UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-
6(e)(2)
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
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Jos. A. Bank Clothiers, 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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(1)
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Title of each class of securities to which transaction applies:
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was
determined):
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(4)
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Proposed maximum aggregate value of transaction:
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(5)
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form or Schedule and the date of its
filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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JOS. A.
BANK CLOTHIERS, INC.
500 Hanover Pike
Hampstead, Maryland 21074
Dear Stockholder:
You are cordially invited to attend the 2010 Annual Meeting of
Stockholders of Jos. A. Bank Clothiers, Inc., which will be held
at the Companys corporate offices, 500 Hanover Pike,
Hampstead, Maryland, commencing at 10:00 a.m., local time,
on Thursday, June 17, 2010.
The following pages contain the formal notice of the Annual
Meeting and the related Proxy Statement. The Companys
Annual Report on
Form 10-K
for the fiscal year ended January 30, 2010 is enclosed as a
separate document with these materials.
The matters to be considered and voted on at the Annual Meeting
are set forth in the Proxy Statement. You are encouraged to
carefully review the Proxy Statement and attend the Annual
Meeting in person. Whether or not you plan to attend the Annual
Meeting, I hope you will vote as soon as possible by promptly
signing, dating and returning the enclosed proxy or voting
instruction card in the accompanying reply envelope. If you
attend the Annual Meeting and wish to change your vote, you may
be able to do so by voting in person at the Annual Meeting.
I look forward to meeting you on June 17th and
discussing with you the business of your company.
Sincerely,
R. Neal Black,
President and Chief Executive Officer
May 14, 2010
JOS. A.
BANK CLOTHIERS, INC.
500 Hanover Pike
Hampstead, Maryland 21074
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD JUNE 17, 2010
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Time and Date
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10:00 a.m., local time, on June 17, 2010
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Place
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Our corporate offices, 500 Hanover Pike, Hampstead, Maryland
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Items of Business
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(1) To elect two directors for terms expiring at our 2013
Annual Meeting of Stockholders, or at such later time as their
respective successors have been duly elected and qualified;
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(2) To ratify the appointment of our registered public
accounting firm for the fiscal year ending January 29, 2011;
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(3) To approve the Jos. A. Bank Clothiers, Inc. 2010 Equity
Incentive Plan; and
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(4) To consider such other business as may properly come
before the Annual Meeting.
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Adjournments and Postponements
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Any action on the items of business described above may be
considered at the Annual Meeting at the time and on the date
specified above or at any time and date to which the Annual
Meeting may be properly adjourned or postponed.
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Record Date
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The Record Date for the Annual Meeting is April 30, 2010.
You are entitled to vote only if you were a Jos. A. Bank
stockholder as of the close of business on the Record Date.
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Meeting Admission
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You are entitled to attend the Annual Meeting only if you were a
Jos. A. Bank stockholder as of the close of business on the
Record Date or hold a valid proxy for the Annual Meeting. You
should be prepared to present photo identification for
admittance.
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If you hold your shares through a broker, trustee or other
nominee, your name is not registered directly with our stock
transfer agent. In such case, you are known as a beneficial
owner that holds shares in street name, rather than a
stockholder of record. If you are not a stockholder of record,
you should be prepared to provide proof of stock ownership as of
the Record Date, such as your most recent account statement, a
copy of the voting instruction card provided by your broker,
trustee or other nominee, or other similar evidence of ownership.
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Voting
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Your vote is very important. Whether or not you plan to
attend the Annual Meeting, we encourage you to read this Proxy
Statement and submit your proxy or voting instructions as soon
as possible. You may submit your proxy or voting instructions
for the Annual Meeting by completing, signing, dating and
returning your proxy or voting instruction card in the pre-
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addressed envelope provided. For specific instructions on how
to vote your shares, please refer to the Questions and
Answers section beginning on page 1 of the Proxy
Statement and to the instructions on the proxy or voting
instruction card.
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By order of the Board of Directors,
Charles D. Frazer, Secretary
May 14, 2010
Important
Notice Regarding the Availability of Proxy Materials for the
2010
Annual Meeting of Stockholders to Be Held on June 17,
2010.
The Proxy
Statement and Annual Report on
Form 10-K
are available at
https://materials.proxyvote.com/480838.
JOS. A.
BANK CLOTHIERS, INC.
PROXY STATEMENT TABLE OF CONTENTS
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1-A
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JOS. A.
BANK CLOTHIERS, INC.
PROXY
STATEMENT FOR THE
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 17, 2010
QUESTIONS
AND ANSWERS ABOUT THE PROXY MATERIALS
AND THE ANNUAL MEETING
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Q:
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Why am I receiving
these materials?
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A:
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The Board of Directors (the Board) of Jos. A. Bank
Clothiers, Inc., a Delaware corporation (Jos. A.
Bank, the Company, our or
we), is providing these proxy materials to you in
connection with the Boards solicitation of proxies for our
2010 Annual Meeting of Stockholders (the Annual
Meeting), which will take place on June 17, 2010. As
a stockholder, you are invited to attend the Annual Meeting and
are entitled and requested to vote on the items of business
described in this Proxy Statement. This Proxy Statement and
accompanying proxy card (or voting instruction card) are being
mailed on or about May 14, 2010 to all stockholders
entitled to vote at the Annual Meeting.
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Q:
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What information is
contained in this Proxy Statement?
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A:
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The information included in this Proxy Statement relates to the
proposals to be voted on at the Annual Meeting, the voting
process, the compensation of our directors and most highly paid
executive officers and certain other required information.
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Q:
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How may I obtain Jos.
A. Banks Annual Report on
Form 10-K
for the year ended January 30, 2010?
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A:
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We have enclosed with this Proxy Statement a copy of our Annual
Report on
Form 10-K
for the fiscal year ended January 30, 2010 (Fiscal
2009). Our Annual Report on
Form 10-K
can also be accessed through our website at
www.josbank.com
(click Company Information,
Investor Relations and SEC Filings). We
filed our Annual Report on
Form 10-K
with the Securities and Exchange Commission (the
SEC) on March 31, 2010.
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Q:
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Can I view these proxy
materials over the Internet?
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A:
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Yes. The Notice of Meeting, this Proxy Statement and
accompanying proxy card and our Annual Report on
Form 10-K
are available at https://materials.proxyvote.com/480838.
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Q:
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What items of business
will be voted on at the Annual Meeting?
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A:
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The items of business scheduled to be voted on at the Annual
Meeting are:
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The election of two directors for terms expiring at
our 2013 Annual Meeting of Stockholders, or at such later time
as their respective successors have been duly elected and
qualified;
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The ratification of the appointment of our
registered public accounting firm for the fiscal year ending
January 29, 2011 (Fiscal 2010); and
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The approval of the Jos. A. Bank Clothiers, Inc.
2010 Equity Incentive Plan (the Equity Incentive
Plan).
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We will also consider other business that properly comes before
the Annual Meeting.
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Q:
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How does the Board
recommend that I vote?
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A:
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Our Board recommends that you vote your shares FOR
the nominees to the Board; FOR the ratification of
the appointment of our registered public accounting firm for
Fiscal 2010; and FOR the approval of the Equity
Incentive Plan.
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Q:
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What shares can I
vote?
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A:
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Each share of our common stock issued and outstanding as of the
close of business on April 30, 2010 (the Record
Date) is entitled to one vote on each of the matters to be
voted upon at the Annual Meeting.
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You may vote all shares owned by you as of the Record Date,
including (a) shares held directly in your name as the
stockholder of record, and (b) shares held for you as the
beneficial owner through a broker, trustee or other nominee
(collectively, a Broker).
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We had 18,351,162 shares of common stock issued and
outstanding on the Record Date.
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Q:
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What is the difference
between being a stockholder of record and being the beneficial
owner of shares held in street name?
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A:
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A stockholder of record holds shares in his or her own name.
Beneficial owners of shares held in street name hold their
shares through a third party, such as a Broker. Most of our
stockholders hold their shares beneficially in street name
through Brokers rather than directly in their own names. As
summarized below, there are some distinctions between shares
held of record and those held in street name:
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Stockholder
of Record
You are the stockholder of record of any of your shares
registered directly in your name with our transfer agent,
Continental Stock Transfer & Trust Company. With
respect to such shares, these proxy materials are being sent to
you by Jos. A. Bank. As the stockholder of record, you have the
right to grant your voting proxy directly to our designees, R.
Neal Black and Charles D. Frazer, or to any other person you
wish to designate, or to vote in person at the Annual Meeting.
We have enclosed a proxy card for you to grant your voting proxy
to Messrs. Black and Frazer.
Shares Beneficially
Held in Street Name
You are the beneficial owner of any of your shares held in
street name. With respect to such shares held through a Broker,
these proxy materials, together with a voting instruction card,
are being forwarded to you by your Broker. As the beneficial
owner, you have the right to direct your Broker how to vote. You
may use the voting instruction card provided by your Broker for
this purpose. Even if you have directed your Broker how to vote,
you may also attend the Annual Meeting. However, you may not
vote your shares in person at the Annual Meeting unless you
obtain a legal proxy or other evidence from your
Broker giving you the right to vote the shares at the Annual
Meeting.
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Q:
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Who is entitled to
attend the Annual Meeting and what are the admission
procedures?
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A:
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You are entitled to attend the Annual Meeting only if you were a
Jos. A. Bank stockholder as of the close of business on the
Record Date or if you hold a valid proxy for the Annual Meeting.
A list of stockholders eligible to vote at the Annual Meeting
will be available for inspection at the Annual Meeting and for a
period of ten days prior to the Annual Meeting during regular
business hours at our principal executive offices, which are
located at 500 Hanover Pike, Hampstead, Maryland 21074. To
obtain directions to the Annual Meeting, please contact our
Investor Relations Department at
(410) 239-5900.
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If you are a beneficial holder, you will need to provide proof
of beneficial ownership as of the Record Date, such as a
brokerage account statement showing that you owned Jos. A. Bank
stock as of the Record Date or the voting instruction card
provided by your Broker.
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The Annual Meeting will begin promptly at 10:00 a.m., local
time. You should be prepared to present photo identification for
admittance. Check-in will begin one-half hour prior to the
meeting. Please allow ample time for the admission procedures.
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Q:
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May I vote my shares
in person at the Annual Meeting?
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A:
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If you are a stockholder of record, you may vote your shares in
person at the Annual Meeting. If you hold your shares
beneficially in street name, you may vote your shares in person
at the Annual Meeting only if you obtain a legal proxy or other
evidence from your Broker giving you the right to vote the
shares.
Even if you plan to attend the Annual Meeting, we
recommend that you also submit your proxy or voting instructions
as described below so that your vote will be counted if you
later decide not to attend the Annual Meeting.
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Q:
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How can I vote my
shares without attending the Annual Meeting?
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A:
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Whether you hold shares directly as the stockholder of record or
beneficially in street name, you may direct how your shares are
voted without attending the Annual Meeting. If you are a
stockholder of record, you may vote by submitting a proxy. If
you hold shares beneficially in street name, you may vote by
submitting voting instructions to your Broker. For directions on
how to vote, please refer to the instructions below and those
included on your proxy card or, for shares held beneficially in
street name, the voting instruction card provided by your Broker.
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Stockholders of record may submit proxies by completing, signing
and dating their proxy cards and mailing them in the
accompanying pre-addressed envelopes. Stockholders who hold
shares beneficially in street name may vote by completing,
signing and dating the voting instruction cards provided and
mailing them in the accompanying pre-addressed envelopes. The
proxy card also includes directions as to how you may submit
your vote through the Internet and by telephone. The voting
instruction card may also include directions for alternative
methods of submitting your vote.
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Q:
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Can I change my
vote?
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A:
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Yes. You may change your vote at any time prior to the vote at
the Annual Meeting. If you are the stockholder of record, you
may change your vote by granting a new proxy bearing a later
date (which automatically revokes the earlier proxy), by
providing a written notice of revocation to our Secretary prior
to your shares being voted or by attending the Annual Meeting
and voting in person. For shares you hold beneficially in street
name, you may change your vote by submitting new voting
instructions to your Broker or, if you have obtained a legal
proxy or other evidence from your Broker giving you the right to
vote your shares, by attending the Annual Meeting and voting in
person. Without taking one of the actions described above,
attendance at the Annual Meeting will not cause your previously
granted proxy or voting instructions to be revoked.
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Q:
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Who can help answer my
questions?
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A:
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If you have any questions about the Annual Meeting or how to
vote or revoke your proxy or if you need additional copies of
this Proxy Statement or voting materials, please contact our
Investor Relations Department at
(410) 239-5900.
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Q:
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Is my vote
confidential?
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A:
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Proxy instructions, ballots and voting tabulations that identify
individual stockholders are handled in a manner that protects
your voting privacy. Your vote will not be disclosed either
within Jos. A. Bank or to third parties, except: (a) as
necessary to meet applicable legal requirements, (b) to
allow for the tabulation of votes and certification of the vote
and (c) to facilitate a successful proxy solicitation.
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Q:
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How many shares must
be present or represented to conduct business at the Annual
Meeting?
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A:
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In order to hold and transact business at the Annual Meeting,
holders of a majority of outstanding shares of Jos. A. Bank
common stock entitled to vote must be present in person or
represented by proxy. If you hold shares beneficially in street
name and do not provide your Broker with voting instructions,
your
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shares may constitute broker non-votes. Generally,
broker non-votes occur when a Broker returns a properly executed
proxy but fails to vote on one or more matters because the
Broker lacks the authority to do so. Both abstentions and broker
non-votes are counted for the purpose of determining the
presence of a quorum.
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Q:
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How are votes
counted?
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A:
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In the election of the directors, you may vote for both of the
nominees or you may withhold authority with respect to either or
both of the nominees.
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For the other items of business, you may vote FOR,
AGAINST or ABSTAIN. Abstentions will be
counted toward a quorum, but will not be counted for any purpose
in determining whether the other items of business have been
approved.
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If you provide specific instructions with regard to certain
items, your shares will be voted as you instruct on such items.
If you sign your proxy card or voting instruction card without
giving specific instructions, your shares will be voted in
accordance with the recommendations of the Board (in the case of
this Annual Meeting, FOR our nominees to the Board;
FOR the ratification of the selection of our
registered public accounting firm; FOR the approval
of the Equity Incentive Plan; and in the discretion of the proxy
holders on any other matters that properly come before the
Annual Meeting).
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Q:
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What is the voting
requirement to approve each of the proposals?
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A:
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The affirmative vote of a plurality of the shares of common
stock present in person or represented by proxy at the Annual
Meeting and entitled to vote for the election of directors is
required to elect each director. Accordingly, in the election of
the directors this year, the two persons receiving the highest
number of FOR votes at the Annual Meeting will be
elected. A properly executed proxy withholding authority with
respect to the election of a director nominee will not be voted
with respect to that nominee, although it will be counted for
purposes of determining whether there is a quorum. The
affirmative vote of a majority of the votes cast on the
applicable proposal at the Annual Meeting, either in person or
by proxy, and entitled to vote is required to ratify the
selection of our registered public accounting firm and to
approve the Equity Incentive Plan. Abstentions and broker
non-votes will have no effect on the outcome of any of the three
proposals presented at the Annual Meeting.
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Q:
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What happens if
additional matters are presented at the Annual
Meeting?
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A:
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We are not aware of any business to be acted upon at the Annual
Meeting other than the three items of business described in this
Proxy Statement. If you grant a proxy, the persons named as
proxy holders, R. Neal Black and Charles D. Frazer, will
have the discretion to vote your shares on any additional
matters properly presented for a vote at the Annual Meeting. If
for any unforeseen reason either of our director nominees is
unavailable to stand for election, the proxy holders will vote
your proxy for such other candidate(s) as may be nominated by
our Nominating and Governance Committee.
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Q:
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Who will serve as
inspector of elections?
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A:
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The inspector of elections will be a representative of Jos. A.
Bank.
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Q:
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What should I do if I
receive more than one set of voting materials?
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A:
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You may receive more than one set of voting materials, including
multiple copies of this Proxy Statement and multiple proxy cards
or voting instruction cards. For example, you may receive a
separate voting instruction card for each brokerage account in
which you hold shares. If you are a stockholder of record and
your shares are registered in more than one name, you will
receive more than one proxy card. Please complete, sign, date
and return each proxy card and voting instruction card that you
receive.
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Q:
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How may I obtain a
separate set of voting materials?
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A:
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SEC rules permit companies and intermediaries such as Brokers to
satisfy delivery requirements for proxy statements and annual
reports with respect to two or more stockholders sharing the
same address by delivering a single proxy statement and annual
report addressed to those stockholders, although each
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stockholder will receive a separate proxy or voting instruction
card. This process, which is commonly referred to as
householding, potentially provides extra convenience
for stockholders and cost savings for companies.
Householding will continue until you are notified
otherwise or until you revoke your consent. If at any time you
no longer wish to participate in householding and
would prefer to receive a separate proxy statement and annual
report, you may notify the Company at the address or phone
number provided below. Similarly, if you are beneficial owners
sharing an address who are receiving multiple copies of this
Proxy Statement and our Annual Report on
Form 10-K
and who wish to receive a single copy of these materials in the
future, please notify your Broker or the Company, as applicable,
to request to participate in householding. If you
would like to receive by mail a separate copy of this
years Proxy Statement and/or Annual Report on
Form 10-K,
please visit our website, www.josbank.com (click Company
Information, Investor Relations and
Information Request). You may also contact our
Investor Relations Department at 500 Hanover Pike, Hampstead,
Maryland 21074, telephone:
(410) 239-5900
and we will promptly deliver the Proxy Statement and/or Annual
Report on
Form 10-K
upon your request.
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Q:
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Who will bear the cost
of soliciting votes for the Annual Meeting?
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A:
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Jos. A. Bank is making this solicitation and will pay the entire
cost of preparing, printing, assembling, mailing and
distributing these proxy materials and soliciting votes. Upon
request, we will also reimburse brokerage houses and other
custodians, nominees and fiduciaries for forwarding proxy and
solicitation materials to stockholders. To assist with the
solicitation of proxies or votes, the Company has retained
Georgeson Inc. for an estimated fee of $12,500 plus
out-of-pocket
expenses. In addition, the solicitation of proxies or votes may
be made by our directors, officers and employees. These
individuals will not receive any additional compensation for any
solicitation activities. Solicitations may be in person, by
telephone or by any other means of communication.
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Q:
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Where can I find the
voting results of the Annual Meeting?
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A:
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We intend to announce preliminary voting results at the Annual
Meeting and will disclose results on a
Form 8-K
that will be filed not more than four business days following
the Annual Meeting.
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Q:
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What is the deadline
for submitting proposals for inclusion in Jos. A. Banks
proxy statement for the Companys 2011 Annual Meeting of
Stockholders?
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A:
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Pursuant to
Rule 14a-8
under the Securities Exchange Act of 1934, as amended (the
Exchange Act), stockholders may present proper
proposals for inclusion in our Proxy Statement relating to, and
for consideration at, the 2011 Annual Meeting of Stockholders by
submitting their proposals to us in a timely manner. Such
proposals will be so included if received at our principal
executive offices not later than January 14, 2011 and if
they otherwise comply with the requirements of
Rule 14a-8.
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Q:
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What is the deadline
to propose actions for consideration at the Companys 2011
Annual Meeting of Stockholders or to nominate individuals to
serve as directors?
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A:
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You may submit for consideration at the Companys 2011
Annual Meeting proposals, including director nominations, that
are not intended to be included in the Companys proxy
statement by complying with the procedures specified in our
bylaws. The procedures contained our current Amended and
Restated Bylaws are summarized below.
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Notice
Deadlines
In order for a stockholder proposal, including director
nominations, to be considered at an Annual Meeting of
Stockholders, a timely notice to the Secretary of such proposal
and/or
nominations must be delivered to or mailed and received at our
principal executive offices no later than the date which is 120
calendar days prior to the anniversary date of the previous
Annual Meeting of Stockholders, which date for the 2011 Annual
Meeting of Stockholders will be February 17, 2011. In the
event that the date of the Annual Meeting of Stockholders is
advanced by more than 60 days or delayed by more than
90 days from such anniversary, notice by the stockholder to
be timely must be so received not earlier than the one hundred
twentieth day prior to such Annual Meeting of Stockholders and
not later than the close of business on the
5
later of (a) the sixtieth day prior to such Annual Meeting
of Stockholders or (b) the tenth day following the date on
which notice of the date of the Annual Meeting of Stockholders
was mailed or public disclosure thereof was made, whichever
first occurs.
Stockholders
Proposals
As to each matter of business a stockholder proposes to bring
before an annual meeting of stockholders, the timely written
notice must set forth the following:
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a brief description of the business desired to be brought before
the Annual Meeting of Stockholders and the reasons for
conducting such business at the Annual Meeting of Stockholders;
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the name and address, as they appear on our books, of the
stockholder proposing such business;
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the number of shares of our common stock which are beneficially
owned by the stockholder;
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any material interest of the stockholder in such
business; and
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any other information that is required to be provided by the
stockholder pursuant to Regulation 14A under the Exchange
Act, in the stockholders capacity as a proponent of a
stockholder proposal.
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Nomination
of Director Candidates
In the case of nominations of persons for election to our Board,
the notice must set forth as to each person whom the stockholder
proposes to nominate for election or re-election as a director
the following:
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the name, age, business address and residence address of the
nominee;
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the principal occupation or employment of the nominee;
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the number of shares of our common stock that are beneficially
owned by the nominee;
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a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons
(naming each person or persons) pursuant to which the
nominations are to be made by the stockholder; and
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any other information relating to the nominee that is required
to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act (including without
limitation the nominees written consent to being named in
the proxy statement, if any, as a nominee and to serving as a
director if elected).
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In addition, each stockholder making these nominations must
provide:
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the stockholders name and address as they appear on our
books;
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the number of shares of our common stock which are beneficially
owned by the stockholder; and
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any material arrangement or relationship of the stockholder with
each nominee.
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Copy of
Amended and Restated Bylaw Provisions
You may contact the Secretary of Jos. A. Bank at our principal
executive offices for a copy of the relevant provisions of our
Amended and Restated Bylaws regarding the requirements for
making stockholder proposals and nominating director candidates.
6
OVERVIEW
OF OUR CORPORATE GOVERNANCE PRACTICES
The Company has adopted a Statement of Corporate Governance
Standards, which may be found on our website at
www.josbank.com
(click Company Information,
Investor Relations and Governance). We
believe that our corporate governance practices are appropriate
and in the best interest of our Company and our stockholders.
Some of the key aspects of our corporate governance practices
are as follows:
INDEPENDENCE
OF DIRECTORS
Six out of eight of our current directors are independent
directors as defined in the Nasdaq Stock Market Rules (the
Nasdaq Rules). Our remaining two directors, Robert
N. Wildrick and R. Neal Black, bring special insight to the
Board as a result of their service as the Companys former
or current, respectively, Chief Executive Officer.
COMMITTEE
INDEPENDENCE
Each of the following committees of the Board is composed
entirely of independent directors: Audit Committee, Compensation
Committee, Nominating and Governance Committee and Special
Litigation Committee.
BOARD
LEADERSHIP STRUCTURE
We maintain a Board leadership structure that separates the
positions of Chairman of the Board, Lead Independent Director
and Chief Executive Officer. By having separate individuals
serve in these three distinct capacities, we believe that we
provide for additional oversight by the Board and enable our
Chief Executive Officer to focus his time and attention on the
Companys operations. Our current Chairman of the Board,
Robert N. Wildrick, has been a director since 1994 and served as
our Chief Executive Officer from November 1999 through December
2008. Our current Lead Independent Director, Andrew A. Giordano,
has been a director since 1994, served as our interim Chief
Executive Officer from May 1999 to October 1999 and has served
as Lead Independent Director since November 1999. In addition,
Mr. Giordano is chairman of our Nominating and Governance
Committee and a member of our Audit Committee. These experiences
enhance Mr. Wildricks and Mr. Giordanos
ability (and therefore the Boards ability) to oversee the
Chief Executive Officer and management of our Company. The Board
as a whole engages in risk oversight as part of its functions.
We believe that our Board leadership structure enables the Board
to manage risk oversight effectively.
BOARD
EVALUATIONS
Our Nominating and Governance Committee has undertaken to
coordinate annual evaluations of our Board, its committees and
individual members.
DIRECTOR
AND EXECUTIVE OFFICER STOCK OWNERSHIP
All of our directors and executive officers own shares of our
common stock. We believe that the directors and executive
officers of the Company should own and hold our common stock or
other qualifying shares to further align their interests and
actions with the interests of the Companys stockholders.
Contingent upon the approval of the Equity Incentive Plan by our
stockholders, the Board has adopted stock ownership guidelines
applicable to all of our directors, our Chief Executive Officer
and our Executive Vice Presidents. Pursuant to the guidelines,
each of our directors will be required to accumulate and hold
5,000 qualified shares of equity in the Company; our Chief
Executive Officer will be required to accumulate and hold 50,000
qualified shares of equity in the Company; and each of our
Executive Vice Presidents will be required to accumulate and
hold 10,000 qualified shares of equity in the Company. The
guidelines further provide that each director is expected to be
in compliance with the targeted share holdings within three
years and each executive officer is expected to be in compliance
with the targeted share holdings within five years. The Stock
Ownership Guidelines will become effective on the date of the
Annual Meeting if our stockholders approve the Equity Incentive
Plan. The Stock Ownership Guidelines may be found on our website
at
www.josbank.com
(click Company
Information, Investor Relations and
Governance).
7
AUDIT
For at least each of the three fiscal years for which we provide
audited financial statements in our Annual Report on
Form 10-K
for Fiscal 2009: (a) Deloitte & Touche LLP, our
independent registered public accounting firm, has expressed an
unqualified opinion on the Companys consolidated financial
statements; (b) we have not restated any of our
consolidated financial statements; (c) all of our financial
disclosure filings have been timely; (d) no securities
regulator has taken enforcement action against us; and
(e) we have not had any material weaknesses in our internal
controls.
INFORMATION
REGARDING OUR BOARD OF DIRECTORS
The following table sets forth our current directors, their ages
and the positions they hold:
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Name
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Age
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Position
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James H. Ferstl
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67
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Director
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Andrew A. Giordano
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77
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Director, Chairman Emeritus, Lead Independent Director and
Chairman of the Nominating and Governance Committee
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Gary S. Gladstein
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65
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Director
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William E. Herron
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64
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Director and Chairman of the Audit Committee
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Henry Homes, III
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62
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Director
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Sidney H. Ritman
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77
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Director and Chairman of the Compensation Committee
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Robert N. Wildrick
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65
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Director and Chairman of the Board
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R. Neal Black
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55
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Director, Chief Executive Officer and President
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BOARD
INDEPENDENCE
The Board has affirmatively determined that each of
Messrs. Ferstl, Giordano, Gladstein, Herron, Homes and
Ritman (individually, an Independent Director and
collectively, the Independent Directors) is an
independent director as defined in the Nasdaq Rules.
