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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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-
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Definitive Proxy Statement
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Soliciting Material Pursuant to §240.14a-12
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VALUEVISION MEDIA, 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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filing for which the offsetting fee was paid previously. Identify the previous filing by registration
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VALUEVISION
MEDIA, INC.
6740 Shady Oak Road
Eden Prairie, Minnesota
55344-3433
May 5, 2011
To our Shareholders:
You are cordially invited to attend the Annual Meeting of
Shareholders of ValueVision Media, Inc., a Minnesota
corporation, to be held at our offices located at 6690 Shady Oak
Road (Human Resources Entrance), Eden Prairie, Minnesota, on
Wednesday, June 15, 2011 at 8:00 a.m. central time.
This year we are again taking advantage of a Securities and
Exchange Commission rule allowing us to furnish our proxy
material over the Internet. If you are a shareholder who holds
shares in an account with a broker (also referred to as shares
held in street name), you will receive a Notice Regarding
Availability of Proxy Materials from your broker. The Notice
Regarding Availability of Proxy Materials will tell you how you
can access our proxy materials which describe the matters to
come before the meeting. It also will tell you how to request a
paper or
e-mail
copy
of our proxy materials. If you are a shareholder whose shares
are registered directly in your name with our transfer agent,
Wells Fargo Bank, N.A., you will receive a copy of our proxy
materials by mail.
We hope that you will be able to attend the meeting in person
and we look forward to seeing you. Whether or not you plan to
attend the meeting, please take the time to vote. Please vote
your shares as instructed in the Notice Regarding Availability
of Proxy Materials or on your proxy card and send your proxy
through the Internet, telephone or mail as soon as possible so
that your proxy is received prior to the meeting. This will
assure that your shares will be represented at the meeting and
voted in accordance with your wishes. Please vote as quickly as
possible, even if you plan to attend the annual meeting. You may
revoke the proxy and vote in person at the meeting if you so
desire.
Sincerely,
Keith R. Stewart
Chief Executive Officer
YOUR VOTE IS IMPORTANT
Instructions for submitting your proxy are outlined on the
Notice Regarding Availability of Proxy Materials or, if you
received a paper copy of our proxy material, on your proxy card.
Even if you own only a few shares, and whether or not you expect
to be present at the meeting, please submit your proxy through
the Internet, by telephone, or mark, sign, date and promptly
mail the paper proxy card in the postage-paid reply envelope
provided. It is important that your shares be represented.
TABLE
OF CONTENTS
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VALUEVISION
MEDIA, INC.
6740 Shady Oak Road
Eden Prairie, Minnesota
55344-3433
NOTICE OF
ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON JUNE 15, 2011
To the Shareholders of ValueVision Media, Inc.:
The annual meeting of shareholders of ValueVision Media, Inc.
will be held at our offices located at 6690 Shady Oak Road
(Human Resources Entrance), Eden Prairie, Minnesota on
Wednesday, June 15, 2011 at 8:00 a.m. central time, or
at any adjournments or postponements thereof. The meeting is
being held for the purpose of considering and taking action with
respect to the following:
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1.
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to elect nine directors to serve until the next annual meeting
of shareholders or until their successors have been duly elected
and qualified;
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2.
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to ratify the appointment of Deloitte & Touche LLP as
our independent registered public accounting firm for the fiscal
year ending January 28, 2012;
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3.
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to approve the ValueVision Media, Inc. 2011 Omnibus Incentive
Plan;
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to approve, on an advisory basis, the 2010 compensation of our
named executive officers as disclosed in our proxy statement;
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5.
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to vote, on an advisory basis, on the frequency of including an
advisory vote on the compensation of our named executive
officers in our proxy statement;
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as well as to transact such other business as may properly come
before the meeting or any adjournments thereof.
Only shareholders of record at the close of business on
April 29, 2011 will be entitled to receive notice of and to
vote at the meeting or any adjournments thereof. The mailing of
this proxy statement and our board of directors form of
proxy to shareholders whose shares are registered directly in
their names with our transfer agent will commence on or about
May 17, 2011. The mailing of the Notice Regarding
Availability of Proxy Materials to our shareholders who hold
shares in accounts with brokers (also referred to as shares held
in street name) will commence on or about May 5, 2011.
