FORM DEF 14A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material Pursuant to §240.14a-12 |
TWEEN BRANDS, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required. |
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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Fee paid previously with preliminary materials. |
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8323 Walton Parkway
New Albany, Ohio 43054
(614) 775-3500
April 9, 2009
Dear Stockholder:
You are cordially invited to attend our 2009 Annual Meeting of Stockholders. The meeting will
be held on May 21, 2009, at 9:00 a.m. Eastern Time at our corporate offices, located at 8323 Walton
Parkway, New Albany, Ohio. If you need assistance in finding the location of the meeting, please
call our Investor Relations Department at (614) 775-3500.
At the meeting, we will:
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elect two directors to the Board; |
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consider and vote upon a proposal to re-approve the material terms of the Incentive
Compensation Performance Plan; |
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ratify the selection of Deloitte & Touche LLP as the Companys independent
registered public accounting firm for the 2009 fiscal year; and |
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transact other business as may come before the meeting. |
We will also report on our financial and operating performance during 2008, and update
stockholders on our future strategy.
It is very important that your shares be represented and voted at the meeting. After reading
the proxy statement, please sign, date and return the proxy card, or take advantage of voting your
proxy over the telephone or the Internet at www.proxyvote.com. We encourage you to take advantage
of voting on the Internet because it is a convenient process and the least expensive way for us to
tabulate your vote.
We look forward to seeing you at the Annual Meeting.
Sincerely,
Michael W. Rayden
Chairman and Chief Executive Officer
8323 Walton Parkway
New Albany, Ohio 43054
(614) 775-3500
NOTICE OF 2009 ANNUAL MEETING OF STOCKHOLDERS
May 21, 2009
The Annual Meeting of Stockholders of Tween Brands, Inc. will be held on May 21, 2009, at 9:00
a.m. Eastern Time at the corporate offices of Tween Brands, Inc., 8323 Walton Parkway, New Albany,
Ohio, to conduct the following items of business:
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To elect two directors, each to serve a three-year term expiring at the 2012
Annual Meeting of Stockholders. |
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To consider and vote upon a proposal to re-approve the material terms of the
Incentive Compensation Performance Plan. |
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To ratify the selection of Deloitte & Touche LLP as the Companys independent
registered public accounting firm for the 2009 fiscal year. |
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To transact other business properly coming before the meeting or any
adjournment or postponement thereof. |
Stockholders who owned shares of our stock at the close of business on March 30, 2009, are
entitled to vote at the Annual Meeting. A complete list of these stockholders will be available at
our corporate offices prior to the Annual Meeting.
By Order of the Board of Directors,
Michael W. Rayden
Chairman and Chief Executive Officer
TABLE OF CONTENTS
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INFORMATION ABOUT THE ANNUAL MEETING AND VOTING
The Board of Directors of Tween Brands, Inc. is soliciting your proxy to vote at the 2009
Annual Meeting of Stockholders (or any adjournment or postponement of the meeting). This proxy
statement summarizes the information you need to know to vote at the Annual Meeting. Throughout the
proxy statement, the terms We, Our, Tween, Tween Brands, and the Company refer to Tween
Brands, Inc.
We have made our proxy statement for the Annual Meeting and our 2008 Annual Report on Form
10-K available to you on the Internet or, upon your request, have delivered printed versions of
these materials to you by mail beginning on or about April 9, 2009.
Date, time and place of meeting
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Date:
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May 21, 2009 |
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Time:
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9:00 a.m. Eastern Time |
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Place:
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Tween Brands, Inc. |
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8323 Walton Parkway |
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New Albany, Ohio 43054 |
Shares entitled to vote
Stockholders entitled to vote are those who owned our common stock at the close of business on
the record date, March 30, 2009. As of the record date, there were 24,820,890 shares of Tween
Brands, Inc. common stock outstanding. Each share of common stock that you own entitles you to one
vote.
Voting your proxy
Whether or not you plan to attend the Annual Meeting, we urge you to vote. Stockholders of
record can give proxies by mailing their signed proxy cards or by voting telephonically or on the
Internet. Submitting your completed proxy card or voting telephonically or on the Internet will not
affect your right to attend the Annual Meeting and vote.
We are sending a Notice of Internet Availability of Proxy Materials (the Notice) to our
stockholders of record and beneficial owners. Instructions on how to access the proxy materials
over the Internet or to request a printed set of proxy materials may be found on the Notice. If you
request a printed version of our proxy materials by mail, these materials will include a printed
proxy card for the Annual Meeting that indicates the number of shares of our common stock that you
own as of the record date.
If you complete and submit your printed proxy card correctly or if you vote telephonically or
on the Internet, one of the individuals named on your proxy card or designated by you over the
telephone or on the Internet (your proxy) will vote your shares as you have directed. If you
submit the printed proxy card but do not make specific choices, your proxy will follow the Boards
recommendations and vote your shares:
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FOR the election of the nominees for director (as described on page 3); |
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FOR the proposal to re-approve the material terms of the Incentive Compensation
Performance Plan (as described on page 50); and |
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FOR the ratification of the selection of Deloitte & Touche LLP as the
independent registered public accounting firm of the Company for the 2009 fiscal
year (as described on page 54). |
If any other matter is presented at the Annual Meeting, your proxy will vote in accordance
with his/her best judgment. At the time this proxy statement went to press, we knew of no other
matters, beyond the approval of the aforementioned matters, to be acted on at the Annual Meeting.
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Revoking your proxy
You may revoke your proxy by:
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submitting a later dated proxy; |
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notifying our Secretary in writing before the Annual Meeting that you have revoked
your proxy; or |
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voting in person at the Annual Meeting. |
Voting in person
If you plan to attend the Annual Meeting and vote in person, a ballot will be available when
you arrive. However, if your shares are held in the name of your broker, bank or other nominee, you
must bring a letter from the nominee indicating that you are the beneficial owner of the shares as
of the close of business on March 30, 2009, the record date for voting, and that you are authorized
to vote those shares at the Annual Meeting.
Quorum requirement
A quorum of stockholders is necessary to hold a valid meeting. The presence at the meeting, in
person or by proxy, of the holders of shares representing at least one-third of the votes of the
common stock entitled to vote constitutes a quorum. Abstentions and broker non-votes are counted
as present for establishing a quorum. A broker non-vote occurs on an item when a broker is not
permitted to vote on that item absent instruction from the beneficial owner of the shares and no
instruction is given.
Votes necessary
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Vote Necessary* |
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Election of Directors
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Directors are elected by a
plurality of the votes
represented by the shares of
common stock present at the
meeting in person or by proxy.
This means that the director
nominee with the most
affirmative votes for a
particular position is elected
for that position. |
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Re-Approval of the Material Terms of the
Incentive Compensation Performance Plan
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The affirmative vote of the
holders of a majority of shares
of common stock present at the
meeting in person or by proxy
and entitled to vote. |
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Ratification of the Selection
of Independent Registered
Public Accounting Firm
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The affirmative vote of the
holders of a majority of shares
of common stock present at the
meeting in person or by proxy
and entitled to vote. |
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Under New York Stock Exchange rules, if your broker holds your shares in its name, your
broker is permitted to vote your shares on these items even if it does not receive voting
instructions from you. |
For the election of directors, proxies that are marked Withhold Authority and broker
non-votes will not count toward a nominees achievement of a plurality, and, thus, will have no
effect. As to each other matter submitted to our stockholders for approval at the Annual Meeting,
for purposes of determining the number of shares of our common stock voting on the matter, (1)
abstentions will be counted and will have the effect of a negative vote, and (2) broker non-votes
will not be counted and, thus, will have no effect.
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ELECTION OF DIRECTORS
The Board of Directors has nominated two directors for election at the Annual Meeting. Each of
the nominees is currently serving as a director. If you re-elect them, each will hold office for a
three-year term expiring at the 2012 Annual Meeting or until his or her successor has been elected.
Your proxy will vote for each of the nominees unless you specifically withhold authority to
vote for a particular nominee. If any nominee is unable to serve, your proxy may vote for another
nominee proposed by the Board. We do not know of any nominee of the Board who would be unable to
serve as director if elected.
Stockholders wishing to nominate directors for election may do so by delivering to the Chair
of the Nominating and Governance Committee of the Company, not less than 14 days nor more than 50
days before a meeting of the stockholders called for the election of directors, a notice stating:
(1) the name, age, business address and, if known, residence address of each nominee proposed in
the notice; (2) the principal occupation or employment of each nominee; (3) the number of shares of
common stock of the Company beneficially owned by each nominee; and (4) such other information as
is required by the Companys bylaws. No person may be elected as a director of the Company unless
he or she has been nominated by a stockholder in this manner or by the Board of Directors.
THE BOARD OF DIRECTORS RECOMMENDS THE ELECTION OF THE FOLLOWING NOMINEES OF THE BOARD OF
DIRECTORS:
Nominees and Directors
Nominees of the Board of Directors for election at the 2009 Annual Meeting
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Elizabeth M. Eveillard
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Age 62 |
Ms. Eveillard is an independent consultant. Ms. Eveillard served as Senior Managing Director,
Retailing and Apparel Group, Bear, Stearns & Co., Inc., from 2000 to 2002 and as a consultant until
May 2003. Prior to that time, Ms. Eveillard served as the Managing Director, Head of Retailing
Industry, PaineWebber Incorporated from 1988 to 2000. From 1972 to 1988, Ms. Eveillard held various
executive positions including Managing Director in the Merchandising Group with Lehman Brothers.
Ms. Eveillard also serves on the Board of Directors of Retail Ventures, Inc. and Birks & Mayors
Inc., both publicly held companies. Ms. Eveillard was first elected to the Board of Directors in
February 2003.
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Fredric M. Roberts
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Age 66 |
Mr. Roberts was President of F.M. Roberts & Company, Inc., an investment banking firm that Mr.
Roberts established in 1980. Mr. Roberts served as 1993 Chairman of the Board of Governors of the
National Association of Securities Dealers (NASD). From 1994 to 1996, he was a member of the
NASDAQ Stock Market Board of Directors and its Executive Committee. Mr. Roberts also serves as
Chairman of the Board of Directors of Cost Plus, Inc., a publicly held company. Mr. Roberts was
first elected to the Board of Directors in February 2003.
Directors whose terms continue until the 2010 Annual Meeting
Mr. Krinsky is a partner at the law firm of OMelveny & Myers LLP in Newport Beach,
California. Before joining the firm as a partner in 1994, he was a partner at the law firm of
Pettis, Tester, Kruse & Krinsky. Mr. Krinsky is a corporate attorney who specializes in mergers and
acquisitions and securities law. Mr. Krinsky was first elected to the Board of Directors in August
1999.
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Kenneth J. Strottman
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Age 60 |
Mr. Strottman is the founder, President and Chief Executive Officer of Strottman
International, Inc., a marketing agency specializing in developing promotional programs targeting
children and families. Before founding his firm in 1983,
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Mr. Strottman served as Vice President, Marketing, at Mattel, Inc. Mr. Strottman was
first elected to the Board of Directors in August 1999.
Directors whose terms continue until the 2011 Annual Meeting
Mr. Mallott is an independent financial consultant and part-time retail stock analyst employed
by Coker & Palmer. Prior to his current position, Mr. Mallott spent 16 years in retail financial
management. He retired as Vice President and Chief Financial Officer of Intimate Brands, Inc. in
February 2000, a position he held since 1995. Mr. Mallott also serves on the Board of Directors of
Big Lots, Inc., a publicly held company. Mr. Mallott was first elected to the Board of Directors in
February 2000.
Mr. Rayden has served as Chief Executive Officer of the Company since March 1996. He was
elected Chairman of the Board of the Company in August 1999. Mr. Rayden also served as the
Companys President from March 1996 until January 2007. Before joining the Company, he served as
President, Chief Executive Officer and Chairman of the Board of Pacific Sunwear of California, Inc.
from 1990 to 1996, President and Chief Executive Officer of The Stride Rite Corporation from 1987
to 1989, and President and Chief Executive Officer of Eddie Bauer Inc. from 1984 to 1987. Mr.
Rayden also serves on the Board of Directors of Strottman International, Inc., a privately held
company. Mr. Rayden was first elected to the Board of Directors in August 1999.
Information Concerning the Board of Directors and Corporate Governance
Our Board of Directors held nine meetings in fiscal 2008. During fiscal 2008, all of the
directors attended 75 percent or more of the total number of meetings of the Board (held during the
period for which such person was a director) and committees of the Board on which they served (held
during the period for which such person served).
It is the Companys expectation that all members of the Board of Directors attend the annual
meeting of stockholders. All members of the Companys Board of Directors were present at the
Companys 2008 Annual Meeting of stockholders.
Upon consideration of the criteria and requirements regarding director independence set forth
in the rules of the New York Stock Exchange (NYSE), the Board of Directors has determined that a
majority of its members are independent. Specifically, the Board has determined that Ms. Eveillard
and Messrs. Mallott, Roberts, and Strottman meet the standards of independence established by NYSE
Rule 303A.02. For a director to be considered independent, the Board must determine that a director
does not have any direct or indirect material relationship with the Company. The Board has
established guidelines to assist it in determining director independence, which conform to, or are
more exacting than, the independence requirements in the NYSE listing rules. The independence
guidelines are set forth on pages 25 of the Companys Corporate Governance Principles, which can
be obtained on the Companys website as described below.
On February 20, 2007, the Board of Directors established the role of a lead independent
director and named Ms. Eveillard as the lead independent director. The lead independent director
was the presiding director at the executive sessions of the non-management directors during fiscal
2008. The lead independent director will preside at future executive sessions of the non-management
directors. The Companys Board of Directors welcomes communications from stockholders. Stockholders
and other interested parties may send communications to the Board of Directors, any director, or
the non-management directors, c/o Tween Brands, Inc., 8323 Walton Parkway, New Albany, Ohio 43054.
The Board of Directors has adopted Corporate Governance Principles, an Amended and Restated
Audit Committee Charter, an Amended and Restated Compensation Committee Charter, an Amended and
Restated Nominating and Governance Committee Charter and a Lead Independent Director Charter. The
Board of Directors has also adopted a Code of Business Conduct and Ethics, which is applicable to
all of the Companys directors, officers, and associates, and a Code of Ethics for Senior Financial
Officers. All of the above are available in the corporate governance section of our website,
www.tweenbrands.com.
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Committees of the Board of Directors
The Board of Directors has standing Audit, Compensation, and Nominating and Governance
Committees. Each of the committees consists solely of directors who meet the standards of
independence established by NYSE Rule 303A.02, including the more stringent independence standard
required for audit committees.
Audit Committee
The Audit Committee of the Board of Directors selects the firm to be employed as our
independent registered public accounting firm, reviews the scope of its audit and fees, including
services provided for the review of the quarterly results and related filings, as well as reviews
and approves any non-audit fees. In addition, the Audit Committee consults with the independent
registered public accounting firm about the plan of audit and the resulting audit report. The Audit
Committee also confers with the Companys independent registered public accounting firm about the
adequacy of internal accounting controls, as appropriate, outside of the presence of management.
The Audit Committee also oversees and advises management with respect to the documentation, testing
and evaluation of the Companys system of internal control over financial reporting.
The members of the Companys Audit Committee are Philip E. Mallott, Chairman, Elizabeth M.
Eveillard, and Kenneth J. Strottman. David A. Krinsky was a member of the Audit Committee until he
resigned from the Committee in November 2008, at which time Mr. Strottman was appointed to the
Committee. The Board of Directors has determined that Mr. Mallott, Chairman, meets the requirements
of a financial expert as set forth in Item 407(d)(5)(ii) of Regulation S-K promulgated by the
SEC. The Audit Committee held eight meetings in fiscal 2008.
Compensation Committee
The Compensation Committee of the Board of Directors reviews executive compensation and
administers the Companys stock option and incentive compensation performance plans. The
Compensation Committee reviews and approves on an annual basis the corporate goals and objectives
with respect to compensation for our Chief Executive Officer. In addition, the Compensation
Committee evaluates at least once per year, our Chief Executive Officers performance in light of
these established goals and objectives and, based upon these evaluations, sets the Chief Executive
Officers compensation. Our Chief Executive Officer is not permitted to be present during voting or
deliberations on his compensation. On an annual basis, the Compensation Committee also reviews and
approves the evaluation and compensation structure for the Companys other executive officers,
including approval of salary, bonus, incentive and equity compensation. Our Chief Executive
Officer, and Senior Vice President of Human Resources are present and provide input at the meeting
and deliberations on the compensation of the Companys other executive officers but are not
permitted to be present at the vote. The Compensation Committee also recommends to the Companys
full Board of Directors the compensation for non-associate Board members.
From time to time, the Compensation Committee engages an independent consulting firm to advise
it with respect to executive compensation and Board of Director compensation. In fiscal 2008, the
committee directly engaged Hay Group, Inc. (Hay) for this purpose. Hay provided averages,
percentiles and normative data from salary surveys and provided specific data from proxy statements
of a peer group of companies. This report included information on relative company performance, as
well as relative compensation positioning of our named executive officers. For more information on
the Compensation Committee, please refer to Executive Compensation Compensation Discussion and
Analysis The Compensation Committee beginning on page 10.
The Compensation Committee members are Fredric M. Roberts, Chairman, Elizabeth M. Eveillard
and Philip E. Mallott. Nancy J. Kramer was a member of the Compensation Committee until she
resigned from the Board of Directors on May 22, 2008, at which time Mr. Krinsky was appointed to
the Committee. Mr. Krinsky resigned from the Committee in November 2008. The Compensation Committee
held six meetings in fiscal year 2008.
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Nominating and Governance Committee
The Nominating and Governance Committee makes recommendations to the Board of Directors
regarding the size and composition of the Board, establishes procedures for the nomination process,
recommends candidates for election to the Board of Directors, reviews related party transactions
and leads the Board in its annual evaluation of the Boards performance. When considering potential
candidates, the Nominating and Governance Committee looks for candidates who, as a group, meet the
Companys strategic needs; possess high personal values and integrity; have an understanding of the
regulatory and policy environment in which the Company does its business; and have substantial
experience that is of particular relevance to the Company. The Company generally does not pay any
third parties to identify or evaluate, or assist in identifying or evaluating, potential nominees.
The Nominating and Governance Committee also has the responsibility to develop and recommend
to the Board of Directors a set of corporate governance principles applicable to the Company. The
Companys Corporate Governance Principles are posted on the Companys website at
www.tweenbrands.com, as described previously.
The Nominating and Governance Committee will also consider the recommendations of stockholders
regarding potential director candidates. In order for stockholder recommendations regarding
possible director candidates for director to be considered by the Nominating and Governance
Committee:
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such recommendations must be provided to the Nominating and Corporate Governance
Committee c/o Tween Brands, Inc., 8323 Walton Parkway, New Albany, Ohio 43054, in
writing at least 120 days prior to the date of the next scheduled annual meeting; |
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the nominating stockholder must meet the eligibility requirements to submit a valid
stockholder proposal under Rule 14a-8 of the Securities Exchange Act of 1934, as
amended; and |
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the stockholder must describe the qualifications, attributes, skills, or other
qualities of the recommended director candidate. |
The Nominating and Governance Committee members are Kenneth J. Strottman, Chairman, Frederic
M. Roberts, and Philip E. Mallott. Nancy J. Kramer was the chairwoman of the Nominating and
Governance Committee until she resigned from the Board of Directors on May 22, 2008, at which time
Mr. Mallott was appointed to the Committee and Mr. Strottman was appointed chairman. The
Nominating and Governance Committee held two meetings in fiscal year 2008.
EXECUTIVE OFFICERS
In addition to Mr. Rayden, the following persons are our executive officers:
Mr. de Aguiar has served as our Executive Vice President and Chief Financial Officer since
June 2008. Prior to that, Mr. de Aguiar was most recently a managing Director with Abacus Advisors
LLC from January 2004 to June 2008. Abacus is a New York City based management advisory company
with extensive background in consulting with the retail industry. Prior to joining Abacus, Mr. de
Aguiar was an Executive Vice President and Chief Financial Officer of Ames Department Stores from
April 1998 to April 1999 and served as their Chief Administrative Officer from April 1999 to
October 2003. At Ames, Mr. de Aguiar had responsibility for finance, information technology, human
resources and external communication. In addition, Mr. de Aguiar retained the title of Chief
Winddown Officer at Ames through June 2008.
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Gregory J. Henchel
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Age 41 |
Mr. Henchel has served as our Senior Vice President and General Counsel since October 2005.
Mr. Henchel has also served as the Companys Secretary since August 2008. Prior to joining the
Company, Mr. Henchel served Cardinal
Health, Inc., a global medical device, pharmaceutical and healthcare technology company, from May
1998 to October 2005 as Assistant General Counsel (2001-2005) and Senior Litigation Counsel
(1998-2001). Prior to his service at Cardinal Health, Mr. Henchel was an associate with the law
firm of Jones Day from September 1993 to May 1998.