In making this determination, the Board found that none of the
Independent Directors has a disqualifying relationship that
would prohibit him from being considered independent
under the Nasdaq Rules and that none of the Independent
Directors has any relationship that would interfere with the
exercise of independent judgment in carrying out the
responsibilities of a director.
COMMITTEES
OF THE BOARD OF DIRECTORS
The Board has an Audit Committee, Compensation Committee,
Executive Committee, Nominating and Governance Committee and
Special Litigation Committee. The members and primary
responsibilities of those committees are as follows:
Audit
Committee
The Audit Committee, comprised of Messrs. Giordano,
Gladstein and Herron (Chairman), assists the Board with the
oversight of: (a) the integrity of our financial
statements; (b) the qualifications and independence of our
registered public accounting firm; (c) the performance of
our registered public accounting firm; (d) the adequacy of
our systems of internal accounting and financial controls; and
(e) our compliance with ethics policies and legal and
regulatory requirements. As required by applicable law, rules or
regulations and otherwise to the extent it deems necessary or
appropriate, the Audit Committee also reviews and approves all
related party transactions and considers information regarding
potential relationships between the Company and the directors,
executive officers or their immediate family members.
The Audit Committee is directly responsible for the appointment,
compensation and oversight of the work of our registered public
accounting firm for the purpose of preparing or issuing an audit
report or related work. Such responsibility includes the
resolution of disagreements between management and our
registered public
8
accounting firm regarding financial reporting. There were no
such disagreements in Fiscal 2009. Our registered public
accounting firm reports directly to the Audit Committee. The
Audit Committee has the authority, to the extent it deems
necessary or appropriate to carry out its duties, to retain
independent legal, accounting or other advisors. The Company
covers all payments to these independent advisors. The Audit
Committee has established procedures for the receipt, retention
and treatment of complaints received by the Company regarding
accounting, internal accounting controls or auditing matters,
and the confidential, anonymous submission by employees of
concerns regarding questionable accounting or auditing matters.
The Board has determined that Mr. Herron is an audit
committee financial expert, as such term is defined in
Item 407(d)(5)(ii) of
Regulation S-K.
All members of the Audit Committee are independent directors as
defined in the Nasdaq Rules and
Rule 10A-3
of the Exchange Act.
The Audit Committee operates pursuant to a charter duly adopted
by the Board. A current copy of the charter is available on our
website at
www.josbank.com
(click Company
Information, Investor Relations and
Governance).
Compensation
Committee
The Compensation Committee, comprised of Messrs. Herron,
Homes and Ritman (Chairman), determines the compensation of the
Chief Executive Officer and other executive officers of the
Company in compliance with the Nasdaq Rules; and may advise the
Board, or take other action, on other matters of compensation.
The Board has determined that all members of the Compensation
Committee are independent directors as defined in the Nasdaq
Rules. The Compensation Committee operates pursuant to a charter
duly adopted by the Board. A current copy of the charter is
available on our website at
www.josbank.com
(click
Company Information, Investor Relations
and Governance). The Compensation Committee may
delegate any aspect of its responsibility and authority to
subcommittees or individual Compensation Committee members.
Executive
Committee
The Executive Committee, comprised of Messrs. Giordano,
Ritman and Wildrick (Chairman), is authorized to exercise all of
the powers and authority of the Board at times when the Board is
not meeting, provided, however, that the Executive Committee is
not permitted to exercise such powers as are reserved for the
Board under Delaware law or otherwise restricted under the terms
of the Executive Committees charter duly adopted by the
Board. A current copy of the charter is available on our website
at
www.josbank.com
(click Company
Information, Investor Relations and
Governance).
Nominating
and Governance Committee
The Nominating and Governance Committee, comprised of
Messrs. Ferstl, Giordano (Chairman) and Ritman, proposes
the slate of candidates for election as directors at each Annual
Meeting of Stockholders; considers and reviews the
qualifications of any individual nominated for election to the
Board by stockholders; in the event of any vacancies which may
arise on the Board, identifies and recommends to the Board
candidates who are qualified to serve on the Board; recommends
to the Board the assignment of directors to serve on committees
of the Board; and develops and recommends to the Board (and
reviews from time to time) corporate governance principles for
the Company as the Nominating and Governance Committee may deem
necessary or advisable. The Board has determined that all
members of the Nominating and Governance Committee are
independent directors as defined in the Nasdaq Rules. The
Nominating and Governance Committee operates pursuant to a
charter duly adopted by the Board. A current copy of the charter
is available on our website at
www.josbank.com
(click
Company Information, Investor Relations
and Governance).
Special
Litigation Committee
On October 17, 2006, two substantially identical
shareholder derivative actions which had been filed against the
directors of the Company were consolidated by the United States
District Court for the District of Maryland (the
U.S. District Court for Maryland) as
In re
Jos. A. Bank Clothiers, Inc. Derivative Litigation
(1:06-cv-02095-BEL) (the 2006 Derivative
Action). The Amended Shareholder Derivative Complaint in
the
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2006 Derivative Action made claims for various violations of
state law that allegedly occurred from January 5, 2006
through October 20, 2006. On September 13, 2007, upon
motion of the Company, the court dismissed the 2006 Derivative
Action. Among the reasons for dismissal was the failure of the
plaintiff to demand that the Board pursue on behalf of the
Company the claims alleged in the 2006 Derivative Action. By
letter dated September 17, 2007 (the Demand
Letter), the plaintiff in the Derivative Action, by and
through his attorneys, made such demand.
The Special Litigation Committee, comprised of
Messrs. Giordano, Herron and Ritman, was established by the
Board in September 2007 to investigate, and determine the
position of the Company with respect to, all matters relating to
the Demand Letter. The Board has determined that all of members
of the Special Litigation Committee are independent directors as
defined in the Nasdaq Rules. The Special Litigation Committee,
with the assistance of independent counsel, conducted an
investigation into the claims presented in the Demand Letter and
issued its findings in a Report of the Special Litigation
Committee of Jos. A. Bank Clothiers, Inc., dated
February 7, 2008 (the Report). In the Report,
the Special Litigation Committee concludes that, for a variety
of reasons, the institution of a lawsuit [as proposed in
the Demand Letter] is neither appropriate nor in the best
interest of the Company. First, and most important [among those
reasons, the Special Litigation Committee found that] the
proposed lawsuit is entirely without merit.
On October 16, 2009, Norfolk County Retirement System
(NCRS), derivatively and on behalf of the Company,
filed a Verified Shareholder Derivative Complaint against the
Companys directors, one of its former directors, its Chief
Financial Officer and, as nominal defendant, the Company, in the
U.S. District Court for Maryland, Civil Action Number
1:09-cv-0269-BEL (the 2009 Derivative Action). The
2009 Derivative Action includes, among other claims, factual
allegations similar to those made in the in the 2006 Derivative
Action.
On April 12, 2010, the U.S. District Court for
Maryland approved a Stipulation entered into by the Company and
NCRS whereby NCRS agreed that the 2009 Derivative Action will be
voluntarily dismissed with prejudice as to NCRS, and dismissed
without prejudice as to the Company and Company shareholders
other than NCRS (the Dismissal). Neither NCRS nor
its attorneys will receive from the Company, the individual
defendants or their insurers payment of any kind with respect to
the Dismissal. Unless the U.S. District Court for Maryland
determines otherwise based upon any objections it receives, the
Dismissal will be effective on May 26, 2010, forty days
following publication of notice.
DIRECTOR
ATTENDANCE AT BOARD AND COMMITTEE MEETINGS
During Fiscal 2009, the Board held four meetings; the Audit
Committee held four meetings; the Compensation Committee held
two meetings; the Executive Committee held five meetings; and
the Nominating and Governance Committee held one meeting. The
Special Litigation Committee did not meet during Fiscal 2009.
During Fiscal 2009, each director attended or participated in
75% or more of (a) the meetings of the Board and
(b) the meetings of all committees of the Board on which
such director served.
DIRECTOR
ATTENDANCE AT ANNUAL MEETING; STOCKHOLDER COMMUNICATION WITH THE
BOARD OF DIRECTORS
It is the policy of the Board that all Directors are expected to
attend the Companys annual meetings of stockholders. All
of our directors were present at the 2009 Annual Meeting of
Stockholders held on June 18, 2009. Our Chairman of the
Board will be available to respond to appropriate questions and
comments from stockholders following the 2010 Annual Meeting at
the Companys corporate offices on the day of the meeting.
Stockholders may also communicate with the Board by sending a
letter to Jos. A. Bank Clothiers, Inc. Board of Directors
c/o General
Counsel, 500 Hanover Pike, Hampstead, Maryland 21074. The
General Counsel will receive the correspondence and forward it
to the Chairman of the Board, the Chairman of the Audit
Committee or to any individual director or directors to whom the
communication is directed, as appropriate. Notwithstanding the
above, the General Counsel has the authority to discard or
disregard any communication which is unduly hostile,
threatening, illegal or otherwise inappropriate or to take any
other appropriate actions with respect to such communications.
10
CONSIDERATION
OF DIRECTOR NOMINEES
Director
Qualifications
The Board does not believe that it is in our best interests to
establish rigid criteria for the selection of prospective
director nominees. Rather, the Board recognizes that the
challenges and needs we face will change over time and,
accordingly, believes that the selection of prospective director
nominees should be based on skill sets relevant to the issues we
face or are likely to face at the time of nomination. At the
same time, the Board strongly believes that we will benefit from
a diversity of background and experience on the Board. The Board
therefore seeks prospective director nominees who, in addition
to general management experience and business knowledge, possess
an expertise in one or more areas critical to the Company, such
as: retail, finance, international business, investment banking,
corporate governance, financial control systems, risk
assessment, logistics and investor relations.
In addition, there are certain general attributes that the Board
believes all prospective director nominees must possess in order
to be recommended by the Nominating and Governance Committee,
including:
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a commitment to ethics and integrity;
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a commitment to personal and organizational accountability;
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a history of achievement that reflects superior standards for
themselves and others; and
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an ability to take tough positions while, at the same time,
being respectful of the opinions of others and working
collaboratively.
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In evaluating any prospective director, the Board and the
Nominating and Governance Committee will also take into
consideration whether such prospective director, if elected to
the Board, would qualify as an independent director in
accordance with the Nasdaq Rules.
Identifying
and Evaluating Prospective Director Nominees
The Nominating and Governance Committee uses a variety of
methods for identifying nominees for director. Prospective
director nominees may come to our attention through current
directors, professional search firms, professional associations,
stockholders or other persons.
The Nominating and Governance Committee will evaluate all
prospective director nominees, including those recommended by
stockholders, in the same manner. Generally, prospective
director nominees will be evaluated at special meetings of the
Nominating and Governance Committee. The Nominating and
Governance Committee will make an initial determination as to
whether to conduct a full evaluation of the prospective director
nominee based upon various factors, including, but not limited
to: (a) the information submitted with the nomination,
(b) the Nominating and Governance Committees own
knowledge of the prospective director nominee, (c) the
current size of the Board and any anticipated vacancies or needs
and (d) whether the prospective director nominee can
satisfy any specific qualifications established by the
Nominating and Governance Committee. The Nominating and
Governance Committee may then decide to do a comprehensive
evaluation of a prospective director nominee, which may include
an interview of the candidate.
Stockholder
Nominees
The policy of the Nominating and Governance Committee is to
consider prospective director nominations properly submitted by
a stockholder. For a description of the process for nominating
directors in accordance with our Amended and Restated Bylaws,
see What is the deadline to propose actions for
consideration at the Companys 2011 Annual Meeting of
Stockholders or to nominate individuals to serve as
directors? in the Questions and Answers
section of this Proxy Statement. No stockholder has submitted a
nominee for consideration by the Nominating and Governance
Committee in connection with the Annual Meeting.
11
NON-EMPLOYEE
DIRECTOR COMPENSATION
The Compensation Committee evaluates and sets the appropriate
level and form of director compensation for all of the Directors
other than Mr. Black (Non-Employee Directors).
Management assists the Compensation Committee in connection with
this process as needed. Mr. Black, as Chief Executive
Officer, is not entitled to additional compensation for his
services as a director.
Each Non-Employee Director receives an annual retainer of
$40,000. Additional annual retainers are paid as follows:
Chairman of the Board-$150,000; Lead Independent
Director-$60,000; and the Chairmen of each of the Audit
Committee, Compensation Committee and Nominating and Governance
Committee-$30,000. Each Non-Employee Director also receives
attendance fees of $3,000 per Board meeting and $1,500 per
meeting of the Audit, Compensation, Nominating and Governance
and Special Litigation Committees. No fees are paid for meetings
of the Executive Committee. One-half of the usual meeting
attendance fee (i.e., $1,500 and $750, respectively) is paid to
each Non-Employee Director for participation in each telephonic
Board or Committee meeting. All directors are reimbursed for
actual
out-of-pocket
expenses incurred by them in connection with attending meetings
of the Board or of a Committee.
If the Companys stockholders approve the Equity Incentive
Plan, it is the Companys intention to award to each
Non-Employee Director holding office on June 17, 2010
following the Annual Meeting a one-time grant of 1,000
restricted stock units and the first annual grant of 1,500
restricted stock units. In addition, the Equity Incentive Plan
provides for certain automatic awards to Non-Employee Directors.
Therefore, if the Companys stockholders approve the Equity
Incentive Plan and unless the Compensation Committee determines
in its discretion to make a lesser award or no award,
(a) on June 1, 2011 and each June 1 thereafter (or the
next business day thereafter if June 1 is not a business day),
each person then serving as a Non-Employee Director shall
receive an annual award of 1,500 restricted stock units and
(b) any person who first becomes a Non-Employee Director
after June 17, 2010, shall receive upon his or her election
to the Board an inaugural award of 1,000 restricted stock units
on such date. All such restricted stock units will vest
approximately (but not less than) twelve months following the
date of grant. See Proposal Three for additional
information regarding these potential future grants.
The tables below provide information concerning compensation of
the Non-Employee Directors for Fiscal 2009.
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Change in
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Pension
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Value and
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Fees Earned
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Non-Equity
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Nonqualified
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or Paid in
|
|
Stock
|
|
Option
|
|
Incentive Plan
|
|
Deferred
|
|
All Other
|
|
|
|
|
Cash
|
|
Awards
|
|
Awards
|
|
Compensation
|
|
Compensation
|
|
Compensation
|
|
Total
|
Name
|
|
($)(1)
|
|
($)
|
|
($)
|
|
($)
|
|
Earnings
|
|
($)
|
|
($)
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
James H. Ferstl
|
|
|
52,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,750
|
|
Andrew A. Giordano
|
|
|
148,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
148,000
|
|
Gary S. Gladstein
|
|
|
57,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
57,250
|
|
William E. Herron
|
|
|
90,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
90,250
|
|
Henry Homes, III
|
|
|
55,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
55,000
|
|
Sidney H. Ritman
|
|
|
85,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
85,750
|
|
Robert N. Wildrick
|
|
|
202,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
825,000
|
(2)
|
|
|
1,027,000
|
|
|
|
|
(1)
|
|
Amounts reported in column (b) represent retainers and
attendance fees as more fully detailed in the table below.
|
|
(2)
|
|
The amount reported in column (g) represents fees paid to
Mr. Wildrick during Fiscal 2009 pursuant to his consulting
agreement with the Company, as more fully discussed below in the
section of this Proxy Statement titled Transactions with
Related Persons.
|
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lead
|
|
|
|
|
|
|
|
|
|
|
|
|
Independent
|
|
Committee
|
|
|
|
|
|
|
|
|
Annual
|
|
Director
|
|
Chair
|
|
Chairman
|
|
Attendance
|
|
|
|
|
Retainer
|
|
Retainer
|
|
Retainer
|
|
Retainer
|
|
Fees
|
|
Total
|
Name
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
James H. Ferstl
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,750
|
|
|
|
52,750
|
|
Andrew A. Giordano
|
|
|
40,000
|
|
|
|
60,000
|
|
|
|
30,000
|
|
|
|
|
|
|
|
18,000
|
|
|
|
148,000
|
|
Gary S. Gladstein
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,250
|
|
|
|
57,250
|
|
William E. Herron
|
|
|
40,000
|
|
|
|
|
|
|
|
30,000
|
|
|
|
|
|
|
|
20,250
|
|
|
|
90,250
|
|
Henry Homes, III
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,000
|
|
|
|
55,000
|
|
Sidney H. Ritman
|
|
|
40,000
|
|
|
|
|
|
|
|
30,000
|
|
|
|
|
|
|
|
15,750
|
|
|
|
85,750
|
|
Robert N. Wildrick
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
150,000
|
|
|
|
12,000
|
|
|
|
202,000
|
|
INFORMATION
REGARDING OUR EXECUTIVE OFFICERS
The following table sets forth our current executive officers
(other than Mr. Black), their ages and the positions they
hold:
|
|
|
|
|
|
|
Name
|
|
Age
|
|
Position
|
|
Robert B. Hensley
|
|
|
57
|
|
|
Executive Vice President for Human Resources, Real Estate and
Loss Prevention
|
Gary M. Merry
|
|
|
47
|
|
|
Executive Vice President for Store and Catalog Operations
|
James W. Thorne
|
|
|
49
|
|
|
Executive Vice President for Merchandising and Chief
Merchandising Officer
|
David E. Ullman
|
|
|
52
|
|
|
Executive Vice President Chief Financial Officer and
Principal Financial and Accounting Officer
|
INFORMATION
CONCERNING EXECUTIVE OFFICERS
For information regarding Mr. Black, see the section of
this Proxy Statement entitled Directors Whose Terms Expire
in 2011 in
Proposal One-Election
of Directors below.
Robert
B. Hensley
Robert B. Hensley has been our Executive Vice President for
Human Resources, Real Estate and Loss Prevention since July
2007. Mr. Hensley was our Executive Vice President-Store
Operations, Real Estate and Human Resources from April 2007 to
July 2007 and our Executive Vice President-Stores and Operations
from December 1999 to April 2007.
Gary
M. Merry
Gary M. Merry has been our Executive Vice President for Store
and Catalog Operations since July 2007. Mr. Merry was our
Senior Vice President for Operations from April 2007 to July
2007 and our Senior Vice President-Chief Information Officer
from July 2001 to April 2007. Among his other duties,
Mr. Merry was our Chief Information Officer from September
2000 to April 2008.
James
W. Thorne
James W. Thorne has been our Executive Vice President for
Merchandising and Chief Merchandising Officer since February
2009. Mr. Thorne joined the Company in 1986 and has held a
variety of increasingly important merchandising positions,
including Senior Vice President for Merchandising from September
2008 to January 2009; Senior Vice President for Planning and
Allocation from June 2005 to September 2008; and Vice
President/General Merchandise Manager for Tailored Clothing from
February 2000 to June 2005.
13
David
E. Ullman
David E. Ullman has been our Executive Vice President-Chief
Financial Officer since September 1995. Mr. Ullman is our
Principal Financial and Accounting Officer.
EXECUTIVE
COMPENSATION AND RELATED INFORMATION
COMPENSATION
DISCUSSION AND ANALYSIS
The following discussion and analysis discusses the principles
underlying the Companys compensation policies and
decisions and the most important factors relevant to an analysis
of these policies and decisions. This discussion focuses on the
compensation of our five named executive officers. Generally, a
named executive officer is a companys chief executive
officer, its chief financial officer and its three other most
highly compensated executive officers. Our named executive
officers are R. Neal Black, our Chief Executive Officer; David
E. Ullman, our Chief Financial Officer; and Robert B. Hensley,
Gary M. Merry and James W. Thorne, our three other most highly
compensated executive officers. Messrs. Hensley, Merry,
Thorne and Ullman are sometimes referred to collectively in this
Proxy Statement as our Executive Vice Presidents.
This discussion and analysis provides qualitative information
regarding the manner and context in which compensation is
awarded to and earned by our named executive officers and is
intended to place in perspective the data presented in the
tables and narratives that follow.
Process
of Determining Executive Compensation
Our Compensation Committee, comprised of Messrs. Herron,
Homes and Ritman (Chairman), determines the compensation of our
named executive officers and may advise the Board, or take other
action, on other matters of compensation.
Since there are no shares currently available for issuance under
our previously adopted equity incentive plans, our executive
compensation program has, since our fiscal year ended
February 3, 2007 (Fiscal 2006), consisted
almost exclusively of cash payments in the form of base salary
and non-equity incentive compensation. In Fiscal 2009, the
Compensation Committee engaged Towers Watson & Co.
(Towers Watson), an independent compensation
consultant, to assist us in designing appropriate compensation
programs for the future. Towers Watson did not provide to the
Company any consulting or other services in Fiscal 2009 except
as described below. Towers Watson has been retained by, and
reports directly to, the Compensation Committee to develop
recommendations related to all aspects of executive
compensation. In particular, Towers Watson was asked to design a
deferred compensation plan and an equity compensation plan and
to provide an assessment of the acceptability of the equity
incentive plan under guidelines established by a leading proxy
advisory group. On March 30, 2010, the Compensation
Committee recommended to the Board, and the Board adopted, the
Equity Incentive Plan and the Jos. A. Bank Clothiers, Inc. 2010
Deferred Compensation Plan (the 2010 Deferred Compensation
Plan). Adoption of the Equity Incentive Plan was subject
to approval of the plan by Company stockholders. Management
provided and will provide to Towers Watson such information as
it did or may request to carry out such responsibilities.
Management provides the Compensation Committee with material for
review concerning the compensation of the named executive
officers, including a history of salary and other compensation
paid to each named executive officer. Our Chief Executive
Officer presents to the Compensation Committee an annual review
of executive and management compensation and recommendations for
base salary increases and equity and non-equity incentive
compensation (other than for himself). Our Chief Executive
Officer is not present during the deliberation or determination
by the Compensation Committee regarding his own compensation.
Charles D. Frazer, our corporate Secretary, acts as Secretary to
the Compensation Committee and is usually present during
general, but not executive, sessions of the Compensation
Committee. Mr. Frazer does not participate in the
deliberations of the Compensation Committee. The Compensation
Committee reviews the performance of each named executive
officer against the established criteria for payment of
incentive compensation for performance in the prior year and
determines whether and in what amount incentive compensation
should be paid. The Compensation Committee also considers
compensation matters applicable to the current fiscal year and,
when
14
appropriate, authorizes employment contracts, contract
extensions, base salary increases and equity and non-equity
incentive compensation targets.
Objectives
of the Compensation Program
Our Compensation Committee applies a consistent philosophy to
compensation for our named executive officers. This philosophy
is based on the premise that the Companys achievements are
the result of the coordinated efforts of all of our employees
working toward common objectives. We strive to achieve those
objectives through teamwork that is focused on meeting the
expectations of our customers and stockholders.
The primary objectives of the compensation program are to:
|
|
|
|
|
align compensation with our corporate strategies and business
objectives and performance;
|
|
|
|
enable the Company to attract, retain and reward senior managers
who contribute to the long-term success of the Company; and
|
|
|
|
promote the achievement of key financial performance measures by
linking compensation to the achievement of measurable corporate
performance goals.
|
We believe that this compensation program allows us to
successfully attract and retain talented employees, enhance
stockholder value and foster innovation.
To achieve these objectives, our Compensation Committee has
established the following principles to guide the development of
our compensation program and to provide a framework for all
compensation decisions: (a) provide a total compensation
package that will attract the best talent to the Company,
motivate individuals to perform at their highest levels, reward
outstanding performance and retain executives whose skills are
critical for building long-term stockholder value; and
(b) establish incentives that are directly tied to the
overall financial performance of the Company.
Components
of our Executive Compensation Program
Since Fiscal 2006, the primary elements of our executive
compensation program have been:
|
|
|
|
|
Base salary;
|
|
|
|
Non-equity incentive compensation; and
|
|
|
|
Other employee benefits and non-cash compensation.
|
There are no shares currently available for issuance under the
Companys previously adopted equity incentive plans. As a
result, the Companys executive compensation program
consists almost exclusively of cash payments in the form of base
salary and non-equity incentive compensation. If the Equity
Incentive Plan is approved by the Companys stockholders,
as more fully set forth in Proposal Three, the Compensation
Committee will have the authority to grant a range of different
types of equity incentive awards, including restricted stock
units, stock options and stock- or cash-based awards, which may
include performance-based awards intended to comply with the
requirements of Section 162(m) of the Internal Revenue Code.
In order to permit us to retain our named executive officers and
to provide sufficient incentives for their highest possible
level of performance, salaries and incentive compensation of
such officers are reviewed at least annually and are usually
adjusted after taking into account market conditions, individual
responsibilities, experience, performance and other factors
(including, where applicable, the terms of their employment
agreements). Each named executive officer is employed by the
Company pursuant an employment agreement which sets forth, among
other matters, the executive officers annualized base
salary and non-equity incentive opportunity (expressed as a
percentage of base salary).
These agreements with our named executive officers provide for
certain potential payments upon termination for a variety of
reasons, including, for Mr. Black only, following a change
in control of the Company. We have provided more detailed
information about these benefits, along with estimates of their
values under certain circumstances, below under the caption
Potential Payments on Termination or Change in
15
Control. We believe these benefits help us compete for the
services of talented individuals in a manner which is
responsible and in the best interests of our Company and
stockholders.
If the Equity Incentive Plan is approved by stockholders as more
fully set forth in Proposal Three below, it is the
Companys intention to make grants to our named executive
officers of restricted stock units under the Equity Incentive
Plan intended to qualify as performance-based compensation under
Section 162(m) of the Internal Revenue Code. Unless
otherwise provided in the employment agreement for a particular
named executive officer, our compensation-setting process
consists of establishing for each named executive officer a
targeted overall compensation level intended to permit us to
retain that officer and provide sufficient incentive for his
highest possible level of performance. The targeted compensation
level is then allocated between base salary and incentive
compensation. If the Equity Incentive Plan is approved by our
stockholders, we expect that a portion of the overall
compensation level for each named executive officer will also be
allocated to an equity award. Neither the targeted compensation
nor the allocation thereof is fixed by formula. Rather, they are
determined based on many factors including internal pay equity,
external market factors, reasonable employee expectations, pay
history and performance.
Base
Salary
We pay a base salary to attract talented executives and provide
a secure base of cash compensation. The Compensation Committee
typically reviews compensation for the named executive officers
at a time proximate to the filing of our Annual Report on
Form 10-K
for the prior fiscal year. Except where otherwise required by
contract, annual increases are not assured. Generally, and for
Fiscal 2010, increases (if any) in base salaries for the named
executive officers go into effect at the same time as increases
(if any) in base salaries go into effect for other employees of
the Company. For example, base salaries for the named executive
officers for pay year 2008 were set on April 9, 2008, and
made effective May 4, 2008. No adjustments to base salary
were made for Fiscal 2009. Generally, in deciding whether, and
to what extent, to make an adjustment to the respective base
salaries of the named executive officers (other than the Chief
Executive Officer), an important factor considered by the
Compensation Committee is the Chief Executive Officers
evaluation of the individual performances of the other named
executive officers. Generally, the Chief Executive Officer makes
his recommendation based upon his evaluation of each other named
executive officers individual contribution to the
performance of the Company and such other factors as he may deem
relevant.