Your proxy is important to ensure a quorum at the meeting. Even
if you own only a few shares, and whether or not you plan to
attend the meeting in person, you are requested to vote your
proxy either (1) through the Internet at the address listed
on the Notice Regarding Availability of Proxy Materials or the
proxy card, (2) by calling a toll-free telephone number
listed on the Notice Regarding Availability of Proxy Materials
or proxy card or (3) by marking, signing and dating the
proxy card and mailing it in the envelope provided. The proxy
may be revoked by you at any time prior to being exercised, and
voting your proxy by telephone or through the Internet or by
returning your proxy will not affect your right to vote in
person if you attend the meeting and revoke the proxy.
THE BOARD OF DIRECTORS RECOMMENDS THAT SHAREHOLDERS VOTE IN
FAVOR OF EACH OF PROPOSALS #1-4, INCLUDING VOTING IN FAVOR
OF THE NOMINEES TO THE BOARD OF DIRECTORS, AND VOTE TO APPROVE
EVERY YEAR AS THE FREQUENCY OF INCLUDING AN ADVISORY VOTE ON
EXECUTIVE COMPENSATION.
By Order of the Board of Directors
Teresa Dery
Interim General Counsel
May 5, 2011
Eden Prairie, Minnesota
PROXY
STATEMENT
FOR THE
2011 ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON JUNE 15, 2011
GENERAL
INFORMATION
The enclosed proxy is being solicited by our board of directors
for use in connection with our annual meeting of shareholders to
be held on Wednesday, June 15, 2011 at our offices located
at 6690 Shady Oak Road (Human Resources entrance), Eden Prairie,
Minnesota, at 8:00 a.m., central time, and at any
adjournments or postponements. Our telephone number is
(952) 943-6000.
The mailing of this proxy statement and our board of
directors form of proxy to shareholders whose shares are
registered directly in their names with our transfer agent will
commence on or about May 17, 2011. The mailing of the
Notice Regarding Availability of Proxy Materials to our
shareholders who hold shares in accounts with brokers (also
referred to as shares held in street name) will commence on or
about May 5, 2011.
What is
the purpose of the Annual Meeting?
At the annual meeting we will ask our shareholders to vote on
these matters:
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to elect a board of directors of nine directors to serve until
the next annual meeting of shareholders or until their
successors have been duly elected and qualified;
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to ratify the appointment of Deloitte & Touche LLP as
our independent registered public accounting firm for the fiscal
year ending January 28, 2012;
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3.
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to approve the ValueVision Media, Inc. 2011 Omnibus Incentive
Plan;
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4.
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to approve, on an advisory basis, the 2010 compensation of our
named executive officers as disclosed in our proxy statement;
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5.
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to vote, on an advisory basis, on the frequency of including an
advisory vote on the compensation of our named executive
officers in our proxy statement;
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as well as to transact other business that may properly be
brought before the meeting.
Who is
entitled to vote at the meeting?
Only shareholders of record at the close of business on
April 29, 2011 will be entitled to vote at the meeting or
adjournments thereof. Our common stock is our only authorized
and issued voting security. Every share is entitled to one vote
on each matter that comes before the meeting. At the close of
business on the record date, we had 47,359,188 shares of
our common stock outstanding and entitled to vote.
Who is
entitled to attend the meeting?
Subject to space availability, all shareholders as of the record
date, or their duly appointed proxies, may attend the meeting in
person. Since seating is limited, admission to the meeting will
be on a first-come, first-served basis. Registration will begin
at 7:30 a.m. central time. Cameras, recording devices and
other electronic devices will not be permitted at the meeting.
Please also note that if you hold your shares in street
name (that is, through a broker or other nominee), and you
wish to vote your shares at the meeting, instead of by proxy,
you will need to bring a copy of a brokerage statement
reflecting your stock ownership as of the record date.
What
constitutes a quorum?
The presence at the annual meeting, in person or represented by
proxy, of a majority of the outstanding shares of our common
stock as of the record date will constitute a quorum for the
transaction of business at the annual
meeting. Shares represented by proxies marked
Abstain or Withheld and broker
non-votes are counted in determining whether a quorum is
present for the transaction of business at the annual meeting. A
broker non-vote is a proxy submitted by a broker
that does not indicate a vote for some or all of the proposals
because the broker does not have discretionary voting authority
on certain types of proposals and has not received instructions
from its client as to how to vote on a particular proposal.
Vote
required
Election of Directors.