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Mr. Keane has served as our Senior Vice President Human Resources since August 2007. Prior
to joining the Company, Mr. Keane served in various capacities at Limited Brands, Inc. including
Executive Vice President, Human Resources for the Victorias Secret division from October 2006 to
August 2007, Senior Vice President, Human Resources Strategy, from April 2006 to October 2006,
Executive Vice President, Human Resources for the Apparel Group from March 2005 to March 2006, Vice
President, Human Resources and Director, Human Resources for the Express division from August 2000
to February 2005. Prior to his service at Limited Brands, Inc., Mr. Keane served in various Human
Resources roles for Borden Foods Corporation and Whirlpool Corporation.
Mr. Robinson has served as our Executive Vice President Supply Chain since August 2008.
Prior to that time, Mr. Robinson served as the Companys Executive Vice President Production
Services from February 2008 to August 2008, Senior Vice President Production Services from March
2007 to February 2008, Senior Vice President Sourcing, Tech Design and Brand Compliance from
February 2005 to March 2007 and as Vice President Sourcing, Tech Design and Brand Compliance
from December 2001 to February 2005.
SECURITY OWNERSHIP OF DIRECTORS AND MANAGEMENT
Below is a table with information providing the number of shares of Tween Brands, Inc.s
common stock beneficially owned by each of the directors of the Company, persons listed in the
Summary Compensation Table below, and all of the directors and executive officers of Tween Brands,
Inc. as a group.
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Number of |
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of Class |
Michael W. Rayden |
|
|
573,364 |
(3) |
|
|
2.3 |
% |
Rolando de Aguiar |
|
|
10,000 |
|
|
|
* |
|
Gregory J. Henchel |
|
|
12,974 |
(4) |
|
|
* |
|
Michael C. Keane |
|
|
12,004 |
(5) |
|
|
* |
|
Ronald Robinson |
|
|
30,198 |
(6) |
|
|
* |
|
Paul C. Carbone |
|
|
0 |
|
|
|
* |
|
Kenneth T. Stevens |
|
|
0 |
|
|
|
* |
|
Elizabeth M. Eveillard |
|
|
48,750 |
(7) |
|
|
* |
|
David A. Krinsky |
|
|
69,500 |
(8) |
|
|
* |
|
Philip E. Mallott |
|
|
69,645 |
(9) |
|
|
* |
|
Fredric M. Roberts |
|
|
45,750 |
(10) |
|
|
* |
|
Kenneth J. Strottman |
|
|
82,000 |
(11) |
|
|
* |
|
|
|
All directors and executive officers as a group (12 persons) |
|
|
954,185 |
(12) |
|
|
3.8 |
% |
|
|
|
* |
|
Less than 1% |
|
(1) |
|
Unless otherwise indicated, each named person has voting and investment power over
the listed shares and such voting and investment power is exercised by the named person or
shared with a spouse. |
|
(2) |
|
Reflects ownership as of February 28, 2009, except as otherwise provided herein. |
|
(3) |
|
Includes options to purchase 436,597 shares exercisable within 60 days after January
31, 2009. |
|
(4) |
|
Includes options to purchase 8,782 shares exercisable within 60 days after January
31, 2009. |
7
|
|
|
(5) |
|
Includes options to purchase 8,303 shares exercisable within 60 days after January 31, 2009. |
|
(6) |
|
Includes options to purchase 19,865 shares exercisable within 60 days after January 31, 2009. |
|
(7) |
|
Includes options to purchase 25,750 shares exercisable within 60 days after January 31, 2009. |
|
(8) |
|
Includes options to purchase 69,500 shares exercisable within 60 days after January 31, 2009. |
|
(9) |
|
Includes options to purchase 66,645 shares exercisable within 60 days after January 31, 2009. |
|
(10) |
|
Includes options to purchase 45,750 shares exercisable within 60 days after January 31, 2009. |
|
(11) |
|
Includes options to purchase 69,500 shares exercisable within 60 days after January 31, 2009. |
|
(12) |
|
Includes options to purchase 750,692 shares exercisable within 60 days after
January 31, 2009, except as otherwise noted, held by all directors and executive officers as a
group. |
8
SHARE OWNERSHIP OF PRINCIPAL STOCKHOLDERS
The following table shows the names of owners of the Companys common stock who, on February
28, 2009 (unless otherwise noted), were known by Tween Brands, Inc. to be beneficial owners of more
than 5% of the shares of common stock of the Company.
|
|
|
|
|
|
|
|
|
|
|
Amount |
|
|
|
|
Beneficially |
|
Percent |
Name and Address of Beneficial Owner |
|
Owned(1) |
|
of Class(2) |
FMR LLC |
|
|
3,712,869 |
(3) |
|
|
15.0 |
% |
82 Devonshire Street
Boston, MA 02109 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jefferies Asset Management, LLC |
|
|
1,724,500 |
(4) |
|
|
6.9 |
% |
The Metro Center, One Station Place
Three North
Stamford, Connecticut 06902 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Artisan Partners Limited Partnership |
|
|
1,687,600 |
(5) |
|
|
6.8 |
% |
875 East Wisconsin Ave., Suite 800
Milwaukee, WI 53202 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Barclays Global Investors, NA. |
|
|
1,645,355 |
(6) |
|
|
6.6 |
% |
400 Howard Street
San Francisco, CA 94105 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jay G. Goldman |
|
|
1,434,120 |
(7) |
|
|
5.8 |
% |
c/o J. Goldman & Co. LP
152 West 57th Street
New York, New York 10019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fisher Investments |
|
|
1,253,041 |
(8) |
|
|
5.0 |
% |
13100 Skyline Blvd.
Woodside, CA 94062 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Beneficial ownership is determined in accordance with the rules of the Securities
and Exchange Commission, which generally attribute beneficial ownership of securities to
persons who possess sole or shared voting power and/or investment power with respect to those
securities. |
|
(2) |
|
Percent of Class is calculated by dividing the number of shares beneficially owned
by the total number of outstanding shares of the Company on February 28, 2009, plus the number
of shares such person has the right to acquire within 60 days of February 28, 2009. |
|
(3) |
|
Based on information filed on Schedule 13G/A with the Securities and Exchange
Commission on February 17, 2009, by FMR LLC, which is predominantly owned by members of the
family of Edward C. Johnson 3d, chairman of FMR LLC. Fidelity Management & Research Company,
a wholly-owned subsidiary of FMR LLC and an investment adviser registered under Section 203 of
the Investment Advisors Act of 1940 is also the beneficial owner of the shares reported.
Fidelity Dividend Growth Fund, an investment company registered under the Investment Company
Act of 1940 is the beneficial owner of 2,133,500 of the shares reported. |
|
(4) |
|
Based on information filed on Schedule 13G/A with the Securities and Exchange
Commission on January 20, 2009, by Jefferies Asset Management, LLC as investment manager to
Jefferies RTS Master Fund, Ltd. |
|
(5) |
|
Based on information filed jointly on Schedule 13G/A with the Securities and
Exchange Commission on February 13, 2009, by Artisan Partners Limited Partnership; Artisan
Investment Corporation, the general partner of Artisan Partners |
9
|
|
|
|
|
Limited Partnership; ZFIC,
Inc., the sole stockholder of Artisan Investment Corporation; Andrew A. Ziegler; and Carlene
M. Ziegler. |
|
(6) |
|
Based on information filed on Schedule 13G with the Securities and Exchange
Commission on February 5, 2009, by Barclays Global Investors, N.A., Barclays Global Fund
Advisors, which is the beneficial owner of 1,052,808 of the shares reported, and Barclays
Global Investors, Ltd, which is the beneficial owner of 15,686 of the shares reported. |
|
(7) |
|
Based on information filed on Schedule 13G/A with the Securities and Exchange
Commission on February 17, 2009, by Jay Goldman Asset Management, L.L.C., which is the
beneficial owner of 1,341,643 of the shares reported, J. Goldman Capital GP LLC, which is the
beneficial owner of 92,477 of the shares reported, and Jay G. Goldman. |
|
(8) |
|
Based on information filed on Schedule 13G with the Securities and Exchange
Commission on February 5, 2008, by Fisher Investments. |
EXECUTIVE COMPENSATION
The following information provides discussion, analysis and data tables regarding the
compensation of our named executive officers (NEOs), who are those officers listed in our Summary
Compensation Table on page 25.
Compensation Discussion and Analysis
We have prepared this Compensation Discussion and Analysis (CD&A) to provide our perspective
on executive compensation and to build an understanding of our compensation policies and our
decisions regarding compensation for our NEOs. We recommend reviewing the various executive
compensation tables below in conjunction with this CD&A. Unless otherwise noted, the policies,
plans and other information in this CD&A apply to all of our NEOs. Our CD&A covers the following
topics:
|
|
|
the role of the Compensation Committee in setting executive compensation; |
|
|
|
|
our compensation philosophy and its underlying principles including the objectives
of our executive compensation program and what it is designed to reward; |
|
|
|
|
our process for setting executive compensation; and |
|
|
|
|
the elements of our executive compensation program including a discussion of why
we choose to pay each element of compensation, how we determine the amount of such
element, and how each element fits into our overall compensation objectives and total
compensation for our NEOs. |
The Compensation Committee
The Compensation Committee (referred to herein as the Committee) was appointed by our Board
of Directors and is governed by a written charter that is available in the corporate governance
section of our website, www.tweenbrands.com. The Committee members are Fredric M. Roberts,
Chairman, Elizabeth M. Eveillard and Philip E. Mallott. Nancy J. Kramer was a member of the
Compensation Committee until she resigned from the Board of Directors on May 22, 2008, at which
time Mr. Krinsky was appointed to the Committee. Mr. Krinsky resigned from the Committee in
November 2008 and in February 2009 Mr. Mallott was appointed to the Committee. Our Board of
Directors has determined that each of the Committee members is independent under the standards of
independence established by NYSE Rule 303A.02. In addition, each of the Committee members is a
non-associate director as defined by Rule 16b-3 under the Securities Exchange of 1934 and an
outside director as defined by the Internal Revenue Code.
Pursuant to its charter, the Committee has the authority and responsibility to:
|
|
|
discharge the Boards responsibilities relating to executive compensation, including
the review and approval of our executive compensation philosophy and policies and the
application of such policies to the compensation of our executive officers; |
10
|
|
|
review and approve on an annual basis the corporate goals and objectives with
respect to the Chief Executive Officer, evaluate the Chief Executive Officers
performance in light of such goals and objectives at least once a year and, based on
such evaluation, set the Chief Executive Officers annual compensation, including
salary, bonus, incentive and equity compensation; |
|
|
|
|
review and approve on an annual basis the evaluation process and compensation
structure for our other executive officers and to evaluate and approve the annual
compensation for such executive officers, including salary, bonus, incentive and equity
compensation; |
|
|
|
|
administer and review our compensation programs and plans, including, but not
limited to, our incentive compensation, equity, and qualified and non-qualified benefit
plans; |
|
|
|
|
establish and periodically review policies for the administration of our executive
compensation program; |
|
|
|
|
approve employment arrangements with executives; |
|
|
|
|
review recommendations to create, amend or terminate certain compensation and
benefit plans and to make a decision whether or not to approve of such recommendations;
and |
|
|
|
|
recommend to the Board the compensation arrangements with non-associate directors. |
The Committee has the sole authority, to the extent it deems necessary or appropriate, to
retain any compensation consultant to assist in the evaluation of executive compensation and has
the sole authority to approve any such firms fees. In fiscal 2008, the Committee engaged Hay
Group, Inc. (Hay) for this purpose. A description of Hays role can be found under Compensation
Benchmarking Process beginning on page 13. The Committee also has the authority to obtain the
advice and assistance from internal or external legal, accounting or other advisors, and may
request any officer or employee of our Company, our outside counsel or registered independent
public accounting firm to attend a meeting of the Committee or meet with any member of, or
consultants to, the Committee.
The Committee meets as often as its members deem necessary to execute its duties and
responsibilities. It held six meetings during fiscal 2008. Mr. Roberts works in conjunction with
our Chief Executive Officer and Senior Vice President of Human Resources to establish the meeting
agenda. The Committee typically meets with the Chief Executive Officer, Chief Financial Officer,
Senior Vice President of Human Resources and outside advisors and, where appropriate, other
executive officers of our Company. In addition, the Committee regularly meets in executive session
without management. Generally, the Committee receives and reviews materials in advance of each
meeting. These materials include information that management believes will be helpful to the
Committee as well as materials that the Committee has specifically requested.
Compensation Philosophy
The philosophy of the Committee is to make compensation decisions based on an executive
compensation program that is designed to meet the following objectives:
|
|
|
to attract and retain qualified executives; |
|
|
|
|
to reward and reinforce performance and results; |
|
|
|
|
to provide incentives for future performance and results; and |
|
|
|
|
to align our NEOs financial interests with our stockholders financial interests. |
The Committee believes that an executive compensation program designed with these objectives
in mind has a direct impact on the success of the business by helping to ensure we have qualified
executive talent in the right positions at the right time. Our executive compensation program helps
ensure that our leadership group is focused on performing effectively to deliver results and build
long-term stockholder value.
11
Our philosophy is built on the following principles:
(1) Pay for performance:
We believe in paying for results. A significant amount of compensation for our NEOs is at
risk, including incentive compensation, equity compensation, and annual base salary increases.
Incentive compensation directly links our performance to pay by making a substantial portion of the
NEOs total compensation contingent upon the achievement of corporate performance objectives. In
addition, we also compensate our NEOs through the use of equity-based awards. We believe that the
grant of equity-based compensation is an effective means of linking NEO compensation and
stockholder gains. The performance targets used in our compensation of NEOs typically require that
we attain specific, pre-set financial goals for the NEOs to earn cash incentive compensation and
for the vesting of restricted stock awards (which also have service based vesting requirements).
While stock option grants vest based on service and do not have financial performance goals, the
value of these options will increase only if our stock price increases, thereby aligning
compensation with stockholder interests.
We also believe that total compensation and accountability should generally increase with
position and responsibility. Among our NEOs, individuals with a greater ability to impact the
achievement of the Companys performance targets bear a greater portion of the risk if goals are
not achieved and reap a greater reward if goals are achieved.
(2) Pay competitively:
We are committed to providing a total compensation program designed to attract the best senior
leaders to our business and retain the best and most consistent performers. To achieve this goal,
we periodically compare our pay practices and overall pay levels with other leading retail
companies, and where appropriate, non-retail companies, and adjust our compensation programs based
on this review, as needed.
In order to attract and retain top executive talent and to compete in Columbus, Ohio (which is
highly competitive due to the home office presence of several national retailers), we strive to
provide our NEOs with a total compensation package that is competitive with our Companys peer
group. There is more information regarding our benchmarking process and our peer groups under
Compensation Benchmarking Process beginning on page 13.
(3) Pay equitably:
We believe that it is important to apply generally consistent guidelines for substantially all
associate compensation programs across our Company, considering the size of the business unit, area
of responsibility, complexity, development stage, competitive environment, performance of our
Company and the performance of the individual executive.
In short, we strive to provide NEOs with similar qualifications, responsibilities, performance
and impact with similar compensation opportunities.
Compensation Tax Philosophy
Internal Revenue Code Section 162(m) bars a deduction to any publicly held corporation for
compensation paid to a covered employee in excess of $1 million per year unless objective
performance criteria are set by the Committee prior to or within 90 days after the beginning of a
performance period but in no event after 25% of the performance period has elapsed (or such earlier
or later date as is permitted by Section 162(m)). Generally, we intend that compensation paid
to NEOs shall be deductible to the fullest extent permitted by law. We may make payments that
are not fully deductible if, in our judgment, such payments are necessary to achieve our
compensation objectives and to protect stockholder interests.
In fiscal 2008, $3,566,713 of compensation will be non-deductible. Of this amount, the vast
majority was directly related to Mr. Raydens decision to withdraw certain amounts from his
nonqualified deferred compensation account. Only Mr. Rayden had a base salary in excess of $1
million. No other NEOs had a base salary and perquisites that exceeded $1 million.
12
Compensation Benchmarking Process
From time to time the Compensation Committee engages an independent consulting firm to advise
it with respect to executive compensation and board of director compensation. For fiscal 2008, the
Committee engaged Hay for this purpose. Hay reported its findings to the Committee at the November
2008 meeting. Hay provided averages, percentiles and normative data from salary surveys and
provided specific data from proxy statements of a peer group of competitors and similar
organizations. This report included information on relative company performance, as well as
relative compensation positioning of the Companys NEOs.
Hay included the following companies in our peer group in its report to the Committee for
fiscal 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aeropostale
|
|
|
|
Chicos FAS
|
|
|
|
Gymboree
|
|
|
|
Urban Outfitters |
|
|
bebe stores
|
|
|
|
Childrens Place Retail Stores
|
|
|
|
Hot Topic
|
|
|
|
Wet Seal |
|
|
Buckle
|
|
|
|
Coldwater Creek
|
|
|
|
J. Crew |
|
|
|
|
|
|
Cato
|
|
|
|
DSW
|
|
|
|
New York & Company |
|
|
|
|
|
|
Charlotte Russe
|
|
|
|
Guess
|
|
|
|
Pacific Sunwear |
|
|
|
|
This group is largely representative of our industry, business focus and size.
In 2008, Hay compared our performance on several different financial indicators against the
peer group. These indicators included:
|
|
|
sales; |
|
|
|
|
market value; |
|
|
|
|
total shareholder return; |
|
|
|
|
sales growth; |
|
|
|
|
operating income growth; |
|
|
|
|
net income growth; |
|
|
|
|
EPS (basic) growth; |
|
|
|
|
return on average equity; and |
|
|
|
|
comparable store sales. |
The Committee reviewed our NEOs total direct compensation (cash plus equity) as compared to
the 50th and 75th percentiles of our peer group as part of this process. The
Committee believes that the current compensation levels and practices for our NEOs are largely
consistent with our compensation philosophy and desired position within the market.
Compensation Committee Process for Determining Executive Compensation
A substantial amount of the Committees annual cycle of work relates to the determination of
compensation for our executive officers, including our Chief Executive Officer. Generally, at the
beginning of the first quarter of our fiscal year, the Committee makes determinations of base
salary compensation, incentive compensation opportunity for the year and incentive compensation
targets for the Spring season (February July), and equity grants for executive officers,
including our Chief Executive Officer. For a discussion of each individual element of compensation
and how it is specifically determined, refer to Compensation Program Elements beginning on page
14. Generally at the beginning of
13
the third quarter of our fiscal year, the Committee meets to
determine incentive compensation targets for the Fall season (August January).
Although many compensation decisions are made in the first quarter of the fiscal year, our
compensation planning process is not a rigid yearly process with fixed beginning and end points.
Rather, our compensation philosophy and principles guide our compensation decisions throughout the
year. The Committee believes that evaluation of executive performance, business and succession
planning, and considerations of our business environment are year-round processes and the Committee
members monitor these as such. As discussed in Compensation Benchmarking Process above, for
fiscal 2008, the Committee engaged Hay to assist the Committee in reviewing its executive
compensation determinations, and Hay reported to the Committee at the November 2008 meeting.
Our Chief Executive Officer is not permitted to be present during deliberations or voting on
his compensation. During this process, the Committee reviews and approves any new corporate goals
and objectives with respect to compensation for our Chief Executive Officer. In light of the
established goals and objectives the Committee evaluates the performance of the Chief Executive
Officer and, based upon these evaluations, sets the Chief Executive Officers compensation. The
Compensation Committee also reviews and approves on an annual basis the evaluation and compensation
structure for the Companys other executive officers, including approval of base salary, bonus,
incentive and equity compensation. Our Chief Executive Officer, and Senior Vice President of Human
Resources are present and provide input at the meeting and deliberations on the compensation of the
Companys other executive officers (other than themselves) but are not permitted to be present at
the vote.
Compensation Program Elements
In fiscal 2008, our NEOs received, or were eligible to receive, the following elements of
compensation:
|
|
|
salary; |
|
|
|
|
incentive compensation; |
|
|
|
|
equity compensation; |
|
|
|
|
deferred compensation; |
|
|
|
|
retirement benefits; |
|
|
|
|
perquisites; and |
|
|
|
|
health and welfare benefits. |
The Committee carefully considered and chose each compensation program element as a critical
component in a comprehensive total compensation package. Each element is intended to reward and
motivate executives in different ways consistent with our overall compensation principles and
philosophy. Each of the elements has a critical relationship with one another with each focusing
and rewarding different areas of performance or accountability. These elements are necessary for
us to achieve our compensation program objectives.
(1) Salary:
Salary is also referred to as base salary or base compensation. Salary is the most fundamental
of all our compensation program elements. Providing a competitive salary to our NEOs is essential
in achieving one of our compensation program objectives: to attract and retain qualified
executives.
The Committee annually reviews and approves the compensation package of each NEO, including
base salary. The Committee considers an individuals qualifications and experience in setting our
executives initial base salary, including those executive officers who are hired from the outside
and those who are promoted from within. In determining base salary amounts and increases, the
Committee considers the size and responsibility of the individuals position, the business units
overall performance, the individuals overall performance and future potential, and the base
salaries and
14
merit increases paid by competitors to employees in comparable positions. Individual
performance is measured against various factors including but not limited to the following:
|
|
|
seasonal and annual business goals; |
|
|
|
|
business performance and execution goals; and |
|
|
|
|
the recruitment, development and retention of future leadership talent. |
The Committee considers these factors subjectively in the aggregate. Because the Committee
believes that each of these factors is significant and the relevance of each factor may vary
depending on the duties and responsibilities of each executive officer, the Committee does not
assign a formula weight to any single factor in determining a base salary amount or increase.