The Compensation Committees approval of base salary
increases for Fiscal 2010 for our Executive Vice Presidents is
contingent upon base salary increases going into effect
generally for other employees of the Company. It is anticipated
that the Compensation Committees approval of a base salary
increase for Fiscal 2010 for our chief executive officer will
also be contingent upon base salary increases going into effect
generally for other employees of the Company. The Compensation
Committee will set the date for commencement of regular pay
increases, if any, for the named executive officers. Such
increases are not expected to take effect, if at all, prior to
August 2010. The annualized base salaries for the named
executive officers for Fiscal 2010 are, or are anticipated to
be, as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2010
|
|
|
Current Fiscal
|
|
Annualized
|
|
|
2010
|
|
Base Salary If
|
|
|
Annualized
|
|
Increases Take
|
Named Executive
|
|
Base Salary
|
|
Effect
|
Officer
|
|
($)
|
|
($)
|
|
R. Neal Black
|
|
|
750,000
|
|
|
|
775,000
|
(1)
|
Robert B. Hensley
|
|
|
475,000
|
|
|
|
490,000
|
|
Gary M. Merry
|
|
|
355,000
|
|
|
|
400,000
|
|
James W. Thorne
|
|
|
350,000
|
|
|
|
375,000
|
|
David E. Ullman
|
|
|
450,000
|
|
|
|
465,000
|
|
|
|
|
(1)
|
|
Contingent upon base salary increases going into effect
generally for other employees of the Company, it is anticipated
that Mr. Blacks base salary will increase to $775,000.
|
16
Non-Equity
Incentive Compensation
In 2008 the Company adopted, and in 2009 the Companys
stockholders approved, the Jos. A. Bank Clothiers, Inc.
Executive Management Incentive Plan (the Management
Incentive Plan). The Management Incentive Plan is intended
to permit award payments that may qualify as
performance-based compensation within the meaning of
Section 162(m) of the Internal Revenue Code. For each of
Fiscal 2009 and Fiscal 2010, the Compensation Committee
established under the Management Incentive Plan cash incentive
programs designed to reward Company-wide performance through
tying the payment of non-equity incentive compensation primarily
to, among other things, the earning by the Company of certain
net income goals. Such cash incentive programs are referred to
herein respectively as the 2009 Cash Incentive
Program and the 2010 Cash Incentive Program
and collectively as the Cash Incentive Programs. For
purposes of the Cash Incentive Programs, net income
is the reported net income of the Company for the applicable
fiscal year and is therefore determined after deduction for all
incentive plan and other compensation expenses. All award
payments under the 2009 Cash Incentive Program were paid in
cash. If payable under the 2010 Cash Incentive Program, award
payments are expected to be paid in cash. If the Companys
Equity Incentive Plan is approved by stockholders, the
Compensation Committee will have the discretion to settle awards
payable under the Management Incentive Plan in cash, shares of
common stock or a combination of cash and stock.
The performance goals under each of the Cash Incentive Programs
are based upon the Company earning net income within or above a
specified range (the Eligibility Range) for the
applicable fiscal year. As net income is a key factor in
determining a companys overall financial success, the
Compensation Committee believes that using an Eligibility Range
based on net income is an appropriate basis for establishing
incentive compensation goals.
If the Companys net income is below the Eligibility Range
for a particular Cash Incentive Program, an award payment cannot
be authorized under that program. If the Companys net
income is within the Eligibility Range, the percentage of the
award target which participants are eligible to earn increases
as net income increases, up to 100%. If the Companys net
income is at or above the highest level of net income within the
Eligibility Range, each participant is eligible to earn the
participants maximum award target.
The Company earning net income within or above the applicable
Eligibility Range is the only performance goal under each of the
Cash Incentive Programs for Mr. Black, our Chief Executive
Officer. With respect to Messrs. Hensley, Merry, Thorne and
Ullman, our Executive Vice Presidents (who are the only other
named executive officers), the following personal
goals may also be considered and utilized by the Compensation
Committee in its exercise of negative discretion in reducing the
amount of an award that would otherwise be paid as a result of
the level of net income achieved by the Company: (a) the
participant receiving an overall job performance rating of
Effective or better (the equivalent of 3 out of 5);
(b) the participant complying with the Companys Code
of Conduct, Associate Manual and other rules, regulations and
policies and not engaging in any dishonest acts or other acts
that are or may be detrimental to customers, fellow associates
or the Company; and (c) attainment of specific goals for
departmental or individual performance.
The Compensation Committee has the discretion to make award
payments under the Cash Incentive Programs in an amount less
than the pre-established award targets, even if the objective
business criteria are achieved. In deciding whether, and to what
extent, to pay an award payment to each named executive officer
(other than Mr. Black), an important factor considered by
the Compensation Committee, in exercising its discretion to
reduce an award, is Mr. Blacks evaluation of the
individual performance of the named executive officer.
Generally, Mr. Black makes his recommendation based upon
his evaluation of the named executive officers individual
contributions to the performance of the Company and such other
factors as he may deem relevant. The final determination of all
award payments to the named executive officers is made by the
Compensation Committee; however, the Compensation Committee may
not use these subjective criteria to increase the amount of any
award that is otherwise payable at a specific level based upon
the attainment of the objectively determined amount of net
income.
For the 2009 Cash Incentive Program, the Compensation Committee
established an Eligibility Range of $57.5 million to
$63.5 million of net income. If the Company earned less
than $57.5 million of net income, no participant would have
been entitled to an award payment under this program. At
$57.5 million of net income
17
each participant would have been eligible to receive up to 20%
of his award target. At or above $63.5 million of net
income, each participant would have been eligible to receive up
to 100% of his award target. Between $57.5 million and
$63.5 million of net income, the percentage of the award
target which each participant was eligible to receive increased
as net income increased.
For the 2010 Cash Incentive Program, the Compensation Committee
established an Eligibility Range of $71.2 million to
$78.4 million of net income. If the Company earns less than
$71.2 million of net income, no participant is entitled to
an award payment under this program. At $71.2 million of
net income, Mr. Black is eligible to receive up to 60% of
his base salary and Messrs. Hensley, Merry, Thorne and
Ullman are each eligible to receive up to 10% of their
respective base salaries. At or above $78.4 million of net
income, Mr. Black is eligible to receive up to 200% of his
base salary and Messrs. Hensley, Merry, Thorne and Ullman
are each eligible to receive up to 65% of their respective base
salaries. Between $71.2 million and $78.4 million of
net income, the percentage of base salary which each participant
is eligible to receive will increase as net income increases. If
the Equity Incentive Plan is approved by the stockholders, it is
anticipated that Mr. Black will further align his interests
with the interests of Company stockholders by agreeing to reduce
his cash bonus potential to 150% of base salary in consideration
of an equity incentive opportunity with an initial value of up
to 250% of base salary.
Upon a review of the Companys performance (which exceeded
the maximum net income amount in the Eligibility Range set for
the 2009 Cash Incentive Program) and the individual performance
by each named executive officer in Fiscal 2009, the Compensation
Committee approved the payment of the following amounts under
the 2009 Cash Incentive Program for Fiscal 2009 performance:
|
|
|
|
|
|
|
2009 Cash
|
|
|
Incentive Program
|
Named Executive
|
|
Award Payments
|
Officer
|
|
($)
|
|
R. Neal Black
|
|
|
1,500,000
|
|
Robert B. Hensley
|
|
|
308,750
|
|
Gary M. Merry
|
|
|
230,750
|
|
James W. Thorne
|
|
|
227,500
|
|
David E. Ullman
|
|
|
292,500
|
|
For Fiscal 2009, the non-equity incentive compensation paid to
the named executive officers was 100% of their maximum potential
payments under the 2009 Cash Incentive Program.
In the face of the extraordinary downturn in the United States
economy in general, and in the retail sector in particular, the
Company earned $71.2 million of net income in Fiscal 2009
(an approximate 22% increase over net income earned for our
fiscal year ended January 31, 2009 (Fiscal
2008)) and exceeded the maximum net income amount in the
Eligibility Range established for the 2009 Cash Incentive
Program by approximately $7.7 million. The Compensation
Committee therefore determined that it was in the best interest
of the Company and its stockholders to exercise its discretion
and reward this performance with the payment to the named
executive officers of the discretionary cash bonuses set forth
below.
|
|
|
|
|
|
|
Fiscal 2009
|
|
|
Discretionary
|
Named Executive
|
|
Bonus
|
Officer
|
|
($)
|
|
R. Neal Black
|
|
|
230,000
|
|
Robert B. Hensley
|
|
|
50,000
|
|
Gary M. Merry
|
|
|
125,000
|
|
James W. Thorne
|
|
|
125,000
|
|
David E. Ullman
|
|
|
60,000
|
|
The Company also paid discretionary bonuses to the named
executive officers for Fiscal 2008, but not for our fiscal year
ended February 2, 2008 (Fiscal 2007).
18
Other
Employee Benefits and Non-Cash Compensation
In addition to the cash compensation described above, certain
perquisites and benefits are provided to our named executive
officers in cash, in-kind or through direct payment to third
party providers. The Company believes these perquisites and
benefits help us to be competitive in attracting and retaining
senior management and are commensurate with the experience and
skill of our named executive officers. In Fiscal 2009, the total
value of these perquisites and benefits for the named executive
officers ranged from approximately 5.6% to approximately 7.4% of
base salary of the applicable named executive officer.
Certain perquisites are provided in accordance with the
respective employment agreements of the named executive
officers. Messrs. Black, Hensley, Merry and Thorne each
receive a car allowance. Mr. Ullman receives the use of a
Company-leased car.
Certain benefits are made available by the Company under
broad-based programs offered to most of our employees, including
the named executive officers. Such benefits include insurance
for medical, prescription drugs, dental, vision, long-term
disability, life and accidental death and dismemberment and a
legal services plan. For each of the named executive officers,
the Company pays for these insurance benefits, as well as
insurance for up to $2,500 of medical expense reimbursement. The
Company also sponsors a 401(k) plan. The Company has generally
elected, from year to year, to make a discretionary contribution
to employees 401(k) accounts. In the event the Company
elects to make a discretionary contribution, the named executive
officers would be eligible to participate on the same basis as
all other eligible employees; provided, however, that the
contribution for certain executives may be limited by IRS rules.
In March 2010, the Board adopted the 2010 Deferred Compensation
Plan, which is a nonqualified, unfunded plan designed to provide
a select group of the Companys senior management (which
includes each of the named executive officers), highly
compensated employees and non-employee directors with the
opportunity to accumulate capital by deferring compensation on a
pre-tax basis. The 2010 Deferred Compensation Plan strengthens
the ability of the Company to attract, reward and retain
eligible employees and non-employee directors by providing them
with a means to defer receipt of cash and shares of common stock
associated with future grants of restricted stock units,
performance share awards and certain other cash- and stock-based
awards.
Employees who participate in the 2010 Deferred Compensation Plan
may defer either all or none of any future restricted stock unit
awards and any performance share awards and up to 15% of base
salary and up to 25% of cash bonuses and incentive awards.
Non-employee directors who participate in the 2010 Deferred
Compensation Plan may defer all or none of any future restricted
stock unit awards and any other incentive compensation and all
or none of their annual retainer fees, committee chairman fees,
lead director fees and meeting fees.
All cash and awards that are to be deferred under the 2010
Deferred Compensation Plan will be deemed invested in Company
common stock equivalent units. In the case of stock-based awards
that are deferred, the number of common stock equivalent units
credited to a participants account will be based on the
number of shares underlying those awards. In the case of cash
deferrals, the number of common stock equivalent units credited
to a participants account will be based on the
Companys share price on the date of the deemed investment.
If stock-based awards are subject to a vesting condition, the
investment in stock unit equivalents will be deemed to occur on
the date that the award vests.
In general (and subject to certain exceptions set forth in the
2010 Deferred Compensation Plan), elections to defer
compensation must be made in the tax year prior to the year in
which the compensation would otherwise be earned. At the time
that an employee makes each deferral election, he or she may
choose between a distribution upon separation from service
(subject to a
6-month
delay applicable to certain officers) or payment at a scheduled
future date of 5 years or 10 years following the end
of the year in which that election becomes irrevocable.
Regardless of election, distributions to employees will be made
upon the first to occur of (a) separation from service
(subject to a
6-month
delay applicable to certain officers), (b) occurrence of
the 5 or 10 year scheduled distribution date, as
applicable, (c) a change in control of the Company or
(d) death. Distributions to Non-Employee Directors will be
made upon the first to occur of (x) separation from
19
service, (y) change in control of the Company or
(z) death. Distributions under the 2010 Deferred
Compensation Plan will generally be paid in shares of Company
common stock, with fractional shares paid in cash. However, the
Companys Compensation Committee will have the discretion
to make a determination that distributions will be paid in cash
or a combination of cash and shares. In the event of an
unforeseeable emergency, a participant will be permitted,
subject to plan rules, to elect a hardship distribution from his
or her account prior to the otherwise applicable payment date.
The Company also maintains a nonqualified deferred compensation
plan (the Fidelity Deferred Compensation Plan) that
is administered by Fidelity Management Trust Company
(Fidelity). Under the Fidelity Deferred Compensation
Plan, certain executives, including the named executive
officers, are entitled to defer up to 15% of their base salary
and up to 25% of their annual non-equity incentive compensation.
Effective salary deferral elections must be made by eligible
executives prior to the end of the calendar year with respect to
salary amounts to be earned in the following year; effective
non-equity incentive compensation deferral elections must be
made no later than six months prior to the end of the applicable
performance period. Participants in the Fidelity Deferred
Compensation Plan are entitled to direct the investment of the
deferred amounts by selecting one or more permissible investment
alternatives offered under the plan. Under the Fidelity Deferred
Compensation Plan, participants are entitled to change their
investment selection by contacting Fidelity. The Company does
not restrict the frequency of changes in the investment
selection. Fidelity maintains an excessive trading policy which
generally prohibits exchanges in and then out of a fund option
within 30 days (a roundtrip). Under
Fidelitys excessive trading policy, participants are
limited to one roundtrip transaction per fund within any rolling
90-day
period, subject to an overall limit of four roundtrip
transactions across all funds over a rolling
12-month
period. The value of the participants investment is based
directly on the performance of the underlying mutual funds
selected by the participants.
Under the Fidelity Deferred Compensation Plan, a participant is
entitled to elect to receive distributions, either in a lump sum
or in a series of substantially equal payments, either at
separation of service or at the earlier of separation of service
or reaching a pre-selected age. Regardless of any such election
made by the participant, a lump sum distribution will
automatically be made upon the earlier to occur of separation of
service prior to age 62, death or a change in control of
the Company.
We do not contribute to the Fidelity Deferred Compensation Plan
or guarantee or supplement deemed investment returns on the
participants accounts. The Fidelity Deferred Compensation
Plan essentially operates as an uninsured, tax-advantaged
personal brokerage account of the participant. Participation in
this plan does not affect the participants base salary or
annual non-equity incentive compensation. Amounts deferred under
the Fidelity Deferred Compensation Plan are held in trust for
payment of benefits under the plan, subject to the claims of the
Companys general creditors.
We offer the 2010 Deferred Compensation Plan and the Fidelity
Deferred Compensation Plan because they provide an opportunity
for the participants to save for future financial needs at
little cost to the Company. Providing these nonqualified
deferred compensation plans contributes to the Companys
attractiveness as an employer, by providing the Company with a
method of rewarding and retaining these individuals.
For a more detailed discussion of the amounts earned in Fiscal
2009 under the Fidelity Deferred Compensation Plan by our named
executive officers, see the Nonqualified Deferred Compensation
table and accompanying narrative below.
Tax
and Accounting Considerations
Section 162(m) of the Internal Revenue Code imposes a
$1 million limit on the tax deductibility of
non-performance-based compensation that is paid to a
covered employee (generally, the five executive
officers whose compensation is reported to stockholders in a
proxy statement). Compensation that qualifies as
performance-based compensation is excluded from the
$1 million deductibility cap, and therefore remains fully
deductible by the Company. In making compensation design and
award decisions, the Company takes Section 162(m) into
account in determining the total compensation cost which may be
incurred by the Company. If, consistent with our business needs
and without violating contractual obligations, we are able to
structure compensation arrangements to eliminate the negative
effects of Section 162(m), we will do so. If,
20
however, the Companys business needs dictate hiring or
making compensation decisions which may result in the Company
incurring non-deductible compensation expense, the Company will
take such actions as may be necessary to meet those needs. For
example, a much sought-after candidate for employment may be
able to command in the marketplace compensation arrangements
which do not meet the exceptions to the deductibility
limitations under Section 162(m). In Fiscal 2008 and Fiscal
2009, Section 162(m) did not limit the deductibility of any
compensation paid by the Company. We were limited under
Section 162(m) in prior years and may be limited in future
years. To mitigate the impact of Section 162(m), the
Company adopted the Management Incentive Plan and is seeking
stockholder approval of the Equity Incentive Plan as described
in Proposal Three of this Proxy Statement.
In Fiscal 2006, the Company adopted the Statement of Financial
Accounting Standards No. 123R, now codified as FASB ASC
Topic 718 Stock Compensation (FASB
ASC 718), which generally requires a public entity to
measure the cost of employee services received for an award of
equity instruments based on the grant-date fair value of the
award. The adoption of FASB ASC 718 had no material effect
on our financial statements, because, at the time of the
adoption, all options issued under our previous equity incentive
plans were fully vested. In the event the Equity Incentive Plan
is approved by Company stockholders, FASB ASC 718 will
govern the expense to the Company associated with any equity
that may be issued under the plan. Generally, such equity will
be expensed over the associated vesting period established
pursuant to an equity award.
COMPENSATION
COMMITTEE REPORT
The undersigned, constituting all of the members of the
Compensation Committee, have reviewed and discussed with the
management of the Company the foregoing Compensation Discussion
and Analysis and, based on such review and discussion, have
recommended to the Board that the Compensation Discussion and
Analysis be included in this Proxy Statement.
Respectfully
submitted, Compensation Committee:
Sidney H. Ritman (Chairman)
William E. Herron
Henry Homes, III
21
COMPENSATION
TABLES
The following tables, narrative and footnotes discuss the
compensation of our named executive officers for Fiscal 2009,
Fiscal 2008 and Fiscal 2007. We follow the National Retail
Federations 4-5-4 retail calendar, whereby for
each fiscal quarter, the first month contains four weeks, the
second month contains five weeks and the third month contains
four weeks (each week containing the seven days from Sunday
through Saturday). Dividing the retail calendar into
52 weeks of seven days each, or 364 days, leaves an
extra day each year to be accounted for in a future fiscal
period. As a result every five to six years a week is added to
the fiscal calendar. Fiscal 2009, Fiscal 2008 and Fiscal 2007
were all 52 week years.
Summary
Compensation Table
The following table sets forth information concerning
compensation earned by our named executive officers for Fiscal
2009, Fiscal 2008 and Fiscal 2007.
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
Change in
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
Pension Value
|
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|
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|
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|
and Nonqualified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
Options
|
|
Incentive Plan
|
|
Compensation
|
|
All Other
|
|
|
Name and
|
|
|
|
Salary
|
|
Bonus
|
|
Awards
|
|
Award
|
|
Compensation
|
|
Earnings
|
|
Compensation
|
|
Total
|
Principal Position
|
|
Year
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
(i)
|
|
(j)
|
|
R. Neal Black,
|
|
|
2009
|
|
|
|
750,000
|
|
|
|
230,000
|
|
|
|
|
|
|
|
|
|
|
|
1,500,000
|
|
|
|
124,708
|
|
|
|
42,210
|
|
|
|
2,646,918
|
|
President and Chief
|
|
|
2008
|
|
|
|
591,443
|
|
|
|
50,000
|
|
|
|
|
|
|
|
|
|
|
|
373,750
|
|
|
|
|
|
|
|
28,550
|
|
|
|
1,043,743
|
|
Executive Officer(1)
|
|
|
2007
|
|
|
|
555,384
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
365,000
|
|
|
|
|
|
|
|
25,552
|
|
|
|
945,936
|
|
David E. Ullman,
|
|
|
2009
|
|
|
|
450,000
|
|
|
|
60,000
|
|
|
|
|
|
|
|
|
|
|
|
292,500
|
|
|
|
32,923
|
|
|
|
27,466
|
|
|
|
862,889
|
|
Executive Vice
|
|
|
2008
|
|
|
|
447,500
|
|
|
|
25,000
|
|
|
|
|
|
|
|
|
|
|
|
292,500
|
|
|
|
|
|
|
|
24,249
|
|
|
|
789,249
|
|
President-Chief Financial Officer
|
|
|
2007
|
|
|
|
435,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
285,000
|
|
|
|
|
|
|
|
24,762
|
|
|
|
744,764
|
|
Robert B. Hensley,
|
|
|
2009
|
|
|
|
475,000
|
|
|
|
50,000
|
|
|
|
|
|
|
|
|
|
|
|
308,750
|
|
|
|
56,584
|
|
|
|
30,398
|
|
|
|
920,732
|
|
Executive Vice President for
|
|
|
2008
|
|
|
|
473,750
|
|
|
|
25,000
|
|
|
|
|
|
|
|
|
|
|
|
308,750
|
|
|
|
|
|
|
|
28,783
|
|
|
|
836,283
|
|
Human Resources, Real Estate
|
|
|
2007
|
|
|
|
464,231
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
305,000
|
|
|
|
|
|
|
|
26,753
|
|
|
|
795,984
|
|
and Loss Prevention
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary M. Merry,
|
|
|
2009
|
|
|
|
355,000
|
|
|
|
125,000
|
|
|
|
|
|
|
|
|
|
|
|
230,750
|
|
|
|
|
|
|
|
23,922
|
|
|
|
734,672
|
|
Executive Vice President for
|
|
|
2008
|
|
|
|
353,750
|
|
|
|
20,000
|
|
|
|
|
|
|
|
|
|
|
|
230,750
|
|
|
|
|
|
|
|
24,558
|
|
|
|
629,058
|
|
Store and Catalog Operations
|
|
|
2007
|
|
|
|
318,081
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
180,000
|
|
|
|
|
|
|
|
22,112
|
|
|
|
520,193
|
|
James W. Thorne,
|
|
|
2009
|
|
|
|
350,000
|
|
|
|
125,000
|
|
|
|
|
|
|
|
|
|
|
|
227,500
|
|
|
|
|
|
|
|
25,871
|
|
|
|
728,371
|
|
Executive Vice President for
|
|
|
2008
|
|
|
|
285,825
|
|
|
|
15,000
|
|
|
|
|
|
|
|
|
|
|
|
150,000
|
|
|
|
|
|
|
|
19,264
|
|
|
|
470,089
|
|
Merchandising and Chief Merchandising Officer(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Mr. Black became Chief Executive Officer of the Company on
December 21, 2008 and served as President and Chief
Executive Office during all of Fiscal 2009. From April 2007
through December 20, 2008, Mr. Black was our President
and reported to Mr. Wildrick, who was then our Chief
Executive Officer.
|
|
(2)
|
|
Mr. Thorne was not a named executive officer of the Company
in Fiscal 2007. His compensation for that year is therefore not
included.
|
Notes
to Summary Compensation Table
Bonus
The amounts reported in column (d) represent discretionary
bonuses earned for the applicable fiscal year. The Company paid
no discretionary bonuses or other compensation which are
reportable as bonuses as defined under SEC rules to the named
executive officers in Fiscal 2007.
Stock
and Option Awards
The Company issued no stock or option awards to the named
executive officers in Fiscal 2009, Fiscal 2008 or Fiscal 2007.
22
Non-Equity
Incentive Plan Compensation
The amounts reported in column (g) reflect amounts earned
by, and paid to, each named executive officer for the applicable
fiscal year under the Companys cash incentive program for
that year. The non-equity incentive compensation paid to the
named executive officers in Fiscal 2010 and Fiscal 2009 for
performance in Fiscal 2009 and Fiscal 2008, respectively,
represented the maximum potential awards that could have been
earned under the Cash Incentive Programs for those years. The
non-equity incentive compensation paid to the named executive
officers in Fiscal 2008 for performance in Fiscal 2007 ranged
from 95% to 100% of the respective maximum potential awards that
could have been earned under the cash incentive program adopted
for Fiscal 2007.
Changes
in Pension Value and Nonqualified Deferred Compensation
Earnings
The Company does not maintain a pension plan for which the named
executive officers are eligible. The amounts set forth in column
(h) represent the above-market earnings, if any, by the
named executive officers on their respective accounts in the
Fidelity Deferred Compensation Plan. SEC regulations consider
the market rate of interest to be 120% of the
applicable federal long-term rate (the AFR). The
above-market earnings credited to the participants in the
Fidelity Deferred Compensation Plan were calculated as the
difference between the return earned on such participants
accounts during the applicable fiscal year and the interest that
would have been earned at a rate equal to 120% of the AFR. None
of the participants in the Fidelity Deferred Compensation Plan
had above-market earnings in Fiscal 2008 or Fiscal 2007.
All
Other Compensation
The tables below set forth the components of the amounts
reported as All Other Compensation in column (i). These
components are (a) either an allowance for a car or the use
of a Company-leased car; (b) the cost of a legal services
plan and of insurance for health, prescription drugs, medical
expense reimbursement, dental, vision, long-term disability,
life, and accidental death and dismemberment; and
(c) amounts contributed by the Company for the named
executive officer under the Companys 401(k) plan. Except
with respect to Mr. Ullman, the amounts shown in column
(a) below are cash allowances and reflect the actual dollar
amounts paid in the applicable fiscal year. With respect to
Mr. Ullman, the amount shown in column (a) reflects
the value of Mr. Ullmans personal use of a
Company-leased car during the applicable fiscal year.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2009 All Other Compensation
|
Named Executive
|
|
($)
|
Officer
|
|
(a)
|
|
(b)
|
|
(c)
|
|
Total
|
|
R. Neal Black
|
|
|
19,200
|
|
|
|
18,582
|
|
|
|
4,428
|
|
|
|
42,210
|
|
David E. Ullman
|
|
|
9,068
|
|
|
|
13,970
|
|
|
|
4,428
|
|
|
|
27,466
|
|
Robert B. Hensley
|
|
|
9,600
|
|
|
|
16,370
|
|
|
|
4,428
|
|
|
|
30,398
|
|
Gary M. Merry
|
|
|
9,600
|
|
|
|
11,876
|
|
|
|
2,446
|
|
|
|
23,922
|
|
James W. Thorne
|
|
|
9,600
|
|
|
|
11,843
|
|
|
|
4,428
|
|
|
|
25,871
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2008 All Other Compensation
|
Named Executive
|
|
($)
|
Officer
|
|
(a)
|
|
(b)
|
|
(c)
|
|
Total
|
|
R. Neal Black
|
|
|
10,708
|
|
|
|
13,342
|
|
|
|
4,500
|
|
|
|
28,550
|
|
David E. Ullman
|
|
|
9,175
|
|
|
|
10,574
|
|
|
|
4,500
|
|
|
|
24,249
|
|
Robert B. Hensley
|
|
|
9,600
|
|
|
|
14,683
|
|
|
|
4,500
|
|
|
|
28,783
|
|
Gary M. Merry
|
|
|
9,254
|
|
|
|
10,804
|
|
|
|
4,500
|
|
|
|
24,558
|
|
James W. Thorne
|
|
|
4,200
|
|
|
|
10,564
|
|
|
|
4,500
|
|
|
|
19,264
|
|
23
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2007 All Other Compensation
|
Named Executive
|
|
($)
|
Officer
|
|
(a)
|
|
(b)
|
|
(c)
|
|
Total
|
|
R. Neal Black
|
|
|
9,600
|
|
|
|
11,452
|
|
|
|
4,500
|
|
|
|
25,552
|
|
David E. Ullman
|
|
|
10,597
|
|
|
|
9,665
|
|
|
|
4,500
|
|
|
|
24,762
|
|
Robert B. Hensley
|
|
|
9,600
|
|
|
|
12,653
|
|
|
|
4,500
|
|
|
|
26,753
|
|
Gary M. Merry
|
|
|
7,800
|
|
|
|
9,812
|
|
|
|
4,500
|
|
|
|
22,112
|
|
Employment
Agreements
We had employment agreements with all of our named executive
officers during Fiscal 2009. The material terms of each
employment agreement are discussed below. Each named executive
officer is entitled to certain payments following the
termination of his employment with the Company. Set forth in the
section below entitled Potential Payments on Termination
or Change in Control is information regarding potential
payments on termination or change in control which may, under
certain circumstances, be due to each named executive officer.