The affirmative vote of
a plurality of the shares of common stock present in person or
by proxy at the meeting and entitled to vote is required for the
election to the board of directors of each of the nominees for
director. Shareholders do not have the right to cumulate their
votes in the election of directors. A shareholder who does not
vote (including a broker non-vote) will have no effect on the
election of directors.
Approval of ValueVision Media, Inc. 2011 Omnibus Incentive
Plan.
The affirmative vote of the holders of a
majority of the shares of common stock present in person or by
proxy at the meeting and entitled to vote is required for
approval of the ValueVision Media, Inc. 2011 Omnibus Incentive
Plan. A shareholder who abstains with respect to a proposal will
have the effect of casting a negative vote on this proposal. In
addition, the rules of the NASDAQ Stock Market require that
holders of at least a majority of our common stock must vote for
this proposal. Therefore, a shareholder who does not vote
(including a broker non-vote) will not count toward this
requirement and will have the effect of not meeting the
requirement for this proposal to pass.
Non-Binding Votes on Executive Compensation and Frequency
Vote.
The advisory votes on the 2010 compensation
of our named executive officers as disclosed in this proxy
statement and the frequency of including the advisory vote on
the compensation of our named executive officers are not binding
on us. We will consider our shareholders to have approved our
executive compensation if the number of votes cast
for this proposal exceeds the number of votes cast
against this proposal. We will consider our
shareholders to have selected the frequency option that receives
the greatest number of votes. With respect to these proposals, a
shareholder who abstains and a shareholder who does not vote
(including a broker non-vote), will have no effect on the
outcome of these proposals.
Other Proposals.
For all other proposals, the
affirmative vote of the holders of a majority of the shares of
common stock present in person or by proxy at the meeting and
entitled to vote is required for approval of each other proposal
presented in this proxy statement. A shareholder who abstains
with respect to a proposal will have the effect of casting a
negative vote on that proposal. A shareholder who does not vote
in person or by proxy on a proposal (including a broker
non-vote) will have no effect on the outcome of these proposals.
How do I
vote?
Proxies in the accompanying form that are properly signed and
returned to us, voted by telephone or through the Internet in
accordance with the voting instructions set forth below, and not
revoked, will be voted in the manner specified.
You may vote electronically by submitting your proxy through the
Internet or by telephone. The Internet and telephone voting
procedures are designed to authenticate your identity as a
ValueVision Media, Inc. shareholder, to allow you to vote your
shares and to confirm that your instructions have been properly
recorded.
To vote by Internet:
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Go to the web site printed on your Notice Regarding Availability
of Proxy Materials or proxy card 24 hours a day, seven days
a week.
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Complete the electronic ballot and submit your voting
instructions.
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To vote by telephone:
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From a touch-tone telephone, call the toll-free number printed
on your Notice Regarding Availability of Proxy Materials or
proxy card or electronic notification, 24 hours a day,
seven days a week.
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Follow the simple recorded instructions.
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To vote by proxy card:
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Mark your selections on the proxy card.
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Date and sign your name exactly as it appears on your proxy card.
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Mail the proxy card in the enclosed postage-paid envelope (we
must receive the mailed proxy card prior to the meeting).
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If you are a registered shareholder and attend the annual
meeting, you may deliver your proxy in person. Paper ballots
also will be available at the meeting. If you hold your shares
in street name, you need to obtain a proxy form from
the institution that holds your shares. Shareholders who hold
shares through a broker or agent should follow the voting
instructions received from that broker or agent.
How do I
access the proxy materials?
Under rules of the Securities and Exchange Commission, we are
furnishing proxy materials to our shareholders who hold shares
in accounts with brokers on the Internet, rather than mailing
printed copies to these shareholders. We are mailing copies of
our proxy materials to shareholders whose shares are registered
directly in their names with our transfer agent. If you received
a Notice Regarding Availability of Proxy Materials by mail, you
will not receive a printed copy of the proxy materials unless
you request one as instructed in that notice. Instead, the
Notice Regarding Availability of Proxy Materials will instruct
you as to how you may access and review the proxy materials on
the Internet. If you received a Notice Regarding Availability of
Proxy Materials by mail and would like to receive a printed copy
of our proxy materials, please follow the instructions included
in the Notice Regarding Availability of Proxy Materials.
May I
change my vote after I return my proxy?
