stock at $5.06 per share,
subject to earlier termination under certain conditions if Mr. Clamen ceased to
be employed by us, half of which options vested immediately and the other half
vested as of June 1, 2005. Pursuant to the amendment to this prior employment
agreement in October 2006, we also issued to Mr. Clamen 10,971 shares of our
restricted common stock, which vested in two equal annual installments
commencing on October 27, 2007.
On
September 22, 2006, we entered into a employment agreement with Andrew Tarshis,
which provided for him to serve as our senior vice president and general counsel
until September 22, 2009 and provided for him to receive an annual base salary
of no less than $275,000 during the first year of the term and $300,000 during
the second and third years of the term. This agreement was superseded by Mr.
Tarshis’ new employment agreement dated November 11, 2008. Pursuant
to his prior employment agreement, we also issued to Mr. Tarshis 18,461 shares
of our restricted common stock, which vest in three equal annual installments
commencing on the first year anniversary of the agreement. Under the prior
employment agreement, Mr. Tarshis was also eligible for a bonus consistent with
other executive officers, as well as customary benefits, including participation
in management incentive and benefit plans, a monthly car allowance of $1,500 and
reasonable business related travel and entertainment expenses.
Yehuda
Shmidman
On
November 17, 2009 we entered into a new employment agreement with
Yehuda Shmidman, herein referred to as the Shmidman employment
agreement. The Shmidman employment agreement provides for the
employment of Mr. Shmidman as our executive vice president of operations for a
term of three years.
Under the
Shmidman employment agreement, Mr. Shmidman is entitled to an annual base salary
of not less than $350,000, $375,000 and $400,000, during the first, second and
third years of the term of his employment agreement. In addition,
under the employment agreement Mr. Shmidman was entitled to receive a bonus of
$150,000 in 2009 and commencing in 2010 he became eligible to participate in our
executive bonus program and is eligible to receive bonuses of up to 100% of his
base salary or such maximum amount available under any executive bonus program
generally applicable to our senior executives.
Pursuant
to the terms of the Shmidman employment agreement, Mr. Shmidman received an
award of 74,788 shares of our common stock. The shares vest in three equal
annual installments with the first installment vesting on November 16, 2010,
subject to acceleration under certain circumstances set forth in the Shmidman
employment agreement. Mr. Shmidman is also entitled to various benefits,
including benefits available to our other senior executives and certain
automobile, life insurance and medical benefits.
Under the
Shmidman employment agreement, if Mr. Shmidman’s employment is terminated by us
for “cause” or by himself without “good reason” (as defined in the Shmidman
employment agreement), he will receive his earned and unpaid base salary through
the date of termination and shares of common stock in respect of any of his
already vested stock awards. If an Mr. Shmidman’s employment is
terminated by us without cause or by Mr. Shmidman for good reason, he will
receive, in addition to the foregoing, an amount equal to his applicable base
salary for the remaining term of the Shmidman employment agreement plus any
prior year bonus and a pro rata bonus. In addition, any unvested
portion of his stock award will vest. If the employment of Mr.
Shmidman is terminated by us without cause or by him for good reason within 12
months of a “change in control” (as defined in the Shmidman employment
agreement), in addition to the foregoing payments he will also receive an amount
equal to $100 less than three times the executive’s “annualized includable
compensation for the base period” (as defined in the Internal Revenue Code). If
Mr. Shmidman’s employment terminates as a result of his disability or death, he
or his estate will be entitled to any earned and unpaid base salary, plus any
prior year bonus and pro rata bonus. In addition, any unvested
portion of his stock award will vest.
The
Shmidman employment agreement also contains certain non-competition and
non-solicitation covenants restricting such activities for certain specified
periods.
The prior
employment agreement between us and Mr. Shmidman covered periods prior to
November 17, 2009, and is summarized below.
Effective
November 6, 2006, we entered into an employment agreement with Yehuda Shmidman
which provided for him to serve as our vice president until November 5, 2009,
subject to earlier termination as specified in the agreement (this agreement
expired on November 5, 2009). This agreement was superseded by Mr. Shmidman’s
new employment agreement dated November 17, 2009. Mr. Shmidman’s
prior employment agreement provided for him to receive a base salary of no less
than $150,000 per year for the year ending November 5, 2007, no less than
$200,000 for the year ending November 5, 2008, and no less than $250,000 for the
year ended November 5, 2009, plus certain fringe benefits. In addition, under
the prior employment agreement Mr. Shmidman was eligible to participate in any
executive bonus program that we had in effect during the term of the employment
agreement. Pursuant to this prior employment agreement, in November 2006, we
granted Mr. Shmidman 17,626 shares of our restricted common stock, which vested
in three equal annual installments commencing on November 5,
2007.
David
Blumberg
On
February 26, 2009, we entered into an employment agreement with Mr. David
Blumberg effective as of January 1, 2009 that provides for the employment of Mr.
Blumberg as our Head of Strategic Development for a three-year term. From
November 2006 until the commencement of his employment with us in 2009, Mr.
Blumberg provided consulting services to us.
Under the
employment agreement, Mr. Blumberg is entitled to an annual base salary of not
less than $400,000. In addition, Mr. Blumberg is entitled to payments after the
closing by us or our subsidiaries of an “acquisition” (as defined in the
employment agreement) in or of any entity, business,
brand, trademark, service mark, patent, license, revenue stream or other
asset during the term of the agreement and, under certain
circumstances, for a 90 day period after termination of the agreement. Subject
to an annual acquisition payment cap of 2.5 times his then current base salary
(a current annual $1 million cap), Mr. Blumberg will receive $500,000 for
acquisitions that have a “value” (as defined in the employment agreement), of
$30 million or more and $250,000 for acquisitions with a lesser “value”. Under
Mr. Blumberg’s employment agreement, the value of an
acquisition generally shall means the projected gross revenue stream to be
derived by us from such acquisition during the first complete year following the
closing of the acquisition, subject to certain adjustments such as deductions
for operational and transaction expenses.
In
addition, under the employment agreement Mr. Blumberg is also entitled to
receive an award of up to 107,476 shares of our common stock, referred to as the
award shares. For each acquisition that closes during a calendar year, one sixth
of the shares will vest at the end of such calendar year subject to an annual
vesting cap specified in the employment agreement. On December 31, 2009, a total
of 35,826 of the award shares were granted to Mr. Blumberg and vested. To date
the Company has not granted the balance of the award shares to Mr. Blumberg. Any
of the award shares that would have vested in a particular year but for the cap
instead will vest on December 31, 2011, subject to certain forfeiture
provisions. Mr. Blumberg is also entitled to various benefits, including
benefits available to our other senior employees including an automobile
allowance and certain life insurance and medical and dental
benefits.
If Mr.
Blumberg’s employment is terminated by us for “cause” or by him without “good
reason” (each as defined in the employment agreement), he will receive his
earned and unpaid base salary through the date of termination and shares of
common stock in respect of any already vested stock awards, including award
shares, or, if the award shares have not been granted, the vested portion of the
alternate payment described below. In addition, subject to the acquisition cap,
Mr. Blumberg will receive the acquisition payment for any acquisition that
closes within 90 days of his termination. If his employment is terminated by us
without cause or by him for good reason, he will receive, in addition to the
foregoing, an amount equal to his base salary for the remaining agreement term
plus any earned but unpaid annual bonus for a prior year or other completed
period (the prior year bonus) and any unvested portion of his stock award will
vest. In addition, subject to the acquisition cap, he will receive the
acquisition payment for any acquisition that closes within 90 days of such
termination. If his employment is terminated by us without cause or by him for
good reason within 12 months of a “change in control” (as defined in the
employment agreement), in addition to the foregoing payments he would have
received had he been terminated without a change of control, he will also
receive an amount equal to equal to three (3) times the greater of (i) $400,000
or $100 less than the average of the annual cash compensation received by him on
or after January 1, 2009 in his capacity as an employee of the Company during
the “base period” (as defined in Section 280G of the Internal Revenue Code)
subject to an “excess parachute” payment limitation (as defined in Section
280G). Annual cash compensation includes base salary plus any acquisition
payments and acquisition bonus payments paid to him. If Mr. Blumberg’s
employment terminates as a result of his disability or death, he or his estate
will be entitled to any earned and unpaid base salary, plus any prior year bonus
and any unvested portion of his stock award will vest and subject to the
acquisition cap, the acquisition payment for any acquisition that closes within
90 days of the date of death or disability.