In February 2006, based on peer company total direct compensation benchmark information
provided by Mercer Human Resources Consulting, an independent consulting firm, and the Committees
evaluation of his total compensation package, the Committee determined to maintain the base salary
of Mr. Rayden, our Chairman and Chief Executive Officer, at the current level for three fiscal
years (2006 2008).
In February 2008, Mr. Rayden and Mr. Keane, our Senior Vice President of Human Resources,
presented pay recommendations to the Committee for the other NEOs. These recommendations were
researched and developed by the Companys Human Resources Department under the direction of Mr.
Keane and reviewed prior to the meeting by Mr. Rayden. Several factors were taken into
consideration when making these recommendations including:
|
|
|
individual and Company performance and business needs; |
|
|
|
|
internal pay equity where applicable; and |
|
|
|
|
incumbent pay history. |
In addition, Mr. Rayden and Mr. Keane provided the Committee with a performance rating summary
report on each of the NEOs with examples and justification for each rating. The Committee took this
information into consideration before approving base salary increases for Messrs. Keane and
Henchel. These changes in base salary (merit increases) were effective March 16, 2008 and are
reflected in the Summary Compensation Table where applicable.
In February 2009, the Committee approved managements recommendation that there be no pay
increases for the Companys NEOs for fiscal 2009.
(2) Incentive Compensation Plan:
Incentive Compensation (IC) under our Incentive Compensation Performance Plan (IC Plan) is
designed to provide a competitive compensation program for recruiting and retaining executive
talent, and a short-term incentive/reward program that aligns pay with performance and motivates
our executives to achieve results within a given fiscal year. Our stockholders approved the terms
of our IC Plan, which is designed to satisfy the provisions of
Section 162(m) of the Internal Revenue Code, on May 13, 2004, at the 2004 Annual Meeting of Stockholders.
In order for our IC Plan to be considered a performance-based incentive plan, the relevant
performance outcome must be substantially uncertain at the time the performance target is
established and the target must be communicated to the executive. Our IC Plan meets these criteria.
Because of the unique nature of specialty retail businesses like Tween Brands, we need to be
positioned to be flexible and be able to evaluate ourselves every six months, as needed. Our IC
Plan has been designed with this need in mind. Rather than setting annual targets with annual
payouts, we set semi-annual targets with semi-annual payouts.
Our IC Plan provides for incentive payments to our NEOs based on the level of achievement of
pre-established financial goals for each of two operating seasons the Spring season, which is our
first and second fiscal quarters and generally
runs from February through July, and the Fall
season, which is our third and fourth fiscal quarters and generally
15
runs from August through
January. The incentive compensation plan for each of the two seasons is independent, so that
participants could earn incentive compensation for one of the seasons and not the other. We believe
that this provides an incentive for our NEOs to perform in each of our two basic operating seasons
and accurately reflects the rhythm of the business. If we used an annual measurement period
instead, it is possible that our NEOs would not be appropriately motivated in the Fall season if
the Spring season results were so poor that the annual target appeared unachievable.
Since we became an independent public company in 1999, we have divided our incentive
compensation plan into the two separate seasons. We have consistently weighted the two seasons of
the incentive compensation plan at Spring: 40% and Fall: 60%, to recognize that our Fall season is
larger in terms of revenues and profit opportunity. Although the Fall season generally represents
more than 60% of our profit opportunity, we believe that the 40%-60% weighting is appropriate to
provide incentive for performance in both seasons.
Target incentive compensation opportunities are established annually for each eligible
participant and stated as a specific percentage of base salary. The table below shows the incentive
compensation opportunities assigned by the Compensation Committee to our NEOs for fiscal 2008. If
the threshold target is achieved, the amount of cash incentive compensation paid to participating
executives can range from 20% (threshold) of target to 200% (maximum) of target, based upon the
extent to which performance goals are achieved or exceeded.
The Committee establishes the goals under the IC Plan for each of the Spring and Fall seasons.
These financial performance goals are generally determined near the beginning of the measurement
period, typically within 20 to 30 days after the start of the measurement period, and are based on
an analysis of historical performance and growth expectations for our business and progress toward
achieving our long-range strategic plan for the business.
The financial goals for the Spring 2008 and Fall 2008 seasons were based on our operating
income for each such season. In setting the threshold, target and maximum target amounts, the
Committee considered last years actual performance, market trends, business projections and
extraordinary events or significant accounting or related changes. In general, the target amount of
operating earnings necessary to achieve 100% payout is the actual operating earnings achieved for
the same season in the previous year plus 15%. The threshold operating income typically required
for any payout is the actual operating income earned for the same season in the prior year and if
achieved IC is paid at 20% of the individuals target opportunity. The operating income amount
necessary to achieve the maximum payout is typically set at an appropriate amount that requires
outstanding performance, at or beyond 15% growth in operating income, for the season.
The operating income growth targets for Spring 2008 for each of our NEOs were: (i) operating
income equal to the actual operating income for Spring 2007 (Actual Spring 2007 OI) to achieve
20% (threshold) cash incentive compensation; (ii) a 15% increase over Actual Spring 2007 OI to
achieve 100% (par) cash incentive compensation; and (iii) a 25% increase over Actual Spring 2007 OI
to achieve 200% (maximum) cash incentive compensation. Based primarily on the economic outlook at
the time, the Committee elected to modify the normal goal process for the Fall season. The
operating income growth targets for Fall 2008 were: (i) operating income of 22.5% less than the
actual operating income for Fall 2007 (Actual Fall 2007 OI) to achieve 20% (threshold) cash
incentive compensation, (ii) operating income equal to Actual Fall 2007 OI to achieve 100% (par)
cash incentive compensation; and (iii) a 15% increase over Actual Fall 2007 OI to achieve 200%
(maximum) cash incentive compensation.
The Committee believes that the 2008 seasonal IC goals represented an appropriate and
substantial degree of difficulty for achieving a payout. As shown in the table below, no IC was
awarded for either season in 2008.
The maximum cash amount payable to any participant may not exceed $3,000,000 in any year under
the terms of the IC Plan. If the threshold target is not met, no payouts are made. Plan
participants may receive other forms of awards if performance exceeds the 200% Maximum Target (see
Restricted Stock Achievement of Greater that 200% Payout Level under IC Plan on page 20) or the
participant elects stock in lieu of cash payment (see Stock for Cash on page 20.)
16
Incentive
Compensation Opportunities for Fiscal Year 2008 by NEO
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As a Percentage of Base Salary |
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Threshold |
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Maximum |
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(20% of |
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|
(200% of |
Named Executive Officers |
|
Target) |
|
Target |
|
Target) |
Michael W. Rayden |
|
|
24 |
% |
|
|
120 |
% |
|
|
240 |
% |
Rolando de Aguiar |
|
|
12 |
% |
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|
60 |
% |
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|
120 |
% |
Gregory J. Henchel |
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|
9 |
% |
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|
45 |
% |
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|
90 |
% |
Michael Keane |
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|
13 |
% |
|
|
65 |
% |
|
|
130 |
% |
Ronald Robinson |
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|
12 |
% |
|
|
60 |
% |
|
|
120 |
% |
Kenneth T. Stevens(1) |
|
|
20 |
% |
|
|
100 |
% |
|
|
200 |
% |
Paul C. Carbone(2) |
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|
8 |
% |
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|
40 |
% |
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|
80 |
% |
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|
(1) |
|
Mr. Stevens resigned as our President and Chief Operating Officer, effective June
27, 2008. He is deemed to be a named executive officer because he served as the Companys
Principal Financial Officer during fiscal 2008. |
|
(2) |
|
Mr. Carbone resigned as our Senior Vice President and Chief Financial Officer,
effective February 19, 2008. He is deemed to be an executive officer because he served as the
Companys Principal Financial Officer during fiscal 2008. |
The table below shows the actual IC Plan payout factors achieved for each of the past five
fiscal years consisting of ten seasons related to incentive payments to NEOs:
Incentive Compensation Payout Factors Achieved for Fiscal Years 2004-2008
|
|
|
|
|
Fiscal Year |
|
Spring |
|
Fall |
2008
|
|
0%
|
|
0% |
2007
|
|
0%
|
|
76% |
2006
|
|
200%
|
|
55% |
2005
|
|
176%
|
|
200% |
2004
|
|
75%
|
|
200% |
The seasonal achieved payout factor is (i) multiplied by the NEOs target IC opportunity
expressed as a percentage of base salary, (ii) multiplied by the seasonal weight (40% for Spring
and 60% for Fall), and (iii) multiplied by the NEOs base salary to arrive at the NEOs IC for the
season.
As shown in the table above, our IC payout factors over the past ten seasons have ranged from
zero to a maximum 200%, depending on our financial performance against the pre-established
financial goals. Generally, for those seasons where we did not perform as expected, the IC was
either not awarded or was less than the target payout factor. For example, our NEOs earned no IC
for either season in 2008 or Spring 2007. When we performed above expected levels, our NEOs earned
at a rate higher than the target payout factor. For example, our NEOs earned cash IC at a payout
factor of 200% for Fall 2004, Fall 2005 and Spring 2006.
17
The calculation of the cash amount of IC earned by an NEO under our IC Plan is dependent on
the target IC opportunity as a percentage of base salary assigned to the NEO for that year, the
level of our performance against the financial goals for each season (the payout factor, which
ranges from 20% at threshold to 200% at maximum), and the seasonal weight. No cash IC payments are
made if we do not meet our threshold performance target. When the performance results fall
somewhere between the threshold and target amounts or between the target and maximum amounts, the
IC payout is prorated accordingly.
As an example, if an executives base salary is $400,000 and her assigned target IC
opportunity percentage is 50%, she would earn $40,000 of cash IC if both seasonal targets were met
at the threshold level ($400,000 x 50% x 20%). She would earn $200,000 of cash IC if both seasonal
targets were achieved at the target level ($400,000 x 50% x 100%). She would earn $400,000 of cash
IC if both seasonal targets were achieved at or above the maximum level ($400,000 x 50% x 200%).
To demonstrate how these IC amounts may vary by season, consider another example with an
executive who has a base salary of $400,000 and an assigned IC target percentage of 50%. Assume
that achieved performance is at the target level for the Spring season and mid-way between
threshold and target level for the Fall season. In this example, because the Spring season has a
40% weight, a Spring target level payout is $80,000 ($400,000 x 50% x 100% x 40%) for the
executive. The Fall season has a 60% weight and because our performance is mid-way between the
threshold and target levels (i.e., at the 60% level), the NEO in this example will have a cash IC
payout of $72,000 ($400,000 x 50% x 60% x 60%).
(3) Equity Compensation:
The Committee believes that continued emphasis on equity-based compensation opportunities
encourages a high level of long-term performance that enhances stockholder value, thereby further
linking leadership and stockholder objectives. Equity compensation serves to attract and retain the
best available individuals to serve as our NEOs. Equity compensation is intended to motivate our
NEOs to contribute to our future growth and profitability and to reward their performance in a
manner that:
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|
|
provides them with a means to increase their holdings of the common stock of our
Company; and |
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|
aligns their interests with the interests of the stockholders of the Company. |
Equity compensation is granted to our NEOs under our 1999 or 2005 Stock Option and Performance
Incentive Plan (collectively, the Plans). The Committee determines the award opportunity level
for each NEO based on the individuals responsibility level and potential within our Company,
competitive practices, the number of shares available for grant, business needs, individual and
Company performance, and the market price of our common stock.
In 2008, we awarded restricted stock awards and stock options to NEOs in the amounts set forth
in the Summary Compensation Table beginning on page 25 and Grants of Plan-Based Awards Table found
below beginning on page 28, based on the following division and excluding the extraordinary stock
option grants made in August 2008 (as described below):
|
|
|
50% of the overall grant value was awarded as stock options. The options
were valued using the Black-Scholes valuation method. The exercise price of the options
was equal to the closing price on the grant date. For a discussion of the assumptions
underlying the Black Scholes valuation method, please refer to Note 1 to our Financial
Statements found in Item 8 of our Annual Report on Form 10-K for the fiscal year ended
January 31, 2009. |
|
|
|
|
50% of the overall grant value was awarded as restricted stock. For the
NEOs, 60% of this restricted stock grant was awarded with performance-vesting
requirements tied to future earnings per share, and 40% of this restricted stock grant
was awarded with performance-vesting requirements tied to future operating income, as
discussed below. Both grants have a service (time) vesting requirement in addition to
the performance-vesting criteria. |
18
For example, if the annual grant value for the executive is $400,000, then 50% or $200,000 is
awarded as stock options and the remaining $200,000 is awarded as restricted stock. In our example,
assuming the closing stock price is $10 on the grant date with a Black-Scholes value of $5, the
grant would be as follows:
Stock Options
|
|
|
$200,000 divided by $5 = 40,000 stock options granted. |
Restricted Stock
|
|
|
$200,000 times 60% = $120,000. $120,000 divided by $10 = 12,000 restricted shares
with performance-vesting criteria tied to achievement of earnings per share targets. |
|
|
|
|
$200,000 times 40% = $80,000. $80,000 divided by $10 = 8,000 restricted shares with
performance-vesting criteria tied to achievement of operating income targets. |
Total Grant
|
|
|
Total grant is 40,000 stock options and 20,000 restricted shares. |
At the February 2006 Compensation Committee meeting, the Committee determined that, depending
on performance and in consideration of his total compensation package, Mr. Rayden would not be
granted more than 60,000 shares annually for fiscal years 2006 2008, with such shares to be
divided equally by value between stock options and restricted shares using the above formula. At
the time this decision was made, the maximum number of shares was lower than the amount Mr. Rayden
received during any fiscal year since we had become an independent public company in August 1999.
The intent of this limitation of equity grants for the three year period was partly in recognition
of the fact that Mr. Raydens total cash compensation, in the form of base salary and incentive
compensation, was higher than the peer group chief executive officers.
(a) 2008 Restricted Stock Performance-Vesting Requirement 60% Grant:
Sixty percent of the typical annual restricted stock award grant is awarded with both a
service and performance-vesting criterion. The grant has a 2-year cliff vesting feature assuming
continued service as an employee of our Company. The performance-vesting feature of the grant is
based on the achievement of reasonable average earnings per share growth rate target that is
measured over the 2-year period. If we achieve at least the same earnings per share for the 2-year
period, the threshold target, then 25% of the shares vest upon the 2-year cliff vesting date. If
our earnings per share grow at or above the maximum target rate, which is a compounded 10% increase
in our earnings per share for the 2-year period, then 100% of the shares vest upon the 2-year cliff
vesting date. If our earnings per share grow at a rate between the threshold and maximum rate, then
a pro rata amount between 25% and 100% of the shares vest upon the 2-year cliff vesting date. No
shares vest if earnings per share grow at less than the threshold rate. In February 2008, the
Compensation Committee determined that the earnings per share targets for the 2007 grants did not
consider, and were therefore not adjusted, for the fact that the prior year, 2006, was a 53 week
year. To be consistent, the Committee approved an adjustment to the 2007 grant targets to put it on par with a 52 week year. This resulted in slightly smaller
cumulative earnings per share growth over 2007 and 2008 necessary for this grant to vest. For
2008, we did not achieve the earnings per share growth necessary to meet the performance-vesting
criterion for the 2007 grant to vest February 2009.
(b) 2008 Restricted Stock Performance-Vesting Requirement 40% Grant:
Forty percent of the typical annual restricted stock award grant is awarded with performance
and service-based vesting criterion. For the 2008 grant, the shares will vest 25% per year over a
4-year period beginning on the first anniversary of the date of grant, assuming continued service
as an employee of our Company, and if certain operating income levels are achieved by the Company
for Spring 2008, Fall 2008 or Spring 2009. Our operating income goals are any of the following: (i)
Spring season 2008 operating income must have an increase of at least 2% over Spring season 2007,
(ii) Fall season 2008 operating income must have an increase of at least 2% over Fall season 2007,
or (iii) Spring season 2009 operating income must have an increase of at least 2% over Spring
season 2008.
19
Since the operating income goals were not achieved for Fall 2008, if these goals are achieved
in Spring 2009, then no shares will vest on the first anniversary of the date of grant. Instead,
50% of the shares would vest on the second anniversary of the grant date, and 25% would vest on
each of the third and fourth anniversaries of the date of grant, assuming continued employment and
continued eligibility under the Plans.
If none of the seasonal operating income goals are attained, none of the shares would vest and
all of the shares would be forfeited. For more information on the restricted stock grants refer to
the Grants of Plan-Based Awards table below on page 29.
(c) Extraordinary Grants of Stock Options:
In August 2008 we awarded a one-time extraordinary grant of stock options to our NEOs to
promote retention and motivation in connection with the restructuring of the Company to operate
under a single store brand, Justice. This grant of stock options is reflected in the Summary
Compensation Table beginning on page 25 and Grants of Plan-Based Awards Table found below beginning
on page 28. The Committee determined that the one-time grant would be made entirely in options, as
opposed to a mix of restricted shares and options, and that the options would vest over four years
at the rate of 25% per year in order to provide a long term incentive for our NEOs commitment to
the Company following the restructuring. This grant was made in lieu of the annual grant that has
historically been made in February of previous years. The size of the grants were smaller than
would ordinarily have been the practice for annual grants made in February 2009.
(d) Restricted Stock Achievement of Greater than 200% Payout Level under IC Plan:
Payout amounts under the IC Plan between 200% and 300% are payable in shares of restricted
stock, which will vest based on continued employment of an NEO for one year after Compensation
Committee certification of such award, unless the award vests under other certain circumstances
pursuant to the terms of the 2005 Stock Option and Performance Incentive Plan. The Committee
determined the level of operating income required for a 300% payout at the same time as the other
targets for the Incentive Compensation Plan. The operating income growth target for Spring 2008 to
achieve 300% (stock maximum) incentive compensation was a 40% increase over the actual operating
income for Spring 2007. The operating income growth target for Fall 2008 to achieve 300% stock
maximum incentive compensation was a 25% increase over the actual operating income for Fall 2007.
Neither of these targets was met.
(e) Stock For Cash:
In fiscal 2008, a participant had the option to elect, prior to the beginning of the fiscal
year, to receive shares of restricted stock instead of all or part of any IC payout earned for
performance during the year. To encourage stock ownership, if restricted stock was elected, the
participant would receive stock equal to 125% of the cash value of the corresponding IC payment
based on the closing share price on the date IC is paid. The restricted stock would vest based on
continued employment of an NEO for one year after the Compensation Committee approves the IC
payout, unless the awards vest under other circumstances pursuant to the terms of the 2005 Stock
Option and Performance Incentive Plan. In February 2009, the Committee elected to suspend the
stock-for-cash feature for any IC paid for fiscal 2009.
(f) The Timing of Stock Grants; Selection of Stock Option Exercise Prices:
Annual stock option grants are typically made effective and priced with the closing price on
the second day following announcement of our fourth quarter and full year earnings. The date of
announcement counts as the first of the two days if such announcement is made prior to the opening
of regular trading hours of the New York Stock Exchange. The Committee meets and determines the
amounts of such awards on or prior to such date. With respect to any award grants to new
associates, such grants are made effective on the employees first day of employment.
20
(4) Nonqualified Deferred Compensation Earnings:
We do not offer a defined benefit pension plan to any of our associates, including our NEOs.
Therefore, we have no change in pension value to report. We do offer a nonqualified deferred
compensation (NQDC) plan to our more highly compensated salaried associates (base salary above
$145,000 in 2008) who have at least one year of service, including our NEOs. Within the NQDC plan
the NEOs can choose between fixed interest and variable interest investment options. Both NEO
deferrals and Company money in the form of matching contributions and annual contributions go into
the NQDC plan.
The variable interest options did not provide the NEOs with preferential earnings above that
which the fund achieved. The fixed interest option did provide the NEOs with a guaranteed interest
rate of 6.75% in 2008. This fixed interest rate was available to all plan participants, not just
the NEOs. The fixed interest fund investments realized a 4.45% annual return.
Our Administrative Committee determines the fixed interest rate amounts for the NQDC plan each
year. The Administrative Committee has been given authority from the Board of Directors to
administer the employee benefit plans for the Company. The Administrative Committee is a small
group of Tween Brands executives who meet periodically to review and administer our benefit plans.
The Administrative Committee approved a fixed rate of 4.25% for 2009. This fixed interest
rate does not play a significant role in the Compensation Committees determination of the amounts
of other compensation program elements.