Even after you have submitted your proxy, you may change your
vote at any time before the proxy is exercised by filing with
our corporate secretary either a notice of revocation or a duly
executed proxy bearing a later date. Alternatively, if you have
voted by telephone or through the Internet, you may change your
vote by calling the toll-free number again and following the
instructions, or by accessing the web site printed on your
Notice Regarding Availability of Proxy Materials and following
the instructions. The powers of the proxy holders will be
suspended if you attend the meeting in person and so request,
although attendance at the meeting will not by itself revoke a
previously granted proxy.
What is
the effect of a broker non-vote on the proposals to
be voted on at the meeting?
The election of directors, the approval of the ValueVision
Media, Inc. 2011 Omnibus Incentive Plan, the advisory vote on
executive compensation and the advisory vote on the frequency of
executive compensation votes are proposals on which your broker
does not have discretionary authority to vote. Thus, if your
shares are held in street name and you do not provide
instructions as to how your shares are to be voted, your broker
or other nominee will not be able to vote your shares on these
matters. Accordingly, we urge you to direct your broker or
nominee to vote your shares by following the instructions
provided on the voting instruction card that you receive from
your broker.
May the
meeting be adjourned?
If a quorum is not present to transact business at the meeting
or if we do not receive sufficient votes in favor of the
proposals by the date of the meeting, the persons named as
proxies may propose one or more adjournments of the meeting. Any
adjournment would require the affirmative vote of a majority of
the shares present in person or represented by proxy at the
meeting.
Who pays
the expenses incurred in connection with the solicitation of
proxies?
We will pay the cost of soliciting proxies in the accompanying
form. In addition to solicitation by the use of the mail,
certain directors, officers and regular employees may solicit
proxies by telephone, the Internet, email or
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personal interview, and may request brokerage firms and
custodians, nominees and other record holders to forward
soliciting materials to the beneficial owners of our shares. We
will reimburse them for their reasonable
out-of-pocket
expenses in forwarding these materials.
How may I
obtain additional copies of the annual report and/or proxy
statement?
Our annual report on
Form 10-K
for our fiscal year ended January 29, 2011, including
audited financial statements, and the 2011 proxy statement are
available online at www.valuevisionmedia.com/proxy. Please
follow the instructions on the Notice Regarding the Availability
of Proxy Materials to request a paper copy of the materials. For
additional printed copies, which are available without charge,
please contact our corporate secretary by mail at ValueVision
Media, Inc., 6740 Shady Oak Road, Eden Prairie, Minnesota 55344-
3433, Attention: Corporate Secretary.
What is
the deadline for submitting a shareholder proposal for inclusion
in the proxy statement for our 2012 annual meeting?
We must receive shareholder proposals intended to be presented
at our 2012 annual meeting of shareholders that are requested to
be included in the proxy statement for that meeting at our
principal executive office no later than Wednesday,
January 18, 2012. The inclusion of any shareholder
proposals in those proxy materials will be subject to the
requirements of the proxy rules adopted under the Securities
Exchange Act of 1934, including
Rule 14a-8.
Written copies of all shareholder proposals should be sent to
ValueVision Media, Inc., 6740 Shady Oak Road, Eden Prairie,
Minnesota
55344-3433,
Attention: Corporate Secretary.
If notice of any other shareholder proposal intended to be
presented at the 2012 annual meeting is not received by us on or
before Friday, March 16, 2012, the proxy solicited by our
board of directors for use in connection with that meeting may
confer authority on the proxies named therein to vote in their
discretion on such proposal without any discussion in our proxy
statement for that meeting of either the proposal or how such
proxies intend to exercise their voting discretion.
4
PROPOSAL
#1
ELECTION
OF DIRECTORS
Nine directors will be voted upon and elected by the holders of
shares of common stock. Each director will hold office until the
next annual meeting of shareholders and until his or her
successor is elected and qualified, or his or her earlier
resignation or removal. All of these director nominees have
consented to serve as a director, if elected.
Our corporate governance guidelines provide that no individual
may be nominated to serve as a director if his or her term of
service would expire more than one year after such
individuals 70th birthday. In accordance with this
director retirement policy, Robert J. Korkowski, who has been
one of our directors since 1993, will retire from the board of
directors effective at the end of the annual meeting of
shareholders. At a meeting held on April 21, 2011, our
corporate governance and nominating committee reviewed the
makeup of the board and recommended, by unanimous vote, that the
nine persons named below be nominated for election as directors.