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR-END
The
following table sets forth information with respect to outstanding equity-based
awards at December 31, 2009 for our named executive officers.
|
|
Option
Awards
|
|
|
Stock
Awards
|
|
|
|
Number
of
Securities
Underlying
Unexercised
Options
Exerciseable
|
|
|
Number
of
Securities
Underlying
Unexercised
Options
Unexerciseable
|
|
|
Equity
Incentive
Plan
Awards:
Number
of
Securities
Underlying
Unexercised
Options
|
|
|
Option
Exercise
Price
|
|
|
Option
Expiration
Date
|
|
|
Number
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
|
|
|
Vesting
Date
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
|
|
|
Market
Value
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
|
|
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested
|
|
|
Equity
Incentive
Plan
Awards:
Market
or
Payout
Value
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested
|
|
Name
|
|
|
(#)(a)
|
|
|
|
(#)
|
|
|
|
(#)
|
|
|
($)
|
|
|
|
|
|
|
(#)
|
|
|
|
|
|
($)
|
|
|
|
(#)
|
|
|
($)
|
|
Neil
Cole
(1)
|
|
|
245,366
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
1.25
|
|
|
8/18/2010
|
|
|
|
236,337
|
(1)
|
|
12/31/2010
|
|
|
$
|
2,994,390
|
|
|
|
157,558
|
(2)
|
|
$
|
1,996,260
|
|
|
|
|
76,500
|
|
|
|
-
|
|
|
|
-
|
|
|
|
2.30
|
|
|
10/26/2011
|
|
|
|
236,337
|
(1)
|
|
12/31/2011
|
|
|
|
2,994,390
|
|
|
|
157,558
|
(2)
|
|
|
1,996,260
|
|
|
|
|
273,500
|
|
|
|
-
|
|
|
|
-
|
|
|
|
2.30
|
|
|
10/26/2011
|
|
|
|
236,337
|
|
|
12/31/2012
|
|
|
|
2,994,390
|
|
|
|
157,558
|
(2)
|
|
|
1,996,260
|
|
|
|
|
600,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
2.75
|
|
|
4/23/2012
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
78,779
|
|
|
|
998,130
|
|
|
|
|
15,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
4.41
|
|
|
5/22/2012
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
118,168
|
|
|
|
1,497,189
|
|
|
|
|
800,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
4.62
|
|
|
3/29/2015
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
200,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
10.00
|
|
|
12/28/2015
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warren
Clamen
|
|
|
60,000
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
5.06
|
|
|
3/9/2015
|
|
|
|
2,982
|
|
|
4/11/2010
|
|
|
$
|
37,769
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
50,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
10.00
|
|
|
2/28/2015
|
|
|
|
1,624
|
|
|
6/5/2010
|
|
|
|
20,576
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
23,514
|
|
|
11/11/2010
|
|
|
|
297,922
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
23,514
|
|
|
11/11/2011
|
|
|
|
297,922
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew
Tarshis
|
|
|
10,000
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
8.81
|
|
|
7/22/2015
|
|
|
|
2,982
|
|
|
4/11/2010
|
|
|
$
|
37,769
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
1,624
|
|
|
6/5/2010
|
|
|
|
20,576
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,514
|
|
|
11/11/2010
|
|
|
|
297,922
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,514
|
|
|
11/11/2011
|
|
|
|
297,922
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Yehuda
Shmidman
|
|
|
10,000
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
8.58
|
|
|
10/31/2015
|
|
|
|
24,930
|
|
|
11/16/2010
|
|
|
$
|
315,863
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
10,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
10.00
|
|
|
12/28/2015
|
|
|
|
24,930
|
|
|
11/16/2010
|
|
|
|
315,863
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
24,929
|
|
|
11/16/2010
|
|
|
|
315,850
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,166
|
|
|
6/5/2010
|
|
|
|
27,433
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,979
|
|
|
4/11/2010
|
|
|
|
63,084
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David
Blumberg (3)
|
|
|
30,000
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
20.18
|
|
|
3/9/2017
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
55,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
20.40
|
|
|
3/30/2017
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
55,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
23.66
|
|
|
10/3/2017
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
30,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
20.02
|
|
|
12/17/2017
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
20,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
6.65
|
|
|
10/2/2018
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
15,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
17.16
|
|
|
9/22/2019
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
15,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
11.66
|
|
|
10/30/2019
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
15,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
11.66
|
|
|
10/30/2019
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Mr.
Cole was granted 1,181,684 RSUs, and 571,150 performance-based restricted
common stock units, or PSUs, on February 19, 2008 pursuant to his
employment agreement with us. On December 24, 2008, Mr. Cole agreed, in an
amendment to his employment agreement, to defer the issuance of 1,181,684
shares of common stock underlying the RSUs until the earlier of (i) the
date Mr. Cole is no longer employed by either (a) us or (b) any
corporation or other entity owning, directly or indirectly, 50% or more of
our outstanding common stock, or in which we or any such corporation or
other entity owns, directly or indirectly, 50% or more of the outstanding
capital stock (determined by aggregate voting rights) or other voting
interests or (ii) a change in control (as defined in the employment
agreement). In consideration of Mr. Cole’s agreement to delay the
distribution to him of such shares of our common stock to which he will be
entitled to receive under the RSUs as noted above, the agreement also
provided for the award to Mr. Cole of an annual cash bonus to be granted
under our executive incentive bonus plan, in the amount equal to $500,000
for each of the four completed calendar years commencing with the calendar
year from January 1, 2009 through December 31, 2009, and ending with the
calendar year from January 1, 2012 through December 31, 2012 if either one
of two performance measures specified in the agreement have been
satisfied. The 1,181,684 RSUs continue to vest in five substantially equal
installments on each December 31st, beginning on December 31, 2008 and
subject to Mr. Cole’s continuous employment with us, although the delivery
of the shares underlying such RSUs has been deferred as described
above.
|
(2)
|
As
noted above, Mr. Cole was granted 1,181,684 RSUs and 571,150 PSUs on
February 19, 2008 pursuant to his employment agreement with us. On May 21,
2008, Mr. Cole entered into an agreement with us that provided for the
rescission of 256,034 of the previously granted 571,150 PSUs, which
rescinded PSUs were then added to 216,639 additional PSUs was entitled to
under his employment agreement(a total of 472,673 PSUs). These 472,673
PSUs were granted to Mr. Cole in
2009.
|
The
669,621 PSUs reflected in the table represent the unvested portion of the
787,790 PSUs granted to Mr. Cole under the terms of his employment agreement. In
February 2009, the Compensation Committee determined that the $147 million
EBITDA target was achieved, and, therefore, Mr. Cole earned 78,779 of 157,558
PSU’s that he was eligible to receive for the year ended December 31, 2008. In
February 2010, the Compensation Committee determined that the $160 million
EBITDA target was achieved, and, therefore, Mr. Cole earned 39,390 of 157,558
PSU’s that he was eligible to receive for the year ended December 31, 2009. The
other performance goals involving market capitalization and share price were not
achieved.