R.
Neal Black
Mr. Black is employed by the Company pursuant to an
employment agreement that expires on January 29, 2011 (the
last day of our Fiscal 2010). Pursuant to his employment
agreement, Mr. Blacks annual salary was $750,000 in
Fiscal 2009. For Fiscal 2010, Mr. Blacks annualized
base salary will remain $750,000 unless and until base salaries
are increased generally for other employees of the Company.
Contingent upon base salary increases going into effect
generally for other employees of the Company, it is anticipated
that Mr. Blacks base salary will increase to
$775,000. The employment agreement provides for an annual
non-equity incentive opportunity of up to 200% of base salary
based upon the achievement of annual performance goals. The
employment agreement also provides for benefits, perquisites,
severance and an agreement not to compete with the Company, each
of which is described in this Proxy Statement. If the Equity
Incentive Plan is approved by the stockholders, it is
anticipated that Mr. Black will further align his interests
with the interests of Company stockholders by agreeing to reduce
his cash bonus potential to 150% of base salary in consideration
of an equity incentive opportunity with an initial value of up
to 250% of base salary. Mr. Black was elected to the Board
in December 2008 concurrently with his appointment as our Chief
Executive Officer. Mr. Blacks employment agreement
provides that he will serve without additional compensation as a
director of the Company and, if he should so desire, any of its
subsidiaries. Mr. Black has agreed to resign any and all
such directorships concurrently with the expiration or other
termination of his employment under the employment agreement.
David
E. Ullman, Robert B. Hensley, Gary M. Merry and James W.
Thorne
Each of the Executive Vice Presidents is employed pursuant to an
employment agreement that expires on January 28, 2012 (the
last day of our Fiscal 2011). Each of these employment
agreements provides for an annual base salary and an annual
non-equity incentive opportunity of up to 65% of base salary
based upon the achievement of annual performance goals. Base
salary increases and potential equity incentive compensation are
in the discretion of the Compensation Committee. Although the
base salary levels of the Executive Vice Presidents have
historically been adjusted each year, no adjustments were made
for Fiscal 2009. Each of these employment agreements also
provides for benefits, perquisites, severance and the executive
officers agreement not to compete with the Company, each
of which is described in this Proxy Statement.
The Compensation Discussion and Analysis section above includes
a detailed description of our non-equity incentive compensation
program. Proposal Three below includes a detailed
discussion of the proposed Equity Incentive Plan and anticipated
grants to be made to the named executive officers if our
stockholders approve the Equity Incentive Plan. If our
stockholders approve the Equity Incentive Plan, it is the
Companys intention to make grants to our named executive
officers of restricted stock units under the Equity Incentive
24
Plan, intended to qualify as performance-based compensation
under Section 162(m) of the Internal Revenue Code, as
described in more detail in Proposal Three.
Grants
of Plan-Based Awards
The following table sets forth information concerning grants of
non-equity awards earned by our named executive officers for
Fiscal 2009 under the 2009 Cash Incentive Program.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
Option
|
|
|
|
Grant
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number
|
|
Awards:
|
|
Exercise
|
|
Date Fair
|
|
|
|
|
Estimated Possible
|
|
Estimated Future
|
|
of Shares
|
|
Number of
|
|
or Base
|
|
Value of
|
|
|
|
|
Payouts Under Non-
|
|
Payouts Under
|
|
of Stock
|
|
Securities
|
|
Price of
|
|
Stock and
|
|
|
|
|
Equity Incentive Plan Awards(1)
|
|
Equity Incentive Plan Awards(2)
|
|
or Units
|
|
Underlying
|
|
Option
|
|
Option
|
|
|
Grant
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
(3)
|
|
Options(4)
|
|
Awards
|
|
Awards
|
|
|
Date
|
|
($)
|
|
($)
|
|
($)
|
|
(#)
|
|
(#)
|
|
(#)
|
|
(#)
|
|
(#)
|
|
($/sh)
|
|
($)
|
Name(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
(i)
|
|
(j)
|
|
(k)
|
|
(l)
|
|
R. Neal Black
|
|
|
|
|
|
|
450,000
|
|
|
|
1,500,000
|
|
|
|
1,500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David E. Ullman
|
|
|
|
|
|
|
58,500
|
|
|
|
292,500
|
|
|
|
292,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert B. Hensley
|
|
|
|
|
|
|
61,750
|
|
|
|
308,750
|
|
|
|
308,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary M. Merry
|
|
|
|
|
|
|
46,150
|
|
|
|
230,750
|
|
|
|
230,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James W. Thorne
|
|
|
|
|
|
|
45,500
|
|
|
|
227,500
|
|
|
|
227,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
This column presents information about potential payouts under
the Companys 2009 Cash Incentive Program. The actual
non-equity incentive payment for performance in Fiscal 2009 was
paid to the named executive officers in April 2010. All such
payments are reflected in the Summary Compensation Table under
the column heading Non-Equity Incentive Plan
Compensation. For a more detailed description of the 2009
Cash Incentive Program, see the Non-Equity Incentive
Compensation section of the Compensation Discussion and
Analysis above. The 2009 Cash Incentive Program does not specify
a target amount; therefore the respective amounts in
the target column are representative amounts based
on the Companys actual Fiscal 2009 performance. The
threshold amount represents the amount payable at
the lowest net income level at which any award was payable and
the maximum is the amount payable at the highest net
income level. If the Companys Fiscal 2008 financial
performance was used in the determination of non-equity
incentive compensation for the named executive officers in
respect of the performance under the 2009 Cash Incentive
Program, the named executive officers would not have earned
non-equity incentive compensation for Fiscal 2009 because the
minimum net income threshold established under the 2009 Cash
Incentive Program was in excess of Fiscal 2008 net income.
|
|
(2)
|
|
The Company did not grant any equity incentive plan awards in
Fiscal 2009.
|
|
(3)
|
|
The Company did not grant any stock awards in Fiscal 2009.
|
|
(4)
|
|
The Company did not grant any option awards in Fiscal 2009.
|
25
Outstanding
Equity Awards At Fiscal 2009 Year-End
The following table reflects outstanding stock options held by
the named executive officers as of January 30, 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
Market or
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number
|
|
Payout
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
of
|
|
Value of
|
|
|
|
|
|
|
Incentive
|
|
|
|
|
|
|
|
Market
|
|
Unearned
|
|
Unearned
|
|
|
|
|
|
|
Plan Awards:
|
|
|
|
|
|
Number
|
|
Value of
|
|
Shares,
|
|
Shares,
|
|
|
Number of
|
|
Number of
|
|
Number of
|
|
|
|
|
|
of Shares
|
|
Shares or
|
|
Units or
|
|
Units or
|
|
|
Securities
|
|
Securities
|
|
Securities
|
|
|
|
|
|
or Units
|
|
Units of
|
|
Other
|
|
Other
|
|
|
Underlying
|
|
Underlying
|
|
Underlying
|
|
|
|
|
|
of Stock
|
|
Stock
|
|
Rights
|
|
Rights
|
|
|
Unexercised
|
|
Unexercised
|
|
Unexercised
|
|
|
|
|
|
that
|
|
that
|
|
that have
|
|
that have
|
|
|
Options(1)
|
|
Options
|
|
Unearned
|
|
Option
|
|
Option
|
|
have not
|
|
have not
|
|
not
|
|
not
|
|
|
(#)
|
|
(#)
|
|
Options
|
|
Exercise Price
|
|
Expiration
|
|
Vested
|
|
Vested
|
|
Vested
|
|
Vested
|
Name
|
|
Exercisable
|
|
Unexercisable
|
|
(#)
|
|
($)
|
|
Date
|
|
(#)
|
|
($)
|
|
(#)
|
|
($)
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(g)
|
|
(h)
|
|
(i)
|
|
(j)
|
|
R. Neal Black
|
|
|
21,802
|
|
|
|
|
|
|
|
|
|
|
|
4.5862
|
|
|
|
03/15/12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,372
|
|
|
|
|
|
|
|
|
|
|
|
9.8771
|
|
|
|
03/14/13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David E. Ullman
|
|
|
46,875
|
|
|
|
|
|
|
|
|
|
|
|
4.5862
|
|
|
|
03/15/12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
58,593
|
|
|
|
|
|
|
|
|
|
|
|
9.8771
|
|
|
|
03/14/13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert B. Hensley
|
|
|
18,233
|
|
|
|
|
|
|
|
|
|
|
|
9.8771
|
|
|
|
03/14/13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James W. Thorne
|
|
|
11,718
|
|
|
|
|
|
|
|
|
|
|
|
9.8771
|
|
|
|
03/14/13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
All outstanding options held by the named executive officers
were subject to a vesting schedule at issuance and are now fully
vested. Each option expires on the tenth anniversary of its
grant date.
|
Option
Exercises And Stock Vested
The following table provides information regarding option awards
exercised by the named executive officers during Fiscal 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
|
|
|
|
Number
|
|
|
|
|
Number
|
|
|
|
of
|
|
|
|
|
of Shares
|
|
|
|
Shares
|
|
Value
|
|
|
Acquired
|
|
|
|
Acquired
|
|
Realized
|
|
|
on
|
|
Value Realized on
|
|
on
|
|
on
|
|
|
Exercise
|
|
Exercise
|
|
Vesting
|
|
Vesting
|
Name
|
|
(#)
|
|
($)
|
|
(#)
|
|
($)
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
R. Neal Black
|
|
|
56,279
|
|
|
$
|
2,119,653
|
(1)
|
|
|
|
|
|
|
|
|
David E. Ullman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert B. Hensley
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James W. Thorne
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Of the 56,279 shares of common stock acquired by
Mr. Black upon exercise of his options, Mr. Black sold
13,311 shares. As to these 13,311 shares, the dollar
amount realized upon exercise has been determined as the
difference between the market price of the shares sold (based on
the actual sale prices per share obtained by Mr. Black) and
the exercise price of the options. As to the 42,968 shares
that Mr. Black did not sell, the dollar amount realized
upon exercise has been determined as the difference between the
market price of the shares at exercise (based on the closing
price on the date of exercise) and the exercise price of the
options.
|
26
Pension
Benefits
The Pension Benefits table is omitted as the Company does not
offer pension benefits to the named executive officers.
Nonqualified
Deferred Compensation
The following table shows the nonqualified deferred compensation
benefits for each named executive officer during Fiscal 2009
under the Fidelity Deferred Compensation Plan. Mr. Merry
and Mr. Thorne did not elect to defer compensation under
the Fidelity Deferred Compensation Plan for Fiscal 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate
|
|
|
Executive
|
|
Registrant
|
|
Aggregate
|
|
Aggregate
|
|
Balance
|
|
|
Contributions
|
|
Contributions
|
|
Earnings/(Losses)
|
|
Withdrawals/
|
|
at Last
|
|
|
in Last FY
|
|
in Last FY
|
|
in Last FY
|
|
Distributions
|
|
FYE
|
Name
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
(a)
|
|
(b)
|
|
(c)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
R. Neal Black
|
|
|
34,615
|
|
|
|
|
|
|
|
145,962
|
|
|
|
|
|
|
|
614,482
|
|
David E. Ullman
|
|
|
35,212
|
|
|
|
|
|
|
|
38,218
|
|
|
|
|
|
|
|
160,341
|
|
Robert B. Hensley
|
|
|
33,375
|
|
|
|
|
|
|
|
67,527
|
|
|
|
|
|
|
|
306,769
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
James W. Thorne
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The amounts reported in column (d) above represent the
aggregate earnings (which include interest, dividends and
dividend equivalents) on each named executive officers
investment in the applicable named executive officers
selected funds. Pursuant to SEC regulations, all earnings on
nonqualified deferred compensation in excess of 120% of the AFR
are deemed above market earnings.
Potential
Payments on Termination or Change in Control
The table below contains information concerning potential
payments on termination or change in control which may be due
under the respective employment agreements with our named
executive officers based on the assumption that the event
triggering such payments had taken place on the last day of
Fiscal 2009. Non-equity incentive compensation earned by our
named executive officers for Fiscal 2009 (award payments under
the 2009 Cash Incentive Program and discretionary bonuses) was
actually paid in April 2010. If the employment agreements had
terminated on January 30, 2010 (the last day of Fiscal
2009), which they did not, the award payments under the 2009
Cash Incentive Program (but not the discretionary bonuses) would
still have been paid in April 2010. The 2009 non-equity
incentive compensation would not have been paid twice. Columns
(b) through (f) each represent a different
circumstance under which payments may potentially be due
pursuant to the employment agreements. The Total in
any one column for any one named executive officer
27
represents that officers maximum potential payment under
the applicable circumstance. The Totals are
independent of one another and not cumulative for any one named
executive officer.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination
|
|
|
|
|
|
|
|
|
|
Termination
|
|
|
|
|
|
by Executive
|
|
|
|
|
|
|
|
|
|
without
|
|
|
|
|
|
without Good
|
|
|
|
|
|
|
|
|
|
Cause by
|
|
|
|
|
|
Reason or as a
|
|
|
|
|
|
Termination
|
|
|
|
Company or
|
|
|
|
|
|
Result of the
|
|
|
Expiration
|
|
|
within 90
|
|
|
|
for Good
|
|
|
Termination
|
|
|
Death or
|
|
|
at the
|
|
|
Days of a
|
|
|
|
Reason by
|
|
|
by Company
|
|
|
Disability of
|
|
|
Election of
|
|
|
Change in
|
|
|
|
Executive
|
|
|
for Cause
|
|
|
Executive
|
|
|
Company
|
|
|
Control
|
|
Name
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
(a)
|
|
(b)
|
|
|
(c)
|
|
|
(d)
|
|
|
(e)
|
|
|
(f)
|
|
|
R. Neal Black
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination Payment
|
|
|
1,500,000
|
|
|
|
|
|
|
|
|
|
|
|
750,000
|
|
|
|
1,500,000
|
|
2009 Non-Equity Incentive Compensation
|
|
|
1,500,000
|
|
|
|
1,500,000
|
|
|
|
1,500,000
|
|
|
|
1,500,000
|
|
|
|
1,500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
3,000,000
|
|
|
|
1,500,000
|
|
|
|
1,500,000
|
|
|
|
2,250,000
|
|
|
|
3,000,000
|
|
David E. Ullman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
675,000
|
|
|
|
|
|
|
|
|
|
|
|
675,000
|
|
|
|
|
|
2009 Non-Equity Incentive Compensation
|
|
|
292,500
|
|
|
|
292,500
|
|
|
|
292,500
|
|
|
|
292,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
967,500
|
|
|
|
292,500
|
|
|
|
292,500
|
|
|
|
967,500
|
|
|
|
|
|
Robert B. Hensley
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
475,000
|
|
|
|
|
|
|
|
|
|
|
|
475,000
|
|
|
|
|
|
2009 Non-Equity Incentive Compensation
|
|
|
308,750
|
|
|
|
308,750
|
|
|
|
308,750
|
|
|
|
308,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
783,750
|
|
|
|
308,750
|
|
|
|
308,750
|
|
|
|
783,750
|
|
|
|
|
|
Gary M. Merry
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
355,000
|
|
|
|
|
|
|
|
|
|
|
|
355,000
|
|
|
|
|
|
2009 Non-Equity Incentive Compensation
|
|
|
230,750
|
|
|
|
230,750
|
|
|
|
230,750
|
|
|
|
230,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
585,750
|
|
|
|
230,750
|
|
|
|
230,750
|
|
|
|
585,750
|
|
|
|
|
|
James W. Thorne
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
|
|
|
350,000
|
|
|
|
|
|
|
|
|
|
|
|
350,000
|
|
|
|
|
|
2009 Non-Equity Incentive Compensation
|
|
|
227,500
|
|
|
|
227,500
|
|
|
|
227,500
|
|
|
|
227,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
577,500
|
|
|
|
227,500
|
|
|
|
227,500
|
|
|
|
577,500
|
|
|
|
|
|
Notes
to Potential Payments on Termination or Change in Control
Table
Termination
without Cause by Company or for Good Reason by Executive (Column
(b))
Under the terms of the respective employment agreements with our
named executive officers, if the employment period is terminated
by the Company without cause (as defined below) or
by the executive for good reason (as defined below),
the Company will be obligated to make a termination payment, in
addition to paying the executives base salary through the
date of termination. For Mr. Black, the termination payment
is an
agreed-upon
amount payable in one lump sum. For Messrs. Ullman,
Hensley, Merry and Thorne the termination payment is based on
the named executive officers base salary in effect as of
the last day of Fiscal 2009 and is payable in equal weekly
installments over the term corresponding to the amount due.
Mr. Ullman is entitled to 18 months of salary.
Messrs. Hensley, Merry and Thorne are entitled to
12 months of salary. A named executive officer whose
employment period is terminated by the Company without cause or
by the executive for good reason will also receive any
non-equity incentive compensation which may have been earned
through the date of termination.
Without limiting the terms and conditions of the respective
employment agreements between our named executive officers and
the Company, the term cause, as used in the
employment agreements, generally means with respect to each
named executive officer (a) the conviction of a felony
involving money or other property
28
of the Company or any other felony or offense involving moral
turpitude; (b) the willful commission of an act not
approved of or ratified on behalf of the Company involving a
material conflict of interest or self-dealing relating to any
material aspect of the Companys business or affairs;
(c) the willful commission of any act of fraud or
misrepresentation related to the business of the Company which
would materially and negatively impact upon the Company; or
(d) the willful and material failure to comply with the
lawful orders of the Company, provided such orders are
consistent with the duties, responsibilities
and/or
authority of his office.
Without limiting the terms and conditions of the respective
employment agreements between our named executive officers and
the Company, the term good reason, as used in the
employment agreements, generally means any material breach by
the Company of any provision of the employment agreement which
is not cured within 30 days after notice. However, no
notice is required for the Companys failure to pay timely
(or any reduction in) compensation or benefits paid or payable
to the named executive officer pursuant to the employment
agreement.
Termination
by Company for Cause (Column (c))
Under the terms of the respective employment agreements between
our named executive officers and the Company, if the employment
period is terminated by the Company for cause, the named
executive officer will be paid his base salary through the date
of termination and any non-equity incentive compensation earned
through the date of termination, but is not entitled to any
other payments.
Termination
by Executive without Good Reason or as a Result of the Death or
Disability of Executive (Column (d))
Under the terms of the respective employment agreements between
our named executive officers and the Company, if the employment
period is terminated by the named executive officer without good
reason or as a result of his death or disability, the named
executive officer will be paid his base salary through the date
of termination and any non-equity incentive compensation earned
through the date of termination, but is not entitled to any
other payments.
Expiration
at the Election of Company (Column (e))
Under the terms of the respective employment agreements between
our named executive officers and the Company, in the event the
Company elects not to renew the employment agreement or to
otherwise extend employment on the then current terms for an
additional year, the named executive officer will be entitled to
severance payments. Mr. Black is entitled to receive a
single severance payment of $750,000. Mr. Ullman is
entitled to severance equal to 18 months of base salary and
Messrs. Hensley, Merry and Thorne are entitled to severance
equal to 12 months of base salary, in each case payable in
equal, weekly installments over the term corresponding to the
amount due. A named executive officer whose employment agreement
is not being renewed by the Company will also receive any
non-equity incentive compensation which may have been earned for
the year ending on the stated expiration date of the employment
period.
Termination
within 90 Days of a Change in Control (Column (f))
Mr. Black may terminate his employment agreement with the
Company at any time within 90 days following a change
in control (as defined below) of the Company. In the event
of such termination, or if the Company terminates the employment
agreement for cause within 90 days following a change in
control, the Company will make the payments to Mr. Black as
set forth above. In the event the employment agreement for one
of the other named executive officers is terminated within
90 days of a change in control, the termination payment
would be calculated based upon the circumstances described in
the notes to columns (b), (c) or (d), as applicable. A
change in control does not affect the calculation of these
termination payments.
Without limiting the terms and conditions of the
Mr. Blacks employment agreement with the Company, the
term change of control, as used in the employment
agreement, generally means (a) the acquisition by any
person (as defined in the Exchange Act) of
beneficial ownership of 51% or more of the stock of the Company;
(b) the acquisition by any such person of
beneficial ownership of 30% or more of the stock of
29
the Company and a change in the majority of the Board; or
(c) the merger, consolidation or liquidation of the Company
or the sale or disposition of all or substantially all of the
assets of the Company.
Additional
Notes Regarding Potential Post-Employment Payments and
Obligation
Non-Equity
Incentive Compensation
The employment agreements use the word bonus to
refer to payments which are designated as non-equity
incentive compensation under SEC regulations and in this
Proxy Statement. The employment agreements generally provide
that in the event the employment period ends for any reason
whatsoever on a day prior to payment of any bonus the named
executive officer may have earned for the previous fiscal year,
the Company will pay such bonus to the named executive officer
as and when such bonus would otherwise have been paid had the
employment period not ended. The employment agreements also
generally provide that when and if bonuses are generally paid to
employees of the Company for the fiscal year in which the
termination occurs, the Company will pay to the named executive
officer a pro-rated bonus based on the number of days the named
executive officer was employed by the Company during such fiscal
year. For the purpose of determining eligibility for payment of
a pro-rata bonus, it is assumed that all conditions to payment
of the bonus which were based upon performance by the named
executive officer (e.g., a job performance rating of
Effective or better) were satisfied.
Non-compete
Covenants
Following the termination of an employment agreement, the
applicable named executive officer is generally subject to
non-compete covenants. The period of time during which such
covenants are in effect varies depending upon the circumstances
of termination. Generally, the non-competition term is six
months. If the named executive officer resigns without good
reason, the term is 12 months. If post-termination payments
are being made for longer than the otherwise applicable period,
the non-compete covenants will be effective while such payments
are being made. If the Company terminates Mr. Blacks
employment agreement for cause, the non-competition term is six
months. If the Company elects not to renew Mr. Blacks
employment agreement, the non-competition term is one year. If
the Company terminates Mr. Blacks employment
agreement without cause or Mr. Black terminates his
employment agreement for good reason or within 90 days
following a change in control, the non-competition term is two
years.
PROPOSALS REQUIRING
STOCKHOLDER APPROVAL
PROPOSAL ONE-ELECTION
OF DIRECTORS
The Board currently consists of eight members and is divided
into three classes. Each class holds office for a term of three
years. This years nominees for director, James H. Ferstl
and Sidney H. Ritman, (individually, a Director
Nominee and together, the Director Nominees)
are currently directors of the Company. Each Director Nominee
was nominated by our Nominating and Governance Committee for
re-election to the Board for a term of three years expiring at
the 2013 Annual Meeting of Stockholders or at such later time as
his successor is duly elected and qualified.
It is the current policy of the Nominating and Governance
Committee that no sitting director who has served for twenty
(20) or more years, or whose next term would be scheduled
to expire after he or she has served for twenty (20) or
more years, shall be nominated by the Committee to stand for
re-election. Gary S. Gladstein, a current director whose term
expires at the Annual Meeting, has served as a director since
1990 and therefore, in accordance with this policy, has not been
nominated for re-election. Effective as of the Annual Meeting
and unless and until the Board takes further action, our Board
will consist of seven members. Our Amended and Restated
Certificate of Incorporation requires that our Board consist of
three classes, each of which is to include a number of directors
as equal as possible, with no class having more than one
director more than any other class. In order to comply with this
requirement, Mr. Ferstl (whose term as a director was
scheduled to expire in 2011) has been designated by the
Nominating and Governance Committee to stand for election this
year for a term expiring in 2013.
30
If either of the Director Nominees should become unavailable for
election at the time of the Annual Meeting, the shares
represented by the proxies solicited for the Annual Meeting will
be voted for such substitute nominee(s) as may be determined by
the Nominating and Governance Committee. The Board expects that
both of the Director Nominees will be able to serve as directors
if re-elected at the Annual Meeting. In the election of
directors, you may vote for the Director Nominees or you may
withhold authority with respect to either or both of the
Director Nominees. Unless a stockholder withholds authority on
the proxy card with respect to either or both of the Director
Nominees, the shares represented by the accompanying proxy will
be voted FOR the election of the Director Nominees.
The election of a director requires the affirmative vote of a
plurality of the shares of common stock present or represented
at the Annual Meeting and entitled to vote for the election of
directors.
Certain information concerning the Director Nominees and those
directors whose terms of office will continue following the
Annual Meeting is set forth below, including their specific
experience, qualifications and skills that led the Board to
conclude that each of those individuals should continue to serve
as a director.
Recommendation
of the Board of Directors
The Board of Directors recommends that the stockholders vote
FOR the election of Mr. Ferstl and Mr. Ritman.
Director
Nominees Standing for Election for Terms Expiring in
2013
James
H. Ferstl
James H. Ferstl has served as one of our directors since
September 2008. Since its founding in 1999, Mr. Ferstl has
been the principal of J&M Enterprises, a retail consulting,
commercial real estate and personal financial investment firm.
From 1965 to 1999, Mr. Ferstl was employed in various
capacities in the retail industry including, from 1995 to 1999,
as Executive Vice President, Chief Merchandising Officer and
Board member of Venture Stores, Inc., a publicly traded family
value retailer; from 1987 to 1995 Corporate Vice
President-General Merchandise Manager (Home and Hard lines) for
Gottschalks Department Stores, a regional department store
headquartered in Fresno, California; from 1984 to 1987, as
Senior Vice President and General Manager for Platt Electronics
Corp., a consumer electronics business based in Torrance,
California, with responsibility for its 140 store West coast
region; from 1981 to 1984, as Executive Vice President for
Merchandising and Stores Operation and Chief Merchandising
Officer for Broadway Southwest Department Stores, a division of
Carter Hawley Hale Stores Inc. based in Phoenix, Arizona; and
from 1965 to 1981, as Regional Vice President for Stores for
Sanger Harris Department Stores of Dallas, Texas, a Division of
Federated Department Stores Inc.