Two of the nine recommended nominees, Sean F. Orr and William F.
Evans, had not previously served as directors of our company and
were initially suggested as nominees by certain of our
independent directors. Two of the nine recommended persons were
nominated by GE Capital Equity Investments, Inc. pursuant to the
terms of our amended and restated shareholders agreement more
fully described below under Certain Transactions.
Based upon the recommendation of our corporate governance and
nominating committee, the full board unanimously nominated the
nine individuals recommended by the corporate governance and
nominating committee for election as directors. We did not
retain any third party to assist in identifying or evaluating
the nominees. Assuming shareholders elect all the director
nominees named in this proxy statement at the annual meeting, we
will have nine directors. The board of directors has authority
under our by-laws to fill vacancies and to increase or, upon the
occurrence of a vacancy, decrease the boards size between
annual meetings. Your proxy holder will vote your shares for the
boards nominees unless you instruct otherwise.
If prior to the annual meeting the board should learn that any
nominee will be unable to serve for any reason, the proxies that
otherwise would have been voted for this nominee will be voted
for a substitute nominee as selected by the board.
Alternatively, the proxies, at the boards discretion, may
be voted for that fewer number of nominees as results from the
inability of any nominee to serve. The board has no reason to
believe that any of the nominees will be unable to serve.
The following table sets forth certain information concerning
the persons who are nominated for election to the board of
directors.
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Name
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Age
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Director Since
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Positions Currently Held with Our Company
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Current Directors:
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Keith R. Stewart
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2008
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Chief Executive Officer, Director
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Randy S. Ronning
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62
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2009
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Chairman of the Board
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Joseph F. Berardino
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60
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2008
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Director
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John D. Buck
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60
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2004
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Director
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Edwin P. Garrubbo
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45
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2009
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Director
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Catherine Dunleavy
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42
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2008
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Director
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Patrick O. Kocsi
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42
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2008
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Director
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New Director Nominees:
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William F. Evans
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63
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Sean F. Orr
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56
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Joseph F. Berardino
has served as a managing
director at Alvarez & Marsal, a global professional
services firm, since October 2008. Prior to joining
Alvarez & Marsal, Mr. Berardino was chairman of
the board of directors and chief executive officer of Profectus
BioSciences, a private biotechnology company, from October 2005
to January 2008. From February 2008 to September 2008,
Mr. Berardino continued his service as a member of the
board of directors of Profectus BioSciences but was not an
employee during that period. He previously served as
vice-chairman of Sciens Capital Management, a New York-based
alternative asset management firm, from mid-
5
2004 to September 2005. Before Sciens, Mr. Berardino was
chief executive officer of Andersen Worldwide, a global
accounting and consulting firm. Mr. Berardino currently is
a trustee of Fairfield University. He has been a Certified
Public Accountant since 1975. Mr. Berardino offers strong
financial management and accounting acumen, through his career
both in public accounting as well as in executive and
operational management and board positions at a number of
companies. He also brings experience and extensive contacts in
capital markets and capital-related matters that are important
to the future growth and success of our company. His broad
experience and service in senior management and boards of
directors provides our board with valuable perspective in his
role as chairman of the corporate governance and nominating
committee.
John D. Buck
currently serves as chairman of the
board of Medica (Minnesotas second largest health insurer)
and previously served as chief executive officer of Medica from
July 2001 until his retirement in January 2003. From
October 25, 2007 to March 3, 2008, and again from
August 22, 2008 through January 26, 2009,
Mr. Buck served as our interim chief executive officer.
Previously, Mr. Buck worked for Fingerhut Companies where
he held several senior executive positions, including president
and chief operating officer. He left Fingerhut in October 2000.
Mr. Buck also previously held executive positions at Graco
Inc., Honeywell Inc., and Alliant Techsystems Inc. Mr. Buck
currently serves on the board of directors of Patterson
Companies, Inc. Mr. Buck provides the board with his
experience in the consumer retail industry, including his past
service as an interim chief executive officer of our company and
his senior leadership positions at Fingerhut Companies. He
additionally brings to us the knowledge and judgment he gains
from serving on other public and private company boards, which
allows us to benefit from his insight into board governance
matters and appropriate board processes.