(3)
|
At
December 31, 2009 Mr. Blumberg had been awarded 35,826 of 107,476 shares
of common stock issuable under his employment agreement. All of the 35,826
shares vested on such date.
|
Grant
dates and vesting dates for all outstanding equity awards at December 31, 2009
are as follows:
Name
|
|
Number
of
Securities
Underlying
Unvested
Restricted
Stock
|
|
|
Number
of
Securities
Underlying
Unexercised
Options
Exerciseable
|
|
Grant
Date
|
|
Vesting
Date
|
|
|
(#)
|
|
|
(#)
|
|
|
|
|
Neil
Cole
|
|
|
-
|
|
|
|
245,366
|
|
8/18/2000
|
|
8/18/2000
|
|
|
|
-
|
|
|
|
76,500
|
|
10/26/2001
|
|
10/26/2001
|
|
|
|
-
|
|
|
|
273,500
|
|
10/26/2001
|
|
10/26/2001
|
|
|
|
-
|
|
|
|
200,000
|
|
4/23/2002
|
|
2/1/2003
|
|
|
|
-
|
|
|
|
200,000
|
|
4/23/2002
|
|
2/1/2004
|
|
|
|
-
|
|
|
|
200,000
|
|
4/23/2002
|
|
2/1/2005
|
|
|
|
-
|
|
|
|
15,000
|
|
5/22/2002
|
|
5/22/2002
|
|
|
|
-
|
|
|
|
800,000
|
|
3/29/2005
|
|
3/29/2005
|
|
|
|
-
|
|
|
|
200,000
|
|
12/28/2005
|
|
12/28/2005
|
|
|
|
236,337
|
|
|
|
-
|
|
1/28/2008
|
|
12/31/2009
|
|
|
|
39,390
|
|
|
|
-
|
|
1/28/2008
|
|
12/31/2009
|
|
|
|
78,779
|
|
|
|
-
|
|
1/28/2008
|
|
12/31/2012
|
|
|
|
236,337
|
|
|
|
-
|
|
8/13/2009
|
|
12/31/2010
|
|
|
|
236,337
|
|
|
|
-
|
|
8/13/2009
|
|
12/31/2011
|
|
|
|
236,337
|
|
|
|
-
|
|
8/13/2009
|
|
12/31/2012
|
|
|
|
118,168
|
|
|
|
-
|
|
8/13/2009
|
|
12/31/2012
|
|
|
|
157,558
|
|
|
|
-
|
|
8/13/2009
|
|
12/31/2010
|
|
|
|
157,558
|
|
|
|
-
|
|
8/13/2009
|
|
12/31/2011
|
|
|
|
157,558
|
|
|
|
-
|
|
8/13/2009
|
|
12/31/2012
|
|
|
|
|
|
|
|
|
|
|
|
|
Warren
Clamen
|
|
|
-
|
|
|
|
60,000
|
|
3/9/2005
|
|
6/1/2005
|
|
|
|
-
|
|
|
|
50,000
|
|
12/28/2005
|
|
12/28/2005
|
|
|
|
2,982
|
|
|
|
-
|
|
4/11/2008
|
|
4/11/2010
|
|
|
|
1,624
|
|
|
|
-
|
|
6/5/2009
|
|
6/5/2010
|
|
|
|
23,514
|
|
|
|
-
|
|
9/22/09
|
|
11/10/2010
|
|
|
|
23,514
|
|
|
|
-
|
|
9/22/09
|
|
11/10/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew
Tarshis
|
|
|
-
|
|
|
|
10,000
|
|
7/22/2005
|
|
7/22/2005
|
|
|
|
2,982
|
|
|
|
-
|
|
4/11/2008
|
|
4/11/2010
|
|
|
|
1,624
|
|
|
|
-
|
|
6/5/2009
|
|
6/5/2010
|
|
|
|
23,514
|
|
|
|
-
|
|
9/22/09
|
|
11/10/2010
|
|
|
|
23,514
|
|
|
|
-
|
|
9/22/09
|
|
11/10/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
Yehuda
Shmidman
|
|
|
-
|
|
|
|
10,000
|
|
10/31/2005
|
|
10/31/2005
|
|
|
|
-
|
|
|
|
10,000
|
|
12/28/2005
|
|
12/28/2005
|
|
|
|
4,979
|
|
|
|
-
|
|
4/11/2008
|
|
4/11/2010
|
|
|
|
2,166
|
|
|
|
-
|
|
6/5/2009
|
|
6/5/2010
|
|
|
|
24,930
|
|
|
|
-
|
|
11/17/2009
|
|
11/16/2010
|
|
|
|
24,929
|
|
|
|
-
|
|
11/17/2009
|
|
11/16/2011
|
|
|
|
24,929
|
|
|
|
-
|
|
11/17/2009
|
|
11/16/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
David
Blumberg
|
|
|
-
|
|
|
|
30,000
|
|
3/9/2007
|
|
3/9/2007
|
|
|
|
-
|
|
|
|
55,000
|
|
3/30/2007
|
|
3/30/2007
|
|
|
|
-
|
|
|
|
55,000
|
|
10/3/2007
|
|
10/3/2007
|
|
|
|
-
|
|
|
|
30,000
|
|
12/17/2007
|
|
12/17/2007
|
|
|
|
-
|
|
|
|
20,000
|
|
10/2/2008
|
|
10/2/2008
|
|
|
|
-
|
|
|
|
15,000
|
|
9/22/2009
|
|
9/22/2009
|
|
|
|
-
|
|
|
|
15,000
|
|
10/30/2009
|
|
10/30/2009
|
|
|
|
35,826
|
|
|
|
|
|
12/31/2009
|
|
12/31/2009
|
OPTION
EXERCISES AND STOCK VESTED
The
following table sets forth certain information regarding exercise of options and
vesting of restricted stock held by our named executive officers during the year
ended December 31, 2009.
|
|
Number
of
Shares
Acquired
on
Exercise
(2)
|
|
|
Value
Realized
on
Exercise
(1)
|
|
|
Number
of
Shares
Acquired
on
Vesting
|
|
|
Value
Realized
on
Vesting
|
|
Name
|
|
(#)
|
|
|
($)
|
|
|
(#)
|
|
|
($)
|
|
Neil
Cole
|
|
|
361,759
|
|
|
$
|
5,021,419
|
|
|
|
236,337
|
(3)
|
|
$
|
2,994,390
|
|
|
|
|
|
|
|
|
|
|
|
|
39,390
|
(3)
|
|
|
499,071
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warren
Clamen
|
|
|
-
|
|
|
|
-
|
|
|
|
2,981
|
|
|
$
|
32,880
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
23,514
|
|
|
|
284,990
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew
Tarshis
|
|
|
-
|
|
|
|
-
|
|
|
|
2,981
|
|
|
$
|
32,880
|
|
|
|
|
|
|
|
|
|
|
|
|
6,154
|
|
|
|
105,603
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
23,514
|
|
|
|
284,990
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Yehuda
Shmidman
|
|
|
5,000
|
|
|
$
|
28,250
|
|
|
|
4,979
|
|
|
$
|
54,918
|
|
|
|
|
5,000
|
|
|
|
28,000
|
|
|
|
5,875
|
|
|
|
70,559
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David
Blumberg
|
|
|
-
|
|
|
|
-
|
|
|
|
35,826
|
|
|
$
|
453,915
|
|
|
(1)
|
Included
in this column is the aggregate dollar amount realized by the named
executive officer upon exercise of the
options.
|
|
(2)
|
The
number of shares reflects the gross amount issued upon the exercise of the
options and does not give effect to the withholding of a portion of the
shares by the Company to satisfy certain withholding tax liability of the
person exercising the options.
|
|
(3)
|
Includes
236,337 shares of common stock underlying RSU’s that vested on December
31, 2009 and 39,390 shares of common stock underlying PSU’s that were
deemed earned by the compensation committee for the year ended December
31, 2009 as more fully discussed in footnote 2 to the table of Outstanding
Equity Awards at Fiscal Year-End. The delivery of the 236,337 shares of
common stock underlying the RSU’s was deferred, as more fully discussed in
footnote 1 to the table of Outstanding Equity Awards at Fiscal
Year-End.
|
POTENTIAL
PAYMENTS UPON TERMINATION OR CHANGE IN CONTROL
As noted
under “- Narrative to Summary Compensation Table-and Plan-Based Awards Table -
Employment Agreements”, we have entered into employment agreements with each of
our named executive officers. These agreements provide for certain payments and
other benefits if a named executive officer’s employment with us is terminated
under circumstances specified in his or her respective agreement, including a
“change in control” of the Company. A named executive officer’s rights upon the
termination of his or her employment will depend upon the circumstances of the
termination.