The Board concluded that Mr. Ferstl should continue to
serve as a director in part due to his extensive career in
retail, which brings to the Board significant industry knowledge
and experience in merchandising, marketing and sales.
Sidney
H. Ritman
Sidney H. Ritman has served as one of our directors since July
2005 and is chairman of our Compensation Committee.
Mr. Ritman is the founder, owner and operator of Toni
Industries, Inc., an importer and seller of womens
clothing. Mr. Ritman was the founder, and from December
2007 through November 2009 the owner and operator, of Giorgio
San Angelo, LLC, an importer and seller of womens
clothing. Mr. Ritman has an extensive background in
international sourcing for U.S. and European apparel
retailers, including fifteen years in residence in Hong Kong as
the Managing Director of Armstrong Industries, Ltd., a sourcing
agent which had offices in seven countries. In 1987,
Mr. Ritman organized the sale of Armstrong to Colby Staton
Ltd., a Hong Kong-based sourcing company, for which
Mr. Ritman served as a consultant and director until 1997.
Mr. Ritman is a former trustee of Rollins College, Winter
Park, Florida and The Brunswick School, Greenwich, Connecticut.
Mr. Ritman is a former United States Marine Corps officer,
having served on active duty and in the Marine Corps Reserve for
nine years.
31
The Board concluded that Mr. Ritman should continue to
serve as a director in part due to his extensive career in
apparel retailing and sourcing, which brings to the Board
significant experience in these areas.
Directors
Whose Terms Expire in 2011
R.
Neal Black
R. Neal Black has served as one of our directors and as our
Chief Executive Officer since December 2008. Mr. Black has
been our President since April 2007. He joined the Company in
January 2000 and served as Executive Vice
President-Merchandising and Marketing from January 2000 to April
2007. In addition, Mr. Black was our Chief Merchandising
Officer from January 2000 to December 2008. Mr. Black has
spent his entire professional career in the retail industry
including: from 1998 to 2000, with McRaes department
stores, a division of Saks Incorporated, as Senior Vice
President/General Merchandise Manager; from 1995 to 1998, with
Venture Stores, Inc., a publicly traded family value retailer,
ending as Senior Vice President of Product Development and
General Merchandise Manager; from 1992 to 1995, with Gottschalks
Department Stores, a regional department store headquartered in
Fresno, California, ending as Vice President/General Merchandise
Manager; from 1983 to 1992, with Design Linens, Inc., a
privately-owned specialty retail chain headquartered in
Portland, Oregon, ending as President; and from 1976 to 1983,
with Meier & Frank, a division of May Department
Stores, ending as a Buyer.
The Board concluded that Mr. Black should continue to serve
as a director in part due to his extensive career in retail. As
our CEO, Mr. Black brings to the Board significant industry
knowledge, senior leadership and expertise in merchandising,
marketing, sales and finance.
Robert
N. Wildrick
Robert N. Wildrick has served as one of our directors since 1994
and is chairman of our Executive Committee. He has served as our
Chairman of the Board since December 2008. From November 1999 to
December 2008, Mr. Wildrick was our Chief Executive
Officer. In addition, he was our President from December 1999 to
April 2007 and our Executive Chairman from April 2007 to
December 2008. Mr. Wildrick is a member of the Town Council
of Palm Beach, Florida and Chairman of its Finance and Taxation
Committee and its Public Safety Committee. Mr. Wildrick has
been a member of the Board of Directors of Checkpoint Systems,
Inc. (NYSE: CKP), a leading manufacturer of retail shrink
management solutions, since December 2008. Mr. Wildrick was
Director, President and Chief Executive Officer of Venture
Stores, Inc., a publicly traded family value retailer, from
April 1995 to May 1998 and was Chairman of its board of
directors from January 1996 to May 1998. From 1976 to April
1995, Mr. Wildrick was employed by Belk Stores Services, a
retailing company, in various capacities, including Corporate
Executive Vice President for Merchandise and Sales Promotion,
Chief Merchandising Officer, Senior Vice President (Corporate)
and General Manager. Mr. Wildricks former
directorships include Goodwill Industries, The Pride of
Baltimore, Johns Hopkins Childrens Hospital Advisory
Board, The Cystic Fibrosis Foundation and the Boy Scouts of
America where he was a Director in New York and Charlotte, North
Carolina. He has been a sponsor and fundraiser for the American
Heart Association, various Police Associations and the Boy
Scouts where he helped fund scout camps for children with
disabilities.
The Board concluded that Mr. Wildrick should continue to
serve as a director in part due to his extensive knowledge of
the Company having been a director since 1994, which brings to
the Board historic knowledge and continuity. In addition, as a
result of his extensive career in retail and as our former CEO,
Mr. Wildrick brings to the Board significant industry
knowledge and expertise in merchandising, marketing, sales and
finance.
Directors
Whose Terms Expire in 2012
Andrew
A. Giordano
Andrew A. Giordano has served as one of our directors since 1994
and is chairman of our Nominating and Governance Committee. He
served as our interim Chief Executive Officer from May 1999 to
October
32
1999. Mr. Giordano also served as Chairman of the Board
from May 1999 to December 2008, at which time he became Chairman
Emeritus. Mr. Giordano continues to serve as Lead
Independent Director, a position he assumed in November 1999.
Mr. Giordano has been the principal of The Giordano Group,
Limited, a diversified consulting firm, since its founding in
February 1993. He also serves as Chairman of the Compensation
Committee of Dale Carnegie, a privately owned provider of
personal advancement training, where he has been a Director
since 2001. Since January 2009, Mr. Giordano has been a
director of Hurd Windows and Doors of Wausau, Wisconsin, a
privately owned manufacturer and retailer. Mr. Giordano
retired from his position as CEO, Naval Supply Systems Command
and Chief, Navy Supply Corps with the rank of Rear Admiral. He
is a former director of the Navy, Marine Corps Residence
Foundation, the Navy Memorial Foundation and the Navy Federal
Credit Union.
The Board concluded that Mr. Giordano should continue to
serve as a director in part due to his extensive knowledge of
the Company having been a director since 1994, which brings to
the Board historic knowledge and continuity. In addition, his
substantial leadership and organizational skills provide
valuable perspective on the complex operations of a
multi-location, multi-channel retailer such as the Company.
William
E. Herron
William E. Herron has served as one of our directors since April
2005 and is chairman of our Audit Committee. Since January 2002,
Mr. Herron has been self-employed as a strategic consultant
to companies seeking to initiate business with the federal
government. From 1982 through December 2001, Mr. Herron was
a partner in Arthur Andersen, having served in its Accounting
and Audit practice from 1982 until 1994 and in its Business
Consulting practice from 1995 until 2001. Among his other duties
with Arthur Andersen, Mr. Herron was the Managing Partner
of the firms Office of Government Services.
Mr. Herron was a licensed CPA for over 30 years and is
a current member of the American Institute of Certified Public
Accountants and Pennsylvania Institute of Certified Public
Accountants. He has served on the boards of directors of several
privately held companies including as chair of an audit
committee. He has been active for over 30 years on boards
of civic and charitable institutions. Mr. Herron is a
retired Rear Admiral from the U.S. Naval Reserve.
The Board concluded that Mr. Herron should continue to
serve as a director in part due to his extensive career in
public accounting, which brings to the Board significant
auditing and accounting experience.
Henry
Homes, III
Henry Homes, III, has served as one of our directors since
September 2008. Since 1986, Mr. Homes has been the
president and chief executive officer of Homesco, Inc., a
general business consulting firm with emphasis on logistics and
commercial relocation companies. From 1989 through March 2008,
Mr. Homes was the chief executive officer of Maryland
Office Relocators, a regional relocation and logistics company
operating in the Mid-Atlantic region of the United States.
Mr. Homes served as president of the Ruxton, Riderwood,
Lake Roland Improvement Association from 2000 through 2002 and
has served on multiple civic and charitable boards and
committees.
The Board concluded that Mr. Homes should continue to serve
as a director in part due to his extensive career in logistics,
which brings to the Board significant experience in this area.
PROPOSAL TWO-RATIFICATION
OF REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee appointed Deloitte & Touche LLP
(Deloitte) to serve as our independent registered
public accounting firm for Fiscal 2010. The affirmative vote of
a majority of the votes cast at the Annual Meeting on
Proposal Two, either in person or by proxy, and entitled to
vote is required to ratify the selection of Deloitte. Deloitte
has served as the Companys independent registered public
accounting firm since 2004. One or more representatives of
Deloitte are expected to be present at the Annual Meeting and
will be available to respond to appropriate questions from
stockholders and to make such statements as they may desire.
33
In the event the stockholders fail to ratify the appointment of
Deloitte, the Audit Committee may reconsider its selection. Even
if the selection is ratified, the Audit Committee in its
discretion may direct the appointment of a different registered
public accounting firm at any time during the year if the Audit
Committee believes that such a change would be in our best
interests and in the best interests of our stockholders.
Recommendation
of the Board of Directors
The Board of Directors recommends that the stockholders vote
FOR the ratification of the selection of Deloitte &
Touche LLP to serve as our registered public accounting firm for
Fiscal 2010.
Audit
and Non-Audit Fees
The fees for services rendered by Deloitte and its affiliates to
the Company for Fiscal 2008 and Fiscal 2009 were as follows:
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Fiscal 2008
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Fiscal 2009
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Type of Fee
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|
($)
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|
($)
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Audit Fees(1)
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880,000
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843,500
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Audit-Related Fees(2)
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38,000
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50,100
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Tax Fees(3)
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57,500
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122,800
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All Other Fees(4)
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2,000
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2,000
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Total Fees
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977,500
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1,018,400
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(1)
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Audit fees represent the aggregate fees for the stated fiscal
year for professional services rendered for the audit of the
Companys annual financial statements and the audit of the
Companys internal control over financial reporting as
required by Section 404 of the Sarbanes-Oxley Act, review
of financial statements included in the Companys Quarterly
Reports on
Form 10-Q
and services that are normally provided by the accountant in
connection with certain statutory and regulatory filings or
engagements.
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(2)
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Audit-related fees represent the aggregate fees for a limited
scope audit for one retirement plan in each of Fiscal 2009 and
Fiscal 2008 and fees for consents in franchise offerings in
Fiscal 2009.
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(3)
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Tax fees represent the aggregate fees for the stated fiscal year
for tax compliance, tax advice and tax planning.
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(4)
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All other fees include the aggregate fees for the stated fiscal
year for products and services provided by the principal
accountant other than the services reported above. All other
fees for Fiscal 2008 and Fiscal 2009 are subscription fees for
access to Deloittes on-line research database.
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Pre-approval
Policies and Procedures
The Audit Committee pre-approves all auditing services and
permitted non-audit services to be performed for the Company by
its registered public accounting firm, subject to the
de
minimis
exceptions for non-audit services described in
Section 10A(i)(1)(B) of the Exchange Act. The Audit
Committee approved all such services prior to the auditors
engagement for such services during Fiscal 2009 and Fiscal 2008.
Audit
Committee Report
The Audit Committee oversees the responsibilities of the Board
relating to: (a) the integrity of our financial statements;
(b) the qualifications and independence of our registered
public accounting firm; (c) the performance of our internal
audit functions and our registered public accounting firm;
(d) the adequacy of our systems of internal accounting and
financial controls; and (e) our compliance with ethics
policies and legal and regulatory requirements.
Deloitte was the principal accountant engaged to audit the
financial statements of the Company for Fiscal 2009. The Audit
Committee has reviewed and discussed those audited financial
statements with the Companys
34
management and Deloitte. The Audit Committee has also discussed
with Deloitte the matters required to be discussed by Statement
on Auditing Standards No. 114, as amended, as adopted by
the Public Company Accounting Oversight Board (the
PCAOB).
The Audit Committee has received the written disclosures and the
letter from Deloitte required by applicable requirements of the
PCAOB regarding Deloittes communications with the Audit
Committee concerning Deloittes independence, and the Audit
Committee has discussed with Deloitte the independence of
Deloitte from Jos. A. Bank.
Based on the foregoing review and discussions, the Audit
Committee recommended to the Board that the Companys
audited financial statements be included in the Companys
Annual Report on
Form 10-K
for Fiscal 2009 for filing with the SEC.
Respectfully submitted, Audit Committee:
William E. Herron (Chairman)
Andrew A. Giordano
Gary S. Gladstein
PROPOSAL THREE-APPROVAL
OF THE JOS. A. BANK CLOTHIERS, INC. 2010 EQUITY INCENTIVE
PLAN
In March 2010, our Board adopted, subject to stockholder
approval, the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive
Plan, which we also refer to as the Equity Incentive
Plan. We are requesting that our stockholders approve the
Equity Incentive Plan.
The principal purposes of Equity Incentive Plan are to promote
the interests of the Company and our stockholders by providing
our employees, directors and consultants with appropriate
incentives and rewards to encourage them to enter into and
continue in the employ or service of the Company or its
subsidiaries, to acquire a proprietary interest in the long-term
success of the Company and to reward the performance of
individuals in fulfilling their personal responsibilities for
long-range and annual achievements. Since there are no shares
currently available for issuance under our previously approved
equity incentive plans, our current executive compensation
program consists almost exclusively of cash payments in the form
of base salary and non-equity incentive compensation.
In addition, the Equity Incentive Plan is designed to permit the
grant of performance-based awards in compliance with the
requirements of Section 162(m) of the Internal Revenue Code
(the Code), thereby preserving the Companys
ability to receive federal income tax deductions for those
awards to the extent that they in fact comply with that Code
section.
The Equity Incentive Plan reserves up to 1,000,000 shares
of our common stock for issuance pursuant to awards to be
granted under this plan, which represents approximately 5.4% of
our issued and outstanding shares as of April 30, 2010. The
closing price of our common stock on The NASDAQ Global Select
Market on April 30, 2010 was $60.86.
The Board believes that approval of the Equity Incentive Plan is
in our stockholders best interests because it will allow
us to make equity-based awards which we believe will encourage
long-term value creation by aligning a meaningful amount of a
participants incentive compensation with the interests of
our stockholders. If approved by stockholders, the Equity
Incentive Plan will become effective when it is so approved.
Approval of the Equity Incentive Plan requires the affirmative
vote of a majority of the votes cast at the Annual Meeting on
this proposal, either in person or by proxy and entitled to
vote. Abstentions and broker non-votes will be counted towards a
quorum, but will not be counted for any purpose in determining
whether this proposal has been approved.
Approval of our Equity Incentive Plan will also constitute
approval of the plan for purposes of Section 162(m) of the
Code and of the performance goals in the Equity Incentive Plan.
35
Recommendation
of the Board of Directors
The Board of Directors recommends that the stockholders vote
FOR approval of the Jos. A. Bank Clothiers, Inc. 2010 Equity
Incentive Plan, which will also constitute approval of this plan
for purposes of Section 162(m) of the Code and of the
performance goals in the Equity Incentive Plan that may be
applied to awards thereunder.
Summary
Description of the Equity Incentive Plan
The material terms of the Equity Incentive Plan are summarized
below. This summary, however, does not purport to be a complete
description of the Equity Incentive Plan, a copy of which has
been included as the Appendix to this Proxy Statement. The
following summary is qualified in its entirety by reference to
the complete text of the Equity Incentive Plan.
Administration;
Term
The Equity Incentive Plan will be administered by the
Compensation Committee, unless otherwise determined by our
Board. Each member of the Compensation Committee is an
independent director (within the meaning of the
Nasdaq Rules), a non-employee director (within the
meaning of
Rule 16b-3
promulgated under Section 16 of the Exchange Act) and an
outside director (within the meaning of
Section 162(m) of the Code). All questions of
interpretation are determined by the Compensation Committee and
its decisions are final and binding on all participants as well
as on the Company and its stockholders.
Unless earlier terminated by the Board, the Equity Incentive
Plan will expire on the tenth anniversary of the date it is
approved by our stockholders. The expiration of the Equity
Incentive Plan will not affect adversely any of the rights of
any participant, without the participants consent, under
any award previously granted.
Participation
Employees, directors and consultants of the Company and its
subsidiaries are eligible to participate in the Equity Incentive
Plan. While under applicable tax law we may grant incentive
stock options only to employees, we may grant non-qualified
stock options, restricted stock units, restricted stock, stock
appreciation rights and other stock- or cash-based awards to any
eligible participant. As of April 30, 2010, the individuals
who are eligible to participate in the Equity Incentive Plan are
our approximately 4,300 employees and seven Non-Employee
Directors. The Company anticipates that only our five named
executive officers (Messrs. Black, Ullman, Hensley, Merry
and Thorne) and six of our Non-Employee Directors
(Messrs. Ferstl, Giordano, Herron, Homes, Ritman and
Wildrick) will receive grants under the Equity Incentive Plan in
Fiscal 2010.
Authorized
Awards
The Equity Incentive Plan authorizes our Compensation Committee
to grant the following types of awards:
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restricted stock units;
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restricted stock;
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stock options (including options intended to be incentive
stock options within the meaning of Section 422 of
the Code);
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stock appreciation rights; and
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other stock- or cash-based awards, which may include
performance-based awards intended to comply with the
requirements of Section 162(m) of the Code.
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36
Restricted
Stock Units
Restricted stock units are units evidencing the right to receive
shares of our common stock or cash at the end of a specified
period of time based upon the passage of any stated vesting
period
and/or
the
attainment of one or more Performance Goals (as defined below)
(if intended to be performance-based compensation under
Section 162(m) of the Code). Restricted stock units will be
subject to such restrictions on transferability and vesting and
on such other terms and subject to such other restrictions as
the Compensation Committee may determine. Restricted stock units
do not confer the rights of a stockholder until the restricted
stock unit vests and is settled in shares of common stock.
However, the terms of a particular restricted stock unit award
may confer the right to receive dividend equivalents. Dividend
equivalents are rights to receive additional shares of common
stock equal in value to the amount of dividends or other
distributions paid on the shares of common stock subject to the
restricted stock units prior to the settlement of the award. No
payments will be made in respect of dividend equivalents on
restricted stock units that do not ultimately vest. Dividend
equivalents will be treated and paid in the identical manner and
time as the underlying award with respect to those dividend
equivalents which have been credited. If so permitted under the
terms of an award, receipt of the shares of common stock
underlying the restricted stock unit may be deferred in
accordance with the terms of the Companys 2010 Deferred
Compensation Plan, and in accordance with Section 409A of
the Code. For a description of the Companys 2010 Deferred
Compensation Plan, see Other Employee Benefits and
Non-Cash Compensation in the Compensation Discussion and
Analysis section of this Proxy Statement.
Restricted
Stock
Restricted stock awards consist of a grant of shares of
restricted common stock. Except to the extent restricted under
the applicable award agreement, a holder of restricted stock
will have all of the rights of a stockholder including, without
limitation, the right to vote restricted stock and the right to
receive dividends thereon. Restricted stock will be subject to
such restrictions on transferability and vesting and on such
other terms and subject to such other restrictions as the
Compensation Committee may determine.
Stock
Options
Stock options entitle the holder to purchase shares of common
stock during a specified period at the purchase price specified
by the Compensation Committee (which will not be less than 100%
of the fair market value of the common stock on the day the
option is granted). Options will be exercisable during the
exercise period specified in the option award agreement (which
will not exceed ten years from the date of grant), at such times
and upon such conditions as the Compensation Committee may
determine, as reflected in the award agreement. The exercise
price for common stock subject to an option may be paid in cash
or by an exchange of common stock previously owned by the
grantee (subject to such conditions as may be imposed by the
Compensation Committee), through a broker cashless
exercise procedure approved by the Compensation Committee,
a combination of the above, or by any other method approved by
the Compensation Committee. Options may be subject to such other
conditions including, but not limited to, restrictions on
transferability of the shares acquired upon exercise of options,
as the Compensation Committee may prescribe in its discretion or
as may be required by applicable law.
Stock
Appreciation Rights
Stock appreciation rights give the holder the right to receive,
with respect to each share of common stock subject thereto, the
excess, if any, of the fair market value per share on the date
of exercise over the fair market value per share on the grant
date. Stock appreciation rights may be granted independently or
in tandem with stock options. A stock appreciation right granted
in tandem with an option will be exercisable only to the extent
the underlying option is exercisable. Payment of a stock
appreciation right may be made in cash, common stock or a
combination of the two, as determined by the Compensation
Committee and specified in the award agreement.
37
Other
Stock- or Cash-based Awards
The Compensation Committee is authorized to grant awards in the
form of other stock-based awards or other cash-based awards, as
deemed by the Compensation Committee to be consistent with the
purposes of the Equity Incentive Plan. Other stock- or
cash-based awards may be granted with value and payment
contingent upon the attainment of the Performance Goals or
otherwise. The Compensation Committee will determine the terms
and conditions of those awards at the date of grant or
thereafter.
Performance
Goals for Section 162(m) Purposes and Related
Matters
Awards under our Equity Incentive Plan may be made subject to
the attainment of performance goals in order to qualify as
performance-based compensation for purposes of
Section 162(m) of the Code. The Equity Incentive Plan sets
forth the following business criteria (referred to herein as the
Performance Goals), at least one of which must be
selected by the Compensation Committee as a basis (or the basis)
for determining an award in order for it to qualify as
performance-based compensation under Section 162(m) of the
Code:
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Net income;
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Earnings before or after deduction for all or any portion of
interest, taxes, depreciation or amortization, whether on an
aggregate or per share basis;
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Increase in the trading price of the Companys stock above
the trading price at the time the criteria are established;
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Total stockholder return;
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Working capital;
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Sales;
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Expense and cost reductions or improvement in or attainment of
expense levels;
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Return ratios based on equity, investment, capital employed
and/or
assets;
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Inventory levels, turns or aging;
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Operating ratios based on margin, income
and/or
net
income;
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Market share;
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Cash flow or operating cash flow;
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The increase, decrease or ending balance of any item on the
Companys consolidated balance sheets; and/or
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Any combination of the foregoing, including as compared to an
index of one or more peer group companies selected by the
Compensation Committee.
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Performance Goals will include a threshold level of performance
below which no award will be earned and may include a level of
performance at which the target amount of an award will be
earned
and/or
a
level of performance at which the maximum amount of the award
will be earned. To the extent consistent with
Section 162(m) of the Code and regulations issued
thereunder, the Compensation Committee will have the authority
to make equitable adjustments to the Performance Goals in
recognition of: (a) changes in law or accounting principles
that become effective during the performance period;
(b) extraordinary, unusual or infrequently occurring
events; (c) the disposition of a business or significant
assets; (d) gains or losses from all or certain claims
and/or
litigation and insurance recoveries; (e) the impact of
impairment of intangible assets; (f) restructuring
activities; (g) the impact of investments or acquisitions;
and/or
(h) changes in corporate capitalization such as stock
splits and certain reorganizations.
For the purposes of Section 162(m) of the Code, no later
than ninety (90) days after the commencement of each
performance period (or the date on which 25% of the performance
period has elapsed, if earlier), the Compensation Committee must
(a) select the Performance Goals applicable to a particular
award and
38
(b) establish the award targets at a time when the
performance relative to such targets is substantially uncertain
to be achieved. Payments earned may be decreased, but not
increased, in the sole discretion of the Compensation Committee
based on individual performance and such other factors as the
Compensation Committee deems appropriate under the
circumstances. No payment will be made to a participant prior to
the certification by the Compensation Committee of the extent to
which the selected Performance Goals have been attained (if such
award is intended to be performance-based compensation).
The Equity Incentive Plan provides that awards made under the
Management Incentive Plan, which also provides for the payment
of awards that meet the requirements for performance-based
compensation under Section 162(m) of the Code, may be
settled with shares of common stock drawn from the shares
reserved for issuance under the Equity Incentive Plan. For a
description of the Management Incentive Plan, see
Non-Equity Incentive Compensation in the
Compensation Discussion and Analysis section of this Proxy
Statement.
No
Repricing of Stock Options or Stock Appreciation
Rights
Except in connection with a corporate transaction involving the
Company (including, without limitation, in connection with any
stock dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation,
split-up,
spin-off, combination, or exchange of shares), the terms of
outstanding awards may not be amended to reduce the exercise
price of outstanding options or stock appreciation rights or
cancel outstanding options or stock appreciation rights in
exchange for cash, other awards or options or stock appreciation
rights with an exercise price that is less than the exercise
price of the original options or stock appreciation rights,
without prior approval of the Companys stockholders.
Non-Employee
Director Awards
If the Companys stockholders approve the Equity Incentive
Plan, it is the Companys intention to award to each
Non-Employee Director holding office on June 17, 2010
following the Annual Meeting a one-time grant of 1,000
restricted stock units and the first annual grant of 1,500
restricted stock units. In addition, the Equity Incentive Plan
provides for certain automatic awards to Non-Employee Directors.
Therefore, if the Companys stockholders approve the Equity
Incentive Plan and unless the Compensation Committee determines
in its discretion to make a lesser award or no award,
(a) on June 1, 2011 and each June 1 thereafter (or the
next business day thereafter if June 1 is not a business day),
each person then serving as a Non-Employee Director shall
receive an annual award of 1,500 restricted stock units and
(b) any person who first becomes a Non-Employee Director
after June 17, 2010, shall receive upon his or her election
to the Board an inaugural award of 1,000 restricted stock units
on such date. All such restricted stock units will vest
approximately (but not less than) twelve months following the
date of grant. If a Non-Employee Director ceases to serve as a
director of the Company for any reason, such Non-Employee
Directors restricted stock units will terminate to the
extent that the vesting thereof has not been accelerated, and
such former Non-Employee Director shall have no rights with
respect to, or in respect of, such terminated restricted stock
units.
The receipt of shares issuable upon vesting of the restricted
stock units to be granted to our Non-Employee Directors may be
deferred under our 2010 Deferred Compensation Plan. Non-Employee
Directors are expected to defer the receipt of such shares or to
hold such shares at least until the director has satisfied his
stock ownership requirement under the Companys Director
and Executive Officer Stock Ownership Guidelines. See
Stock Ownership Guidelines in the Overview of our
Corporate Governance Practices section of this Proxy Statement
for additional information on these guidelines.
Shares Reserved
for Issuance under the Equity Incentive Plan
We have reserved a total of 1,000,000 shares of common
stock for issuance under the Equity Incentive Plan. Awards made
under the Management Incentive Plan, to the extent settled in
shares of common stock, may be drawn from the shares reserved
for issuance under the Equity Incentive Plan and will count
against the total authorized shares reserved under the Equity
Incentive Plan. The Equity Incentive Plan imposes a
39
100,000 share limitation on the aggregate number of
restricted stock units and restricted stock awards that may be
granted with time-based vesting periods shorter than three years.