(5) All Other Compensation:
The All Other Compensation category in our Summary Compensation Table beginning on page 25
primarily consists of these items:
|
|
|
annual employer contributions into the retirement/401(k) plan; |
|
|
|
|
employer contributions into the nonqualified deferred compensation plan; |
|
|
|
|
employer-paid premiums for life insurance; |
|
|
|
|
tax gross-ups; |
|
|
|
|
perquisites; and |
|
|
|
|
amounts paid or accrued in connection with a termination of employment. |
(a) Retirement:
We sponsor a qualified retirement and 401(k) plan for eligible associates. This plan allows
NEOs to defer a portion of their total cash compensation (up to IRS limits) into this retirement
account on a pre-tax basis. Neither our NEOs nor any other NQDC plan participants receive a Company
match on any money they defer into the 401(k).
In 2008, we made an annual contribution into the retirement plan for eligible associates,
including the NEOs, as follows: (i) for associates with less than five years of service: a 3%
contribution on all eligible compensation up to the Social Security wage base ($102,000 in 2008),
plus a 6% contribution on all eligible compensation above the Social Security wage base up to the
compensation limit ($230,000 in 2008); or (ii) for associates with five or more years of service: a
4% contribution on all eligible compensation up to the Social Security wage base ($102,000 in
2008), plus a 7% contribution on all eligible compensation above the Social Security wage base up
to the compensation limit ($230,000 in 2008).
These annual employer contribution amounts to NEOs are included in the Summary Compensation
Tables All Other Compensation column on page 25.
21
The Committee elected to suspend the annual contribution into the retirement plan for all
participants for the 2008 plan year.
(b) Deferred Compensation:
We sponsor a nonqualified supplemental retirement and deferred compensation plan for eligible
associates who have at least one year of service. This plan is designed to be a supplemental plan
and as of the end of fiscal 2008 the plan had 11 active participants. This compensation element is
designed to reward and promote continued employment with Tween Brands. The base salary threshold
for participation in the plan was $145,000 in 2008 and has increased to $150,000 in 2009.
Participants can defer up to 50% of their cash compensation (base compensation and incentive
compensation) into this plan. Please also refer to our discussion above under Compensation
Program Elements Nonqualified Deferred Compensation Earnings.
Participants receive a 2-for-1 Company match on the first 3% they defer into the plan. This
Company matching contribution was suspended effective April 1, 2009.
In addition, we make an annual contribution into the plan for eligible participants, including
the NEOs, as follows: (i) for associates with less than five years of service, a 6% contribution on
all eligible cash compensation above the compensation limit ($230,000 in 2008); or (ii) for
associates with five or more years of service, an 8% contribution on all eligible cash compensation
above the compensation limit ($230,000 in 2008). The Committee elected to suspend the annual
contribution into the plan for all participants for the 2008 plan year.
Participants are responsible for paying Social Security and Medicare taxes on employer
matching contributions to the NQDC plan. Unlike federal and state taxes, these taxes are not
deferred on matching contributions. As a result, we gross up the employer matching contributions
for the participants to offset the impact of these taxes.
These employer matching and annual employer contribution amounts are included in the Summary
Compensation Tables All Other Compensation column on page 25.
A plan feature that promotes retention is the vesting requirement. The NEOs own deferrals
are, of course, always 100% vested; however, our Company matching contributions have a 6-year
graduated vesting schedule and our annual Company contributions have a 7-year graduated vesting
schedule.
Historically, the Company has used Corporate Owned Life Insurance (COLI) policies to finance
the plan obligation and was the beneficiary for the death benefit. The Company provides
participants with an in-service death benefit while actively employed with the Company equal to the
sum of the average annual base salary and the average annual bonus, if applicable, of the
participant over the last four years. These policies are often maintained by us even after
participants terminate or retire from the Company. The in-service death benefit under the plan was
eliminated in January 2009.
For more information and individual contribution amounts please refer to the Nonqualified
Deferred Compensation Table on page 32.
22
(c) Employer-Paid Premiums for Life Insurance:
We provide each of our NEOs with basic group term life insurance with a death benefit equal to
four times their annual base salary up to a maximum of $1.5 million of insurance. This element of
compensation, though relatively small, provides an additional item to the overall compensation
package which strengthens our ability to recruit and retain talented executives.
We provide Mr. Rayden with an individual term life insurance policy that has a death benefit
of $5,000,000 to be paid to his beneficiary in the event of his death.
For specific premium amounts paid, please refer to the Summary Compensation Tables All Other
Compensation column and footnotes on page 25.
(d) Gross-Ups:
A gross-up occurs when we make a payment to an NEO to offset taxes associated with a specific
benefit. We provide gross-ups for NEOs for:
|
|
|
taxable relocation expenses; |
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|
|
Social Security and Medicare taxes on Company contributions and earnings to the
non-qualified deferred compensation plan; and |
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|
|
imputed income from the individual life insurance policy for Mr. Rayden. |
In fiscal 2008, our gross-up expenses were:
|
|
|
$26,780 for NEO relocation gross-up expenses; |
|
|
|
|
$10,996 for taxes on Company contributions to the non-qualified deferred
compensation accounts on behalf of all NEOs; and |
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|
|
$12,053 for imputed income on Mr. Raydens individual life insurance policy. |
(e) Perquisites:
We do not currently offer any notable perquisites to our NEOs, other than to Mr. Rayden. Mr.
Rayden receives limited personal use of our aircraft while Mr. Rayden serves as our Chief Executive
Officer, provided that:
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such personal use does not conflict with our business use of the aircraft; and |
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|
Mr. Rayden reimburses the Company for the aggregate incremental cost of such
personal use in excess of $200,000 each fiscal year, with such cost calculated in the
manner the Company uses to report such costs in its annual proxy statements for
purposes of disclosure of executive compensation. |
Mr. Rayden is also entitled to carry over any unused aircraft allowance from the prior year
(up to a maximum of $50,000), provided that amounts carried over expire if not used in the current
year. The Committee provides this amount of aircraft use benefit because the intangible value to
Mr. Rayden is greater than the tangible cost to our Company. This perquisite amount is included in
the Summary Compensation Tables All Other Compensation column on page 25.
23
(f) Employment/Severance Agreements and Change-In-Control Arrangements:
We have entered into employment agreements with our NEOs to attract or retain the services of
such NEOs. At the present time, we have agreements for employment with each of Messrs. Rayden, de
Aguiar, Keane, Henchel, and Robinson. We have also entered into a separate agreement with Mr.
Rayden that includes severance terms under various circumstances following a change in control of
our Company. We also entered into a Separation Pay, Confidentiality & Non-Competition Agreement
with Mr. Carbone and a letter agreement specifying the terms of Mr. Carbones separation from the
Company, and a letter agreement with Mr. Stevens specifying the terms of Mr. Stevens separation
from the Company. For a discussion of these agreements, please refer to Agreements with NEOs and
Potential Payments upon Termination or Change in Control beginning on page 32.
(6) Health and Welfare Benefits:
In addition to the compensation and benefits programs discussed in this document, we offer our
associates, including our NEOs, a comprehensive health and welfare benefits program. This program
is designed to provide the associates and their families with comprehensive coverage at competitive
rates. We strive to provide our associates with appropriate health benefits (medical, pharmacy,
dental, and vision) to help protect the physical, mental and financial health of our associates and
their immediate families.
Stock Ownership Guidelines
Consistent with the objective to align the financial interests of the Companys senior
executives and directors with those of the Companys stockholders, pursuant to the Companys stock
ownership guidelines each non-associate member of the Board of Directors and each senior executive
are required to own common stock as described in the table below:
|
|
|
|
|
Participants |
|
Stock Ownership Requirement Amount |
Non-Associate Board Members |
|
Five (5) Times Annual Cash Retainer |
Chairman & CEO |
|
Five (5) Times Annual Base Salary |
President & COO |
|
Four (4) Times Annual Base Salary |
Brand or Division President |
|
Three (3) Times Annual Base Salary |
Senior Vice President or Executive Vice President |
|
Two (2) Times Annual Base Salary |
Participants are required to attain the ownership requirements by the later of (i) February
2013, or (ii) five years from the date he or she is elected as a director or appointed, hired or
promoted to a senior executive position. Participants are required to make progress toward the
requirements of 30% after two years, 60% after three years, 80% after four years, and 100% after
five years. For purposes of determining stock ownership under the guidelines, ownership will
include (i) shares of common stock owned directly by the participant, including those attained
through stock option exercises and the vesting of restricted stock awards, and (ii) shares of
common stock owned directly by the participants spouse or dependent children.
Stock ownership will be measured annually. The participants salary or retainer, as
applicable, and the Companys average daily closing market price for the past 12 months as of the
last day of the fiscal year will be used in determining whether or not a participant is in
compliance with the requirements. In the event that a participant falls out of compliance with the
guidelines due to (i) an increase in participants annual retainer or base salary, (ii) a promotion
to a position with a higher ownership requirement, or (iii) a decrease in our stock price, the
participant will be required to restore his or her compliance by acquiring additional shares of
common stock as soon as reasonably possible by utilizing vested stock awards. Given the recent
volatility in the stock market in general and the Companys stock in particular, the Board expects
to review the Companys stock ownership guidelines in 2009 to determine if adjustments to these
guidelines are appropriate.
24
Summary Compensation Table
The following table shows the compensation paid by Tween Brands, Inc. to each of the NEOs of
the Company for the 2008 fiscal year which began Sunday, February 3, 2008 and ended Saturday,
January 31, 2009. For a discussion of the various elements of compensation provided in the table,
please refer to the discussion of the various compensation elements in our Compensation Discussion
& Analysis under the heading Compensation Program Elements beginning on page 14.
SUMMARY COMPENSATION TABLE FOR FISCAL 2008
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|
|
|
|
Nonqualified |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity |
|
Deferred |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
Option |
|
Incentive Plan |
|
Compensation |
|
All Other |
|
|
Name and |
|
|
|
|
|
Salary |
|
Bonus |
|
Awards |
|
Awards |
|
Compensation |
|
Earnings |
|
Compensation |
|
Total |
Principal Position |
|
Year |
|
($)(1) |
|
($) |
|
($)( 2) |
|
($)( 2) |
|
($)( 3) |
|
($)( 4) |
|
($)(5) |
|
($) |
Michael W. Rayden |
|
|
2008 |
|
|
|
1,050,000 |
|
|
|
|
|
|
|
1,514,131 |
|
|
|
539,672 |
|
|
|
|
|
|
|
125,630 |
|
|
|
293,333 |
|
|
|
3,522,766 |
|
Chairman of the Board and |
|
|
2007 |
|
|
|
1,050,000 |
|
|
|
420,000 |
|
|
|
1,780,935 |
|
|
|
565,632 |
|
|
|
574,560 |
|
|
|
59,709 |
|
|
|
446,450 |
|
|
|
4,897,286 |
|
Chief Executive Officer |
|
|
2006 |
|
|
|
1,050,000 |
|
|
|
|
|
|
|
2,118,474 |
|
|
|
392,187 |
|
|
|
1,423,800 |
|
|
|
48,007 |
|
|
|
710,701 |
|
|
|
5,743,169 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rolando de Aguiar |
|
|
2008 |
|
|
|
301,442 |
|
|
|
|
|
|
|
42,503 |
|
|
|
53,213 |
|
|
|
|
|
|
|
|
|
|
|
88,406 |
|
|
|
485,564 |
|
Chief Financial Officer |
|
|
2007 |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
|
2006 |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gregory J. Henchel |
|
|
2008 |
|
|
|
302,692 |
|
|
|
|
|
|
|
49,876 |
|
|
|
62,731 |
|
|
|
|
|
|
|
480 |
|
|
|
20,272 |
|
|
|
436,051 |
|
Senior Vice President, |
|
|
2007 |
|
|
|
286,923 |
|
|
|
40,000 |
|
|
|
51,408 |
|
|
|
40,151 |
|
|
|
52,896 |
|
|
|
72 |
|
|
|
33,669 |
|
|
|
505,119 |
|
General Counsel |
|
|
2006 |
|
|
|
250,000 |
|
|
|
|
|
|
|
70,397 |
|
|
|
24,254 |
|
|
|
113,000 |
|
|
|
3 |
|
|
|
4,067 |
|
|
|
461,721 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael C. Keane |
|
|
2008 |
|
|
|
451,000 |
|
|
|
|
|
|
|
156,025 |
|
|
|
109,619 |
|
|
|
|
|
|
|
57 |
|
|
|
13,085 |
|
|
|
729,786 |
|
Senior Vice President |
|
|
2007 |
|
|
|
199,692 |
|
|
|
155,000 |
|
|
|
76,797 |
|
|
|
39,719 |
|
|
|
130,416 |
|
|
|
|
|
|
|
383 |
|
|
|
602,007 |
|
Human Resources |
|
|
2006 |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ronald Robinson |
|
|
2008 |
|
|
|
443,750 |
|
|
|
|
|
|
|
155,728 |
|
|
|
94,527 |
|
|
|
|
|
|
|
2,976 |
|
|
|
38,104 |
|
|
|
735,085 |
|
Executive Vice President |
|
|
2007 |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
Supply Chain |
|
|
2006 |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenneth T. Stevens(6) |
|
|
2008 |
|
|
|
353,846 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
799 |
|
|
|
439,205 |
|
|
|
793,850 |
|
President and Chief |
|
|
2007 |
|
|
|
800,000 |
|
|
|
585,000 |
|
|
|
528,950 |
|
|
|
205,250 |
|
|
|
364,800 |
|
|
|
|
|
|
|
4,525 |
|
|
|
2,488,525 |
|
Operating Officer |
|
|
2006 |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
n/a |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul C. Carbone(7) |
|
|
2008 |
|
|
|
68,676 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
254 |
|
|
|
240,393 |
|
|
|
309,323 |
|
Senior Vice President and |
|
|
2007 |
|
|
|
360,385 |
|
|
|
50,000 |
|
|
|
45,421 |
|
|
|
30,750 |
|
|
|
68,400 |
|
|
|
42 |
|
|
|
23,059 |
|
|
|
578,057 |
|
Chief Financial Officer |
|
|
2006 |
|
|
|
123,750 |
|
|
|
82,100 |
|
|
|
24,891 |
|
|
|
9,594 |
|
|
|
42,900 |
|
|
|
|
|
|
|
916 |
|
|
|
284,151 |
|
|
|
|
(1) |
|
Figures include amounts which a named executive officer has elected to defer under
the terms of the Companys supplemental retirement and deferred compensation plan. For more
information and individual contribution amounts, please refer to the Nonqualified Deferred
Compensation Table on page 32. |
|
(2) |
|
Represents the dollar amount recognized for financial statement reporting purposes
with respect to the fiscal year in accordance with FAS 123R, disregarding any estimate of
forfeitures during the year, but accounting for any actual forfeitures by an NEO during the
fiscal year. For a discussion of the assumptions made in the valuation of the dollar amount
recognized, please refer to Note 1 to the Companys Financial Statements, which are set forth
in Item 8 to the Companys Annual Report on Form 10-K for the fiscal year ended January 31,
2009. |
|
(3) |
|
Represents the total of the performance-based incentive compensation earned for the
spring and fall selling seasons, which is discussed in further detail under the heading
Executive Compensation Compensation Discussion and Analysis Incentive Compensation Plan
beginning on page 15. |
25
|
|
|
(4) |
|
Represents above-market earnings on the fixed interest investment option for
deferred compensation under the Companys NQDC plan equal to 1.18%, 0.18 %, and 1.51% of
earnings for 2006, 2007, and 2008, respectively. This was calculated by taking the NQDC plans
fixed interest investment option guaranteed interest rate of 6.75% for 2006, less 120% of the
applicable federal long term rate of 4.64%, or 1.18%, 5.75% for 2007, less 120% of the
applicable federal long term rate of 4.64%, or 0.18%, and 6.75% for 2008, less 120% of the
applicable federal long term rate of 4.37%, or 1.51%. |
|
(5) |
|
Amounts include the following: |
2008:
|
|
|
$12,825, $0, $10,575, $0, $12,825, $0 and $2,516 of employer contributions to each of
the 401(k) plan accounts of Messrs. Rayden, de Aguiar, Henchel, Keane, Robinson, Stevens,
and Carbone, respectively; |
|
|
|
|
$117,827, $0, $19,154, $11,499, $34,534, $37,131 and $11,225 of employer contributions
to each of the nonqualified deferred compensation accounts of Messrs. Rayden, de Aguiar,
Henchel, Keane, Robinson, Stevens, and Carbone, respectively; |
|
|
|
|
$7,930, $0, $452, $52, $2,562, $0, and $0 of gross-ups to each of Messrs. Rayden, de
Aguiar, Henchel, Keane, Robinson, Stevens, and Carbone, respectively, for Social Security
and Medicare taxes on employer contributions to the NEOs non qualified deferred
compensation accounts; |
|
|
|
|
$7,524, $4,113, $666, $1,534, $1,008, $2,074 and $129 of group term insurance premiums
paid on behalf of each of Messrs. Rayden, de Aguiar, Henchel, Keane, Robinson, Stevens, and
Carbone, respectively; |
|
|
|
|
$400,000 and $229,039 to each Messrs. Stevens and Carbone, respectively for severance
pay; |
|
|
|
|
a $6,575 executive life insurance premium paid on behalf of Mr. Rayden; |
|
|
|
|
a $5,478 gross-up for taxes on imputed income on Mr. Raydens individual executive
life insurance policy; |
|
|
|
|
$147,999 for Mr. Rayden, which is the aggregate incremental cost to the Company for Mr.
Raydens personal use of the Companys aircraft; and |
|
|
|
|
$84,293 of relocation expenses for Mr. de Aguiar. |
2007:
|
|
|
$12,574 and $10,374 of employer contributions to each of the 401(k) plan accounts of
Messrs. Rayden and Henchel, respectively; |
|
|
|
|
$187,212, $22,125, and $22,542 of employer contributions to each of the nonqualified
deferred compensation accounts of Messrs. Rayden, Carbone, and Henchel, respectively; |
|
|
|
|
$12,806, $134, and $128 of gross-ups to each of Messrs. Rayden, Carbone, and Henchel,
respectively, for Social Security and Medicare taxes on employer contributions to the NEOs
non qualified deferred compensation accounts; |
|
|
|
|
$5,104, $4,525, $800, $625, and $383 of group term insurance premiums paid on behalf of
each of Messrs. Rayden, Stevens, Carbone, Henchel, and Keane, respectively; |
|
|
|
|
a $6,575 executive life insurance premium paid on behalf of Mr. Rayden; |
|
|
|
|
a $5,478 gross-up for taxes on imputed income on Mr. Raydens individual executive
life insurance policy; and |
26
|
|
|
$216,701 for Mr. Rayden, which is the aggregate incremental cost to the Company for Mr.
Raydens personal use of the Companys aircraft. |
2006:
|
|
|
$12,000 of employer contributions to the 401(k) plan account of Mr. Rayden; |
|
|
|
|
$482,200, $750, and $3,577 of employer contributions to each of the nonqualified
deferred compensation accounts of Messrs. Rayden, Carbone, and Henchel, respectively; |
|
|
|
|
$16,246 of gross-ups to Mr. Rayden for Social Security and Medicare taxes on employer
contributions to his non-qualified deferred compensation account; |
|
|
|
|
$4,903, $166, and $490 of group term insurance premiums paid on behalf of each of
Messrs. Rayden, Carbone, and Henchel, respectively; |
|
|
|
|
a $6,575 executive life insurance premium paid on behalf of Mr. Rayden; |
|
|
|
|
a $5,478 gross-up for taxes on imputed income on Mr. Raydens individual executive
life insurance policy; and |
|
|
|
|
$183,299 for Mr. Rayden, which is the aggregate incremental cost to the Company for Mr.
Raydens personal use of the Companys aircraft. |
|
|
|
(6) |
|
Mr. Stevens resigned as our President and Chief Operating Officer, effective June
27, 2008. He is deemed to be a named executive officer because he served as the Companys
principal financial officer during fiscal 2008. |
|
(7) |
|
Mr. Carbone resigned as our Senior Vice President and Chief Financial Officer,
effective February 19, 2008. He is deemed to be a named executive officer because he served as
the Companys principal financial officer during fiscal 2008. |
27
Grants of Plan-Based Awards Table
The following table provides certain information concerning each grant of any award made to
the listed officers in the last completed fiscal year under any plan. For more information on the
grants represented in this table, please refer to the discussions in our Compensation Discussion &
Analysis under the headings Incentive Compensation Plan beginning on page 15 and Equity
Compensation beginning on page 18.