The
receipt of the payments and benefits to the named executive officers under their
employment agreements are generally conditioned upon their complying with
customary non-solicitation, non-competition, confidentiality, non-interference
and non-disparagement provisions. By the terms of such agreements, the
executives acknowledge that a breach of some or all of the covenants described
herein will entitle us to injunctive relief restraining the commission or
continuance of any such breach, in addition to any other available
remedies.
Except as
provided in the footnotes below, the following table provides the term of such
covenants following the termination of employment as it relates to each named
executive officer:
Covenant
|
|
Neil
Cole
|
|
Warren
Clamen
|
|
Andrew
Tarshis
|
|
Yehuda
Shidman
|
|
David
Blumberg
|
|
|
|
|
|
|
|
|
|
|
|
Confidentiality
|
|
Infinite
duration
|
|
Infinite
duration
|
|
Infinite
duration
|
|
Infinite
duration
|
|
Infinite
duration
|
|
|
|
|
|
|
|
|
|
|
|
Non-solicitation
|
|
Two
years
|
|
Three
years(1)
|
|
Three
years(1)
|
|
Three
years(1)
|
|
Two
years(3)
|
|
|
|
|
|
|
|
|
|
|
|
Non-competition
|
|
One
year
|
|
Two
years(1)
|
|
Two
years(1)
|
|
Three
years(1)
|
|
Three
years(3)
|
|
|
|
|
|
|
|
|
|
|
|
Non-interference
|
|
(2)
|
|
Three
years(1)
|
|
Three
years(1)
|
|
Three
years(1)
|
|
Two
years(3)
|
|
|
|
|
|
|
|
|
|
|
|
Non-disparagement
|
|
Five
years
|
|
None
|
|
None
|
|
None
|
|
None
|
|
(1)
|
Covenant
runs from the date of the executive’s current employment
agreement.
|
|
(2)
|
Mr.
Cole’s employment agreement with us provides that during the term and a
period of (i) two years thereafter, Mr. Cole cannot solicit our employees
and (ii) one year thereafter, Mr. Cole cannot solicit our
customers.
|
|
(3)
|
Covenant
runs from the date the executive’s employment is
terminated.
|
Termination
Payments (without a change in control)
The table
below includes a description and the amount of estimated payments and benefits
that would be provided by us (or our successor) to each of the named executive
officers under each employment agreement, assuming that a termination
circumstance occurred as of December 31, 2009 and a “change in control” had not
occurred:
|
|
|
|
Estimated
Amount of Termination Payment to:
|
|
Type
of Payment
|
|
Termination
Event
|
|
Neil
Cole
(1)
|
|
|
Warren
Clamen
|
|
|
Andrew
Tarshis
|
|
|
Yehuda
Shmidman
|
|
|
David
Blumberg
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payment
of earned but unpaid salary, unreimbursed expense, and accrued
but unused vacation time (2)
|
|
Termination
for Cause or by executive without Good Reason
|
|
none
|
|
|
none
|
|
|
none
|
|
|
none
|
|
|
none
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earned
but unpaid bonuses (2)
|
|
Termination
without Cause or by executive for Good Reason, death or
disability
|
|
none
|
|
|
none
|
|
|
none
|
|
|
none
|
|
|
none
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lump
Sum Severance Payment
|
|
Termination
without Cause or by executive for Good Reason
|
|
$
|
4,500,000
|
(3)
|
|
$
|
744,110
|
(4)
|
|
$
|
744,110
|
(4)
|
|
$
|
1,036,644
|
(4)
|
|
|
800,000
|
(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro
rata portion of current year bonuses
|
|
Death,
termination without Cause, or termination by executive for Good
Reason
|
|
$
|
none
|
(6)
|
|
none
|
(5)
|
|
none
|
(5)
|
|
none
|
(5)
|
|
none
|
(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued
coverage under medical, dental, hospitalization and life insurance
plans
|
|
Death,
termination without Cause, or termination by executive for Good
Reason
|
|
$
|
45,815
|
|
|
$
|
1,112
|
|
|
$
|
38,939
|
|
|
|
38,669
|
|
|
|
39,074
|
|
1 Upon
Mr. Cole’s termination without cause by us or for good reason by Mr. Cole, 75%
of the then remaining unvested restricted stock units shall
immediately vest, and the portion of performance based units shall become vested
on the achievement of the performance goals through the date of
termination.
2 At
December 31, 2009, each named executive officer is assumed to have received all
such payments.
3 Payable
one half in monthly installments, and half on December 31, 2009.
4 These
amounts are payable in lump sum within 30 days of termination.
5 All
such bonuses are discretionary.
6 All
such bonuses are performance based.
Change
in Control Payments
In lieu
of the lump sum severance payment upon termination without a change of control,
Mr. Cole is entitled to a lump sum payment equal to three times his base salary
plus three times his average annual bonus for the last three years upon
termination following a change in control.
In
addition to the payments made upon termination by the Company without cause or
termination by the executive for good reason, the employment agreements with
Messrs Tarshis, Clamen, Shmidman and Blumberg provide that, if, within twelve
months of a “change in control,” their employment is terminated by us without
“cause” or they terminate their employment with us for “good reason,” as all
such terms are defined in each employment agreement, we are obligated to make a
lump-sum severance payment to each such named executive officer equal to $100
less than three times the named executive officer’s “annualized includable
compensation for the base period” (as defined in Section 280G of the Internal
Revenue Code).
Under the
circumstances described above, all of the named executive officers were entitled
to an accelerated vesting and payment of stock options and restricted stock
awards granted to that named executive officer. However, the sum of any lump sum
payments, the value of any accelerated vesting of stock options and restricted
stock awards, and the value of any other benefits payable to the named executive
officer, with the exception of Mr. Cole, may not equal or exceed an amount that
would constitute an “excess parachute payment” (as defined in Section 280G of
the Internal Revenue Code). With respect to Mr. Cole, such payment is
due within 60 days of December 31, 2009.
The
following table quantifies the estimated maximum amount of payments and benefits
under our employment agreements and agreements relating to awards granted under
our equity incentive and stock option plans to which the named executive
officers would have been entitled upon termination of employment if we had
terminated their employment without cause within twelve (12) months following a
“change in control” of our Company that (by assumption) occurred on December 31,
2009 and prior to the expiration of any employment agreements.
|
|
Cash
Severance
Payment
|
|
|
Continuation
of
Medical/Welfare
Benefits
(Present
Value)
|
|
|
Present
Value
of
Accelerated
Vesting
of
Equity
Awards
|
|
|
Present
Value
of
Accelerated
Payment
of
Bonus
|
|
|
Total
Termination
Benefits
|
|
Name
|
|
($)(1)
|
|
|
($)
|
|
|
($)(1)
|
|
|
($)
|
|
|
($)
|
|
Neil
Cole
|
|
$
|
6,149,000
|
(2)
|
|
$
|
39,741
|
|
|
$
|
3,805,802
|
|
|
$
|
-
|
|
|
$
|
9,994,543
|
|
Warren
Clamen
|
|
|
2,602,298
|
(3)
|
|
|
1,085
|
|
|
|
81,838
|
|
|
|
-
|
|
|
|
2,685,221
|
|
Andrew
Tarshis
|
|
|
2,029,854
|
(4)
|
|
|
33,705
|
|
|
|
81,838
|
|
|
|
-
|
|
|
|
2,145,397
|
|
Yehuda
Shmidman
|
|
|
2,202,906
|
(5)
|
|
|
33,705
|
|
|
|
241,885
|
|
|
|
-
|
|
|
|
2,478,496
|
|
David
Blumberg
|
|
|
1,999,900
|
(6)
|
|
|
33,705
|
|
|
|
583,595
|
|
|
|
-
|
|
|
|
2,617,200
|
|
(1)
|
This
amount represents the unrealized value of the unvested portion of the
respective named executive officer’s restricted stock based upon the
closing price of our common stock on December 31,
2009.