Edwin P. Garrubbo
currently is the chief executive
officer of Creative Commerce, LLC, an investment and strategy
firm focused on electronic retailing, which he founded in
January 2006, and which also provides consulting services to the
Company, as more fully described below under Certain
Transactions. Previously, Mr. Garrubbo was chief
executive officer of American Telecast Products, LLC, a direct
response marketing company, from 2001 to December 2005.
Mr. Garrubbo has fifteen years experience in the electronic
retailing industry and is a past chairman of the Electronic
Retailing Association. Mr. Garrubbo brings to our board his
extensive knowledge of multi-channel retailing, proven industry
experience, and global contacts along with his ability to
identify product development opportunities for our premium
lifestyle shopping channel.
Randy S. Ronning
currently serves as chairman of
our board of directors. Mr. Ronning served as executive
vice president and chief merchandising officer of QVC, a major
electronic retailer, where he oversaw all merchandising, brand
management, and merchandise analysis efforts of QVC and QVC.com,
from June 2005 until his retirement in January 2007. He also was
responsible for QVC.com operations during this period.
Previously, Mr. Ronning was executive vice president with
responsibility over affiliate sales and marketing, information
services, marketing, research and sales analysis, direct
marketing, corporate marketing, public relations, and charitable
giving at QVC, from 2001 to May 2005. Prior to joining QVC,
Mr. Ronning spent 30 years with J.C. Penney Co., where
he held executive positions including president of its catalog
and internet divisions. Mr. Ronning currently serves on the
board of directors of another private company, Sure Source, and
has served on the boards of several non-profit and
organizations, including the Electronic Retailing Association,
the Dallas Symphony Association, the University of Dallas, the
Fashion Institute of Technology, the Mail Order Association,
Chairman of the Board, Forrester Research, Knot, Philadelphia
Orchestra, The Franklin Institute, and another private company,
Commerce Hub, where he was Chairman of the Board.
Mr. Ronnings extensive senior executive level
experience at two major retailing companies provides the board
and the company with invaluable expertise and industry knowledge
as we execute our new strategy for growth and profitability. In
particular, Mr. Ronnings record of success in leading
the development and success of the
e-commerce
operations at his prior companies is of substantial importance
to the board and the company in addressing similar growth
opportunities in our companys business.
Mr. Ronnings depth of experience in managing, leading
and motivating employees provides the board with great insights
in his role as chairman of the human relations and compensation
committee.
Keith R. Stewart
is our chief executive officer.
He was named our president and chief executive officer in
January 2009 after having joined ShopNBC as president and chief
operating officer in August 2008. Mr. Stewart voluntarily
relinquished the title of president in February 2010 in
conjunction with the appointment of a new president of our
company, which was disclosed in a Current Report on
Form 8-K
filed February 3, 2010. Mr. Stewart retired from QVC
in July 2007 where he had served the majority of his retail
career, most recently as vice
6
president merchandising of QVC (USA) and vice
president global sourcing of QVC (USA) from April
2004 to June 2007. Previously he was general manager of
QVCs German business unit from 1998 to March 2004.
Mr. Stewart first joined QVC as a consumer electronics
buyer in 1992 and was promoted through a series of progressively
responsible positions through which he developed expertise in
key areas of TV home shopping, including merchandising,
programming, cable distribution, strategic planning,
organizational development, and international sourcing.
Mr. Stewart brings to our board and our company extensive
executive retail, operations, product sourcing and
e-commerce
experience both domestically and internationally with more than
fifteen years of leadership experience in the electronic
retailing industry. His strong understanding of multi-channel
retailing strategy and operations and his proven track record of
delivering growth and profitability in our industry gives the
board essential perspectives and insights in their oversight of
company strategy and development.
Catherine Dunleavy
has served as executive vice
president and chief financial officer of NBC Universal Cable
Entertainment and Production Studios since March 2011. In her
present role Ms. Dunleavy oversees the financial
performance and strategic analysis of NBC Universals Cable
Entertainment properties including USA, Sci FYi, E!, G4,
Universal HD, Sleuth, Chiller, E! Productions and the Universal
Cable Production Studio. Previously, Ms. Dunleavy held the
role of senior vice president and chief financial officer of
Cable Entertainment from May 2004 to March 2007. In her prior
roles, Ms. Dunleavy was vice president of financial
planning and analysis for USA and Sci Fi from January 2001 to
May 2004. Before joining NBC, Ms. Dunleavy worked for the
corporate audit staff at General Electric Company
(GE) from June 1995 to January 2001, where she was
promoted to executive audit manager. Ms. Dunleavy provides
the board with unique insights and knowledge of the television
broadcasting and cable industry. In addition, her experience as
a chief financial officer at NBC Universal Cable Entertainment
and Production Studios, and as a member of the corporate audit
staff at GE, provides the board with subject matter expertise in
cable network financial matters.