Shares subject to awards granted under the Equity Incentive Plan
or awards under the Management Incentive Plan that are to be
settled in shares of common stock will be counted against those
reserved to the extent those shares have been delivered and are
no longer subject to a risk of forfeiture. Subject to the
following sentence, if any shares subject to an award are
forfeited, cancelled, exchanged or surrendered or if an award
terminates or expires without a distribution of shares to the
grantee, the shares of common stock with respect to that award
will, to the extent of any such forfeiture, cancellation,
exchange, surrender, termination or expiration, again be
available for awards under the Equity Incentive Plan or the
Management Incentive Plan. However, the following shares will
not be available for future grant or added to the aggregate
Equity Incentive Plan limits specified in the preceding
paragraph: (a) shares tendered in payment of the exercise
price of a stock option, (b) shares withheld by the Company
or otherwise received by the Company to satisfy tax withholding
obligations, and (c) shares of common stock repurchased by
the Company with proceeds from the exercise of stock options.
All shares of common stock covered by a stock appreciation right
will be counted against the total shares reserved for issuance
under the Equity Incentive Plan.
Individual
Award Limits
The Equity Incentive Plan provides that no more than
125,000 shares of common stock underlying awards may be
granted to a participant in any one calendar year. This share
limit also applies to the extent that awards under the
Management Incentive Plan are settled in shares of common stock
drawn from the Equity Incentive Plan. The maximum value of the
aggregate payment that any participant may receive with respect
to Other Cash-Based Awards under the Equity
Incentive Plan in respect of any annual (or shorter) performance
period is $5,000,000. If the performance period exceeds one
year, the $5,000,000 limitation will be multiplied by a
fraction, the numerator of which is the number of months in the
performance period and the denominator of which is twelve.
Acceleration
of Vesting
The vesting of any or all awards (and, with respect to stock
options and stock appreciation rights, the time at which those
awards may be exercised) may be accelerated in full or in part
to any date as the Compensation Committee may determine with
respect to any participant or all participants and, with respect
to any participants or all participants, the Compensation
Committee may further determine that any reacquisition or
repurchase rights held by the Company with respect to an award
will lapse in full or in part as of any date.
Change
in Control
Except to the extent otherwise provided in an award agreement,
upon a change in control, the Board, or the board of directors
of any entity assuming the Companys obligations, will take
any one or more of the following actions as to outstanding
awards:
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the acquiring company may continue, assume or substitute similar
awards;
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accelerate the vesting of awards in whole or part;
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cause any reacquisition or repurchase rights held by the Company
with respect to an award to lapse in full or in part; or
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pay (using cash or other consideration) for awards in lieu of
exercise.
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Adjustments
Upon Changes in Capitalization
In the event of a dividend (other than a normal cash dividend)
or other distribution (whether in the form of cash, shares or
other property), recapitalization, stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, or
share exchange, or other similar corporate transaction or event
which affects the common stock, the Compensation Committee will
appropriately adjust the number and kind of shares of
40
common stock or other property (including cash) that may
thereafter be issued in connection with new awards and will also
adjust, in each case, in order to prevent dilution or
enlargement of the rights of participants under the Equity
Incentive Plan, (a) the number and kind of shares of common
stock or other property (including cash) issued or issuable in
respect of outstanding awards and (b) the exercise price,
grant price or purchase price relating to any outstanding award,
provided, that, with respect to incentive stock options, that
adjustment will be made in accordance with Section 424(h)
of the Code.
Transferability
of Awards
Awards granted under the Equity Incentive Plan may not be
transferred by a participant other than by will or the laws of
descent and distribution and may be exercised during the
participants lifetime only by the participant or his or
her guardian or legal representative.
Clawback
The Equity Incentive Plan provides that the Company will, to the
extent permitted by law, require reimbursement of any cash or
equity-based incentive compensation paid to any named
executive officer (as defined in Item 402(a)(3) of
Regulation S-K
of the Exchange Act) where: (a) the payment was predicated
upon the achievement of certain financial results that were
subsequently the subject of a substantial restatement, and
(b) in the Compensation Committees view the officer
engaged in fraud or misconduct that caused, or partially caused,
the need for the substantial restatement. In addition, with
respect to other participants, the Compensation Committee may
make retroactive adjustments to, and the participant will
reimburse to the Company, any cash or equity-based incentive
compensation paid to the participant where such compensation was
predicated upon achieving certain financial results that were
substantially the subject of a restatement, and as a result of
the restatement it is determined that the participant otherwise
would not have been paid such compensation, regardless of
whether or not the restatement resulted from the
participants misconduct.
Amendment
or Termination of the Equity Incentive Plan
Our Board may amend, alter, suspend, or terminate the Equity
Incentive Plan at any time in whole or in part, provided that no
such amendment, alteration, suspension, or termination will be
made without stockholder approval if that approval is, in the
Boards determination, necessary to comply with any tax or
regulatory requirement. Stockholder approval is specifically
required for amendments that increase the maximum number of
shares available under the Equity Incentive Plan, change the
conditions for eligibility to participate in the plan or
materially increase the benefits accruing to participants. No
amendment to or termination of the Equity Incentive Plan may
adversely affect any awards granted under the Equity Incentive
Plan without the participants permission.
Certain
Federal Income Tax Consequences
The following discussion is a brief summary of certain current
United States federal income tax consequences relating to the
Equity Incentive Plan. The Code and related rules are subject to
change. This summary is not intended to be exhaustive and does
not describe, among other things, state, local or foreign income
and other tax consequences. The following discussion is intended
for the information of stockholders considering how to vote at
the Annual Meeting and not as tax guidance to participants in
the Equity Incentive Plan. Further, tax consequences may vary
with the types of awards made, the identity of the participants
and the method of payment or settlement.
Options
and Stock Appreciation Rights
Generally, the grant of an option or a stock appreciation right
creates no federal income tax consequences for the participant
and a deduction is not taken by the Company at that time. An
option may be either an incentive stock option or a
non-qualified stock option. An incentive stock option may only
be granted to an employee of a company (as opposed, for example,
to a non-employee director or consultant) and must meet
41
all of the requirements set forth in Section 422 of the
Code. Among those requirements, generally, the option must be
granted pursuant to a shareholder-approved plan, the option
price must be not less than the fair market value of the stock
at the time such option is granted and the aggregate fair market
value of stock with respect to which incentive stock options are
first exercisable by any individual during any calendar year
must not exceed $100,000 (with the value of such stock measured
on the option grant date). A non-qualified stock option is a
stock option that does not meet the requirements of an incentive
stock option (or that is specifically designated as a
non-qualified stock option). Option grants under the Equity
Incentive Plan may be intended to qualify as incentive stock
options under Section 422 of the Code or may be
non-qualified stock options governed by Section 83 of the
Code.
The tax benefit of an incentive stock option over a
non-qualified stock option is that, upon exercise of the
incentive stock option, a participant does not have to pay
ordinary income tax or employment tax on the difference between
the exercise price and the fair market value of the shares
received. However, this difference is included in the
participants alternative minimum taxable income and could
increase the participants minimum taxable income tax
liability. If the participant is an employee of the Company at
the time of exercise (or was an employee of the Company no more
than three months prior to exercise), and the shares are held
for at least two years from the date of grant and at least one
year after the date of exercise), then any gain or loss on the
sale of the shares is taxed as long-term capital gain or loss.
Upon exercise of a non-qualified stock option, the participant
generally must recognize ordinary income equal to the difference
between the fair market value of the shares acquired on the date
of exercise and the exercise price. Upon exercising a stock
appreciation right, the participant must generally recognize
ordinary income equal to the amount of cash or the fair market
value of the shares received less any exercise price, if
applicable. A participants later sale of shares acquired
by exercise of any non-qualified stock option or stock
appreciation right generally will result in short-term or
long-term capital gain or loss measured by the difference
between the sale price and the tax basis of the shares (which is
generally equal to the fair market value of the shares at the
time of exercise).
The Company will not be entitled to any tax deduction on the
exercise of an incentive stock option unless there is a
disqualifying disposition of the incentive stock option shares.
The Company will be entitled to a tax deduction upon the
exercise of a non-qualified stock option or a stock appreciation
right or upon a disqualifying disposition of incentive stock
option shares. The dollar amount of the Companys tax
deduction will be equal to the amount of ordinary income
reported to the participant.
Restricted
Stock
A participant will not recognize taxable income upon the grant
of restricted stock, if the stock is subject to a substantial
risk of forfeiture (e.g., will be forfeited upon the
participants voluntary termination of employment), and the
shares are nontransferable (i.e, cannot be transferred without
remaining subject to the substantial risk of forfeiture). The
restricted stock will become taxable as ordinary income on the
earlier of the date the substantial risk of forfeiture lapses or
the shares become transferrable. Under the Equity Incentive
Plan, this will occur at the end of a predetermined vesting
period. Once taxable, the Company is required to withhold income
and FICA taxes based on the fair market value of the shares on
the date of taxation, and will report the income to the
participant in the year of taxation. The Company is entitled to
a tax deduction equal to the amount of income reported to the
participant, and this dollar amount becomes the
participants tax basis in the shares. A subsequent sale of
the shares by the participant will result in short-term or
long-term capital gain or loss equal to the sale price of such
shares minus the participants tax basis in such shares.
Federal tax law permits a participant to voluntarily elect to be
subject to income tax at the time of grant of the restricted
stock as though it were not subject to a risk of forfeiture and
a restriction on transferability. To make this election, the
participant must file an election under Section 83(b) of
the Code with the Internal Revenue Service within 30 days
after the grant of the restricted stock. The fair market value
of the restricted stock at the date of grant will be taxable as
ordinary income to the participant, is subject to Company income
and FICA tax withholding, and will be reported as ordinary
income to the participant in the year the 83(b) election
occurred. The Company is entitled to a tax deduction equal to
the amount of income reported to the participant, and this
dollar amount becomes the participants tax basis in the
shares. Even after the participant has made an 83(b) election,
the shares of restricted stock will still be subject to the
applicable vesting
42
schedule. A subsequent sale of the shares by the participant
following the restricted stock vesting date generally will
result in short-term or long-term capital gain or loss equal to
the sale price of such shares minus the participants tax
basis in such shares.
Restricted
Stock Units
A participant granted restricted stock units will not recognize
taxable income upon the grant of the award. The participant will
realize ordinary income at the date the award is settled by
delivery of shares to the participant. Generally, this will
occur at (or shortly after) the vesting date (when the time
vesting
and/or
date
performance goals are achieved). However, the settlement may be
deferred for a period of time after the vesting date either
under the terms of the original award or, if permitted or
required by the terms of the award or by the Compensation
Committee. The fair market value of the shares delivered at
settlement will be taxable as ordinary income to the
participant, is subject to Company income and FICA tax
withholding, and will become the participants tax basis in
the shares. The Company is entitled to a tax deduction equal to
the amount reported as income to the participant. A subsequent
sale of the shares by the participant generally will result in
short-term or long-term capital gain or loss equal to the sale
price of such shares less the participants tax basis in
such shares.
In the event receipt of the shares of stock subject to the
restricted stock units is delayed because the participant makes
a valid deferral election under the terms of the 2010 Deferred
Compensation Plan, FICA taxes will be imposed on the restricted
stock unit vesting date, and income tax will be imposed on the
date a distribution in respect of the shares is made from the
2010 Deferred Compensation Plan. Upon the imposition of FICA or
income taxes, the Company is required to withhold taxes. Any
deferral of receipt of shares associated with a restricted stock
unit grant must be made in accordance with Section 409A of
the Code and regulations issued thereunder and in accordance
with the 2010 Deferred Compensation Plan.
Other
Awards Settled with Shares
Awards other than options, stock appreciation rights, restricted
stock and restricted stock units will in most cases represent a
right to receive cash or stock at a specified future date, upon
satisfaction of service conditions and possibly upon achievement
of performance goals. These awards generally will result in
ordinary income to the participant at the later of the time of
delivery of cash or actual shares or, in the case of shares, at
the time that either the risk of forfeiture (including
forfeiture in the event performance goals are not achieved) or
restrictions on transferability lapses. Upon the settlement of
the award, the Company will withhold income and FICA taxes, and
will report the ordinary income to the participant in the year
the award is settled. In cases where the award vests prior to
the actual settlement date, subject to certain exceptions, FICA
tax withholding will be imposed on the award vesting date, while
income tax withholding will be imposed on the award settlement
date.
Sections 409A,
162(m) and 280G of the Code
Any award that is deemed to be a deferral arrangement (excluding
certain exempted short-term deferrals) must comply with
Section 409A of the Code, which imposes certain
requirements that must be met in order for a participant to
defer the taxation on an award beyond the awards vesting
date. Under Section 409A, a participants elections to
defer compensation, and the timing of any distributions relating
to such awards, must comply with Section 409A of the Code.
In addition, Section 409A prohibits the acceleration of the
time or schedule of any payment of deferred amounts. A violation
of Section 409A will result in income taxation to the
participant in the year an award vests, and the possible
imposition of additional excise tax penalties and interest (all
payable by the participant). Both the Equity Incentive Plan and
the 2010 Deferred Compensation Plan have been designed to comply
with the requirements of Section 409A.
Section 162(m) of the Code imposes a $1 million limit
on the tax deductibility of non-performance-based compensation
that is paid to a covered employee. Compensation
that qualifies as performance-based compensation is
excluded from the $1 million deductibility cap, and
therefore remains fully deductible by the Company. Under the
Equity Incentive Plan, options and stock appreciation rights
granted with an exercise
43
price or base price at least equal to 100% of fair market value
of the underlying stock at the date of grant, and certain other
awards which are conditioned upon achievement of Performance
Goals, may qualify as performance-based compensation. A number
of requirements must be met in order for particular compensation
to qualify as performance-based compensation; therefore, there
can be no assurance that compensation under the Equity Incentive
Plan will be fully deductible under all circumstances.
Furthermore, other awards under the Equity Incentive Plan, such
as non-performance-based restricted stock and restricted stock
units, generally will not qualify as performance-based
compensation.
In addition to the tax deductibility restrictions of
Section 162(m), compensation to certain employees resulting
from the vesting of awards in connection with a change in
control or termination following a change in control also may be
non-deductible under Sections 4999 and 280G of the Code.
Interests
of Certain Persons in Matters to Be Acted Upon
Officers (including the named executive officers), employees,
non-employee directors and consultants are eligible to receive
awards under the Equity Incentive Plan in the discretion of the
Compensation Committee. Grants under the Equity Incentive Plan
will be made at the discretion of the Compensation Committee
and, except as set forth below, future grants are not
determinable.
If the Companys stockholders approve the Equity Incentive
Plan, it is the Companys intention to award to each
Non-Employee Director holding office on June 17, 2010
following the Annual Meeting a one-time grant of 1,000
restricted stock units and the first annual grant of 1,500
restricted stock units. In addition, the Equity Incentive Plan
provides for certain automatic awards to Non-Employee Directors.
Therefore, if the Companys stockholders approve the Equity
Incentive Plan and unless the Compensation Committee determines
in its discretion to make a lesser award or no award,
(a) on June 1, 2011 and each June 1 thereafter (or the
next business day thereafter if June 1 is not a business day),
each person then serving as a Non-Employee Director shall
receive an annual award of 1,500 restricted stock units and
(b) any person who first becomes a Non-Employee Director
after June 17, 2010, shall receive upon his or her election
to the Board an inaugural award of 1,000 restricted stock units
on such date. All such restricted stock units will vest
approximately (but not less than) twelve months following the
date of grant.
If the Companys stockholders approve the Equity Incentive
Plan, it is the Companys intention to award to each named
executive officer a grant of restricted stock units intended to
qualify as performance-based compensation under
Section 162(m) of the Code The maximum number of restricted
stock units that may be earned by our named executive officers
under the grants anticipated to be made to them in Fiscal 2010
under the Equity Incentive Plan will be determined by converting
the dollar amounts specified below to a number of shares based
on the closing price per share of the Companys common
stock on the grant date. The performance period for each of the
grants is the Companys Fiscal 2010. If the Equity
Incentive Plan is approved by the stockholders, it is
anticipated that Mr. Black will further align his interests
with the interests of Company stockholders by agreeing to reduce
his cash bonus potential to 150% of base salary in consideration
of an equity incentive opportunity with an initial value of up
to 250% of base salary. Therefore, Mr. Black may begin to
earn restricted stock units at a lower net income threshold than
the Executive Vice Presidents. Mr. Black may begin to earn
restricted stock units if the Companys Fiscal
2010 net income is at least $72.6 million and may earn
his maximum number of restricted stock units if the
Companys Fiscal 2010 net income is at least
$78.4 million. Each Executive Vice President may begin to
earn restricted stock units if the Companys Fiscal
2010 net income is at least $76.9 million and may earn
his maximum number of restricted stock units if the
Companys Fiscal 2010 net income is at least
$79.4 million.
In addition to the net income goals discussed above, the
Compensation Committee will determine the amount of restricted
stock units which may be earned by each of the Executive Vice
Presidents based on the achievement of the same
personal goals used to determine earned awards under
the 2010 Cash Incentive Program. The Compensation Committee has
the right to exercise negative discretion and determine that the
number of restricted stock units that will be earned by any of
the named executive officers will be less than the
pre-established number, even if the objective business criteria
(in this case, net income) is achieved. See
44
Non-Equity Incentive Compensation in the
Compensation Discussion and Analysis section of this Proxy
Statement.
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
Dollar Value of
|
|
|
|
|
|
Restricted Stock
|
|
Name of
|
|
|
|
Units(1)
|
|
Grantee
|
|
Title
|
|
$
|
|
|
R. Neal Black
|
|
President and Chief Executive Officer
|
|
|
1,925,000
|
(2)
|
David E. Ullman
|
|
Executive Vice President-Chief
Financial Officer and Principal
Financial and Accounting Officer
|
|
|
150,000
|
(3)
|
Robert B. Hensley
|
|
Executive Vice President for
Human Resources, Real Estate and
Loss Prevention
|
|
|
150,000
|
(3)
|
Gary M. Merry
|
|
Executive Vice President for
Store and Catalog Operations
|
|
|
150,000
|
(3)
|
James W. Thorne
|
|
Executive Vice President for
Merchandising and Chief
Merchandising Officer
|
|
|
150,000
|
(3)
|
|
|
|
(1)
|
|
The maximum number of restricted stock units that may be earned
by our named executive officers under the grants anticipated to
be made to them in Fiscal 2010 under the Equity Incentive Plan
will be determined by converting the maximum dollar value of
restricted stock units to a number of shares based on the
closing price per share of the Companys common stock on
the grant date. For example, if the closing price of the Company
common stock on June 17, 2010 (the anticipated grant date)
is $60.00 per share, Mr. Black will have the opportunity to
earn 32,083 restricted stock units ($1,925,000/$60) and each
Executive Vice President will have the opportunity to earn 2,500
restricted stock units ($150,000/$60). Among other conditions,
earned restricted stock units will not vest unless the grantee
is employed by the Company on the vesting date.
|
|
(2)
|
|
Restricted stock units with a value (as of the grant date) of up
to $775,000 earned by Mr. Black will vest on the later to
occur of (a) the date the achievement of the performance
goals is certified by the Compensation Committee and
(b) the first anniversary of the grant date. In the event
restricted stock units with a value (as of the grant date)
greater than $775,000 are earned by Mr. Black, one-half of
the non-vested, earned restricted stock units will vest on the
second anniversary of the grant date and the balance of the
non-vested, earned restricted stock units will vest on the third
anniversary of the grant date.
|
|
(3)
|
|
All restricted stock units earned by the Executive Vice
Presidents will vest on the third anniversary of the grant date.
|
45
OTHER
MATTERS
TRANSACTIONS
WITH RELATED PERSONS
On September 9, 2008, the Company and Mr. Wildrick
entered into a Consulting Agreement (the Consulting
Agreement) pursuant to which the Company retained
Mr. Wildrick to consult on matters of strategic planning
and initiatives for a term of three years commencing
February 1, 2009 at a fee of $825,000 per year. Generally,
the Audit Committee would have been responsible for approving
the Consulting Agreement as a related party transaction.
However, in order to increase the number of independent
directors who participated in the evaluation of the Consulting
Agreement, in lieu of a meeting of the Audit Committee, the
Board met in executive session attended only by those members of
the Board who are independent directors in
accordance with the Nasdaq Rules.
The Consulting Agreement includes an agreement by
Mr. Wildrick not to compete with the Company or to solicit
its customers or employees during its term. The Consulting
Agreement also provides for the acceleration of payments due
thereunder to Mr. Wildrick in connection with certain
termination events. If Mr. Wildricks services are
terminated by the Company without cause (as defined
below), the Company will be obligated to pay Mr. Wildrick
the balance of amounts due under the Consulting Agreement for
its remaining term as and when such payments would otherwise be
due. If Mr. Wildricks services are terminated by the
Company with cause, the Company will be obligated to
pay Mr. Wildrick the unpaid, prorated amount of the
consulting fees payable through the date of termination. For
purposes of the Consulting Agreement, cause means
(a) the conviction of Mr. Wildrick of a felony
involving money or other property of the Company or any other
felony or offense involving moral turpitude; or (b) the
willful commission of any act of fraud or misrepresentation
related to the business of the Company which would materially
and negatively impact upon the Company. If within ninety
(90) days following a change of control of the Company
(defined consistently with Mr. Blacks employment
agreement), Mr. Wildrick exercises his right to terminate
the Consulting Agreement or the Company terminates the
Consulting Agreement based on a default thereunder by
Mr. Wildrick, the Company will pay Mr. Wildrick a lump
sum equal to the balance of amounts due under the Consulting
Agreement for its remaining term.
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee consists of Messrs. Herron,
Homes and Ritman. During Fiscal 2009, no interlocking
relationship existed between the members of our Compensation
Committee and the board of directors or compensation committee
of any other company and the members of the Compensation
Committee did not otherwise have any relationships requiring
related-party disclosure in this Proxy Statement.
46
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth information known to us with
respect to the beneficial ownership of our common stock as of
April 30, 2010 by (a) each named executive officer,
(b) each director, (c) all directors and executive
officers as a group and (d) each person (or group) that
beneficially owns more than 5% of our common stock. Unless
otherwise indicated, each of the stockholders can be reached at
our principal executive offices located at 500 Hanover Pike,
Hampstead, Maryland 21074.
|
|
|
|
|
|
|
|
|
|
|
Shares Beneficially Owned*
|
|
|
|
Number
|
|
|
Percent
|
|
|
R. Neal Black(1)
|
|
|
95,374
|
|
|
|
**
|
|
James H. Ferstl
|
|
|
200
|
|
|
|
**
|
|
Andrew A. Giordano
|
|
|
33,307
|
|
|
|
**
|
|
Gary S. Gladstein(2)
|
|
|
75,503
|
|
|
|
**
|
|
Robert B. Hensley(3)
|
|
|
49,404
|
|
|
|
**
|
|
William E. Herron(4)
|
|
|
13,460
|
|
|
|
**
|
|
Henry Homes, III(5)
|
|
|
1,156
|
|
|
|
**
|
|
Gary M. Merry
|
|
|
10,000
|
|
|
|
**
|
|
Sidney H. Ritman
|
|
|
8,033
|
|
|
|
**
|
|
James W. Thorne(6)
|
|
|
14,061
|
|
|
|
**
|
|
David E. Ullman(7)
|
|
|
109,061
|
|
|
|
**
|
|
Robert N. Wildrick
|
|
|
30,468
|
|
|
|
**
|
|
The Vanguard Group, Inc.(8)
|
|
|
971,157
|
|
|
|
5.29
|
%
|
Thompson, Siegel & Walmsley LLC(9)
|
|
|
1,056,968
|
|
|
|
5.76
|
%
|
Barclays Global Investors(10)
|
|
|
1,169,478
|
|
|
|
6.37
|
%
|
Blackrock, Inc.(11)
|
|
|
1,829,517
|
|
|
|
9.97
|
%
|
FMR LLC(12)
|
|
|
2,488,808
|
|
|
|
13.56
|
%
|
All directors and executive officers as a group
(12 persons)(13)
|
|
|
440,027
|
|
|
|
2.36
|
%
|
|
|
|
*
|
|
If indicated by footnote, the number of shares beneficially
owned includes shares of our common stock issuable upon the
exercise of all options exercisable within 60 days of
April 30, 2010. Beneficial ownership is determined in
accordance with the rules of the SEC and includes voting and/or
investment power with respect to shares. Unless otherwise
indicated, the persons named in the table have sole voting and
sole investment control with respect to all shares beneficially
owned. Percentage ownership is calculated based on
18,351,162 shares of our common stock outstanding as of
April 30, 2010, plus the number of options exercisable by
the applicable individual(s) within 60 days of
April 30, 2010. To our knowledge and based on reviews of
Forms 4 and Schedules 13D and Schedules 13G filed with the
SEC, except as disclosed in this table, no other stockholder
beneficially owned more than 5% of our outstanding shares of
common stock as of April 30, 2010.
|
|
**
|
|
Represents less than 1%.
|
|
(1)
|
|
Mr. Blacks shares include currently exercisable
options to purchase 52,174 shares of common stock.
|
|
(2)
|
|
Mr. Gladsteins shares include currently exercisable
options to purchase 63,903 shares of common stock.
|
|
(3)
|
|
Mr. Hensleys shares include currently exercisable
options to purchase 18,233 shares of common stock.
|
|
(4)
|
|
Mr. Herrons shares include currently exercisable
options to purchase 7,500 shares of common stock.
|
|
(5)
|
|
Mr. Homes shares consist of (a) a direct
beneficial interest in 100 shares of common stock;
(b) an indirect beneficial interest in 700 shares of
common stock held in a trust of which Mr. Homes is a
trustee and a beneficiary; and (c) an indirect beneficial
interest in 356 shares of common stock held in a trust of
which Mr. Homes is a trustee and one of the remaindermen.