GRANTS OF PLAN-BASED AWARDS TABLE FOR FISCAL 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other |
|
All Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock |
|
Option |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
Awards: |
|
Exercise |
|
Grant |
|
|
|
|
|
|
Estimated Potential Payouts |
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
Number of |
|
or Base |
|
Date Fair |
|
|
|
|
|
|
Under Non-Equity |
|
Estimated Future Payouts Under |
|
Shares of |
|
Securities |
|
Price of |
|
Value of |
|
|
|
|
|
|
Incentive Plan Awards |
|
Equity Incentive Plan Awards |
|
Stock or |
|
Underlying |
|
Option |
|
Stock and |
|
|
|
|
|
|
Threshold |
|
Target |
|
Maximum |
|
Threshold |
|
Target |
|
Maximum |
|
Units |
|
Options |
|
Awards |
|
Option |
Name |
|
Grant Date |
|
($)(1) |
|
($) |
|
($) |
|
(#)(1) |
|
(#) |
|
(#) |
|
(#) |
|
(#) |
|
($/Sh) |
|
Awards($) |
Michael W. Rayden |
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,500 |
|
|
|
18,000 |
|
|
|
18,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
529,020 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
352,680 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,000 |
|
|
|
29.39 |
|
|
|
325,800 |
|
|
|
|
8/14/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000 |
|
|
|
8.32 |
|
|
|
157,500 |
|
|
|
|
n/a |
|
|
|
252,000 |
|
|
|
1,260,000 |
|
|
|
2,520,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rolando de Aguiar |
|
|
6/02/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,000 |
|
|
|
|
|
|
|
|
|
|
|
352,680 |
|
|
|
|
6/02/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,000 |
|
|
|
18.89 |
|
|
|
216,000 |
|
|
|
|
8/14/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
8.82 |
|
|
|
63,000 |
|
|
|
|
n/a |
|
|
|
57,000 |
|
|
|
285,000 |
|
|
|
570,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gregory J. Henchel |
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
330 |
|
|
|
1,321 |
|
|
|
1,321 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38,824 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
881 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,893 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,414 |
|
|
|
29.39 |
|
|
|
58,796 |
|
|
|
|
8/14/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
8.32 |
|
|
|
63,000 |
|
|
|
|
n/a |
|
|
|
27,450 |
|
|
|
137,250 |
|
|
|
274,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael C. Keane |
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
501 |
|
|
|
2,005 |
|
|
|
2,005 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
58,927 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,337 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39,294 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,215 |
|
|
|
29.39 |
|
|
|
89,215 |
|
|
|
|
8/14/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
8.32 |
|
|
|
63,000 |
|
|
|
|
n/a |
|
|
|
58,890 |
|
|
|
294,450 |
|
|
|
588,900 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ronald Robinson |
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
945 |
|
|
|
3,780 |
|
|
|
3,780 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
111,094 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
74,063 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,700 |
|
|
|
29.39 |
|
|
|
148,782 |
|
|
|
|
8/14/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
8.32 |
|
|
|
63,000 |
|
|
|
|
n/a |
|
|
|
54,000 |
|
|
|
270,000 |
|
|
|
540,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenneth T. Stevens |
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,187 |
|
|
|
8,748 |
|
|
|
8,748 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
257,104 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,832 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
171,402 |
|
|
|
|
2/21/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35,848 |
|
|
|
29.39 |
|
|
|
389,309 |
|
|
|
|
8/14/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
n/a |
|
|
|
160,000 |
|
|
|
800,000 |
|
|
|
1,600,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul C. Carbone |
|
|
n/a |
|
|
|
30,000 |
|
|
|
150,000 |
|
|
|
300,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
If the threshold target is not met, there is no award. |
28
Outstanding Equity Awards at Fiscal Year-End Table
The following table provides information concerning unexercised options, stock that has not
vested, and equity incentive plan awards outstanding as of the end of the last completed fiscal
year:
OUTSTANDING EQUITY AWARDS AT FISCAL 2008 YEAR-END
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards (1) |
|
Stock Awards |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive |
|
Equity |
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan |
|
Incentive Plan |
|
|
|
|
|
|
|
|
|
|
Incentive |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
Awards: |
|
|
|
|
|
|
|
|
|
|
Plan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
Market or |
|
|
|
|
|
|
|
|
|
|
Awards: |
|
|
|
|
|
|
|
|
|
Number |
|
Market |
|
Unearned |
|
Payout Value |
|
|
Number of |
|
Number of |
|
Number of |
|
|
|
|
|
|
|
|
|
of Shares |
|
Value of |
|
Shares, |
|
of Unearned |
|
|
Securities |
|
Securities |
|
Securities |
|
|
|
|
|
|
|
|
|
or Units |
|
Shares or |
|
Units or |
|
Shares, Units |
|
|
Underlying |
|
Underlying |
|
Underlying |
|
|
|
|
|
|
|
|
|
of Stock |
|
Units of |
|
Other |
|
or Other |
|
|
Unexercised |
|
Unexercised |
|
Unexercised |
|
Option |
|
|
|
|
|
That |
|
Stock That |
|
Rights |
|
Rights That |
|
|
Options |
|
Options |
|
Unearned |
|
Exercise |
|
Option |
|
Have Not |
|
Have Not |
|
That Have |
|
Have Not |
|
|
(#) |
|
(#) |
|
Options |
|
Price |
|
Expiration |
|
Vested |
|
Vested |
|
Not Vested |
|
Vested |
Name |
|
Exercisable |
|
Unexercisable |
|
(#) |
|
($) |
|
Date |
|
(#)(2) |
|
($) |
|
(#)(3) |
|
($) |
Michael W. Rayden |
|
|
156,339 |
|
|
|
|
|
|
|
|
|
|
|
27.31 |
|
|
|
05/10/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
71,162 |
|
|
|
|
|
|
|
|
|
|
|
26.05 |
|
|
|
02/12/2012 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24,654 |
|
|
|
|
|
|
|
|
|
|
|
15.16 |
|
|
|
02/11/2013 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
37,500 |
|
|
|
12,500 |
|
|
|
|
|
|
|
16.26 |
|
|
|
02/10/2014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,452 |
|
|
|
11,150 |
|
|
|
|
|
|
|
28.25 |
|
|
|
02/15/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,689 |
|
|
|
20,690 |
|
|
|
|
|
|
|
29.75 |
|
|
|
02/14/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,134 |
|
|
|
30,406 |
|
|
|
|
|
|
|
37.00 |
|
|
|
02/22/2017 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,000 |
|
|
|
|
|
|
|
29.39 |
|
|
|
02/21/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000 |
|
|
|
|
|
|
|
8.32 |
|
|
|
08/14/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
186,792 |
|
|
|
502,470 |
|
|
|
41,676 |
|
|
|
112,108 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rolando de Aguiar |
|
|
|
|
|
|
30,000 |
|
|
|
|
|
|
|
18.89 |
|
|
|
06/02/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
|
|
|
|
8.32 |
|
|
|
08/14/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,000 |
|
|
|
32,280 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gregory J. Henchel |
|
|
3,750 |
|
|
|
1,250 |
|
|
|
|
|
|
|
28.46 |
|
|
|
10/10/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,034 |
|
|
|
1,035 |
|
|
|
|
|
|
|
29.75 |
|
|
|
02/14/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
929 |
|
|
|
2,787 |
|
|
|
|
|
|
|
37.00 |
|
|
|
02/22/2017 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,414 |
|
|
|
|
|
|
|
29.39 |
|
|
|
02/21/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
|
|
|
|
8.32 |
|
|
|
08/14/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,970 |
|
|
|
5,299 |
|
|
|
3,273 |
|
|
|
8,804 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Keane |
|
|
6,250 |
|
|
|
18,750 |
|
|
|
|
|
|
|
27.59 |
|
|
|
08/22/2017 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,215 |
|
|
|
|
|
|
|
29.39 |
|
|
|
02/21/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
|
|
|
|
8.32 |
|
|
|
08/14/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,500 |
|
|
|
20,175 |
|
|
|
3,342 |
|
|
|
8,990 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ronald Robinson |
|
|
3,750 |
|
|
|
|
|
|
|
|
|
|
|
15.16 |
|
|
|
02/11/2013 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,158 |
|
|
|
|
|
|
|
|
|
|
|
16.26 |
|
|
|
02/10/2014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,155 |
|
|
|
718 |
|
|
|
|
|
|
|
28.25 |
|
|
|
02/15/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,586 |
|
|
|
2,586 |
|
|
|
|
|
|
|
29.75 |
|
|
|
02/14/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,266 |
|
|
|
3,801 |
|
|
|
|
|
|
|
37.00 |
|
|
|
02/22/2017 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,700 |
|
|
|
|
|
|
|
29.39 |
|
|
|
02/21/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000 |
|
|
|
|
|
|
|
8.32 |
|
|
|
08/14/2018 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,857 |
|
|
|
23,825 |
|
|
|
5,240 |
|
|
|
14,096 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenneth T. Stevens |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul C. Carbone |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29
|
|
|
(1) |
|
Options become exercisable in four equal annual installments beginning on the first anniversary
date of grant. |
|
(2) |
|
The shares of restricted stock represented vest as follows: |
|
|
|
Mr. Rayden: 1,862 shares on February 14, 2009; 39,730 shares on February 15, 2009;
1,946 shares on February 22, 2009; 1,862 shares on February 14, 2010; 62,500 shares on
February 15, 2010; 1,946 shares on February 22, 2010; 1,946 shares on February 22,
2011; and 75,000 shares of February 15, 2011. All of these shares had
performance-based vesting conditions when granted. Those performance conditions have
been achieved and the restricted stock has only a time-based vesting condition
remaining. |
|
|
|
|
Mr. de Aguiar: 3,000 shares on June 2, 2009; 3,000 shares on June 2, 2010; 3,000
shares on June 2, 2011; and 3,000 shares on June 2, 2012. All of these shares are
service-based. |
|
|
|
|
Mr. Henchel: 93 shares on February 14, 2009; 177 shares on February 22, 2009; 1,250
shares on October 10, 2009; 93 shares on February 14, 2010; 178 shares on February 22,
2010; and 179 shares on February 22, 2011. All but 1,436 of these shares had
performance-based vesting conditions when granted. Those performance conditions have
been achieved and the restricted stock has only a time-based vesting condition
remaining. |
|
|
|
|
Mr. Keane: 2,500 shares on August 22, 2009; 2,500 shares on August 22, 2010; and
2,500 shares on August 22, 2011. All of these shares are service-based. |
|
|
|
|
Mr. Robinson: 232 shares on February 14, 2009; 143 shares on February 15, 2009; 630
shares on February 21, 2009; 242 shares on February 22, 2009; 233 shares on February
14, 2010; 630 shares on February 21, 2010; 5,243 shares on February 22, 2010; 630
shares on February 21, 2011; 244 shares on February 22, 2011 and 630 shares on February
21, 2012. All of these shares are service-based. |
(3) |
|
Subject to the achievement of specified performance criteria, the shares of restricted stock
represented vest as follows: |
|
|
|
Mr. Rayden: 11,676 shares on February 22, 2009; 24,000 shares on February 21, 2010;
3,000 shares on February 21, 2011; and 3,000 shares on February 21, 2012. |
|
|
|
|
Mr. Henchel: 1,071 shares on February 22, 2009; 1,762 shares on February 21, 2010;
220 shares on February 21, 2011; and 220 shares on February 21, 2012. |
|
|
|
|
Mr. Keane: 2,674 shares on February 21, 2010; 334 shares on February 21, 2011; and
334 shares on February 21, 2012. |
|
|
|
|
Mr. Robinson: 1,460 on February 22, 2009; and 3,780 shares on February 21, 2010. |
30
Option Exercises and Stock Vested Table
The following table provides certain information concerning each exercise of stock options,
and each vesting of stock, including restricted stock, during the last completed fiscal year:
OPTION EXERCISES AND STOCK VESTED TABLE FOR FISCAL 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards |
|
Stock Awards |
|
|
Number of Shares |
|
Value Realized |
|
Number of Shares |
|
Value Realized on |
|
|
Acquired on Exercise |
|
on Exercise |
|
Acquired on Vesting |
|
Vesting |
Name |
|
(#) |
|
($)(1) |
|
(#) |
|
($)(2) |
Michael W. Rayden |
|
|
|
|
|
|
|
|
|
|
44,335 |
|
|
|
1,348,298 |
|
Rolando de Aguiar |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gregory J. Henchel |
|
|
|
|
|
|
|
|
|
|
2,081 |
|
|
|
35,457 |
|
Michael C. Keane |
|
|
|
|
|
|
|
|
|
|
2,500 |
|
|
|
26,750 |
|
Ronald Robinson |
|
|
|
|
|
|
|
|
|
|
2,124 |
|
|
|
64,474 |
|
Kenneth T. Stevens |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul C. Carbone |
|
|
|
|
|
|
|
|
|
|
130 |
|
|
|
3,866 |
|
|
|
|
(1) |
|
Value realized was calculated based on the number of shares exercised multiplied by
the excess of the fair market value of a share of the Companys common stock on the date of
exercise over the exercise price of the stock option. |
|
(2) |
|
Value realized was calculated based on the number of shares vested multiplied by the
fair market value of a share of the Companys common stock on the date of vesting. |
31
Nonqualified Deferred Compensation Table
The following table provides certain information concerning the Companys nonqualified
supplemental retirement and deferred compensation plan. For more information on the Companys
nonqualified supplemental retirement and deferred compensation plan, please refer to the
discussions in our Compensation Discussion & Analysis under the heading Deferred Compensation
beginning on page 22.
NONQUALIFIED DEFERRED COMPENSATION TABLE FOR FISCAL 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive |
|
Registrant |
|
|
|
|
|
Aggregate |
|
Aggregate |
|
|
Contributions |
|
Contributions |
|
Aggregate Earnings |
|
Withdrawals/ |
|
Balance at |
|
|
in Last FY |
|
in Last FY |
|
in Last FY |
|
Distributions |
|
Last FY End |
Name |
|
($)(1) |
|
($)(2) |
|
($) |
|
($)(3) |
|
($) |
Michael W. Rayden |
|
|
98,190 |
|
|
|
117,828 |
|
|
|
354,985 |
|
|
|
6,033,710 |
|
|
|
|
|
Rolando de Aguiar |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gregory J. Henchel |
|
|
31,923 |
|
|
|
19,154 |
|
|
|
(23,734 |
) |
|
|
66,175 |
|
|
|
21,134 |
|
Michael C. Keane |
|
|
5,750 |
|
|
|
11,499 |
|
|
|
194 |
|
|
|
6,690 |
|
|
|
10,752 |
|
Ronald Robinson |
|
|
37,100 |
|
|
|
34,534 |
|
|
|
(139,303 |
) |
|
|
419,918 |
|
|
|
|
|
Kenneth T. Stevens |
|
|
18,565 |
|
|
|
37,131 |
|
|
|
2,375 |
|
|
|
58,071 |
|
|
|
|
|
Paul C. Carbone |
|
|
10,541 |
|
|
|
11,225 |
|
|
|
(20,613 |
) |
|
|
12,584 |
|
|
|
28,197 |
|
|
|
|
(1) |
|
Amounts were included as part of the total in the Salary, Bonus or Non-Equity
Incentive Plan Compensation columns of the Summary Compensation
Table on page 25. |
|
(2) |
|
Vested amounts were included as part of the total in the All Other Compensation
column of the Summary Compensation Table on
page 25. |
|
(3) |
|
Amounts represent distributions for separated associates as well as in-service
distributions of vested account balances as permitted under plan provisions and Section 409A
of the Internal Revenue Code. |
Agreements with NEOs and Potential Payments upon Termination or Change in Control
We have entered into an employment agreement and an executive agreement with Mr. Rayden, both
dated December 3, 2008, and an executive agreement with each of Messrs. de Aguiar, Keane, Henchel,
and Robinson, each dated September 26, 2008.
In connection with Mr. Carbones separation from the Company, we entered into a letter
agreement, dated February 18, 2008, that references Mr. Carbones Separation Pay, Confidentiality &
Non-Competition Agreement, dated July 26, 2006. In connection with Mr. Stevens separation from the
Company, we entered into a letter agreement, dated June 13, 2008, that references Mr. Stevens
employment agreement dated January 29, 2007.
Mr. Raydens Employment Agreement and Executive Agreement
Mr. Raydens employment agreement has an initial term of five years. On the fourth anniversary
of the effective date of the employment agreement, and on the anniversary date of each year
thereafter, the term will be extended automatically for a period of one year unless 90 days prior
to such anniversary date the Company or Mr. Rayden gives written notice to the other of an election
not to extend the term. Furthermore, if a change in control (as defined in the employment
agreement) occurs during the term of such agreement, the term of such agreement will be extended
for two years from the date of the change in control. A change in control means the occurrence of
any of the following:
32
|
|
|
a person becoming the beneficial owner of Company securities representing 25% or
more of the combined voting power of our then outstanding securities (a 25%
Shareholder); provided, however, a person shall not be deemed a 25% Shareholder if
such person would not otherwise be a 25% Shareholder but for a reduction in the number
of our outstanding voting shares resulting from a stock repurchase program, self-tender
offer or similar plan, unless such person thereafter acquires 1% or more of our voting
shares then outstanding and is otherwise a 25% Shareholder at such time; and provided,
further, that if the Board of Directors determines in good faith that a person
inadvertently became a 25% Shareholder and such person promptly notifies the Board of
Directors of such status and as promptly as practicable thereafter takes such actions
so as to no longer be a 25% Shareholder, then such person shall no longer be deemed to
be a 25% Shareholder; |
|
|
|
|
a change in composition of the Board of Directors occurring any time during a
consecutive two-year period as a result of which fewer than a majority of the Board of
Directors are Continuing Directors (Continuing Director means a director who was
either first elected or appointed as a Director prior to the date of the employment
agreement, or subsequently elected or appointed as a director if such director was
nominated or appointed by at least a majority of the then Continuing Directors); or |
|
|
|
|
any of the following occurs: |
|
|
|
a merger or consolidation of the Company, other than a merger or consolidation in
which the voting securities of the Company immediately prior to the merger or
consolidation continue to represent (either by remaining outstanding or being
converted into securities of the surviving entity) sixty percent (60%) or more of
the combined voting power of the Company or surviving entity immediately after the
merger or consolidation with another entity; |
|
|
|
|
a sale, exchange, or other disposition (in a single transaction or a series of
related transactions) of all or substantially all of the assets of the Company which
shall include, without limitation, the sale of assets aggregating more than fifty
percent (50%) of the assets of the Company on a consolidated basis; |
|
|
|
|
a liquidation or dissolution of the Company; |
|
|
|
|
a reorganization, reverse stock split, or recapitalization of the Company which
would result in any of the foregoing; or |
|
|
|
|
a transaction or series of related transactions having, directly or indirectly,
the same effect as any of the foregoing. |
Mr. Raydens employment agreement provides for a minimum annual base salary, plus any
increases in base compensation as may be authorized by the Board of Directors after the date of the
employment agreement. The agreement also provides for his continued participation in the Companys
incentive compensation and stock option plans and other benefits as described in the agreement.
The employment agreement also requires the Company to compensate Mr. Rayden and provide him
with certain benefits if his employment is terminated before the employment agreement expires. The
compensation and benefits Mr. Rayden is entitled to receive vary depending upon whether his
employment is terminated:
|
|
|
by the Company for cause (as defined below) or voluntarily by him other than for
good reason (as defined below); |
|
|
|
|
by the Company other than for cause or by Mr. Rayden for good reason; |
|
|
|
|
involuntarily due to disability; |
|
|
|
|
upon retirement; or |
|
|
|
|
upon Mr. Raydens death, under which circumstance the applicable compensation and
benefits are payable to his beneficiaries. |
33
For purposes of the employment agreement, cause means Mr. Rayden:
|
|
|
was grossly negligent in the performance of his duties with the Company (other than
a failure resulting from his incapacity due to physical or mental illness) causing
material harm to the Company; |
|
|
|
|
has pled guilty or no contest to, or has been convicted of, an act which is
defined as a felony under federal or state law; |
|
|
|
|
engaged in intentional misconduct or fraud which caused, or could reasonably be
expected to cause, material harm to the Companys business or its reputation; or |
|
|
|
|
committed a material breach of his employment agreement (including a violation of
the non-compete and nondisclosure provisions) which is materially and demonstrably
injurious to the Company. |
For purposes of Mr. Raydens employment agreement, good reason means:
|
|
|
a significant reduction in Mr. Raydens position, duties, authority,
responsibilities and reporting requirements; |
|
|
|
|
a reduction in or a material delay in payment of Mr. Raydens base salary; |
|
|
|
|
the Company, the Board or any person controlling the Company relocates Mr. Rayden to
a location in excess of 50 miles from the location where he is currently based; |
|
|
|
|
the failure of the Company to abide by the employment agreement or to obtain a
satisfactory agreement from any successor to the Company to assume and agree to perform
this Agreement; or |
|
|
|
|
the failure of the Company to obtain the assumption in writing of its obligation to
perform the employment agreement by any successor to all or substantially all of the
assets of the Company within 15 days after a merger, consolidation, sale or similar
transaction. |
Notwithstanding the above, Good Reason shall not include (i) acts not taken in bad faith which
are cured by the Company in all respects not later than 30 days from the date of receipt by the
Company of a written notice from Mr. Rayden identifying in reasonable detail the act or acts
constituting good reason (Preliminary Notice of Good Reason) or (ii) acts taken by the Company by
reason of Mr. Raydens physical or mental infirmity which impairs his ability to substantially
perform the duties under the employment agreement. A Preliminary Notice of Good Reason shall not,
by itself, constitute a Notice of Termination.