|
(2)
|
Payable
within 60 days of termination.
|
(3)
|
$745,205
is payable within 30 days of termination. The difference is due within 15
days of termination
|
(4)
|
$745,205
is payable within 30 days of termination. The difference is due within 15
days of termination.
|
(5)
|
$1,082,808
is payable within 30 days of termination. The difference is due within 15
days of termination.
|
(6)
|
$
800,000 is payable within 30 days of termination. The difference is due
within 15 days of termination.
|
Director
Compensation
The
compensation committee determined that for each full year of service as a
director of our company during 2009, each non-employee member of the Board would
receive a cash payment of $40,000, payable 50% on or about January 1 and 50% on
or about July 1, and 4,000 restricted shares of common stock vesting 100% on
July 1 of each year. In addition, the compensation committee determined that the
audit committee chair would receive an annual stipend of $15,000, and the chairs
of the compensation committee and nominating and governance committee would
receive an annual stipend of $10,000, each payable each July 1.
The
following table sets forth compensation information for 2009 for each member of
our Board of Directors who is not also an executive officer. An executive
officer who serves on our Board does not receive additional compensation for
serving on the Board. See Summary Compensation Table and Grants of Plan-Based
Awards Table for disclosures related to our Chairman of the Board, President and
Chief Executive Officer, Neil Cole.
Name
|
|
Fees
Earned
or
Paid
in
Cash
($)
|
|
|
Stock
Awards
($)
(1)(2)
|
|
|
Option
Awards
($)
(2)
|
|
|
Non-Equity
Incentive
Plan
Compensation
($)
|
|
|
Change
in
Pension
Value
and
Nonqualified
Deferred
Compensation
Earnings
|
|
|
All
Other
Compensation
($)
|
|
|
Total
($)
|
|
Barry
Emanuel
|
|
|
40,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
78,240
|
|
Steven
Mendelow
|
|
|
55,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
93,240
|
|
Drew
Cohen
|
|
|
50,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
88,240
|
|
F.
Peter Cuneo
|
|
|
40,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
78,240
|
|
Mark
Friedman
|
|
|
50,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
88,240
|
|
James
A. Marcum
|
|
|
40,000
|
|
|
|
38,240
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
78,240
|
|
(1)
|
Represents
the aggregate grant date fair value. See Note 6 to Notes to the
Consolidated Financial Statements included in our Annual Report on Form
10-K for a discussion for the relevant assumptions used in calculating
grant date fair value.
|
(2)
|
At
December 31, 2009 Mr. Marcum had 3,515 shares of restricted stock that had
not vested. In addition, at December 31, 2009 our non-employee directors
owned the following unexercised options - Drew Cohen 50,000; Barry Emanuel
- 191,173; and Steven Mendelow -
100,250.
|
VOTING SECURITY OWNERSHIP OF
CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The
following table presents information regarding beneficial ownership of our
common stock as of the Record Date by each of our directors and our named
executive officers, all of our executive officers and directors, as a group, and
each person known by us to beneficially hold five percent or more of our common
stock, based on information obtained from such persons.
Unless
indicated below, to our knowledge, the persons and entities named in the table
have sole voting and sole investment power with respect to all securities
beneficially owned, subject to community property laws where applicable. The
shares “beneficially owned” by a person are determined in accordance with the
definition of “beneficial ownership” set forth in the regulations of the SEC
and, accordingly, shares of our common stock underlying options, warrants,
restricted stock units and other convertible securities that are exercisable or
convertible within 60 days of the Record Date and shares of our common stock
underlying restricted stock awards that vest within 60 days of the Record Date
are deemed to be beneficially owned by the person holding such securities and to
be outstanding for purposes of determining such holder’s percentage ownership.
Shares of common stock subject to options, warrants, restricted stock units or
other convertible securities that are not exercisable or convertible and
restricted stock awards that do not vest within 60 days from the Record Date are
not included in the table below as “beneficially owned”. The same securities may
be beneficially owned by more than one person.
Percentage
ownership is based on 72,643,411 shares of our common stock outstanding as of
the Record Date.
The address for each
beneficial owner, unless otherwise noted, is c/o Iconix Brand Group, Inc. at
1450 Broadway, 3
rd
Floor,
New York, New York 10018.
Name
and Address of Beneficial Owner
|
|
Number
of
Shares
of
Common
Stock
Beneficially
Owned
|
|
|
Percentage
of Company’s
Outstanding
Common
|
|
Neil
Cole
|
|
2,821,209
|
(1)
|
|
3.8
|
%
|
Warren
Clamen
|
|
135,138
|
(2)
|
|
*
|
|
Andrew
Tarshis
|
|
32,870
|
(3)
|
|
*
|
|
Yehuda
Shmidman
|
|
25,719
|
(4)
|
|
*
|
|
David
Blumberg
|
|
260,842
|
(5)
|
|
*
|
|
Barry
Emanuel
|
|
209,529
|
(6)
|
|
*
|
|
Steven
Mendelow
|
|
154,214
|
(7)
|
|
*
|
|
Drew
Cohen
|
|
75,158
|
(8)
|
|
*
|
|
F.
Peter Cuneo
|
|
119,776
|
|
|
*
|
|
Mark
Friedman
|
|
34,140
|
|
|
*
|
|
James
A. Marcum
|
|
26,320
|
|
|
*
|
|
|
|
|
|
|
|
|
Baron
Capital Group, Inc.
767
Fifth Avenue
New
York, NY 10153
|
|
3,750,000
|
(9)
|
|
5.2
|
%
|
|
|
|
|
|
|
|
FMR
LLC
82
Devonshire Street
Boston,
MA 02109
|
|
10,738,131
|
(10)
|
|
14.8
|
%
|
|
|
|
|
|
|
|
Black
Rock Inc.
40
East 52
nd
Street
New
York, NY 10022
|
|
6,339,529
|
(11)
|
|
8.7
|
%
|
|
|
|
|
|
|
|
Neuberger
Berman Group LLC
Neuberger
Berman LLC
605
Third Avenue
New
York, NY 10158
|
|
4,779,687
|
(12)
|
|
6.6
|
%
|
All
directors and executive officers as a group (11 persons)
|
|
3,894,915
|
(
13)
|
|
5.2
|
%
|
(1)
|
Includes
(i) 2,210,366 shares of common stock issuable upon exercise of options
(ii) 472,674 shares of common stock underlying restricted common stock
units that have vested but the delivery of which Mr. Cole has
agreed to defer and (iii) 20,000 shares of common stock owned by Mr.
Cole’s children. Does not include (i) shares held in Mr. Cole’s account
under the Company’s 401(k) savings plan over which Mr. Cole has no current
voting or investment power or (ii) 709,010 shares of common stock
underlying restricted common stock units that have not vested, the
delivery of which Mr. Cole has agreed to
defer.
|
(2)
|
Includes
110,000 shares of common stock issuable upon exercise of
options.
|
(3)
|
Includes
10,000 shares of common stock issuable upon exercise of
options.
|
(4)
|
Includes
20,000 shares of common stock issuable upon exercise of
options.
|
(5)
|
Includes
(i) 45,000 shares of common stock issuable upon exercise of options owned
by Mr. Blumberg, (ii) 190,000 shares of common stock issuable upon
exercise of options owned by Blumberg Associates, LLC, and (iii) 16,000
shares owned by Blumberg Associates, LLC. Mr. Blumberg has
voting and investment control over securities of the Company owned by
Blumberg Associates, LLC.
|
(6)
|
Includes
191,173 shares of common stock issuable upon exercise of
options.
|
(7)
|
Includes
50,000 shares of common stock issuable upon exercise of options and 60,750
shares of common stock owned by C&P Associates, with which Mr.