Mr. Homes may be deemed to beneficially
|
47
|
|
|
|
|
own an additional 1,424 shares of common stock held in a
trust of which Mr. Homes is a trustee and one of the
remaindermen. Mr. Homes disclaims beneficial ownership of
such additional shares.
|
|
(6)
|
|
Mr. Thornes shares include currently exercisable
options to purchase 11,718 shares of common stock.
|
|
(7)
|
|
Mr. Ullmans shares include currently exercisable
options to purchase 105,468 shares of common stock.
|
|
(8)
|
|
The information in the table above and in this footnote is based
on a Schedule 13G (Amendment No. 1) filed by The
Vanguard Group, Inc. with the SEC on February 8, 2010. The
address of The Vanguard Group, Inc. is 100 Vanguard Boulevard,
Malvern, Pennsylvania 19355.
|
|
(9)
|
|
The information in the table above and in this footnote is based
on a Schedule 13G (Amendment No. 1) filed by
Thompson, Siegel & Walmsley LLC with the SEC on
February 10, 2010. The address of Thompson,
Siegel & Walmsley LLC is 6806 Paragon Place,
Suite 300, Richmond, VA 23230.
|
|
(10)
|
|
The information in the table above and in this footnote is based
on a Schedule 13G filed with the SEC on February 5,
2009 by several entities, including Barclays Global Investors,
NA (Barclays Investors), Barclays Global
Fund Advisors (Barclays Advisors) and Barclays
Global Investors, LTD (Barclays LTD). According to
such Schedule 13G, (a) these entities collectively may
be deemed to beneficially own 1,169,478 shares of Company
common stock and (b) (i) Barclays Investors has sole voting
power over 325,802 shares and sole dispositive power over
394,298 shares, (ii) Barclays Advisors has sole voting
power over 555,185 shares and sole dispositive power over
762,947 shares and (iii) Barclays LTD has sole voting
power over 496 shares and sole dispositive power over
12,233 shares. The address of Barclays Investors and
Barclays Advisors is 400 Howard Street, San Francisco, CA
94105. The address of Barclays LTD is Murray House, 1 Royal Mint
Court, London, EC3N 4HH, England.
|
|
(11)
|
|
The information in the table above and in this footnote is based
on a Schedule 13G filed by Blackrock, Inc. with the SEC on
January 8, 2010. The address of Blackrock, Inc. is 40 East
52nd Street, New York, NY 10022.
|
|
(12)
|
|
The information in the table above and in this footnote is based
on a Schedule 13G (Amendment No. 4) filed by FMR
LLC (FMR) with the SEC on February 16, 2010. As
described in that amended Schedule 13G, various persons
affiliated with FMR also have beneficial ownership of certain
shares of Company common stock reported as beneficially owned by
FMR. The address of FMR is 82 Devonshire Street, Boston,
Massachusetts 02109.
|
|
(13)
|
|
Consists of: R. Neal Black, James H. Ferstl, Andrew A. Giordano,
Gary S. Gladstein, Robert B. Hensley, William E. Herron, Henry
Homes, III, Gary M. Merry, Sidney H. Ritman, James W.
Thorne, David E. Ullman and Robert N. Wildrick.
|
SECTION 16(a)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires the
Companys officers and directors, persons who beneficially
own more than ten percent of a registered class of the
Companys equity securities, and any other person subject
to Section 16 to file reports of beneficial ownership of
common stock (Forms 3, 4 and 5) with the SEC.
Officers, directors, and
greater-than-ten
percent stockholders are required to furnish the Company with
copies of all such forms that they file.
To the Companys knowledge, based solely on the
Companys review of the copies of Section 16 reports,
and amendments thereto, received by it during or with respect to
Fiscal 2009, all filings applicable to its officers, directors
and
greater-than-ten
percent stockholders required by Section 16(a) were timely
except that on October 14, 2009, Mr. Homes filed a
Form 4 to report the September 17, 2009 sale of
220 shares of common stock by two trusts of which
Mr. Homes is a trustee. No portion of the proceeds of the
sale was distributed by the trust to Mr. Homes.
48
EQUITY
COMPENSATION PLAN INFORMATION
The table which follows contains information, as of the end of
Fiscal 2009, on the Companys equity compensation plans.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Securities
|
|
|
|
Number of
|
|
|
|
|
|
Remaining Available for
|
|
|
|
Securities to be
|
|
|
|
|
|
Future Issuance Under
|
|
|
|
Issued Upon Exercise
|
|
|
Weighted-Average
|
|
|
Equity Compensation
|
|
|
|
of Outstanding
|
|
|
Exercise Price of
|
|
|
Plans (Excluding
|
|
|
|
Options, Warrants
|
|
|
Outstanding Options,
|
|
|
Securities Reflected in
|
|
|
|
and Rights
|
|
|
Warrants and Rights
|
|
|
Column (a))
|
|
|
|
(#)
|
|
|
($)
|
|
|
(#)
|
|
Plan Category
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
Equity compensation plans approved by our stockholders
|
|
|
266,808
|
|
|
|
10.34
|
|
|
|
|
|
Equity compensation plans not approved by our stockholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
266,808
|
|
|
|
10.34
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OTHER
BUSINESS
Except as described in the accompanying Notice of Meeting, the
Board knows of no business that will come before the Annual
Meeting for action. If any business other than as described in
the accompanying Notice of Meeting were to come before the
Annual Meeting for action, the persons designated as proxies
will have discretionary authority to act in their best judgment.
The Board encourages you to have your shares voted at the Annual
Meeting by signing and returning the enclosed form of proxy or
voting instruction card. The fact that you will have returned
your proxy or voting instruction card in advance will in no way
affect your right to vote in person should you attend the Annual
Meeting. However, by signing and returning the proxy or voting
instruction card you have assured your representation at the
Annual Meeting. Thank you for your cooperation.
Notwithstanding anything to the contrary set forth in any of
the Companys previous filings made under the Securities
Act of 1933, as amended, or the Exchange Act that might
incorporate future filings made by the Company under those
statutes, the Compensation Committee Report, the Audit Committee
Report and disclosures regarding the Audit Committee charter are
not deemed filed with the Securities and Exchange Commission and
shall not be deemed incorporated by reference into any future
filings made by the Company under those statutes.
THE BOARD HOPES THAT YOU WILL ATTEND THE ANNUAL MEETING. WHETHER
OR NOT YOU PLAN TO ATTEND, YOU ARE URGED TO COMPLETE, DATE, SIGN
AND RETURN THE ENCLOSED PROXY OR VOTING INSTRUCTION CARD IN
THE ACCOMPANYING ENVELOPE. YOUR PROMPT RESPONSE WILL GREATLY
FACILITATE ARRANGEMENTS FOR THE ANNUAL MEETING. YOUR COOPERATION
IS APPRECIATED.
49
APPENDIX
Jos. A. Bank
Clothiers, Inc.
2010 Equity Incentive
Plan
|
|
1.
|
Purpose;
Types of
Awards
.
|
The purposes of the JOS. A. BANK CLOTHIERS, INC. 2010 Equity
Incentive Plan (the Plan) are to promote the
interests of the Company and its Subsidiaries and the
stockholders of the Company by providing officers, employees,
non-employee directors and consultants of the Company and its
Subsidiaries with appropriate incentives and rewards to
encourage them to enter into and continue in the employ or
service of the Company or its Subsidiaries, to acquire a
proprietary interest in the long-term success of the Company and
to reward the performance of individuals in fulfilling their
personal responsibilities for long-range and annual
achievements. The Plan provides for the grant of Options
(including incentive stock options and
nonqualified stock options), Stock Appreciation
Rights, Restricted Stock, Restricted Stock Units and Other
Stock- or Cash-Based Awards. The Plan is designed to permit
Awards granted to Covered Employees hereunder to comply with the
requirements for performance-based compensation
under Section 162(m) of the Code.
For purposes of the Plan, the following terms shall be defined
as set forth below:
(a)
Annual Incentive Program
means those
annual incentives provided under the terms of the Jos. A. Bank
Clothiers, Inc. Executive Management Incentive Plan (the
EMIP).
(b)
Award
means any Option, SAR,
Restricted Stock, Restricted Stock Unit, Other Stock-Based Award
or Other Cash-Based Award or award under the Annual Incentive
Program granted under the Plan.
(c)
Award Agreement
means any written
agreement, contract, notice or other instrument or document
evidencing an Award.
(d)
Board
means the Board of Directors
of the Company.
(e) A
Change in Control
of the Company
or any Subsidiary (an Employing Company) shall be
deemed to have occurred if an event set forth in any one of the
following paragraphs shall have occurred:
(i) A Person, or more than one Person acting as a group,
become(s) the Beneficial Owner (as defined in
Rule 13d-3
of the Exchange Act), directly or indirectly, of stock of the
Employing Company that, together with the stock held by such
Person or group, constitutes 51% or more of the combined total
fair market value or voting power of the Employing
Companys then outstanding securities; or
(ii) A Person, or more than one Person acting as a group,
acquires (or has acquired during the 12 month period ending
on the date of the most recent acquisition by such Person or
Persons) ownership of stock of the Employing Company possessing
30% or more of the combined voting power of the outstanding
securities of the Employing Company and at least a majority of
the members of the board of directors of the Employing Company
is replaced during any
12-month
period by directors whose appointment or election is not
endorsed by a majority of the members of such board prior to the
date of the appointment or election and at the time such
directors are replaced no other corporation is a majority
stockholder of the Employing Company (that is, a change in the
board of directors of a Subsidiary of the Company will not be
relevant in determining the existence of a Change in Control); or
(iii) a merger or consolidation of the Employing Company is
consummated with any other corporation, other than a merger or
consolidation immediately following which would result in the
holders of the voting securities of the Employing Company
outstanding immediately prior thereto continuing to hold (either
by remaining outstanding or being converted into voting
securities of the surviving entity) at least 70% of the combined
voting power of the voting securities of the
1-A
Employing Company, or such surviving entity or its parent
company, outstanding immediately after such merger or
consolidation; or
(iv) the stockholders of the Employing Company approve a
plan of complete liquidation or dissolution of the Employing
Company or there is consummated an agreement for a sale or
disposition by the Employing Company of all or substantially all
of such Companys assets, other than a liquidation or sale
which would result in the holders of the voting securities of
the Employing Company immediately prior thereto continuing to
hold at least 70% of the combined voting power of the successor
entity immediately following such liquidation or sale.
Notwithstanding the foregoing, to the extent that a Change in
Control is a payment trigger under the terms of this Plan or any
Award Agreement regardless whether or not the Grantee separates
from service (within the meaning of Code Section 409A and
regulations issued thereunder), a Change in Control shall not be
deemed to have occurred unless such transaction or occurrences
constitutes a change in ownership or effective control, or
change in ownership of a substantial portion of the assets of
the Employing Company, within the meaning of
Section 409A(a)(2)(A)(v) and Treasury
regulation Section 1.409A-3(i)(5).
An event shall constitute a Change in Control with respect to a
Grantee only if the Grantee performs services for the Employing
Company that has experienced the Change in Control, or the
Grantees relationship to the affected Company or
Subsidiary otherwise satisfies the requirements of Treasury
Regulation Section 1.409A-3(i)(5)(ii).
(f)
Code
means the Internal Revenue Code
of 1986, as amended from time to time.
(g)
Committee
shall mean the
Compensation Committee of the Board, or such other committee as
may be designated by the Board, which shall in either case
consist of two or more persons, each of whom is an outside
director within the meaning of Section 162(m) of the
Code and a non-employee director within the meaning
of
Rule 16b-3
of the Exchange Act. The term Committee shall also
mean any committee of one or more Company directors designated
by the Board to make Awards under this Plan within the limits
specified in the resolutions of the Board designating such
committee; provided, however, in no event shall such committee
make Awards under this Plan to its members, officers subject to
Section 16 of the Exchange Act, directors of the Company,
or officers who are, or are reasonably expected to be, Covered
Employees.
(h)
Company
means JOS. A. BANK
CLOTHIERS, INC., a corporation organized under the laws of the
State of Delaware, or any successor corporation.
(i)
Covered Employee
shall have the
meaning set forth in Section 162(m)(3) of the Code.
(j)
Exchange Act
means the Securities
Exchange Act of 1934, as amended from time to time, and as now
or hereafter construed, interpreted and applied by regulations,
rulings and cases.
(k)
Fair Market Value
means as
(i) the closing reported sales price per share of Stock on
the national securities exchange on which the Stock is
principally traded, for the relevant date (or, if there is no
such closing sales price reported on the relevant date, then on
the immediately preceding day on which a closing sales price was
reported), or (ii) if the shares of Stock are then traded
in an
over-the-counter
market, the average of the closing reported bid and asked prices
for the shares of Stock in such
over-the-counter
market for the relevant date (or, if there are no such closing
bid and asked prices reported on the relevant date, then on the
immediately preceding day on which closing bid and asked prices
were reported), or (iii) if the shares of Stock are not
then listed on a national securities exchange or traded in an
over-the-counter
market, such value as the Committee, in its sole discretion,
shall determine.
(l)
Grantee
means an employee, director
or consultant of the Company or any Subsidiary of the Company
that has been granted an Award under the Plan.
(m)
ISO
means any Option intended to be
and designated as an incentive stock option within the meaning
of Section 422 of the Code.
2-A
(n)
Long Term Incentive Program
means
the program described in Section 6(b) hereof.
(o)
NQSO
means any Option that is not
designated as an ISO.
(p)
Option
means a right, granted to a
Grantee under Section 6(b)(i), to purchase shares of Stock.
An Option may be either an ISO or an NQSO.
(q)
Other Cash-Based Award
means cash
awarded under the Long Term Incentive Program, including cash
awarded as a bonus or upon the attainment of Performance Goals
or otherwise as permitted under the Plan.
(r)
Other Stock-Based Award
means a
right or other interest granted to a Grantee under the Long Term
Incentive Program (not otherwise provided for in
Sections 6(b)(i)-(iv)
of the Plan) that may be denominated, payable or valued in whole
or in part by reference to Stock.
(s)
Performance Goals
means performance
goals based on the attainment by the Company of performance
goals pre-established by the Committee, which in the case of an
Award intended to comply with Section 162(m) of the Code
shall be based on one or more of the following criteria:
(i) net income (before or after taxes); (ii) earnings
before or after deduction for all or any portion of interest,
taxes, minority interest, depreciation and amortization, whether
on an aggregate or per share basis; (iii) increase in the
trading price of the Companys stock above the trading
price at the time the criteria is established; (iv) return
on total stockholder equity; (v) working capital;
(vi) sales or revenues; (vii) cost management goals,
including expense and cost reductions or improvements in or
attainment of expense levels; (viii) return ratios based on
equity, investment, capital employed
and/or
assets; (ix) inventory levels, turns or aging,
(x) operating ratios based on margin, income
and/or
net
income; (xi) market share; (xii) cash flow or
operating cash flow; (xiii) increase, decrease or ending
balance of any item on the Companys consolidated balance
sheets; and (xiv) any combination of the foregoing,
including as compared to an index of one or more peer group
companies selected by the Committee. To the extent permitted
under Section 162(m) of the Code, or to the extent that an
Award is not intended to constitute performance-based
compensation for purposes of Section 162(m), the Committee
may designate additional business criteria on which the
performance goals may be based or adjust, modify or amend the
aforementioned business criteria.
Performance Goals may include a threshold level of performance
below which no Award will be earned, a level of performance at
which the target amount of an Award will be earned and a level
of performance at which the maximum amount of the Award will be
earned. To the extent consistent with Section 162(m) and
regulations issued thereunder, the Committee shall have the
authority to make equitable adjustments to the Performance Goals
in recognition of (i) changes in tax law or accounting
principles that become effective during the performance period;
(ii) extraordinary, unusual or infrequently occurring
events affecting the Company or any Subsidiary of the Company or
the financial statements of the Company or any Subsidiary of the
Company; (iii) the disposition of a business or significant
assets; (iv) gains or losses from all or certain claims
and/or
litigation and insurance recoveries; (v) the impact of
impairment of tangible assets; (vi) restructuring
activities; (vii) the impact of investments or
acquisitions;
and/or
(viii) changes in corporate capitalization such as stock
splits and certain reorganizations.
(t)
Person
shall have the meaning set
forth in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (1) the Company or any
Subsidiary, (2) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any
Subsidiary, (3) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(4) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(u)
Plan
means this JOS. A. BANK
CLOTHIERS, INC. 2010 Equity Incentive Plan, as amended from time
to time.
3-A
(v)
Restricted Stock
means an Award of
shares of Stock to a Grantee under Section 6(b)(iii), the
grant, issuance, vesting or retention of which are subject to
conditions specified by the Committee in the Award Agreement.
(w)
Restricted Stock Unit
means a right
granted to a Grantee under Section 6(b)(iv) to receive
Stock or cash (as determined by the Committee and evidenced in
an Award Agreement) at the end of a specified period of time
(upon vesting or at a later date, consistent with
Section 409A of the Code) in accordance with the terms of
such grant
and/or
upon
the satisfaction of specified Performance Goals, all as
specified by the Committee in the Award Agreement.
(x)
Rule 16b-3
means
Rule 16b-3,
as from time to time in effect promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act,
including any successor to such Rule.
(y)
Securities Act
means the Securities
Act of 1933, as amended from time to time, and as now or
hereafter construed, interpreted and applied by regulations,
rulings and cases.
(z)
Stock
means shares of the common
stock, par value $0.01 per share, of the Company.
(aa)
Stock
Appreciation Right or
SAR means the right, granted to a Grantee under
Section 6(b)(ii), to be paid an amount of Stock or cash or
a combination of Stock and cash, measured by the appreciation in
the Fair Market Value of Stock from the date of grant to the
date of exercise of the right.
(bb)
Subsidiary
means any corporation or
other entity in which the Company owns or controls, directly or
indirectly, 50% or more of the voting power or economic
interests of such corporation or entity.
(cc)
Total Authorized Shares
shall have
the meaning set forth in Section 5 of the Plan.
The Plan shall be administered by the Committee, unless
otherwise set forth herein or as otherwise determined by the
Board of Directors. Any actions that may or shall be taken by
the Committee under this Plan may also be taken by the Board of
Directors. The Committee shall have the authority in its
discretion, subject to and not inconsistent with the express
provisions of the Plan, to administer the Plan and to exercise
all the powers and authorities either specifically granted to it
under the Plan or necessary or advisable in the administration
of the Plan, including, without limitation, the authority to:
(i) grant Awards; (ii) determine the persons to whom
and the time or times at which Awards shall be granted;
(iii) determine the type and number of Awards to be
granted, the number of shares of Stock to which an Award may
relate and the terms, conditions, restrictions and performance
criteria relating to any Award; (iv) to determine, and
certify attainment of, Performance Goals with regard to an Award
that is intended to be Performance Based, no later than such
time as required to ensure that an underlying Award which is
intended to comply with the requirements of Section 162(m)
of the Code so complies; (v) determine whether, to what
extent, and under what circumstances an Award may be settled,
cancelled, forfeited, exchanged, or surrendered; to make
adjustments in the terms and conditions of, and the Performance
Goals (if any) included in, Awards; (vi) construe and
interpret the Plan and any Award; (vii) prescribe, amend
and rescind rules and regulations relating to the Plan;
(vii) determine the terms and provisions of the Award
Agreements (which need not be identical for each Grantee); and
(viii) make all other determinations deemed necessary or
advisable for the administration of the Plan.
Notwithstanding the Committees determination that the
performance objectives based solely on Performance Goals was or
were fully satisfied, except to the extent otherwise provided in
an Award Agreement, the Committee shall nevertheless have
discretion to reduce an Award based on individual performance as
it considers appropriate in the circumstances, and may apply
subjective, discretionary criteria for this purpose.
Notwithstanding the foregoing, except in connection with a
corporate transaction involving the Company (including, without
limitation, in connection with any stock dividend, stock split,
extraordinary cash dividend, recapitalization, reorganization,
merger, consolidation,
split-up,
spin-off, combination, or exchange of shares), the terms of
outstanding awards may not be amended to reduce the exercise
price of outstanding Options or
4-A
SARs or cancel outstanding Options or SARs in exchange for cash,
other awards or Options or SARs with an exercise price that is
less than the exercise price of the original options or SARs,
without prior approval of the Companys stockholders.
All determinations of the Committee shall be made by a majority
of its members either present in person or participating by
conference telephone at a meeting or by the consent in writing
or electronic transmission of all members of the Committee
(unless such consent shall be restricted by the Companys
certificate of incorporation or bylaws). The Committee may
delegate to one or more of its members or to one or more agents
(as permitted by law) such administrative duties as it may deem
advisable, and the Committee or any person to whom it has
delegated duties as aforesaid may employ one or more persons to
render advice with respect to any responsibility the Committee
or such person may have under the Plan. All decisions,
determinations and interpretations of the Committee shall be
final and binding on all persons, including but not limited to
the Company, any Subsidiary of the Company, or Grantee (or any
person claiming any rights under the Plan from or through any
Grantee) and any stockholder.
No member of the Board or Committee shall be liable for any
action taken or determination made in good faith with respect to
the Plan or any Award granted hereunder. The Company shall
indemnify (to the extent permitted under Delaware law) and hold
harmless each member of the Committee, and any officer or
employee of the Company acting at the direction of, or on behalf
of, the Committee, against any cost, expense or liability
arising out of any action, omission or determination relating to
the Plan, unless such action or omission or determination was
made in bad faith and without reasonable belief that it was in
the best interests of the Company.
Awards may be granted to employees, directors and consultants of
the Company or of its Subsidiaries, expressly provided, however,
that ISOs may only be granted to employees of the Company or a
Subsidiary. In determining the persons to whom Awards shall be
granted and the number of Shares to be covered by each Award,
the Committee shall take into account the duties of the
respective persons, their present and potential contributions to
the success of the Company and such other factors as the
Committee shall deem relevant in connection with accomplishing
the purposes of the Plan.
|
|
5.
|
Stock
Subject to the
Plan
.
|
The maximum number of shares of Stock reserved for the grant of
Awards under the Plan (Total Authorized Shares)
shall be 1,000,000. Subject to adjustment as provided herein, no
more than 125,000 of the Total Authorized Shares may be awarded
under any provision of the Plan in the aggregate in respect of
Awards to any individual in a single calendar year. To the
extent that awards made under the terms of the EMIP are settled
in shares of Stock, or that Awards granted under this Plan are
deferred under the terms of the Jos. A. Bank Clothiers, Inc.
2010 Deferred Compensation Plan (the 2010 Deferred
Compensation Plan), such Stock shall be drawn from this
Plan and count against the Total Authorized Shares hereunder.
Total Authorized Shares may, in whole or in part, be authorized
but unissued shares or shares that shall have been or may be
reacquired by the Company in the open market, in private
transactions or otherwise.
Shares shall be counted against those reserved to the extent
such shares have been delivered and are no longer subject to a
risk of forfeiture. Subject to the following sentence, if any
shares subject to an Award are forfeited, cancelled, exchanged
or surrendered or if an Award terminates or expires without a
distribution of shares to the Grantee, the shares of stock with
respect to such Award shall, to the extent of any such
forfeiture, cancellation, exchange, surrender, termination or
expiration, again be available for Awards under the Plan.
However, the following shares shall not be available for future
grant or added to the aggregate Plan limits specified in the
preceding paragraph: (i) shares tendered in payment of the
exercise price of an Option, (ii) shares withheld by the
Company or otherwise received by the Company to satisfy tax
withholding obligations, and (iii) shares of Stock
repurchased by the Company with Option proceeds. To the extent
that an Option or SAR is cancelled and or re-priced, such Option
or SAR continues to be counted against the maximum share limit
that may be granted with respect to any Covered Employee with
respect to any calendar
5-A
year. Upon the exercise of any Award granted in tandem with any
other Award, such related Award shall be cancelled to the extent
of the number of shares of Stock as to which the Award is
exercised and such number of shares shall no longer be available
for Awards under the Plan. All shares of Stock covered by a
Stock Appreciation Right shall be counted against the Total
Authorized Shares.
In the event of a dividend (other than a normal cash dividend)
or other distribution (whether in the form of cash, Stock, or
other property), recapitalization, stock split, reverse split,
reorganization, merger, consolidation, spin-off, combination, or
share exchange, or other similar corporate transaction or event
which affects the Stock, the Committee shall appropriately
adjust the number and kind of shares of Stock or other property
(including cash) that may thereafter be issued in connection
with new Awards and shall also adjust, in each case, in order to
prevent dilution or enlargement of the rights of Grantees under
the Plan, (i) the number and kind of shares of Stock or
other property (including cash) issued or issuable in respect of
outstanding Awards, (ii) the exercise price, grant price,
or purchase price relating to any outstanding Award, provided,
that, with respect to ISOs, such adjustment shall be made in
accordance with Section 424(h) of the Code; and
(iii) if applicable and to the extent the Committee
determines to be appropriate, the Performance Goals applicable
to outstanding Awards. The Committee shall have the authority to
determine the specific adjustments that shall be made in each
case in order to achieve the objectives stated in the preceding
sentence. The decision of the Committee regarding any such
adjustment shall be final, binding and conclusive.
|
|
6.
|
Specific
Terms of
Awards
.
|
(a)
General.
The Committee, on behalf of
the Company, is authorized under this Plan to grant the
following types of Awards provided that their terms are
consistent with the provisions of the Plan: Options including
ISOs and NQSOs; Stock Appreciation Rights; Restricted Stock;
Restricted Stock Units; and Other Cash- and Other Stock-Based
Awards. The terms of each Award shall be determined by the
Committee consistent with the Plans terms and may include
terms requiring forfeiture of Awards in certain circumstances.
In addition to the foregoing, the Committee may impose on any
Award or the exercise thereof, at the date of grant or
thereafter, such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee
shall determine.
Awards under the Plan may be made subject to the satisfaction of
one or more Performance Goals. Performance Goals shall be
established by the Committee in writing no later than ninety
(90) days after the commencement of each performance period
(or the date on which 25% of the performance period has elapsed,
if earlier); provided that Performance Goals must be
substantially uncertain to be achieved at the time the Committee
establishes the Performance Goals. The Committee may apply those
Performance Goals on a corporate-wide, Subsidiary or
division/business segment basis; provided, however, that the
Committee may not increase the amount of compensation payable to
a Covered Employee upon the satisfaction of Performance Goals
from that amount to which the Covered Employee would have been
entitled based on his or her attainment of the Performance Goals.
The vesting of any or all Awards (and, with respect to Options
and Stock Appreciation Rights, the time at which such Awards may
be exercised) may be accelerated in full or in part to any date
as the Committee shall determine with respect to any Grantee or
all Grantees and, with respect to such Grantee or Grantees, the
Committee may further determine that any reacquisition or
repurchase rights held by the Company with respect to an Award
shall lapse in full or in part as of any date.
(b)
Long Term Incentive Program.
The
Committee is authorized to grant the Awards described in this
Section 6(b), under such terms and conditions as deemed by
the Committee to be consistent with the purposes of the Plan.
Such Awards may be granted with value and payment contingent
upon the attainment of Performance Goals. Each Award granted
under the Long Term Incentive Program shall be evidenced by an
6-A
Award Agreement containing such terms and conditions applicable
to such Award as the Committee shall determine at the date of
grant or thereafter.
(i)
Options.
The Committee is authorized
to grant Options to Grantees on the following terms and
conditions:
(A)
Type of Award.
The Award Agreement
evidencing the grant of an Option under the Plan shall designate
the Option as an ISO or an NQSO. No Grantee shall have any
rights as a stockholder with respect to any shares subject to
Stock Options under the Plan until said shares have been issued.
(B)
Exercise Price.
The exercise price
per share of Stock purchasable under an Option shall be
determined by the Committee, but in no event shall the exercise
price of any Option be less than 100% of the Fair Market Value
of a share of Stock on the date of grant of such Option. The
exercise price for Stock subject to an Option may be paid in
cash or by an exchange of Stock previously owned by the Grantee
(subject to such conditions as may be imposed by the Committee),
through a broker cashless exercise procedure
approved by the Committee, a combination of the above, or any
other method approved the Committee, in any case in an amount
having a combined value equal to such exercise price.
(C)
Limitations on Incentive Options.
(i) ISOs may only be granted to employees of the Company.
No non-employee directors or consultants may be granted ISOs.
(ii) To the extent that the aggregate Fair Market Value of
Stock of the Company with respect to which the ISOs are
exercisable for the first time by an employee during any
calendar year under the Plan exceeds $100,000 (including under
any other option plan of the Company or any Subsidiary of the
Company), the Options in excess of this limit shall be treated
as NQSOs. Fair Market Value shall be determined as of the date
on which each such ISO is granted.