If Mr. Raydens employment is terminated by the Company for cause or by Mr. Rayden without
good reason, his severance benefits payable under the employment agreement will include:
|
|
|
any accrued base salary and accrued vacation not paid as of the termination date; |
|
|
|
|
vested benefits as of the termination date under the Companys benefit, retirement,
incentive and other plans; |
|
|
|
|
monies advanced to or expenses incurred by Mr. Rayden in connection with the
performance of his duties; and |
|
|
|
|
continued payment of life insurance premiums through the end of the calendar year. |
If Mr. Raydens employment is terminated by the Company other than for cause or by Mr. Rayden
for good reason, his severance benefits payable under the employment agreement will include:
|
|
|
any accrued base salary and accrued vacation not paid as of the termination date; |
34
|
|
|
a pro-rated bonus amount; |
|
|
|
|
vested benefits as of the termination date under the Companys benefit, retirement,
incentive and other plans; |
|
|
|
|
a lump sum amount equal to two times the sum of (i) base salary and (ii) the greater
of Mr. Raydens (a) annual par target bonus opportunity in the year of termination or
(b) the actual annual bonus earned by Mr. Rayden in the year prior to the year of
termination; |
|
|
|
|
monies advanced to or expenses incurred by Mr. Rayden in connection with the
performance of his duties; |
|
|
|
|
continued insurance benefits for two years; |
|
|
|
|
outplacement services and related travel costs up to a maximum of $30,000; |
|
|
|
|
acceleration of vesting of certain stock awards by 24 additional months; and |
|
|
|
|
continued payment of life insurance premiums through the end of the calendar year. |
If Mr. Raydens employment is terminated involuntarily due to disability, his severance
benefits payable under the employment agreement will include:
|
|
|
any accrued base salary and accrued vacation not paid as of the disability date; |
|
|
|
|
a pro-rated bonus amount; |
|
|
|
|
vested benefits as of the termination date under the Companys benefit, retirement,
incentive and other plans; |
|
|
|
|
monies advanced to or expenses incurred by Mr. Rayden in connection with the
performance of his duties; |
|
|
|
|
100%, 80% and 60%, respectively, of base salary for the first, second and third 12
months following the disability date (reduced by amounts received under the Companys
disability plans); |
|
|
|
|
additional salary benefits if Mr. Rayden is disabled beyond 36 months; |
|
|
|
|
continued payment of life insurance premiums through the end of the calendar year;
and |
|
|
|
|
medical and dental benefits during the period Mr. Rayden is receiving salary
continuation. |
Notwithstanding the above, the salary continuation payments will cease upon the earlier of (a)
the disability ceasing to exist or (b) Mr. Raydens retirement.
If Mr. Raydens employment is terminated by reason of his retirement, his severance benefits
will include the following:
|
|
|
accrued base salary and accrued vacation not paid as of the termination date; |
|
|
|
|
a pro-rated bonus amount; |
|
|
|
|
vested benefits as of the termination date under the Companys benefit, retirement,
incentive and other plans; and |
|
|
|
|
monies advanced to or expenses incurred by Mr. Rayden in connection with the
performance of his duties |
35
If Mr. Raydens employment is terminated by reason of his death, the Companys sole obligation
will be to pay his spouse, estate or designated beneficiary, as the case may be, the same amounts
due Mr. Rayden as if he had retired, as described above.
The employment agreement also prohibits Mr. Rayden from becoming directly or indirectly
connected with any business or entity that competes directly or indirectly with the Company during
his employment with the Company and for a period of two years from the date of termination if
employment is terminated: (1) by the Company for any reason, (2) by Mr. Rayden for any reason, or
(3) by reason of either the Companys or Mr. Raydens decision not to extend the term of the
agreement. Mr. Raydens non-competition period will terminate after a change in control, upon a
termination by the Company for other than cause, or upon a termination by Mr. Rayden for good
reason.
Under the employment agreement, if it is determined that any payment of any type to or for the
benefit of Mr. Rayden, including the acceleration of stock vesting, is subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code and any interest or penalties with respect to
such tax (golden parachute excise taxes), Mr. Rayden will be entitled to receive an additional
payment (a gross-up payment) in an amount, after taking into account all federal, state and local
income taxes payable by him as a result of the receipt of such additional compensation, to place
him in the same after-tax position he would have been in had no such excise tax been paid or
incurred with respect to any such amounts (the tax gross-up).
Mr. Raydens executive agreement has an initial term of three years. On the third anniversary
of the effective date of the executive agreement, and on the anniversary date of each year
thereafter, the term will be extended automatically for a period of one year unless 30 days prior
to such anniversary date the Company gives written notice to Mr. Rayden of its election not to
extend the term. Furthermore, if a change in control (as defined above) occurs during the term of
the executive agreement, the term will be extended for 24 months from the date of the change in
control.
Under the executive agreement, the Company must provide severance benefits (as defined below)
to Mr. Rayden if his employment is terminated:
|
|
|
by the Company at any time six months prior to a change in control if such
termination was in contemplation of such change in control and was done to avoid the
effects of the executive agreement; |
|
|
|
|
by the Company within 24 months after a change in control (other than on account of
death or disability or for cause); |
|
|
|
|
by Mr. Rayden for good reason (as defined below) at any time within 24 months after
a change in control; or |
|
|
|
|
by Mr. Rayden with or without good reason during the period beginning on the one
year anniversary date of a change in control and lasting for 30 days. |
For purposes of the executive agreement, severance benefits means:
|
|
|
a lump sum cash payment equal to the sum of (1) any accrued base salary and vacation
time payable as of the termination date and (2) Mr. Raydens base salary multiplied by
three; |
|
|
|
|
a lump sum cash payment equal to the sum of (1) Mr. Raydens pro-rated bonus amount
and (2) three times the greater of (i) what Mr. Rayden could receive in incentive
compensation assuming the Company met its par target or (ii) the average of what he
actually received in incentive compensation over the previous three years; |
|
|
|
|
such long term incentive compensation as shall be payable according to the terms of
the Companys long-term incentive compensation performance plan; |
|
|
|
|
three years of health care coverage and life insurance in effect prior to
termination; |
36
|
|
|
all available benefits provided under the Companys alternative savings plan and the
Companys supplemental retirement and deferred compensation plan and the Companys
tax-qualified and non-qualified plans, all benefits of which shall become immediately
vested; |
|
|
|
|
acceleration of vesting of all stock options; and |
|
|
|
|
all fees for outplacement services and related travel costs up to a maximum of
$60,000. |
Under the executive agreement, if it is determined that any payment of any type to or for the
benefit of Mr. Rayden is subject to the excise tax imposed by Section 4999 or 409A of the Internal
Revenue Code and any interest or penalties with respect to such tax, Mr. Rayden will be entitled to
receive an additional payment (a gross-up payment) in an amount, after taking into account all
federal, state and local income taxes payable by him as a result of the receipt of such additional
compensation, to place him in the same after-tax position he would have been in had no such excise
tax been paid or incurred with respect to any such amounts.
For purposes of the executive agreement, good reason means:
|
|
|
The assignment to Mr. Rayden after a change in control of the Company of duties
which are a significant reduction in the duties, authority, responsibilities, and
status of his position at any time during the twelve (12) month period prior to such
change in control; |
|
|
|
|
A reduction in Mr. Raydens base salary in effect immediately prior to a change in
control or the failure to grant salary increases and bonus payments on a basis
comparable to those granted to other executives of the Company, or a reduction of Mr.
Raydens most recent highest incentive bonus potential prior to such change in control; |
|
|
|
|
A demand by the Company that Mr. Rayden relocate to a location in excess of fifty
(50) miles from the location where he is currently based, or in the event of any such
relocation with Mr. Raydens express written consent, the failure to pay all reasonable
moving expenses incurred relating to a change of principal residence in connection with
such relocation and to indemnify against any loss in the sale of Mr. Raydens principal
residence in connection with any such change of residence; |
|
|
|
|
The failure of the Company to abide by the executive agreement or to obtain a
satisfactory agreement from any successor to the Company to assume and agree to perform
the executive agreement; |
|
|
|
|
The failure of the Company to provide Mr. Rayden with substantially the same
employee benefits that were provided to him immediately prior to the change in control;
or |
|
|
|
|
Any significant reduction in Mr. Raydens compensation or benefits or adverse change
in his location or duties, if such significant reduction or adverse change occurs at
any time after the commencement of any discussion with a third party relating to a
possible change in control involving such third party, if such reduction or adverse
change is in contemplation of such possible change in control and such change in
control is actually consummated within 12 months after the date of such significant
reduction or adverse change. |
37
Executive Agreements with Messrs. de Aguiar, Keane, Henchel, and Robinson
Each or Messrs. de Aguiar, Keane, Henchel, and Robinsons (each, an Executive) employment is
at will, which means that subject to the terms of his executive agreement, either the Company or
the Executive may terminate the Executives employment at any time, for any reason or for no
reason.
In exchange for performing the duties and responsibilities customarily performed by persons
employed in a similar executive capacity, each executive is entitled to a minimum annual base
salary and is entitled to participate in additional compensation and employee benefit plans as are
made available to similarly situated executives.
Upon termination of the Executives employment, the compensation and benefits the Executive is
entitled to receive varies depending upon whether the Executives employment is terminated:
|
|
|
by the Company for cause (consistent with the definition described above in relation
to Mr. Raydens employment agreement) or voluntarily by the Executive; or |
|
|
|
|
by the Company other than for cause, or within six months before and in
contemplation of a change in control (consistent with the definition described above in
relation to Mr. Raydens executive agreement), or within 12 months after a change in
control. |
If the Executive is terminated with cause or voluntarily by the Executive, the Executive is
entitled to receive:
|
|
|
the Executives accrued base salary and accrued vacation not yet paid; |
|
|
|
|
the Executives vested benefits under the Companys benefit, retirement, incentive
and other plans; and |
|
|
|
|
any and all monies advanced to the Company by the Executive or expenses incurred by
the Executive. |
If the Executive is terminated without cause, or within six months before and in contemplation
of a change in control, or within 12 months after a change in control, the Executive is entitled to
receive:
|
|
|
the Executives accrued base salary and accrued vacation not yet paid; |
|
|
|
|
the Executives pro-rated bonus amount (as defined in the executive agreement); |
|
|
|
|
the Executives vested benefits under the Companys benefit, retirement, incentive
and other plans; |
|
|
|
|
the Executives base salary for 12 months following the termination date if the
Executives employment is terminated by the Company without cause, or for 24 months if
the Executives employment is terminated upon a change in control, minus the deductions
required by law and subject to a deduction of any salary or compensation that the
Executive earns from other employment or self-employment during the time period in
question, regardless of when such amount is payable; |
|
|
|
|
any and all monies advanced to the Company by the Executive or expenses incurred by
the Executive; |
|
|
|
|
the benefit of all medical coverage, programs or arrangements in which the Executive
was participating, if possible under such plans and programs, for 12 months if the
Executives employment is terminated by the Company without cause, or for 24 months if
the Executives employment is terminated upon a change in control, with certain
limitations as described in the Executives executive agreement; and |
|
|
|
|
expenses for outplacement services up to a maximum amount of $10,000. |
If the Executive is terminated within six months before and in contemplation of a change in
control or within 12 months following a change in control, payments to the Executive have been
structured to comply with Section 409A of the Internal Revenue Code of 1986, as amended, as
described in each executive agreement.
38
The executive agreements prohibit each Executive from making an unauthorized disclosure with
respect to confidential information, as defined in each executive agreement. Furthermore, the
Executive may not compete with the Company or solicit the employees, customers, or suppliers of the
Company while employed by the Company and for one year following termination for any reason.
Agreement with Mr. Carbone
Mr. Carbones employment terminated due to his resignation on February 19, 2008. We did not
enter into any binding employment agreement with Mr. Carbone; however, we did enter into a
Separation Pay, Confidentiality and Non-Competition Agreement with Mr. Carbone, effective July 26,
2006 (the Carbone Agreement). Under the terms of the Carbone Agreement, in consideration of his
receipt of confidential information and equity stock award grants, Mr. Carbone agreed to certain
confidentiality, non-solicitation and non-competition provisions. Specifically, Mr. Carbone agreed
not to directly or indirectly solicit, induce or attempt to influence any Company associate to
leave the employment of the Company for a period of 12 months after Mr. Carbones separation from
the Company. In addition, Mr. Carbone agreed not to directly or indirectly work for or contribute
to the efforts of any business organization that competes, or plans to compete, with the Company or
its products for a period of 12 months after Mr. Carbones separation from the Company.
The Carbone Agreement also stated that Mr. Carbones employment was at will; provided,
however, if Mr. Carbones employment was terminated by the Company other than for cause, the
Company agreed to pay Mr. Carbone his weekly base salary for a period of fifty-two (52) weeks,
minus the deductions required by law and subject to a deduction of any salary or compensation that
Mr. Carbone earned from other employment or self-employment during the time period in question,
regardless of when such amount is payable. Under the terms of the Carbone Agreement, cause is
defined as any of the following:
|
|
|
the willful failure of Mr. Carbone to perform his duties with the Company (other
than incapacity due to physical or mental illness); |
|
|
|
|
the conviction of Mr. Carbone of an act which is a felony under federal or state law
or a plea by Mr. Carbones of guilty or no-contest to any such act; or |
|
|
|
|
the engagement by Mr. Carbone in willful misconduct in bad faith which could
reasonably be expected to materially harm the Companys business or its reputation. |
Mr. Carbone resigned his employment under an agreement with the Company pursuant to which the
termination was treated in effect as a termination by the Company without cause. The Company
entered into a Letter Agreement with Mr. Carbone, dated February 18, 2008 that covered the terms of
Mr. Carbones separation from the Company. Under this agreement, among other provisions, Mr.
Carbone agreed to comply with:
|
|
|
confidentiality restrictions, for an indefinite period of time, as contained in the
Carbone Agreement; |
|
|
|
|
non-solicitation restrictions, for a period of 12 months from the date of
resignation, as contained in the Carbone Agreement; and |
|
|
|
|
non-competition restrictions for a period of 12 months from the date of resignation. |
In consideration for Mr. Carbones agreement to and continued compliance with the terms of the
Letter Agreement, the Company agreed to pay Mr. Carbone his weekly base salary minus the deductions
required by law (including applicable withholding) for a period of 52 weeks, or the date that he is
employed (including self-employed) at an equivalent rate, whichever occurs first. If Mr. Carbone
obtains employment (including self-employment) at a lower rate of pay, he will continue to receive
the differential between the two rates of pay for the balance of the 52 weeks. Further, the Letter
Agreement provided Mr. Carbone with the following benefits:
|
|
|
all vacation entitlement that was then currently earned, but unused, amounting to
$6,656; |
|
|
|
|
eligibility for full incentive compensation for the Spring 2008 Season pursuant to
the Companys IC Plan; and |
39
|
|
|
outplacement services of $10,000, which services will be offered through a provider
previously approved by the Company. |
Agreement with Mr. Stevens
Mr. Stevens employment terminated due to his resignation, effective June 27, 2008. We
entered into a letter agreement with Mr. Stevens, dated June 13, 2008 (the Severance Agreement),
that specifies the terms of his separation and the terms and conditions of his employment
agreement, dated January 29, 2007.
Mr. Stevens termination was a voluntary termination by Mr. Stevens without good reason (as
defined in his employment agreement and consistent with the definition described above in Mr.
Raydens employment agreement), which entitled him to receive:
|
|
|
his accrued base salary and accrued vacation not paid as of the termination date; |
|
|
|
|
vested benefits as of the termination date pursuant to the Companys benefit,
retirement, incentive and other plans; and |
|
|
|
|
any and all monies advanced to or expenses incurred by Mr. Stevens in connection
with his duties. |
Furthermore, the Severance Agreement provided Mr. Stevens with the following additional
benefits:
|
|
|
$400,000, minus applicable taxes and fees, payable in a lump sum within five
business days of effectiveness of the Severance Agreement; |
|
|
|
|
Reimbursement for legal fees associated with the negotiation of the Severance
Agreement up to a maximum of $5,000; and |
|
|
|
|
A reduction of the non-competition and non-solicitation periods outlined in Mr.
Stevens employment agreement from two years to a period of one year from the effective
date of resignation. |
Potential Payments upon Termination or Change in Control Tables
Potential payments upon termination and/or change in control under the agreements with Messrs.
Rayden, de Aguiar, Keane, Henchel, and Robinson are shown in the tables below. The tables for
Messrs. Carbone and Stevens shows their actual payments upon separation on March 19, 2008 and June
27, 2008, respectively. We have used estimates where it is not possible to give a precise dollar
amount for the potential payments. The estimates assume that the triggering event took place on
January 31, 2009, the last day of the Companys prior fiscal year with the exception of the tables
for Messrs. Carbone and Stevens, which displays payments resulting from an actual triggering date
of March 19, 2008, and June 27, 2008, respectively. For purposes of valuing the Companys common
stock on January 31, 2009, we have used the Companys closing stock price of $2.69 on January 30,
2009, the last trading date prior to January 31, 2009. In each of the tables below, we have
assumed that all accrued base salary has been paid as of the termination date.
40
Mr. Rayden
The following table shows the potential payments upon termination or a change of control of
the Company for Mr. Rayden, the Companys Chairman and Chief Executive Officer.
POTENTIAL PAYMENTS TO MR. RAYDEN
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Certain |
|
|
|
|
|
|
Termination by |
|
|
|
|
|
|
|
|
|
|
|
|
|
Terminations |
|
|
Termination by |
|
Company |
|
|
|
|
|
|
|
|
|
|
|
|
|
Involving a |
|
|
Company with |
|
without Cause |
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in |
|
|
Cause or by Mr. |
|
or by Mr. |
|
|
|
|
|
|
|
|
|
|
|
|
|
Control under |
|
|
Rayden without |
|
Rayden for |
|
Termination |
|
Termination |
|
|
|
|
|
Executive |
Executive Benefits and Payments Upon |
|
Good Reason |
|
Good Reason |
|
upon Disability |
|
upon Death |
|
Retirement |
|
Agreement(1) |
Termination |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
|
($) |
Compensation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary (Severance Payment) |
|
|
|
|
|
|
2,100,000 |
(2) |
|
|
2,520,000 |
(3) |
|
|
|
|
|
|
|
|
|
|
3,150,100 |
(2) |
Incentive Compensation (Accrued but Unpaid) |
|
|
|
|
|
|
|
(2)(4) |
|
|
|
(2)(4) |
|
|
|
(2)(4) |
|
|
|
(2)(4) |
|
|
|
(2)(4) |
Incentive Compensation (Severance Payment) |
|
|
|
|
|
|
1,260,000 |
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,246,640 |
(2) |
Stock Options (Acceleration of Vesting)(5) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock (Acceleration of Vesting)(6) |
|
|
|
|
|
|
499,888 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
614,579 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefits: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued Vacation Pay(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Life Insurance Premiums |
|
|
6,027 |
|
|
|
6,027 |
|
|
|
6,027 |
|
|
|
|
|
|
|
|
|
|
|
19,725 |
|
Medical, Health and Welfare Benefits(8) |
|
|
|
|
|
|
420,000 |
|
|
|
504,000 |
|
|
|
|
|
|
|
|
|
|
|
630,000 |
|
Outplacement Services |
|
|
|
|
|
|
30,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,000 |
|
Tax Gross-ups |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total value: |
|
|
6,027 |
|
|
|
4,315,915 |
|
|
|
3,030,027 |
|
|
|
|
|
|
|
|
|
|
|
9,720,944 |
|
|
|
|
(1) |
|
For a discussion of the relevant scenarios where Mr. Rayden would be entitled to
payments regarding a change in control, please refer to the discussion under Mr. Raydens
Employment Agreement and Executive Agreement beginning on page 32. |
|
(2) |
|
Payable in a lump sum. |
|
(3) |
|
Payments are made or reimbursed over a three-year period from the date of the
disability as follows: 100% of base salary for the first 12 months following the date of
disability, 80% of base salary for the second 12 months following the date of disability and
60% of base salary for the third 12 months following the date of disability; provided,
however, that such payment shall be reduced by the amount of any benefits Mr. Rayden receives
by reason of his disability under the Companys relevant disability plan. For example
purposes, the figure in the table assumes payments for three years following the date of
disability and no reimbursement under the Companys relevant disability programs. If Mr.
Rayden is disabled beyond 36 months from the date of disability, the Company shall continue to
pay him $250,000 per year for the period of his disability; provided, however, that such
payment shall be reduced by the amount of any benefits he receives by reason of his disability
under the Companys relevant disability plan. |
|
(4) |
|
Represents accrued but unpaid pro-rata incentive compensation of Mr. Rayden. |
|
(5) |
|
Represents the value of unvested and accelerated stock options by multiplying the
number of such options by the excess of the fair market value of a share of the Companys
common stock on the date of termination over the exercise price of the stock option. |
|
(6) |
|
Represents the fair market value of all restricted shares whose vesting would be
accelerated as of January 31, 2009. |
41
|
|
|
(7) |
|
Assumes all vacation days were used. Vacation days do not roll over from year to
year. |
|
(8) |
|
Estimate of the aggregate amount needed to maintain Mr. Raydens health and welfare
benefits for a two-year period after the termination date. |
Mr. de Aguiar
The following table shows the potential payments upon termination from the Company for Mr. de
Aguiar, Chief Financial Officer.