Mendelow and his wife are affiliated and over whose securities they
exercise shared voting and investment
control.
|
(8)
|
Includes
50,000 shares of common stock issuable upon exercise of
options.
|
(9)
|
Baron
Capital Group, Inc. (“BCG”) is deemed to have beneficial ownership of
these shares, which are held by BCG or entities that it controls. BCG and
Ronald Baron disclaim beneficial ownership of the shares held by their
controlled entities (or the investment advisory clients thereof) to the
extent that persons other than BCG and Ronald Baron hold such shares.
BAMCO, Inc. disclaims beneficial ownership of shares held by its
investment advisory clients to the extent such shares are held by persons
other than BAMCO, Inc. and its affiliates. The information provided is
based upon Schedule 13G filed by BCG and its affiliates: Bamco, Inc.;
Baron Small Cap Fund; and Ronald Baron, as amended on February 4,
2010.
|
(10)
|
According
to an amendment to a Schedule 13G filed on February 16, 2010, Fidelity
Management & Research Company, herein referred to as Fidelity, 82
Devonshire Street, Boston, Massachusetts 02109, a wholly-owned subsidiary
of FMR LLC and an investment adviser registered under Section 203 of the
Investment Advisers Act of 1940, at December 31, 2009 was the beneficial
owner of 7,423,420 shares of our common stock as a result of
acting as investment adviser to various investment companies registered
under Section 8 of the Investment Company Act of 1940. The number of
shares of our common stock owned by the investment companies at December
31, 2009 included 297,533 shares of common stock resulting from the
assumed conversion of $8,200,000 principal amount of our 1.875%
convertible senior subordinated notes (36.2845 shares of common stock for
each $1,000 principal amount of convertible notes). Edward C. Johnson 3d
and FMR LLC, through its control of Fidelity, and the funds each has sole
power to dispose of the 7,423,420 shares owned by the funds. Members of
the family of Edward C. Johnson 3d, Chairman of FMR LLC, are the
predominant owners, directly or through trusts, of Series B voting common
shares of FMR LLC, representing 49% of the voting power of FMR LLC. The
Johnson family group and all other Series B shareholders have entered into
a shareholders’ voting agreement under which all Series B voting common
shares will be voted in accordance with the majority vote of Series B
voting common shares. Accordingly, through their ownership of voting
common shares and the execution of the shareholders’ voting agreement,
members of the Johnson family may be deemed, under the Investment Company
Act of 1940, to form a controlling group with respect to FMR LLC. Neither
FMR LLC nor Edward C. Johnson 3d, Chairman of FMR LLC, has the sole power
to vote or direct the voting of the shares owned directly by the Fidelity
Funds, which power resides with the Funds’ Boards of Trustees. Fidelity
carries out the voting of the shares under written guidelines established
by the Funds’ Boards of Trustees. Pyramis Global Advisors, LLC, herein
referred to as PGALLC, 900 Salem Street, Smithfield, RI, 02917, an
indirect wholly-owned subsidiary of FMR LLC and an investment adviser
registered under Section 203 of the Investment Advisers Act of 1940, is
the beneficial owner of 189,310 shares of our outstanding common stock as
a result of its serving as investment adviser to institutional accounts,
non-U.S. mutual funds, or investment companies registered under Section 8
of the Investment Company Act of 1940 owning such shares. Edward C.
Johnson 3d and FMR LLC, through its control of PGALLC, each has sole
dispositive power over 61,873 shares and sole power to vote or to direct
the voting of 189,310 shares of our common stock owned by the
institutional accounts or funds advised by PGALLC as reported above.
Pyramis Global Advisors Trust Company, herein referred to as PGATC, 900
Salem Street, Smithfield, RI, 02917, an indirect wholly-owned subsidiary
of FMR LLC and a bank as defined in Section 3(a)(6) of the Securities
Exchange Act of 1934, as amended, or Exchange Act, is the beneficial owner
of 659,051 shares of our common stock as a result of its serving as
investment manager of institutional accounts owning such
shares. Edward C. Johnson 3d and FMR LLC, through its control
of PGATC, each has sole dispositive power over 659,051 shares and sole
power to vote or to direct the voting of 659,051 shares of our common
stock owned by the institutional accounts managed by PGATC as reported
above. FIL Limited, herein referred to as FIL, Pembroke Hall, 42 Crow
Lane, Hamilton, Bermuda, and various foreign-based subsidiaries provide
investment advisory and management services to a number of non-U.S.
investment companies and certain institutional investors. FIL, which is a
qualified institution under section 240.13d-1(b)(1) (ii), is the
beneficial owner of 2,466,350 shares of our common stock. The number of
shares of our common stock owned by the institutional account(s) at
December 31, 2009 included 754,717 shares of common stock resulting from
the assumed conversion of $20,800,000 principal amount of our 1.875%
convertible senior subordinated notes (36.2845 shares of common stock for
each $1,000 principal amount of convertible
note). Partnerships controlled predominantly by members
of the family of Edward C. Johnson 3d, Chairman of FMR LLC and FIL, or
trusts for their benefit, own shares of FIL voting stock with the right to
cast approximately 47% of the total votes which may be cast by all holders
of FIL voting stock. FMR LLC and FIL are separate and independent
corporate entities, and their Boards of Directors are generally composed
of different individuals. FMR LLC and FIL are of the view that they are
not acting as a “group” for purposes of Section 13(d) under the Exchange
Act and that they are not otherwise required to attribute to each other
the “beneficial ownership” of securities “beneficially owned” by the other
corporation within the meaning of Rule 13d-3 promulgated under the
Exchange Act. Therefore, they are of the view that the shares held by the
other corporation need not be aggregated for purposes of Section 13(d).
FMR LLC filed the amendment to the Schedule 13G on a voluntary basis as if
all of the shares are beneficially owned by FMR LLC and FIL on a joint
basis.
|
|
|
(11)
|
On
December 1, 2009, Black Rock, Inc. completed its acquisition of Barclays
Global Investors, NA, herein referred to as Barclays
Capital. The reported amounts include shares of our common
stock beneficially owned by Barclays Capital and certain of its
affiliates. The information is based upon a Schedule 13G filed January 29,
2010 by Black Rock, Inc.
|
(12)
|
According
to the Schedule 13G filed on February 17, 2010 by Neuberger
Berman Group LC and Neuberger Berman LLC, Neuberger Berman Group LLC may
be deemed to be a beneficial owner of these securities for purposes of
Rule 13d-3 because certain affiliated persons have shared power to retain
or dispose of the securities of many unrelated clients. Neuberger Berman
Group LLC or its affiliated persons do not, however, have any economic
interest in the securities of those clients. The clients are the actual
owners of the securities and have the sole right to receive and the power
to direct the receipt of dividends from or proceeds from the sale of such
securities. No one client has an interest of more than 5% of
Iconix.
|
(13)
|
Includes
(i) 2,861,539 shares of common stock issuable upon exercise of options and
(ii) 472,674 shares underlying restricted stock and restricted stock unit
awards described in footnote (1)
above.
|
EQUITY
COMPENSATION PLAN INFORMATION
The
following table sets forth certain information with respect to all of the
Company’s equity compensation plans in effect as of December 31,
2009.
|
|
Number
of
securities
to be
issued
upon exercise
of
outstanding
options,
warrants
and rights
(a)
|
|
|
Weighted-average
exercise
price of
outstanding
options,
warrants
and rights
(b)
|
|
|
Number
of securities
remaining
available for
issuance
under equity
compensation
plans
(excluding
securities
reflected
in column (a))
(c)
|
|
Equity
compensation plans approved by security holders:
|
|
|
2,320,479
|
|
|
$
|
5.68
|
|
|
|
2,250,651
|
|
Equity
compensation plans not approved by security holders:
:
(1)
|
|
|
1,060,500
|
|
|
$
|
5.24
|
|
|
|
—
|
|
Total
|
|
|
3,380,979
|
|
|
$
|
5.54
|
|
|
|
2,250,631
|
|
(1)
|
Represents
the aggregate number of shares of common stock issuable upon exercise of
individual arrangements with option and warrant holders, including 460,500
options issued under the terms of our 2001 Stock Option Plan. These
options and warrants are up to three years in duration, expire at various
dates through December 28, 2015, contain anti-dilution provisions
providing for adjustments of the exercise price under certain
circumstances and have termination provisions similar to options granted
under stockholder approved plans. See Note 6 of Notes to Consolidated
Financial Statements in our Form 10-K for the year ended December 31, 2009
for a description of our stock option and stock incentive
plans.