(iii) No ISO may be granted to an individual if, at the
time of such grant, such individual owns (or is considered to
own with Code attribution rules) Stock possessing more than ten
(10) percent of the combined voting power of all classes of
Stock of the Company(or any Subsidiary) unless (A) the
exercise price of such ISO is at least 110% of the Fair Market
Value of a share of Stock at the time the ISO is granted, and
(B) such ISO is not exercisable after the expiration of
five years from the date of grant.
(D)
Term and Exercisability of
Options.
Unless the Committee determines
otherwise, the date on which the Committee adopts a resolution
expressly granting an Option shall be considered the day on
which such Option is granted. Options shall be exercisable over
the exercise period (which shall not exceed ten years from the
date of grant), at such times and upon such conditions as the
Committee may determine, as reflected in the Award Agreement. An
Option may be exercised to the extent of any or all full shares
of Stock as to which the Option has become exercisable (as
provided in the Award Agreement), by giving written notice of
such exercise to the Committee or its designated agent or by
such other procedures as the Committee may adopt or authorize.
(E)
Termination of Employment, etc.
An
Option may not be exercised unless the Grantee is then a
director of, in the employ of, or a consultant of, the Company
or a Subsidiary of the Company, and unless the Grantee has
remained continuously so employed, or continuously maintained
such a relationship, since the date of grant of the Option;
provided, that (i) the Award Agreement may contain
provisions extending the exercisability of Options, in the event
of specified terminations, to a date not later than the
expiration date of such Option, and (ii) any Option that is
exercised by an employee more than three months after his or her
termination of employment will not be an ISO, but may be
exercisable as a non-qualified Option to the extent permitted by
the terms of the Award Agreement.
(F)
Other Provisions; No Deferral of Options Permitted;
No Reload Rights.
Options may be subject to such
other conditions including, but not limited to, restrictions on
transferability of the shares acquired upon exercise of such
Options, as the Committee may prescribe in its discretion or as
may be
7-A
required by applicable law. No provisions may be included,
however, that would permit the deferral of options or option
gains. No Options shall be granted in the Plan that contain
reload rights upon exercise.
(ii)
SARs.
The Committee is authorized to
grant SARs to Grantees on the following terms and conditions:
(A)
SARs Generally
. A SAR shall confer on
the Grantee a right to receive an amount with respect to each
share subject thereto, upon exercise thereof, equal to the
excess of (1) the Fair Market Value of one share of Stock
on the date of exercise over (2) the grant price of the SAR
(which shall be the Fair Market Value of one share of Stock on
the date of the SAR grant). Payment of a SAR may be made in cash
or Stock or a combination of cash and Stock, as determined by
the Committee and specified in the Award Agreement. The maximum
term of any SAR shall be ten years from the date of grant. No
SARs may be granted with any deferral rights; and no Grantee
shall have any rights as a stockholder with respect to any
shares subject to SARs under the Plan until said shares have
been issued.
(B)
Tandem SARs
. SARs may be granted
independently or in tandem with an Option. Unless the Committee
determines otherwise, a SAR (1) granted in tandem with an
NQSO may be granted at the time of grant of the related NQSO or
at any time thereafter or (2) granted in tandem with an ISO
may only be granted at the time of grant of the related ISO. A
SAR granted in tandem with an Option shall be exercisable only
to the extent the underlying Option is exercisable, and shall be
exercised at the same time that the underlying Option is
exercised.
(iii)
Restricted Stock.
The Committee is
authorized to grant Restricted Stock to Grantees on the
following terms and conditions:
(A)
Issuance and Restrictions
. The
Committee is authorized to grant Awards of Restricted Stock
subject to such restrictions on transferability, vesting and
other restrictions, if any, as the Committee may impose, all of
which shall be set forth in a Restricted Stock Award Agreement.
Notwithstanding the foregoing, except as provided in
Section 7 (Change in Control), any vesting restrictions
that are based only on continued employment as an employee for a
specified period of time shall not lapse fewer than three years
after the date of grant of the Award; provided that such vesting
may occur over the three year vesting period. The Committee may
place restrictions on Restricted Stock that lapse, in whole or
in part, upon the attainment of Performance Goals, where the
performance period is for a minimum of one year (except as
provided otherwise in Section 7). Notwithstanding anything
to the contrary set forth in this Section 6(b)(iii)(A), the
Committee may grant, in its discretion, Awards of Restricted
Stock that are not subject to the vesting limitations set forth
in this paragraph, provided that such Awards, when combined with
the Awards described in Section 6(b)(iv)(A) shall not exceed, in
the aggregate, 10% of the Total Authorized Shares.
(B) Except to the extent restricted under the Award
Agreement relating to the Restricted Stock, a Grantee granted
Restricted Stock shall have all of the rights of a stockholder
including, without limitation, the right to vote Restricted
Stock and the right to receive dividends thereon.
(C)
Forfeiture
. Upon termination of
employment with or service to the Company or any Subsidiary of
the Company, during the applicable restriction period,
Restricted Stock shall be forfeited; provided, that the
Committee may provide, by rule or regulation or in any Award
Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of death,
disability, Change in Control, and separation from service
(except for cause); provided, however, that in the case of
performance-based Restricted Stock Awards that are intended to
be performance-based compensation for purposes of
Section 162(m), such forfeiture conditions may lapse upon
separation from service (for reasons other than death,
disability or Change in Control), only to the extent that the
Performance Goals are achieved.
(D)
Certificates for Stock; Book
Entry
. Restricted Stock granted under the Plan
may be evidenced in such manner as the Committee shall
determine. If certificates representing Restricted Stock are
registered in the name of the Grantee, such certificates shall
bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to such Restricted Stock, and the
Company shall retain
8-A
physical possession of the certificate until all restrictions
have lapsed. Alternatively, if the Committee directs, all shares
of Restricted Stock shall be held at the Companys transfer
agent in book entry form with appropriate restrictions relating
to the transfer of such shares of Restricted Stock being noted.
(E)
Dividends
. Dividends paid on
Restricted Stock shall, at the discretion of the Committee, be
paid at the dividend payment date either in cash or in shares of
Stock having a Fair Market Value equal to the amount of such
dividends. Stock distributed in connection with a stock split or
a stock dividend, Stock distributed in connection with a special
dividend, and any property other than Stock or cash distributed
as a dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock with
respect to which such Stock or other property has been
distributed.
(iv)
Restricted Stock Units.
The
Committee is authorized to grant Restricted Stock Units to
Grantees, subject to the following terms and conditions:
(A)
Award and Restrictions
. The Committee
is authorized to grant Awards of Restricted Stock Units subject
to such restrictions on transferability, vesting and other
conditions, if any, as the Committee may impose, all of which
shall be set forth in a Restricted Stock Unit Award Agreement.
Notwithstanding the foregoing, except as provided in Section 7
(Change in Control), any vesting restrictions that are based
only on continued employment as an employee for a specified
period of time shall not lapse fewer than three years after the
date of grant of the Award; provided that such vesting may occur
over the three year vesting period. The Committee may place
restrictions on Restricted Stock Units that lapse, in whole or
in part, upon the attainment of Performance Goals, where the
performance period is for a minimum of one year (except as
provided otherwise in Section 7). Notwithstanding anything
to the contrary set forth in this Section 6(b)(iv)(A), the
Committee may grant, in its discretion, Awards of Restricted
Stock Units that are not subject to the vesting limitations set
forth in this paragraph, provided that such Awards, when
combined with the Awards described in Section 6(b)(iii)(A)
shall not exceed, in the aggregate, 10% of the Total Authorized
Shares.
(B) Unless the Grantee has made a timely election to defer
receipt of shares to be delivered pursuant to an award of
Restricted Stock Units in accordance with
Section 6(b)(iv)(D) of this Plan and the terms of the 2010
Deferred Compensation Plan, delivery of Stock or cash, as
determined by the Committee in the Award Agreement, will occur
upon expiration of the vesting and delivery period specified for
the particular Award of Restricted Stock Units.
(C)
Forfeiture
. Upon termination of
employment with, or service to, the Company or any Subsidiary of
the Company, during the period to which forfeiture conditions
apply, or upon failure to satisfy any other conditions precedent
to the delivery of Stock or cash to which such Restricted Stock
Units relate, all Restricted Stock Units and accrued but unpaid
dividend equivalents, if any, that are then subject to deferral
or restriction shall be forfeited; provided, that the Committee
may provide in any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions
relating to Restricted Stock Units will be waived in whole or in
part in the event of death, disability, Change in Control, and
separation from service (except for cause); provided, however,
that in the case of performance based Restricted Stock Units,
such forfeiture conditions may lapse upon separation from
service (for reasons other than death, disability or Change in
Control), only to the extent that the Performance Goals are
achieved.
(D)
Deferral of Receipt of RSU Shares
. To
the extent permitted by the Committee or the terms of an RSU
Award (or any Performance Based Award under which an RSU Award
may be granted), the Grantee may elect to defer the delivery of
shares of Stock that otherwise would be due upon the
satisfaction, lapse or waiver of restrictions with respect to
such RSUs, by timely filing a deferral election in accordance
with the terms of the 2010 Deferred Compensation Plan. The
deferral, if elected, will result in the transfer of the RSUs
into the 2010 Deferred Compensation Plans Stock Equivalent
Fund in effect at the time the shares deliverable pursuant to
the RSUs would have otherwise been distributed. The 2010
Deferred Compensation Plan rules will govern the administration
of this Award beginning on the date the RSUs vest and are
credited to the 2010 Deferred Compensation Plan.
9-A
(E)
Dividend Equivalents.
If so provided
in the terms of the RSU Award, with respect to each cash
dividend or other distribution (if any) paid with respect to the
Stock of the Company to holders of record on and after the Grant
Date, a number a shares of Stock shall be accrued on the records
of the Company, in an amount equal to the product of
(i) the amount of such dividend or other distribution paid
with respect to one share of Stock, multiplied by (ii) the
number of RSUs granted hereunder, and (iii) divided by the
Fair Market Value of one share of Stock on the applicable
dividend or distribution payment date for the dividend or other
distribution, which amount shall be credited in the form of
additional RSUs on such date. No Dividend Equivalents shall be
paid to the Grantee prior to the settlement of the Award.
Rather, such Dividend Equivalent payments shall accrue and be
notionally credited and paid out upon settlement of the Award
with the same form of consideration used to settle to the
underlying RSUs. At such time(s) as the Grantee receives a
distribution of shares of Stock or cash in respect to vested
RSUs (or deferred, vested RSUs, as applicable), the Company
shall also distribute such number of shares of Stock or cash as
are accrued under this paragraph. To the extent that an RSU
Award is intended to be performance-based compensation for
purposes of Section 162(m), no Dividend Equivalents shall
be paid with respect to a RSU Award to the extent that
Performance Goals are not achieved.
(v)
Other Stock- or Cash-Based
Awards.
The Committee is authorized to grant
Awards to Grantees in the form of Other Stock-Based Awards or
Other Cash-Based Awards, as deemed by the Committee to be
consistent with the purposes of the Plan. Awards granted
pursuant to this paragraph may be granted with value and payment
contingent upon Performance Goals. Notwithstanding the
foregoing, except as provided in Section 7 (Change in
Control), any vesting restrictions that are based only on
continued employment as an employee for a specified period of
time shall not lapse fewer than three years after the date of
grant of the Award; provided that such vesting may occur over
the three year vesting period. If provided by the terms of the
Award, Dividend Equivalents may be credited on Other Stock-Based
Awards, in the same manner, and to the same extent as with
respect to Restricted Stock Units; and no Dividend Equivalents
shall be paid on Other-Stock-Based Awards that do not vest. The
Committee shall determine the terms and conditions of such
Awards at the date of grant or thereafter. The maximum payment
that any Grantee may receive with respect to Other Cash -Based
Awards pursuant to this Section 6(b)(v) in respect of any annual
(or shorter) performance period is $5,000,000. For any other
performance period in excess of one year, such amount shall be
multiplied by a fraction, the numerator of which is the number
of months in the performance period and the denominator of which
is twelve. Payments earned hereunder may be decreased in the
sole discretion of the Committee based on individual performance
and such other factors as it deems appropriate in the
circumstances. No payment shall be made to a Covered Employee
prior to the certification by the Committee that the Performance
Goals have been attained. The Committee may establish such other
rules applicable to the Other Stock- or Cash-Based Awards to the
extent not inconsistent with Section 162(m) of the Code (if
such Awards are intended to be performance-based compensation
for purposes of Section 162(m)).
(c)
Annual Incentive Program.
The
Committee is authorized to grant Awards to Grantees pursuant to
the Annual Incentive Program, under such terms and conditions as
deemed by the Committee to be consistent with the purposes of
the Plan. The maximum value of the aggregate payment that any
Grantee may receive under the Annual Incentive Program in
respect of any calendar year is the dollar limit specified in
the EMIP, which limit is incorporated herein by reference.
Payments earned hereunder may be decreased in the sole
discretion of the Committee based on individual performance and
such other factors as it deems appropriate in the circumstances.
No payment shall be made to a Covered Employee prior to the
certification by the Committee that the Performance Goals have
been attained (if such Award is intended to be performance-based
compensation for purposes of Section 162(m)). The Committee
may establish such other rules applicable to the Annual
Incentive Program to the extent not inconsistent with
Section 162(m) of the Code (if such Awards are intended to
be performance-based compensation for purposes of
Section 162(m)).
(d)
Automatic Awards to Non-Employee
Directors.
Unless the Committee determines in its
discretion to make a lesser Award or no Award, (i) any
person who first becomes a non-employee director of the Company
after the Effective Date (as defined in Section 8(d) of the
Plan), shall automatically receive upon his or her election to
the Board an inaugural award of 1,000 Restricted Stock Units on
such date and (ii) on each June 1 (or the next business day
thereafter if June 1 shall not be a business day) after the
Effective Date, each person
10-A
serving as a non-employee director of the Company on such date
shall receive an annual award of 1,500 Restricted Stock Units.
Each of the automatic Awards made pursuant to this
Section 6(d) shall be on such vesting and other terms as
provided in the Companys non-employee Directors
Restricted Stock Unit Award Agreement (or such other Award
Agreement as shall be approved from time to time by the
Committee for such automatic grants). If a non-employee director
ceases to serve as a director of the Company for any reason,
such non-employee directors Restricted Stock Units granted
pursuant to this Section 6(d) shall terminate to the extent
that the vesting of such Restricted Stock Units has not been
accelerated in accordance with the terms thereof, and such
former non-employee director shall have no rights with respect
to, or in respect of, such terminated Restricted Stock Units.
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7.
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Change
in Control
Provisions
.
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Except as otherwise expressly provided by the terms of an Award
Agreement, if there is a Change in Control, then the Board, or
the board of directors of any entity assuming the obligations of
the Company, shall take any one or more of the following actions
as to outstanding Awards in its sole and absolute discretion:
(a) Awards May Be Continued, Assumed or Substituted. Any
surviving entity or acquirer (or the surviving or acquiring
entitys parent company) may assume or continue any or all
Awards outstanding under the Plan or may substitute similar
stock awards for Awards outstanding under the Plan (including
but not limited to, awards to acquire the same consideration
paid to the stockholders of the Company pursuant to the Change
in Control), and any reacquisition or repurchase rights held by
the Company in respect of Common Stock issued pursuant to Awards
may be assigned by the Company to the successor of the Company
(or the successors parent company, if any), in connection
with such Change in Control. A surviving entity or acquirer (or
its parent) may choose to assume or continue only a portion of
an Award or substitute a similar award for only a portion of an
Award, or may assume, continue or substitute some Awards and not
others.
(b) Accelerated Vesting of Awards. The vesting of any or
all Awards (and, with respect to Options and Stock Appreciation
Rights, the time at which such Awards may be exercised) may be
accelerated in full or in part to a date on or prior to the
effective time of such Change in Control (contingent upon the
effectiveness of the Change in Control) as the Board shall
determine with respect to any Grantee or all Grantees and, with
respect to such Grantee or Grantees, the Board may further
determine that any reacquisition or repurchase rights held by
the Company with respect to an Award shall lapse in full or in
part as of a date on or prior to the effective time of such
Change in Control (contingent upon the effectiveness of the
Change in Control).
(c) Payment for Awards in Lieu of Exercise. The Board may
provide that the holder of an Award may not exercise such Award
but will receive a payment, in such form of consideration as may
be determined by the Board, equal in value to the excess, if
any, of (A) the value of the property the holder of the
Award would have received upon the exercise of the Award
(including, at the discretion of the Board, any portion of such
Award whose vesting is accelerated as provided in
(b) above), over (B) any exercise price payable by
such holder in connection with such exercise.
(a)
Nontransferability.
Awards shall not
be transferable by a Grantee except by will or the laws of
descent and distribution and shall be exercisable during the
lifetime of a Grantee only by such Grantee or his guardian or
legal representative.
(b)
No Right to Continued Employment,
etc.
Nothing in the Plan or in any Award, any
Award Agreement or other agreement entered into pursuant hereto
shall confer upon any Grantee the right to continue in the
employ or service of the Company or Subsidiary of the Company or
to be entitled to any remuneration or benefits not set forth in
the Plan or such Award Agreement or other agreement or to
interfere with or limit in any way the right of the Company or
any such Subsidiary to terminate such Grantees employment,
service or independent contractor relationship.
11-A
(c)
Taxes.
The Company or any Subsidiary
of the Company is authorized to, and shall, withhold from any
Award granted, any payment relating to an Award under the Plan,
including from a distribution of Stock, or any other payment to
a Grantee, amounts of withholding and other taxes due in
connection with any transaction involving an Award, and to take
such other action as the Committee may deem advisable to enable
the Company and Grantees to satisfy obligations for the payment
of withholding taxes and other tax obligations relating to any
Award. This authority shall include authority to withhold or
receive Stock or other property and to make cash payments in
respect thereof in satisfaction of a Grantees tax
obligations. The Committee may provide in the Award Agreement
that in the event that a Grantee is required to pay any amount
to be withheld in connection with the issuance of shares of
Stock in settlement or exercise of an Award, the Grantee shall
or may satisfy such obligation (in whole or in part) by electing
to have withheld a portion of the shares of Stock otherwise to
be received upon settlement or exercise of such Award equal to
the minimum amount required to be withheld. All Awards made
under the Plan are intended to be exempt from, or to comply
with, the requirements of Section 409A of the Code and any
regulations or guidance promulgated thereunder and the Plan and
such Awards shall be interpreted in a manner consistent with
such interpretation.
(d)
Stockholder Approval; Amendment and Termination.
(i) The Plan shall become effective on the date that it is
approved by the requisite vote of the Companys
stockholders (the Effective Date).
(ii) The Board may at any time and from time to time alter,
amend, suspend, or terminate the Plan in whole or in part;
provided, however, that unless otherwise determined by the
Board, an amendment that requires stockholder approval in order
for the Plan to continue to comply with Section 162(m) or
any other law, regulation or stock exchange requirement shall
not be effective unless approved by the requisite vote of
stockholders. Without limiting the generality of the foregoing,
stockholder approval shall be required for any amendment to the
Plan which (a) increases the maximum number of shares of
Stock available under the Plan, (b) changes the conditions
for eligibility to participate in the Plan, or
(c) otherwise materially increases the benefits accruing to
Plan participants. Notwithstanding the foregoing, no amendment
to or termination of the Plan shall affect adversely any of the
rights of any Grantee, without such Grantees consent,
under any Award theretofore granted under the Plan.
(e)
Expiration of Plan.
Unless earlier
terminated by the Board pursuant to the provisions of the Plan,
the Plan shall expire on the tenth anniversary of the date the
Plan is approved by the Companys stockholders. No Awards
shall be granted under the Plan after such expiration date. The
expiration of the Plan shall not affect adversely any of the
rights of any Grantee, without such Grantees consent,
under any Award theretofore granted.
(f)
Deferrals.
The Committee shall have
the authority to establish such procedures and programs that it
deems appropriate to provide Grantees with the ability to defer
receipt of cash, Stock or other property payable with respect to
Awards granted under the Plan, consistent with the requirements
of Section 409A of the Code. Notwithstanding the foregoing, no
deferrals shall be permitted with respect to Options, SARs or
Restricted Stock Awards.
(g)
No Rights to Awards; No Stockholder
Rights.
No Grantee shall have any claim to be
granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Grantees. Except as provided
specifically herein, a Grantee or a transferee of an Award shall
have no rights as a stockholder with respect to any shares
covered by the Award until the date of the issuance of a stock
certificate to him for such shares or the issuance of shares to
him in book-entry form.
(h)
Unfunded Status of Awards.
The Plan
is intended to constitute an unfunded plan for
incentive and deferred compensation. With respect to any
payments not yet made to a Grantee pursuant to an Award, nothing
contained in the Plan or any Award shall give any such Grantee
any rights that are greater than those of a general creditor of
the Company.
(i)
No Fractional Shares.
No fractional
shares of Stock shall be required to be issued or delivered
pursuant to the Plan or any Award. The Committee shall determine
whether cash, other Awards, or other
12-A
property shall be issued or paid in lieu of such fractional
shares or whether such fractional shares or any rights thereto
shall be forfeited or otherwise eliminated.
(j)
Adjustment of Awards due to Restatement of
Earnings.
The Company will, to the extent
permitted by governing law, require reimbursement of any cash or
equity-based incentive compensation paid to any named executive
officer (for purposes of this policy named executive
officers has the meaning given that term in
Item 402(a)(3) of
Regulation S-K
under the Securities Exchange Act of 1934) where:
(i) the payment was predicated upon the achievement of
certain financial results that were subsequently the subject of
a substantial restatement, and (ii) in the Committees
view the officer engaged in fraud or misconduct that caused or
partially caused the need for the substantial restatement. In
each instance described above, the Company will, to the extent
practicable, seek to recover the described cash or equity-based
incentive compensation for the relevant period, plus a
reasonable rate of interest. In addition, with respect to other
Grantees, the Committee may make retroactive adjustments to, and
the Grantee shall reimburse to the Company, any cash or
equity-based incentive compensation paid to the Grantee ) where
such compensation was predicated upon achieving certain
financial results that were substantially the subject of a
restatement, and as a result of the restatement it is determined
that the Grantee otherwise would not have been paid such
compensation, regardless of whether or not the restatement
resulted from the Grantees misconduct. In each such
instance, the Company will, to the extent practicable, seek to
recover the amount by which the Grantees cash or
equity-based incentive compensation for the relevant period
exceeded the lower payment that would have been made based on
the restated financial results.
(k) Regulations and Other Approvals.
(i) The obligation of the Company to sell or deliver Stock
with respect to any Award granted under the Plan shall be
subject to all applicable laws, rules and regulations, including
all applicable federal and state securities laws, and the
obtaining of all such approvals by governmental agencies as may
be deemed necessary or appropriate by the Committee.
(ii) Each Award is subject to the requirement that, if at
any time the Committee determines, in its absolute discretion,
that the listing, registration or qualification of Stock
issuable pursuant to the Plan is required by any securities
exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of
an Award or the issuance of Stock, no such Award shall be
granted or payment made or Stock issued, in whole or in part,
unless listing, registration, qualification, consent or approval
has been effected or obtained free of any conditions not
acceptable to the Committee.
(iii) In the event that the disposition of Stock acquired
pursuant to the Plan is not covered by a then current
registration statement under the Securities Act and is not
otherwise exempt from such registration, such Stock shall be
restricted against transfer to the extent required by the
Securities Act or regulations thereunder, and the Committee may
require a Grantee receiving Stock pursuant to the Plan, as a
condition precedent to receipt of such Stock, to represent to
the Company in writing that the Stock acquired by such Grantee
is acquired for investment only and not with a view to
distribution.
(iv) The Committee may require a Grantee receiving Stock
pursuant to the Plan, as a condition precedent to receipt of
such Stock, to enter into a stockholder agreement or
lock-up
agreement in such form as the Committee shall determine is
necessary or desirable to further the Companys interests.
(l)
Governing Law.
The Plan and all
determinations made and actions taken pursuant hereto shall be
governed by the laws of the State of Delaware without giving
effect to the conflict of laws principles thereof.
Adopted by the Board of Directors: March 30, 2010
Approved by the
Stockholders: ,
2010
13-A
JOS. A. BANK
CLOTHIERS, INC.
500
HANOVER PIKE
HAMPSTEAD, MD 21074-2095
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For
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Withhold
All
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For All
Except
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To withhold authority to vote for any individual nominee(s), mark
For All Except and write the number(s) of the nominee(s) on the line below.
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The
Board of Directors recommends that you vote
FOR the following:
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1. Election of Directors
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o
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Nominees:
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01
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James H. Ferstl
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02
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Sidney H. Ritman
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The Board of Directors recommends you
vote FOR the following proposal(s):
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For
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Against
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Abstain
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2. Ratification of the selection of Deloitte & Touche LLP as the Companys registered public
accounting firm for the fiscal year ending January 29, 2011.
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3. Approval of the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive Plan.
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NOTE:
Election of James H. Ferstl and Sidney H. Ritman as Directors for terms expiring at the
Companys 2013 Annual Meeting of Stockholders, or at such later time as their respective successors
have been duly elected and qualified.
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Please sign exactly as your name(s) appear(s) hereon. When
signing as attorney, executor, administrator, or other
fiduciary, please give full title as such. Joint owners
should each sign personally. All holders must sign. If a
corporation or partnership, please sign in full corporate
or partnership name, by authorized officer.
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Signature [PLEASE SIGN WITHIN
BOX]
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Date
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Signature (Joint Owners)
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Date
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Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Notice &
Proxy Statement, and Annual Report on Form 10-K is/are available at
www.proxyvote.com
.
JOS. A. BANK CLOTHIERS, INC.
Annual Meeting of Stockholders
June 17, 2010 10:00 AM
This proxy is solicited by the Board of Directors
The undersigned hereby appoints R. Neal Black and Charles D. Frazer, and each of them, as Proxy or
Proxies of the undersigned, each with full power of substitution and resubstitution, to attend and
represent the undersigned at the annual meeting of stockholders of Jos. A. Bank Clothiers, Inc. to
be held at the Companys headquarters, 500 Hanover Pike, Hampstead, Maryland, on June 17, 2010 at
10:00 a.m. Eastern Time, or at any adjournments or postponements thereof, and vote thereat the
number of shares of stock of the Company which the undersigned would be entitled to vote if
personally present, in accordance with the instructions set forth on this proxy card, and in their
discretion (or the discretion of either of them) on all other matters properly coming before the
meeting or any adjournments or postponements thereof.
When properly executed, this Proxy will be voted as directed. If no direction is made, this Proxy
will be voted FOR Mr. Ferstl and Mr. Ritman; FOR the ratification of the selection of Deloitte
& Touche LLP; and FOR the approval of the Jos. A. Bank Clothiers, Inc. 2010 Equity Incentive
Plan.
Continued and to be signed on reverse side
Jos. A. Bank Clothiers (NASDAQ:JOSB)
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