POTENTIAL PAYMENTS TO MR. DE AGUIAR
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination by |
|
|
Termination by |
|
|
|
|
|
Company |
|
|
Company with |
|
Termination by |
|
Involving a |
|
|
Cause or by |
|
Company without |
|
Change in |
Executive Benefits and Payments Upon |
|
Executive |
|
Cause |
|
Control |
Termination |
|
($) |
|
($) |
|
($)(1) |
Compensation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary (Severance Payment) |
|
|
|
|
|
|
475,000 |
(2) |
|
|
950,000 |
(3) |
Incentive Compensation (Accrued but Unpaid) |
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Compensation (Severance Payment) |
|
|
|
|
|
|
|
|
|
|
|
|
Stock Options (Acceleration of Vesting)(4) |
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock (Acceleration of Vesting)(5) |
|
|
|
|
|
|
|
|
|
|
|
|
Reimbursed Expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefits: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued Vacation Pay(6) |
|
|
|
|
|
|
|
|
|
|
|
|
Life Insurance Premiums |
|
|
|
|
|
|
|
|
|
|
|
|
Non-Qualified Deferred Compensation |
|
|
|
|
|
|
|
|
|
|
|
|
Medical, Health and Welfare Benefits |
|
|
|
|
|
|
95,000 |
(7) |
|
|
190,000 |
(8) |
Outplacement Services |
|
|
|
|
|
|
10,000 |
|
|
|
10,000 |
|
Tax Gross-ups |
|
|
|
|
|
|
|
|
|
|
479,107 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Value: |
|
|
|
|
|
|
580,000 |
|
|
|
1,629,107 |
|
|
|
|
(1) |
|
For a discussion of the relevant scenarios where Mr. de Aguiar would be entitled to
payments regarding a change in control, please refer to the discussion under Executive
Agreements with Messrs. de Aguiar, Keane, Henchel, and Robinson beginning on page 38. |
|
(2) |
|
Payable in accordance with normal pay practices for 12 months. |
|
(3) |
|
Payable bi-weekly for 24 months. |
|
(4) |
|
Represents the value of unvested and accelerated stock options by multiplying the
number of such options by the excess of the fair market value of a share of the Companys
common stock on the date of termination over the exercise price of the stock option. |
|
(5) |
|
Represents the fair market value of all restricted shares whose vesting would be
accelerated as of January 31, 2009. |
42
|
|
|
(6) |
|
Assumes all vacation days were used. Vacation days do not roll over from year to
year. |
|
(7) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
12 months. |
|
(8) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
24 months. |
Mr. Keane
The following table shows the potential payments upon termination from the Company for Mr.
Keane, Senior Vice President Human Resources.
POTENTIAL PAYMENTS TO MR. KEANE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination by |
|
|
Termination by |
|
|
|
|
|
Company |
|
|
Company with |
|
Termination by |
|
Involving a |
|
|
Cause or by |
|
Company without |
|
Change in |
Executive Benefits and Payments Upon |
|
Executive |
|
Cause |
|
Control |
Termination |
|
($) |
|
($) |
|
($)(1) |
Compensation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary (Severance Payment) |
|
|
|
|
|
|
453,000 |
(2) |
|
|
906,000 |
(3) |
Incentive Compensation (Accrued but Unpaid) |
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Compensation (Severance Payment) |
|
|
|
|
|
|
|
|
|
|
|
|
Stock Options (Acceleration of Vesting)(4) |
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock (Acceleration of Vesting)(5) |
|
|
|
|
|
|
|
|
|
|
|
|
Reimbursed Expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefits: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued Vacation Pay(6) |
|
|
|
|
|
|
|
|
|
|
|
|
Life Insurance Premiums |
|
|
|
|
|
|
|
|
|
|
|
|
Non-Qualified Deferred Compensation |
|
|
|
|
|
|
|
|
|
|
|
|
Medical, Health and Welfare Benefits |
|
|
|
|
|
|
90,600 |
(7) |
|
|
181,200 |
(8) |
Outplacement Services |
|
|
|
|
|
|
10,000 |
|
|
|
10,000 |
|
Tax Gross-ups |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Value: |
|
|
|
|
|
|
553,600 |
|
|
|
1,097,200 |
|
|
|
|
(1) |
|
For a discussion of the relevant scenarios where Mr. Keane would be entitled to
payments regarding a change in control, please refer to the discussion under Executive
Agreements with Messrs. de Aguiar, Keane, Henchel, and Robinson beginning on page 37. |
|
(2) |
|
Payable in accordance with normal pay practices for 12 months. |
|
(3) |
|
Payable bi-weekly for 24 months. |
|
(4) |
|
Represents the value of unvested and accelerated stock options by multiplying the
number of such options by the excess of the fair market value of a share of the Companys
common stock on the date of termination over the exercise price of the stock option. |
43
|
|
|
(5) |
|
Represents the fair market value of all restricted shares whose vesting would be
accelerated as of January 31, 2009. |
|
(6) |
|
Assumes all vacation days were used. Vacation days do not roll over from year to
year. |
|
(7) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
12 months. |
|
(8) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
24 months. |
Mr. Henchel
The following table shows the potential payments upon termination from the Company for Mr.
Henchel, Senior Vice President, General Counsel, and Secretary.
POTENTIAL PAYMENTS TO MR. HENCHEL
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination by |
|
|
Termination by |
|
|
|
|
|
Company |
|
|
Company with |
|
Termination by |
|
Involving a |
|
|
Cause or by |
|
Company without |
|
Change in |
Executive Benefits and Payments Upon |
|
Executive |
|
Cause |
|
Control |
Termination |
|
($) |
|
($) |
|
($)(1) |
Compensation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary (Severance Payment) |
|
|
|
|
|
|
305,000 |
(2) |
|
|
610,000 |
(3) |
Incentive Compensation (Accrued but Unpaid) |
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Compensation (Severance Payment) |
|
|
|
|
|
|
|
|
|
|
|
|
Stock Options (Acceleration of Vesting)(4) |
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock (Acceleration of Vesting)(5) |
|
|
|
|
|
|
|
|
|
|
|
|
Reimbursed Expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefits: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued Vacation Pay(6) |
|
|
|
|
|
|
|
|
|
|
|
|
Life Insurance Premiums |
|
|
|
|
|
|
|
|
|
|
|
|
Non-Qualified Deferred Compensation |
|
|
|
|
|
|
|
|
|
|
|
|
Medical, Health and Welfare Benefits |
|
|
|
|
|
|
61,000 |
(7) |
|
|
122,000 |
(8) |
Outplacement Services |
|
|
|
|
|
|
10,000 |
|
|
|
10,000 |
|
Tax Gross-ups |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Value: |
|
|
|
|
|
|
376,000 |
|
|
|
742,000 |
|
|
|
|
(1) |
|
For a discussion of the relevant scenarios where Mr. Henchel would be entitled to
payments regarding a change in control, please refer to the discussion under Executive
Agreements with Messrs. de Aguiar, Keane, Henchel, and Robinson beginning on page 38. |
|
(2) |
|
Payable in accordance with normal pay practices for 12 months. |
|
(3) |
|
Payable bi-weekly for 24 months. |
|
(4) |
|
Represents the value of unvested and accelerated stock options by multiplying the
number of such options by the excess of the fair market value of a share of the Companys
common stock on the date of termination over the exercise price of the stock option. |
44
|
|
|
(5) |
|
Represents the fair market value of all restricted shares whose vesting would be
accelerated as of January 31, 2009. |
|
(6) |
|
Assumes all vacation days were used. Vacation days do not roll over from year to
year. |
|
(7) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
12 months. |
|
(8) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
24 months. |
Mr. Robinson
The following table shows the potential payments upon termination from the Company for Mr.
Robinson, Executive Vice President Supply Chain.
POTENTIAL PAYMENTS TO MR. ROBINSON
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination by |
|
|
Termination by |
|
|
|
|
|
Company |
|
|
Company with |
|
Termination by |
|
Involving a |
|
|
Cause or by |
|
Company without |
|
Change in |
Executive Benefits and Payments Upon |
|
Executive |
|
Cause |
|
Control |
Termination |
|
($) |
|
($) |
|
($)(1) |
Compensation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary (Severance Payment) |
|
|
|
|
|
|
450,000 |
(2) |
|
|
900,000 |
(3) |
Incentive Compensation (Accrued but Unpaid) |
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Compensation (Severance Payment) |
|
|
|
|
|
|
|
|
|
|
|
|
Stock Options (Acceleration of Vesting)(4) |
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock (Acceleration of Vesting)(5) |
|
|
|
|
|
|
|
|
|
|
|
|
Reimbursed Expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefits: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrued Vacation Pay(6) |
|
|
|
|
|
|
|
|
|
|
|
|
Life Insurance Premiums |
|
|
|
|
|
|
|
|
|
|
|
|
Non-Qualified Deferred Compensation |
|
|
|
|
|
|
|
|
|
|
|
|
Medical, Health and Welfare Benefits |
|
|
|
|
|
|
90,000 |
(7) |
|
|
180,000 |
(8) |
Outplacement Services |
|
|
|
|
|
|
10,000 |
|
|
|
10,000 |
|
Tax Gross-ups |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Value: |
|
|
|
|
|
|
550,000 |
|
|
|
1,090,000 |
|
|
|
|
(1) |
|
For a discussion of the relevant scenarios where Mr. Robinson would be entitled to
payments regarding a change in control, please refer to the discussion under Executive
Agreements with Messrs. de Aguiar, Keane, Henchel, and Robinson beginning on page 38. |
|
(2) |
|
Payable in accordance with normal pay practices for 12 months. |
|
(3) |
|
Payable bi-weekly for 24 months. |
45
|
|
|
(4) |
|
Represents the value of unvested and accelerated stock options by multiplying the
number of such options by the excess of the fair market value of a share of the Companys
common stock on the date of termination over the exercise price of the stock option. |
|
(5) |
|
Represents the fair market value of all restricted shares whose vesting would be
accelerated as of January 31, 2009. |
|
(6) |
|
Assumes all vacation days were used. Vacation days do not roll over from year to
year. |
|
(7) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
12 months. |
|
(8) |
|
Estimate of the aggregate amount needed to maintain health and welfare benefits for
24 months. |
Mr. Stevens
The following table shows the actual payments upon the separation of Mr. Stevens, the
Companys President and Chief Operating Officer, effective June 27, 2008.
PAYMENTS TO MR. STEVENS
|
|
|
|
|
|
|
Termination by Mr. Stevens |
|
|
without Good Reason |
Executive Benefits and Payments Upon Separation |
|
($) |
Compensation: |
|
|
|
|
|
|
|
|
|
Base Salary (Severance Payment) |
|
|
|
|
Additional Severance Payment |
|
|
400,000 |
|
Incentive Compensation (Accrued but Unpaid) |
|
|
|
|
Incentive Compensation (Severance Payment) |
|
|
|
|
Stock Options (Acceleration of Vesting)(1) |
|
|
|
|
Restricted Stock (Acceleration of Vesting)(2) |
|
|
|
|
|
|
|
|
|
Benefits: |
|
|
|
|
|
|
|
|
|
Accrued Vacation Pay |
|
|
|
|
Life Insurance Premiums |
|
|
|
|
Medical, Health and Welfare Benefits |
|
|
|
|
Outplacement Services |
|
|
|
|
Tax Gross-ups |
|
|
|
|
Reimbursed Legal Fees |
|
|
|
|
|
|
|
|
|
Total value: |
|
|
400,000 |
|
|
|
|
(1) |
|
Represents the value of unvested and accelerated stock options by multiplying the
number of such options by the excess of the fair market value of a share of the Companys
common stock on the date of termination over the exercise price of the stock option. |
|
(2) |
|
Represents the fair market value of all restricted shares whose vesting was
accelerated as of June 27, 2008. |
46
Mr. Carbone
The following table shows the actual payments upon the separation of Mr. Carbone, the
Companys Chief Financial Officer, effective March 19, 2008.
PAYMENTS TO MR. CARBONE
|
|
|
|
|
|
|
Treated as a Termination |
|
|
|
by Company without |
|
|
|
Cause |
|
Executive Benefits and Payments Upon Separation |
|
($) |
|
Compensation: |
|
|
|
|
|
|
|
|
|
Base Salary (Severance Payment) |
|
|
229,039 |
(1) |
Incentive Compensation (Accrued but Unpaid) |
|
|
68,400 |
(2) |
Incentive Compensation (Severance Payment at Target) |
|
|
|
|
Stock Options (Acceleration of Vesting) |
|
|
|
|
Restricted Stock (Acceleration of Vesting |
|
|
|
|
|
|
|
|
|
Benefits: |
|
|
|
|
|
|
|
|
|
Accrued Vacation Pay(3)
|
|
|
|
|
Life Insurance Premiums |
|
|
6,656 |
|
Non-Qualified Deferred Compensation |
|
|
|
|
Medical, Health and Welfare Benefits(4) |
|
|
|
|
Outplacement Services |
|
|
45,808 |
|
Tax Gross-ups |
|
|
10,000 |
|
|
|
|
|
|
Total value: |
|
|
359,903 |
|
|
|
|
(1) |
|
Payable over 12 months in accordance with normal payroll practices. |
|
(2) |
|
The payout amount was based on the achievement of pre-established financial goals
for Spring 2008. Since these pre-established financial goals were not met, the payout amount
was accrued but unpaid. |
|
(3) |
|
Value of 18.46 hours vacation was earned but unused upon termination. Vacation days
do not roll over from year to year. |
|
(4) |
|
Estimate of the aggregate amount needed to maintain Mr. Carbones health and welfare
benefits for a 12-month period after the Termination Date. |
47
Director Compensation
Associates and officers who are directors receive no additional compensation for services as
directors. The Board of Directors, upon the recommendation of the Compensation Committee, sets the
cash compensation for non-associate directors. Compensation for our non-associate directors is
initially considered and reviewed by the Compensation Committee. Based on this review and
consideration, the Compensation Committee recommended that the Board of Directors set the
compensation of our outside directors for fiscal 2008, and the Board of Directors accepted the
recommendation and unanimously approved the outside director compensation for fiscal 2008.
Cash compensation for non-associate directors in fiscal 2008 included the following:
|
|
|
an annual retainer of $40,000 for service on the Board of Directors; |
|
|
|
|
an annual retainer of $10,000 for service as Chairman of the Audit Committee; |
|
|
|
|
an annual retainer of $5,000 for service as Chairman of the Compensation Committee; |
|
|
|
|
an annual retainer or $5,000 for service as Chairman of the Nominating and
Governance Committee; |
|
|
|
|
an annual retainer of $5,000 for service as Lead Independent Director; |
|
|
|
|
$2,000 for each Board meeting attended; and |
|
|
|
|
$1,500 for each committee meeting attended. |
In addition, as effective for fiscal 2008 and fiscal 2009, each director who is not an
associate of our Company receives:
|
|
|
upon a directors election to the Board, an initial grant to purchase 10,000 shares
of our common stock; |
|
|
|
|
an annual grant of options to purchase 10,000 shares of our common stock at a price
equal to the fair market value of the shares at the grant date; and |
|
|
|
|
after three years of service as a director, a one-time grant of options to purchase
15,000 shares. |
On February 21, 2008, the Compensation Committee authorized the grant of 10,000 options to
each non-associate director of the Company, which was the same date that the Committee authorized
the grant of stock options and restricted shares to our executives. Such options had exercise
prices equal to the closing price of our stock on the date of grant. All present non-associate
board members have now received their one time grant of 15,000 stock options upon serving three
years. The annual and one-time option grants to directors vest and become exercisable at the rate
of 25% per year of continued service and terminate on the earliest of the tenth anniversary of the
grant date or one year from termination of service as a director.
All of the 2008 director options were issued under the Companys 2005 Stock Plan for
Non-Associate Directors. The options may be granted from time to time by action of the Board of
Directors and must be priced at 100% of the fair market value of the stock on the date of grant,
which the Board has determined to be the closing price of the stock on the date of grant. The
options become exercisable on an annual basis at the rate of 25% of the initial shares subject to
the options, commencing on the first anniversary of the date of grant, provided that the holder
remains a director on such anniversary, and are exercisable until the earlier of the tenth
anniversary of the date of grant or one year from termination of service as a director, provided
that in no event shall the options be exercised beyond the ten year term.
No director had a different compensation arrangement with the Company in 2008 than that
described above. The table below shows the compensation earned by each of the Companys
non-associate directors during fiscal year 2008:
48
DIRECTOR COMPENSATION TABLE FOR FISCAL 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees earned |
|
Option |
|
|
|
|
in cash |
|
awards |
|
Total |
Name |
|
($) |
|
($)(1) |
|
($) |
Elizabeth M. Eveillard(2) |
|
|
87,293 |
|
|
|
190,318 |
|
|
|
277,611 |
|
David A. Krinsky(3) |
|
|
79,270 |
|
|
|
137,180 |
|
|
|
216,450 |
|
Philip E. Mallott(4) |
|
|
81,625 |
|
|
|
137,180 |
|
|
|
218,805 |
|
Fredric M. Roberts(5) |
|
|
78,773 |
|
|
|
190,318 |
|
|
|
269,091 |
|
Kenneth J. Strottman(6) |
|
|
59,410 |
|
|
|
137,180 |
|
|
|
196,590 |
|
Nancy J. Kramer (7) |
|
|
26,000 |
|
|
|
|
|
|
|
26,000 |
|
|
|
|
(1) |
|
Represents the dollar amount recognized for financial statement reporting purposes
with respect to the fiscal year in accordance with FAS 123R, disregarding any estimate of
forfeitures during the year, but accounting for any actual forfeitures by a non-associate
director during the fiscal year. For a discussion of the assumptions made in the valuation of
the dollar amount recognized, please refer to Note 1 to the Companys Financial Statements,
which are set forth in Item 8 to the Companys Annual Report on Form 10-K for the fiscal year
ended January 31, 2009. |
|
(2) |
|
Ms. Eveillard has vested and unvested options to purchase 45,000 shares of the
Companys common stock as of January 31, 2009. |
|
(3) |
|
Mr. Krinsky has vested and unvested options to purchase 85,000 shares of the
Companys common stock as of January 31, 2009. |
|
(4) |
|
Mr. Mallott has vested and unvested options to purchase 82,145 shares of the
Companys common stock as of January 31, 2009. |
|
(5) |
|
Mr. Roberts has vested and unvested options to purchase 65,000 shares of the
Companys common stock as of January, 31 2009. |
|
(6) |
|
Mr. Strottman has vested and unvested options to purchase 85,000 shares of the
Companys common stock as of January 31, 2009. |
|
(7) |
|
Ms. Kramer resigned from the Board of Directors effective May 22, 2008. |
49
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth additional information as of January 31, 2009, concerning
shares of our common stock that may be issued upon the exercise of options and other rights under
our existing equity compensation plans and arrangements. This includes information on shares in
plans approved by our stockholders and plans or arrangements not submitted to our stockholders for
approval. It includes the number of shares covered by, and the weighted average exercise price of,
outstanding options and other rights and the number of shares remaining available for future grants
excluding the shares to be issued upon exercise of outstanding options, warrants, and other rights.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of securities |
|
|
|
|
|
|
|
|
|
|
|
remaining available for |
|
|
|
Number of Securities to |
|
|
|
|
|
|
issuance under equity |
|
|
|
be issued upon exercise |
|
|
Weighted-average exercise |
|
|
compensation plans |
|
|
|
of outstanding options, |
|
|
price of outstanding options, |
|
|
(excluding securities |
|
|
|
warrants and rights |
|
|
warrants and rights |
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|
reflected in column (a)) |
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|
|
(a) |
|
|
(b) |
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|
(c) |
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Equity compensation
plans approved by
security holders |
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|
1,967,871 |
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|
$ |
22.66 |
|
|
|
987,449 |
|
Equity compensation
plans not approved
by security holders |
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|
|
|
|
|
|
|
|
|
|
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
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|
1,967,871 |
|
|
$ |
22.66 |
|
|
|
987,449 |
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|
|
|
|
|
|
|
|
|
|
PROPOSAL TO RE-APPROVE THE MATERIAL TERMS OF THE
INCENTIVE COMPENSATION PERFORMANCE PLAN
Introduction
At the annual meeting, our stockholders will be requested to consider and act upon a proposal
to re-approve the material terms of the Incentive Compensation Performance Plan (the IC Plan).
On August 11, 1999, the board of directors and our sole stockholder at the time, Limited
Brands, Inc. (f/k/a/ The Limited, Inc.) approved the IC Plan, effective upon completion of our
spin-off from Limited Brands, Inc. The material terms of the IC Plan were re-approved by our
stockholders at the 2004 Annual Meeting. The purpose of the IC Plan is to give us a competitive
advantage in attracting, retaining and motivating key executives and to provide us with the ability
to provide incentive compensation that is linked to financial measures, which is not subject to the
deduction limitation rules described below.
Description
The following summary of certain material terms of the IC Plan that you are being asked to
re-approve does not purport to be complete and is qualified in its entirety by the terms of the IC
Plan, a copy of which is attached hereto as Appendix A.