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Pursuant
to its charter, our audit committee must review and approve, where appropriate,
all related party transactions.
Kenneth
Cole Productions, Inc.
On May 1,
2003, we granted Kenneth Cole Productions, Inc. the exclusive worldwide license
to design, manufacture, sell, distribute and market footwear under its Bongo
brand. The chief executive officer and chairman of Kenneth Cole Productions is
Kenneth Cole, who is the brother of Neil Cole, our chief executive officer and
president. During 2009, 2008 and 2007, we earned $0.3 million, $ $1.1 million
and $0.7 million in royalties from Kenneth Cole Productions, respectively. This
license expired by its terms on December 31, 2009.
The
Candie’s Foundation
The
Candie’s Foundation, a charitable foundation founded by Neil Cole for the
purpose of raising national awareness about the consequences of teenage
pregnancy, owed the Company $0.8 million and $0.8 million at December 31, 2009
and 2008, respectively. In February 2010, the Candie’s Foundation received a
contribution of approximately $0.7 million from a licensee of ours. The Candie’s
Foundation intends to pay-off the entire borrowing from us during 2010, although
additional advances will be made as and when necessary.
Travel
We
recorded expenses of approximately $326,000 and $354,000 for 2009 and 2008,
respectively, for the hire and use of aircraft solely for business purposes
owned by a company in which the our chairman, chief executive officer and
president is the sole owner. We believe that all transactions were made on terms
and conditions no less favorable than those available in the marketplace from
unrelated parties. There were no such transactions in 2007.
AUDIT
COMMITTEE REPORT
In 2010
the Audit Committee met with management and representatives of BDO Seidman, LLP
to review preparations for the audit including review of control procedures
required pursuant to implementation of Section 404 of the
Sarbanes-Oxley Act of 2002, and the procedures and timing of the audit of our
financial statements. Following completion of the audit of the financial
statements, the Audit Committee met with representatives of BDO Seidman, LLP and
management to review the audit findings. The Audit Committee also discussed with
representatives of BDO Seidman, LLP the matters required to be discussed by
Statement on Auditing Standards 61, as amended, “Communication with Audit
Committees”, as adopted by the Public Accounting Oversight Board.
The Audit
Committee received the written disclosures and the confirming letter from BDO
Seidman, LLP required by applicable requirements of the Public Accounting
Oversight Board regarding the independent accountant’s communications with the
Audit Committee concerning independence and discussed with BDO Seidman its
independence from the Company.
Based
upon the review and discussions referred to above, the Audit Committee
recommended to the Board of Directors that the audited financial statements be
included in our Annual Report on Form 10-K for 2009.
|
THE
AUDIT COMMITTEE
|
|
Steven
Mendelow, Chairperson
|
|
Drew
Cohen
|
|
F.
Peter Cuneo
|
|
James
A. Marcum
|
PROPOSAL
II
RATIFICATION
OF THE APPOINTMENT OF
INDEPENDENT
REGISTERED PUBLIC ACCOUNTANTS
BDO
Seidman, LLP has audited and reported upon our financial statements for our
fiscal year ending December 31, 2010. The audit committee of the Board of
Directors has re-appointed BDO Seidman, LLP as our independent registered public
accountants for 2009. Although stockholder approval of the appointment of BDO
Seidman, LLP is not required by law, the audit committee and the Board of
Directors believe that it is advisable to give stockholders an opportunity to
ratify this appointment. Furthermore, although the appointment of BDO Seidman,
LLP is being submitted for stockholder ratification, the audit committee
reserves the right, even after ratification by stockholders, to change the
appointment of BDO Seidman, LLP our independent registered public accountants,
at any time during the 2010 fiscal year, if it deems such change to be in our
best interest. A representative of BDO Seidman, LLP is expected to be present at
the Annual Meeting with the opportunity to make a statement if he or she desires
to do so and is expected to be available to respond to appropriate
questions.
In
addition to retaining BDO Seidman, LLP to audit our financial statements, we
engage BDO Seidman, LLP from time to time to perform other
services.
Audit Fees.
The aggregate fees
billed by BDO Seidman, LLP for professional services rendered for the audit of
the Company’s annual financial statements for 2009 and 2008, internal controls
over financial reporting and the reviews of the financial statements included in
the Company’s Forms 10-Q, comfort letter and consents related to SEC
registration statements and other capital raising activities for 2009 and 2008
totaled approximately $473,000 and $551,482, respectively.
Audit-Related
Fees.
There were approximately $265,650 and $72,900 aggregate
fees billed by BDO Seidman, LLP for assurance and related services that are
reasonably related to the performance of the audit or review of the Company’s
financial statements for 2009 and 2008, respectively, and that are not disclosed
in the paragraph captions “Audit Fees” above. The majority of the audit-related
fees in 2009 were related to the Company’s acquisitions; in 2008 these fees were
related to the audits of the financial statements of IP Holdings and Candie’s
Foundation.
Tax Fees.
The aggregate fees
billed by BDO Seidman, LLP for professional services rendered for tax
compliance, for 2009 and 2008, were approximately $55,000 and $78,000,
respectively. The aggregate fees billed by BDO Seidman, LLP for professional
services rendered for tax advice and tax planning, for 2009 and 2008, were $0
and $0, respectively.
All Other Fees.
There were no
fees billed by BDO Seidman, LLP for products and services, other than the
services described in the paragraphs captions “Audit Fees”, “Audit-Related
Fees”, and “Tax Fees” above for 2009 and 2008.
The
Audit Committee has established its pre-approval policies and procedures,
pursuant to which the Audit Committee approved the foregoing audit services
provided by BDO Seidman, LLP in 2009. Consistent with the Audit Committee’s
responsibility for engaging the Company’s independent auditors, all audit and
permitted non-audit services require pre-approval by the Audit Committee. The
full Audit Committee approves proposed services and fee estimates for these
services. The Audit Committee chairperson or their designee has been designated
by the Audit Committee to approve any services arising during the year that were
not pre-approved by the Audit Committee. Services approved by the Audit
Committee chairperson are communicated to the full Audit Committee at its next
regular meeting and the Audit Committee reviews services and fees for the fiscal
year at each such meeting. Pursuant to these procedures, the Audit Committee
approved all the foregoing audit services and permissible non-audit services
provided by BDO Seidman, LLP.
Recommendation
The
Board of Directors recommends that you vote FOR approval of Proposal II and the
ratification of the appointment of BDO Seidman, LLP as our independent
registered public accountants for the fiscal year ending December 31,
2010.