Patrick O. Kocsi
was named a senior managing
director at GE Capital Americas Equity (GE Equity)
in Norwalk, CT, GEs private equity investment group, in
February 2009. He leads the portfolio management team for the
business with responsibility for a $2.5 billion portfolio
of investments. He also leads the industrial technology team
responsible for making investments in energy, oil &
gas and aviation/transportation. Previously, from June 2007 to
January 2009, he was a managing director at GE Equity leading
the media and investment team. Mr. Kocsi joined GE in 1991
in the Financial Management Program in GE Plastics. He worked in
The Netherlands, France, and the US. In 1996, he joined GE
Capital working on acquisitions in the US, Brazil, and Germany.
In that role Mr. Kocsi began investing in industrial,
media, transportation, and technology companies. Mr. Kocsi
has also served as a director or observer on the boards of over
a dozen companies. Mr. Kocsi brings a diverse financial and
business management background to the board as evidenced by his
holding a variety of positions, both domestically and
internationally, with GE. In addition, he brings the board a
broad perspective and knowledge on corporate finance and
mergers & acquisitions matters through his leadership
as a portfolio manager for GE Equity across a number of
industries.
William F. Evans
most recently served as the
executive vice president and chief financial officer of Witness
Systems, Inc., a public, global provider of workforce
optimization software and services based in Roswell, Georgia
from May 2002 until he retired when the company was sold in June
2007. Previously, Mr. Evans had served in a number of
operational and financial management roles for a variety of
companies, including Superior Essex, ProSource, Inc., H&R
Block, Inc., Management Sciences of America and Electromagnetic
Sciences, Inc. He began his professional career at Peat Marwick,
Mitchell, and Co. (now KPMG), where he was elected a partner in
1980 and was named
partner-in-charge
of the Atlanta audit practice in 1985. Mr. Evans is
currently a member of the Board of Directors of SFN Group, Inc.,
a public company, and has served on the Board of Directors of
several other private and public companies, including Wolverine
Tube, Inc., SecureWorks, Inc., Electromagnetic Sciences, Inc.,
LXE, Inc. and Tatum LLC. Mr. Evans offers senior financial
management and accounting expertise gained through his long
career both in public accounting as well as in senior management
and board positions with corporate governance duties at a number
of companies. We believe his broad experience and service in
senior management and boards of directors will provide our board
with valuable expertise, particularly with respect to financial
reporting.
Sean F. Orr
most recently served as the president
and chief financial officer of Dale and Thomas Popcorn, LLC, a
snack food business from February 2007 until March 2009. Prior
to that, he was a partner in Tatum Partners,
7
LLC, an executive services firm, in 2006, and the executive vice
president and chief financial officer of The Interpublic Group
of Companies, a parent of global advertising and public
relations firms, from 1999 to 2003. He also worked at Pepsico
Inc. from 1994 -1999 in the roles of Senior Vice President and
Controller at Pepsico Corporate Headquarters and Executive Vice
President and Chief Financial Officer of its Frito-Lay division;
Readers Digest as Vice President and Controller from 1990
to 1994; and Peat Marwick, Mitchell, and Co. (now KPMG), from
1976 to 1990 (serving as a partner from 1986 to 1990).
Mr. Orr also was a member of the Board of Directors and
Chairman of the Boards Finance Committee for The
Interpublic Group of Companies from
1999-2003,
and has served on the Boards of Directors for several non-profit
organizations. Mr. Orr is a Certified Public Accountant.
Mr. Orr offers senior financial management and accounting
expertise gained through his long career both in public
accounting and in private industry. We believe his broad
experience and service in senior management will provide our
board with valuable expertise, particularly with respect to
financial reporting and capital markets.
OUR BOARD
OF DIRECTORS RECOMMENDS THAT YOU VOTE
FOR THE ELECTION OF EACH OF THE NINE NOMINEES LISTED ABOVE
TO CONSTITUTE OUR BOARD OF DIRECTORS.