The IC Plan is administered by the Compensation Committee. The Committee selects those key
executives with significant operating and financial responsibility, which shall include those
individuals who are likely to be covered employees within the meaning of Section 162(m) of the
Internal Revenue Code (the Code), in respect of the relevant fiscal year, to be eligible to earn
seasonal or annual incentive compensation payments under the IC Plan. During the 2008 fiscal year,
approximately 142 individuals participated in the IC Plan and approximately 115 individuals have
been selected to participate in the 2009 fiscal year. We expect a comparable number to be selected
for participation in the IC Plan in future years.
50
Under the IC Plan, performance goals are established by the Committee in respect of each
Spring and/or Fall selling season or fiscal year. The performance goals selected by the Committee
are based on any one or more of the following:
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price of our common stock or the stock of any affiliate; |
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shareholder return; |
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return on equity; |
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return on investment; |
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return on capital; |
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sales productivity; |
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comparable store sales; |
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economic profit; |
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economic value added; |
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net income/loss; |
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operating income/loss; |
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gross margin; |
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sales; |
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free cash flow; |
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earnings per share; |
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operating company contribution; or |
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market share. |
Any performance goals established will have a minimum and maximum award level and may be based
on an analysis of economic conditions, our historical performance and growth expectations,
financial results of other comparable businesses and progress towards achieving our long-range
strategic plan. These performance goals and determination of results are based entirely on
financial measures. After performance goals are established, discretion may not be used to modify
award results except as permitted under Section 162(m) of the Code. If minimum performance levels
are not met, no payments will be made.
Annual incentive compensation targets established for eligible executives range from 10% to
150% of base salary. The target incentive compensation percentage for each executive is based on
the level and functional responsibility of his or her position, size of the business for which the
executive is responsible, and competitive practices. The amount of incentive cash compensation
paid to executives can range from zero to double their targets, based upon the extent to which
performance goals are achieved or exceeded. Except as otherwise permitted by Section 162(m) of the
Code, the minimum level at which an executive will earn any incentive payment, and the level at
which an executive will earn the maximum incentive payment of double the target, will generally be
established by the Committee prior to the commencement of each bonus period (or such earlier or
later date as is permitted by Section 162(m)). Actual payouts will be based on either a
straight-line or pre-established graded interpolation based on these minimum and maximum levels of
actual performance.
The maximum dollar amount which may be paid in any year under the IC Plan to any participant
is $3,000,000.
The Board of Directors may amend the IC Plan at any time.
Reason For Stockholder Approval
The IC Plan has been designed to take into account certain limits on the ability of a public
corporation to claim tax deductions for compensation paid to certain highly compensated executive
officers. Section 162(m) of the Code generally denies a corporate tax deduction for annual
compensation exceeding $1 million paid to the chief executive officer and each of the other three
most highly compensated officers (excluding the chief financial officer) of a public corporation
required to be named in its proxy statement. However, qualified performance-based compensation
is exempt from this limitation. Qualified performance-based compensation is compensation paid
based solely upon the achievement of objective performance goals, the material terms of which are
approved by the stockholders of the paying corporation. The rules pertaining to Section 162(m)
require stockholder re-approval of the material terms of the performance-based plan at least once
every five years. Inasmuch as our stockholders re-approved the material terms of the IC Plan at
the 2004 Annual Meeting, you are now being asked to re-approve the material terms of the IC Plan,
as described above. The Board of
51
Directors believes that in the absence of an incentive cash compensation plan such as the IC Plan,
we would have difficulty attracting and retaining senior level executives having the experience and
abilities necessary to manage our businesses.
Benefits Under the IC Plan
Due to the Companys performance in the 2008 fiscal year, there were no payments or accruals
made under the IC Plan. Each of the current executive officers named in the Summary Compensation
Table on page 25 has been granted incentive compensation opportunities for the 2009 fiscal year
under the IC Plan.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE RE-APPROVAL OF THE MATERIAL TERMS OF THE IC
PLAN.
TRANSACTIONS WITH RELATED PERSONS
Director David Krinsky is a partner in the law firm of OMelveny & Myers LLP, which provided
legal services to the Company during fiscal 2008. Fees aggregating $105,694 were incurred by the
law firm for legal services rendered to the Company during fiscal 2008. The engagement of
OMelveny & Myers LLP was reviewed and approved by the Companys Nominating and Corporate
Governance Committee.
It is the written policy of the Company that the Nominating and Corporate Governance Committee
will review the material facts of all Interested Transactions that require approval and either
approve or disapprove of the entry into the Interested Transaction. An Interested Transaction is
any transaction, arrangement, relationship, or series of similar transactions, arrangements, or
relationships (including any indebtedness or guarantee of indebtedness) in which:
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the aggregate amount involved will or may be expected to exceed $100,000 in any fiscal
year; |
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the Company is a participant; and |
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any Related Party has or will have a direct or indirect interest (other than solely as a
result of being a director or a less than 10 percent beneficial owner of another entity). |
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A Related Party includes: |
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any person who is or was (since the beginning of the last fiscal year for which the
Company has filed a Form 10-K and proxy statement, even if they do not presently serve in
that role) an executive officer, director, or nominee for election as a director; |
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any person who is a greater than 5 percent beneficial owner of the Companys common
stock; or |
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any immediate family member of any of the foregoing, including a persons spouse,
parents, stepparents, children, stepchildren, siblings, mothers- and fathers-in-law, sons-
and daughters-in-law, brothers- and sisters-in-law, and anyone residing in such persons
home (other than a tenant or employee). |
In determining whether to approve or ratify an Interested Transaction, the Nominating and
Corporate Governance Committee will take into account, among other factors it deems appropriate,
(i) whether the Interested Transaction is on terms no less favorable than terms generally available
to an unaffiliated third-party under the same or similar circumstances; (ii) if applicable, the
availability of other sources of comparable products or services; (iii) the extent of the Related
Partys interest in the transaction; and (iv) the aggregate value of the Interested Transaction.
Certain types of Interested Transactions, such as compensation to directors and officers that are
required to be reported in the Companys proxy statement, have been deemed to be pre-approved.
52
COMPENSATION COMMITTEE REPORT
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis
contained in this proxy statement with management. Based on that review and discussions, the
Compensation Committee has recommended to the Board of Directors that the Compensation Discussion
and Analysis be included in the Companys annual report on Form 10-K for the year ended January 31,
2009 and this proxy statement for filing with the Securities and Exchange Commission.
Compensation Committee
Fredric M. Roberts, Chairman
Elizabeth M. Eveillard
Philip E. Mallott
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Fredric M. Roberts, Nancy J. Kramer, David A. Krinsky and Elizabeth M. Eveillard, who are not
associates of the Company, served on the Compensation Committee during fiscal 2008. Mr. Roberts,
Ms. Eveillard and Mr. Mallott are the current members of the Compensation Committee. There are no
Compensation Committee interlocks or insider participation in the determination of compensation of
our NEOs.
AUDIT COMMITTEE REPORT
A primary responsibility of the Audit Committee is to assist the Board of Directors in
fulfilling its oversight responsibilities relating primarily to the quality and integrity of Tween
Brands, Inc.s financial reporting process and reports, its systems of internal accounting and
controls, and the independent audit of its financial statements. Management is responsible for
preparing the consolidated financial statements, and the Companys independent registered public
accounting firm is responsible for auditing those consolidated financial statements. The Audit
Committee, which consists of three independent directors, functions in accordance with a written
charter adopted by the Board of Directors. The Amended and Restated Audit Committee Charter is
available on the Companys Corporate Governance page on its website at www.tweenbrands.com. The
Charter requires the Audit Committee to perform a self-assessment and review the Charter annually.
In fulfilling its oversight responsibilities, the Audit Committee reviewed and discussed the
audited financial statements in the Annual Report on Form 10-K for the fiscal year ended January
31, 2009, with management and the Companys independent registered public accounting firm,
including their judgment about the quality and appropriateness of accounting principles, the
reasonableness of significant judgments, and the clarity of the disclosures in the financial
statements. In addition, the Audit Committee discussed with the Companys independent registered
public accounting firm the matters required to be communicated under generally accepted auditing
standards by Statement on Auditing Standards No. 114, The Auditors Communication with Those
Charged with Governance. The Audit Committee also discussed with the Companys independent
registered public accounting firm the independence of the independent registered public accounting
firm from management and the Company. The Audit Committee has received the written disclosures and
the letter from the independent registered public accounting firm required by applicable
requirements of the Public Company Accounting Oversight Board regarding the independent registered
public accounting firms communications with the Audit Committee concerning independence.
The Audit Committee discussed with the Companys independent registered public accounting firm
the overall scope and plan for their audit. The Audit Committee met separately with the Companys
independent registered public accounting firm, with and without management present, to discuss the
results of their examinations, including the integrity, adequacy, and effectiveness of the
accounting and financial reporting processes and controls, and the overall quality of Tween Brands,
Inc.s reporting.
53
In reliance on the reviews and discussions referred to above, the Audit Committee recommended
to the Board, and the Board has approved, that the Companys audited consolidated financial
statements be included in the Companys Annual Report on Form 10-K for the year ended January 31,
2009, for filing with the Securities and Exchange Commission.
Audit Committee
Philip E. Mallott, Chairman
Elizabeth M. Eveillard
Kenneth J. Strottman
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires our officers,
directors, and greater than 10% stockholders to file reports of ownership and changes in ownership
of the Companys securities with the Securities and Exchange Commission. SEC regulations require
that copies of the reports be provided to the Company. Based solely on our review of such reports,
we believe that all reporting persons complied with all filing requirements during the fiscal year
ended January 31, 2009.
RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee of the Board of Directors has selected, subject to the ratification of the
stockholders of the Company, Deloitte & Touche LLP (Deloitte & Touche) as the independent
registered public accounting firm for the Company for the 2009 fiscal year. It is intended that
persons acting under the accompanying proxy will vote the shares represented thereby in favor of
ratification of such appointment. It is anticipated that representatives of Deloitte & Touche will
be present at the Annual Meeting to respond to appropriate questions and to make a statement if
such representatives so desire.
Ratification of the selection of the independent registered public accounting firm requires
the affirmative vote of the holders of a majority of the shares of common stock voting on the
matter. Abstentions have the same effect as votes cast against ratification, and broker non-votes
have no effect. Unless a contrary choice is specified, proxies solicited by the Board of Directors
will be voted for ratification of the selection of the independent registered public accounting
firm.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR RATIFICATION OF THE SELECTION OF DELOITTE &
TOUCHE LLP AS THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE 2009 FISCAL YEAR.
FEES OF THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The following table shows the aggregate fees payable to Deloitte & Touche, the Companys
independent registered public accounting firm, for services rendered during the fiscal years ended
January 31, 2009 and February 2, 2008.
54
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Fiscal Year Ended |
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January 31, |
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February 2, |
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2009 |
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2008 |
Audit Fees(1) |
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$ |
898,000 |
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|
$ |
900,000 |
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Audit-Related Fees(2) |
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17,000 |
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97,000 |
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Tax Fees(3) |
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75,000 |
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125,000 |
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All Other Fees |
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(1) |
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Includes fees for the annual integrated audit of the consolidated financial
statements, audits to meet statutory requirements and review of regulatory filings and
internal control. |
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(2) |
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Includes fees related to accounting consultations. |
|
(3) |
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Includes fees for services related to tax compliance. |
The Audit Committee has considered whether the provision of services other than those
performed in connection with the Audit Fees above is compatible with maintaining the principal
accountants independence.
The Audit Committee has a policy that the Committee will pre-approve all audit and non-audit
services provided by the independent registered public accounting firm. The Audit Committee may
delegate pre-approval authority to a member of the Committee. The decisions of the member to whom
pre-approval authority is delegated must be presented to the full Committee at its next scheduled
meeting. The Audit Committee has delegated pre-approval authority to the Chairman.
STOCKHOLDER PROPOSALS
Stockholder proposals to be included in the proxy statement for the 2010 Annual Meeting of
Stockholders should be submitted to the Secretary of the Company at our corporate offices by
December 10, 2009, but not before November 10, 2009. The Company may omit from the proxy statement
and form of proxy relating to the next annual meeting of stockholders any proposals that are not
received by the Secretary by December 10, 2009, or which are received before November 10, 2009. Any
stockholder proposal submitted outside the processes of Rule 14a-8 under the Securities Exchange
Act of 1934, as amended, for presentation at our 2010 Annual Meeting will be considered untimely
for purposes of Rule 14a-4 and 14a-5 if notice thereof is received by the Company after February
23, 2010. To be submitted at the meeting, any such proposal must be a proper subject for
stockholder action under the laws of the State of Delaware.
Stockholder nominations for the Board of Directors to be elected at the 2010 Annual Meeting of
Stockholders should be submitted not less than 14 days, nor more than 50 days, before the 2010
Annual Meeting.
SOLICITATION EXPENSES
The Company will pay the expense of preparing, assembling, printing and mailing the proxy form
and the form of material used in solicitation of proxies. Our associates may solicit proxies by
telephone, mail services, electronic mail, mailgram, facsimile, telegraph, cable and personal
interview.
55
CERTAIN MATTERS RELATING TO PROXY MATERIALS AND ANNUAL REPORTS
The Securities and Exchange Commission has adopted amendments to its rules regarding delivery
of proxy statements and annual reports to stockholders sharing the same address. We may now satisfy
these delivery rules by delivering a single proxy statement and annual report to an address shared
by two or more of our stockholders. This delivery method is referred to as householding and can
result in significant costs savings for us. To take advantage of this opportunity, we have
delivered only one proxy statement and annual report to multiple stockholders who share an address,
unless we received contrary instructions from the impacted stockholders prior to the mailing date.
We undertake to deliver promptly upon written or oral request a separate copy of the proxy
statement or annual report, as requested, to a stockholder at a shared address to which a single
copy of those documents was delivered. If you prefer to receive separate copies of a proxy
statement or annual report, either now or in the future, you may request a separate copy of the
proxy statement or annual report by writing to us at the following address: Investor Relations,
Tween Brands, Inc., 8323 Walton Parkway, New Albany, Ohio 43054, Attention: Investor Relations, or
by telephoning us at (614) 775-3500.
If you are currently a stockholder sharing an address with another Tween Brands, Inc.
stockholder and wish to receive one proxy statement and annual report per household in the future,
please contact Investor Relations at the above address or telephone number.
OTHER MATTERS
Copies of the exhibits to our 2008 Annual Report on Form 10-K may be downloaded from our
corporate website, www.tweenbrands.com. Printed copies are also available, at a reasonable charge
for copying and mailing, by writing to us at the following address: Investor Relations, Tween
Brands, Inc., 8323 Walton Parkway, New Albany, Ohio 43054, Attention: Investor Relations, or by
telephoning us at (614) 775-3500.
The Board of Directors knows of no other matters to be brought before the Annual Meeting.
However, if other matters should come before the meeting, each of the persons named in the proxy
intends to vote in accordance with their judgment on such matters.
By Order of the Board of Directors,
Michael W. Rayden
Chairman and Chief Executive Officer
56
TWEEN BRANDS, INC.
INCENTIVE COMPENSATION PERFORMANCE PLAN
The Tween Brands, Inc. Incentive Compensation Performance Plan (the Incentive Plan) is
intended to satisfy the applicable provision of Section 162(m) of the Internal Revenue Code of
1986, as amended (the Code). The Incentive Plan shall be administered by the Compensation
Committee (the Committee) of the Board of Directors of Tween Brands, Inc. (the Company). The
Committee shall select those key executives of the Company with significant operating and financial
responsibility, which shall include those individuals who are likely to be covered employees
(within the meaning of Section 162(m) of the Code), for the relevant fiscal year, to be eligible to
earn seasonal or annual cash incentive compensation payments to be paid under the Incentive Plan.
In respect of each Spring and/or Fall selling season or fiscal year, the Committee may
establish performance goals for the Company. The performance goals selected by the Committee shall
be based on any one or more of the following: price of the Companys common stock, par value $.01
per share, or the stock of any affiliate, shareholder return, return on equity, return on
investment, return on capital, sales productivity, comparable store sales growth, economic profit,
economic value added, net income, operating income, gross margin, sales, free cash flow, earnings
per share, operating company contribution or market share. These factors shall have a minimum
performance standard below which, and a maximum performance standard above which, no payments will
be made. These performance goals may be based on an analysis of historical performance and growth
expectations for the business, financial results of other comparable businesses and progress
towards achieving the long-range strategic plan for the business. These performance goals and
determination of results shall be based entirely on financial measures. The Committee may not use
any discretion to modify award results except as permitted under Section 162(m) of the Code.
Annual incentive compensation targets may be established for eligible executives ranging from
10% to 150% of base salary. Executives may earn their target incentive compensation if the
business achieves the pre-established performance goals. The target incentive compensation
percentage for each executive will be based on the level and functional responsibility of his or
her position, size of the business for which the executive is responsible, and competitive
practices. The amount of incentive compensation paid to participating executives may range from
zero to double their targets, based upon the extent to which performance goals are achieved or
exceeded. Except as otherwise permitted by Section 162(m) of the Code, the minimum level at which
a participating executive will earn any incentive payment, and the level at which an executive will
bear the maximum incentive payment of double the target, must be established by the Committee prior
to the commencement of each bonus period (or such earlier or later date as is permitted by Section
162(m)). Actual payouts must be based on either a straight-line or pre-established interpolation
based on these minimum and maximum levels and the performance goals.
The maximum dollar amount to be paid for any year under the Incentive Plan to any participant
may not exceed $3,000,000.
A-1
TWEEN BRANDS, INC.
8323 WALTON PARKWAY
NEW ALBANY, OH 43054-9522
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic
delivery of information up until 11:59 P.M. Eastern Time the day before the
meeting date. Have your proxy card in hand when you
access the web site and follow the instructions to obtain your records and to create an electronic
voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy
materials, you can consent to receiving all future proxy statements, proxy cards and annual
reports electronically via e-mail or the Internet. To sign up for electronic delivery, please
follow the instructions above to vote using the Internet and, when prompted, indicate that you
agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until
11:59 P.M. Eastern Time the day before the meeting date.
Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid
envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way,
Edgewood, NY 11717.
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TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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M12852
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KEEP THIS PORTION FOR YOUR RECORDS |
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DETACH AND RETURN THIS PORTION ONLY |
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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TWEEN BRANDS, INC. |
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For |
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Withhold |
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For All |
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To withhold authority to vote for any individual |
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The Board of Directors
recommends a vote FOR the election of the nominees for
the Board of Directors. |
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nominee(s), mark For All Except and write the |
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number(s) of the nominee(s) on the line below. |
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Vote on Directors
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To elect as Directors of Tween Brands, Inc. the nominees listed below: |
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Elizabeth M. Eveillard |
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02) |
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Fredric M. Roberts |
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Vote on Proposals
The Board of Directors recommends a vote FOR the following proposals. |
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Abstain |
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Re-approve the material terms of the
Incentive Compensation Performance Plan.
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Ratification of the selection of Deloitte & Touche LLP as the Companys
independent registered public accounting firm for the
2009 fiscal year. |
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Please sign exactly as your name(s) appear(s) hereon. When signing as
attorney, executor, administrator, or other fiduciary, please give full title
as such. Joint owners should each sign personally. All holders must sign. If a
corporation or partnership, please sign in full corporate or partnership
name, by authorized officer. |
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For address changes and/or comments, please check this box and
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write them on the back where indicated.
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Please indicate if you plan to attend this meeting.
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Signature [PLEASE SIGN WITHIN BOX]
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Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Notice and Proxy Statement and Annual Report are available at www.proxyvote.com.
M12853
TWEEN BRANDS, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
ANNUAL MEETING OF STOCKHOLDERS
MAY 21, 2009
The undersigned stockholder(s) hereby appoint(s) Michael W. Rayden, Rolando de Aguiar, and Gregory
J. Henchel, or any one of them acting alone, as proxies, each with the power to appoint his
substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse
side of this ballot, all of the shares of Common Stock of Tween Brands, Inc. that the undersigned
stockholder(s) is/are entitled to vote at the Annual Meeting of Stockholder(s) to be held at 9:00
a.m., Eastern Time, on May 21, 2009, at the Companys corporate offices, and any adjournment or
postponement thereof.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED BY THE STOCKHOLDER(S). IF NO
SUCH DIRECTIONS ARE MADE, THIS PROXY WILL BE VOTED FOR THE ELECTIONS OF THE NOMINEES LISTED ON
THE REVERSE SIDE FOR THE BOARD OF DIRECTORS, FOR THE PROPOSAL TO RE-APPROVE THE MATERIAL TERMS
OF THE INCENTIVE COMPENSATION PERFORMANCE PLAN AND FOR THE RATIFICATION OF THE SELECTION OF
DELOITTE & TOUCHE LLP AS THE COMPANYS INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE
2009 FISCAL YEAR.
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY USING THE ENCLOSED REPLY ENVELOPE
Address Changes/Comments:
(If you noted any Address Changes/Comments above, please mark corresponding box on the reverse side.)
CONTINUED AND TO BE SIGNED ON REVERSE SIDE