STOCKHOLDER
PROPOSALS FOR 2011 ANNUAL MEETING
Stockholders
who wish to present proposals appropriate for consideration at our annual
meeting of stockholders to be held in the year 2011 must submit the proposal in
proper form consistent with our By-Laws to us at our address set forth on the
first page of this proxy statement and in accordance with applicable regulations
under Rule 14a-8 of the Exchange Act not later than March 10, 2011 in order for
the proposition to be considered for inclusion in our proxy statement and form
of proxy relating to such annual meeting. Any such proposals, should contain the
name and record address of the stockholder, the class and number of shares of
our common stock beneficially owned as of the record date established for the
meeting, a description of, and reasons for, the proposal and all information
that would be require to be included in the proxy statement file with the SEC if
such stockholder was a participant in the solicitation subject to
Section 14 of the Securities Exchange Act of 1934. The proposal and as well
as any questions related thereto, should be directed to the Company’s
Secretary.
If a
stockholder submits a proposal after the March 10, 2011 deadline required under
Rule 14a-8 of the Exchange Act but still wishes to present the proposal at our
Annual Meeting of Stockholders (but not in our proxy statement) for the fiscal
year ending December 31, 2010 to be held in 2011, the proposal, which must
be presented in a manner consistent with our By-Laws and applicable law, must be
submitted to the Secretary of the Company in proper form at the address set
forth above so that it is received by the Company’s Secretary not less than 50
nor more than 75 days prior to the meeting unless less than 65 days notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, in which case, no less than the close of business on the tenth day
following the date on which the notice of the date of the meeting was mailed or
other public disclosure of the date of the meeting was made.
We did
not receive notice of any proposed matter to be submitted by stockholders for a
vote at this Annual Meeting and, therefore, in accordance with Exchange Act Rule
14a-4(c) any proxies held by persons designated as proxies by our Board of
Directors and received in respect of this Annual Meeting will be voted in the
discretion of our management on such other matter which may properly come before
the Annual Meeting.
WHERE
YOU CAN FIND MORE INFORMATION
Our
2009 annual report to stockholders is being made available to stockholders via
the Internet. If you would like to receive printed copy of our proxy statement
and annual report, you should follow the instructions for requesting such
information in the notice you receive.
Copies of our Annual Report on Form
10-K for the fiscal year ended December 31, 2009 will be provided upon written
request to Iconix Brand Group, Inc. at 1450 Broadway, 3
rd
Floor,
NY, NY 10018, Attention: Corporate Secretary. The Form 10-K also is available on
our website at
www.iconixbrand.com
.
OTHER
INFORMATION
Proxies
for the Annual Meeting will be solicited by mail and through brokerage
institutions and all expenses involved, including printing and postage, will be
paid by us. In addition, arrangements will be made with brokerage houses and
other custodians, nominees and fiduciaries to send proxies and proxy materials
to the beneficial owners of stock, and we may reimburse such persons for their
expenses.
The Board
of Directors is aware of no other matters, except for those incident to the
conduct of the Annual Meeting, that are to be presented to stockholders for
formal action at the Annual Meeting. If, however, any other matters properly
come before the Annual Meeting or any adjournments thereof, it is the intention
of the persons named in the proxy to vote the proxy in accordance with their
judgment.
|
By
order of the Board of Directors,
|
|
|
|
Neil
Cole,
|
|
Chairman
of the Board,
|
|
President
and Chief Executive Officer
|
July 9,
2010
ICONIX
BRAND GROUP, INC.
|
VOTE
BY INTERNET OR TELEPHONE
|
|
|
Q
U
I
C
K
★
★
★
E
A
S
Y
★
★
★
I
M
M
E
D
I
A
T
E
|
|
As a stockholder of Iconix Brand Group, Inc., you have the option of voting your shares electronically through the Internet
or on the telephone, eliminating the need to return the proxy card. Your
electronic vote authorizes the named proxies to vote your shares in the same
manner as if you marked, signed, dated and returned the proxy card. Votes
submitted electronically over the Internet or by telephone must be received by
7:00 p.m., Eastern Time, on August 18, 2010.
|
|
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Vote Your Proxy on the
Internet:
|
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|
Vote Your Proxy by Phone:
|
|
|
|
Vote Your Proxy by Mail:
|
|
|
|
|
|
|
Call
1 (866) 894-0537
|
|
|
|
|
|
|
Go to
www.continentalstock.com
Have
your proxy card available when you access the above website. Follow the
prompts to vote your shares.
|
|
OR
|
|
Use
any touch-tone telephone to vote your proxy. Have your proxy card
available when you call. Follow the voting instructions to vote your
shares.
|
|
OR
|
|
Mark,
sign, and date your proxy card, then detach it, and return it in
the postage-paid envelope provided.
|
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PLEASE
DO NOT RETURN THE PROXY CARD IF YOU ARE
|
|
|
VOTING
ELECTRONICALLY OR BY PHONE
|
|
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|
▼
FOLD AND DETACH HERE AND READ THE
REVERSE SIDE
▼
PROXY
THIS
PROXY WILL BE VOTED IN ACCORDANCE WITH THE INSTRUCTIONS GIVEN. IF NO
INSTRUCTIONS ARE GIVEN, THIS PROXY WILL BE VOTED FOR THOSE NOMINEES
IN PROPOSAL 1 AND THE OTHER PROPOSAL LISTED BELOW. THE BOARD OF DIRECTORS
RECOMMENDS A VOTE
FOR
NOMINEES
LISTED IN PROPOSAL 1 AND
FOR
PROPOSAL
2.
|
ALL
THE
|
Please
mark
your
votes
like
this
|
x
|
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|
FOR
all
nominees listed
|
WITHHOLD
AUTHORITY
|
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below
(except as indicated
|
to
vote for all nominees
|
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to
the contrary)
|
listed
below
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FOR
|
AGAINST
|
ABSTAIN
|
1. Election of Directors:
|
o
|
o
|
|
2.
Ratification of the appointment of BDO Seidman, LLP as the Company’s
independent registered public accountants for the fiscal year ending
December 31, 2010.
|
o
|
o
|
o
|
01.
Neil Cole, 02. Barry Emanuel, 03. Steven Mendelow, 04. Drew
Cohen, 05. F. Peter Cuneo, 06. Mark Friedman and 07. James A.
Marcum
|
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(INSTRUCTION:
To withhold authority to vote for any individual nominee, write that
nominee’s name in the space below)
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3.
In their discretion, the Proxies are authorized to vote upon such
other business as may properly come before the
meeting.
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COMPANY
ID:
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PROXY
NUMBER:
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ACCOUNT
NUMBER:
|
Signature
|
|
Signature,
if held jointly
|
|
Date
|
|
,
2010.
|
Please
sign exactly as name appears hereon. When shares are held by joint tenants, both
should sign. When signing as attorney, executor, administrator, trustee or
guardian, please give full title as such. If a corporation, please sign in
full corporate name by President or other authorized officer. If a partnership,
please sign in partnership name by authorized person.
Important
Notice Regarding the Availability of Proxy Materials for
the
Annual Meeting of Stockholders to be held August 19, 2010.
The
Proxy Statement and our 2009 Annual Report to Stockholders are
available
at: http://www.cstproxy.com/iconixbrand/2010
▼
FOLD AND DETACH HERE AND READ THE
REVERSE SIDE
▼
PROXY
ICONIX
BRAND GROUP, INC.
1450
BROADWAY, 3
rd
Floor
NEW
YORK, NEW YORK 10018
PROXY
FOR ANNUAL MEETING OF STOCKHOLDERS TO BE HELD AUGUST 19, 2010
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The
undersigned hereby appoints NEIL COLE and WARREN CLAMEN, and each of them,
Proxies, with full power of substitution in each of them, in the name, place and
stead of the undersigned, to vote at the Annual Meeting of Stockholders of
Iconix Brand Group, Inc. (the “Company”) on Thursday, August 19, 2010, at the
offices of the Company, 1450 Broadway, 3
rd
Floor, New York, NY 10018 or at
any adjournment or adjournments thereof, according to the number of votes that
the undersigned would be entitled to vote if personally present, upon the
following matters on the reverse side:
(Continued
and to be dated and signed on reverse side)
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