PROPOSAL
#2
RATIFICATION
OF THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Deloitte & Touche LLP has been our independent
registered public accounting firm since fiscal 2002. Upon
recommendation from our audit committee, our board of directors
selected Deloitte & Touche LLP to serve as our
independent registered public accounting firm for our fiscal
year ending January 28, 2012, subject to ratification by
our shareholders. While it is not required to do so, our board
of directors is submitting the selection of this firm for
ratification in order to ascertain the view of our shareholders.
If the selection is not ratified, our audit committee will
reconsider its selection. Proxies solicited by our board of
directors will, unless otherwise directed, be voted to ratify
the appointment of Deloitte & Touche LLP as our
independent registered public accounting firm for our fiscal
year ending January 28, 2012.
Deloitte &
Touche LLP Attendance at Annual Meeting
A representative of Deloitte & Touche LLP will be
present at the meeting and will be afforded an opportunity to
make a statement if the representative so desires and will be
available to respond to appropriate questions during the meeting.
Fees
Billed by Deloitte & Touche LLP
In addition to reimbursement for certain
out-of-pocket
expenses, the following table presents the aggregate fees billed
for professional services by Deloitte & Touche LLP in
our fiscal year ended January 29, 2011, known as fiscal
2010, and January 30, 2010, known as fiscal 2009, for these
various services:
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Fiscal 2010
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|
|
Fiscal 2009
|
|
Description of Fees
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Amount
|
|
|
Amount
|
|
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Audit Fees
|
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$
|
435,000
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|
|
$
|
473,000
|
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Audit-Related Fees
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|
|
68,560
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|
|
|
21,100
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|
|
|
|
|
|
|
|
|
|
Total Audit and Audit-Related Fees
|
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503,560
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|
|
|
494,100
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Tax Fees:
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|
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|
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Tax Compliance Fees
|
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73,800
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|
|
|
73,800
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|
Tax Consultation and Advice Fees
|
|
|
116,990
|
|
|
|
133,810
|
|
|
|
|
|
|
|
|
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Total Tax Fees
|
|
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190,790
|
|
|
|
207,610
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All Other Fees
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|
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|
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|
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Total
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$
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694,350
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$
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701,710
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8
Audit Fees.
The audit fees set forth above for
fiscal 2010 and fiscal 2009 consist of fees billed by
Deloitte & Touche LLP for audit services in connection
with their review of our interim financial statements for the
first three quarters of each fiscal year and for the audit of
our fiscal year-end financial statements and the effectiveness
of internal controls over financial reporting, including
agreed-upon
procedure compliance letters.
Audit-Related Fees.
The audit-related fees set
forth above for fiscal 2010 and fiscal 2009 consist of fees
billed by Deloitte & Touche LLP for consultation
regarding other accounting matters and audit services that
normally are provided by an independent registered public
accounting firm in connection with statutory and regulatory
filings or engagements, such as comfort letters, consents
related to Securities and Exchange Commission registration
statements and other services related to Securities and Exchange
Commission matters for the fiscal year.
Tax Fees.
The tax compliance fees set forth
above consist solely of fees billed by Deloitte &
Touche LLP for preparation of federal, state and local income
tax returns and Internal Revenue Service audit assistance. The
tax consultation and advice fees set forth above for fiscal 2010
and fiscal 2009 primarily consist of fees billed for
consultation and assistance in connection with an IRS private
letter ruling, IRS section 382 matters, including
change-in-control
analysis, preparation of applications for tax refunds and for
tax planning regarding various federal and state income and
sales and use tax matters, as well as assistance with employee
matters.
All Other Fees.
We were not billed any amounts
by Deloitte & Touche LLP for other products and
services during fiscal 2010 or fiscal 2009.
Approval
of Independent Registered Public Accounting Firm Services and
Fees
The audit committee charter requires that our audit committee
approve the retention of our independent registered public
accounting firm for any non-audit service and consider whether
the provision of these non-audit services by our independent
registered public accounting firm is compatible with maintaining
our independent auditors independence, prior to engagement
for these services. Our audit committee actively monitors the
relationship between audit and non-audit services provided. All
of the services listed under the headings Audit-Related Fees and
Tax Fees were pre-approved by our audit committee.
Report of
the Audit Committee
The role of our audit committee, which is composed of three
independent non-employee directors, includes oversight of the
integrity of our companys consolidated financial
statements, our internal controls, our companys compliance
with legal and regulatory requirements and the performance,
qualifications and independence of our independent auditors. In
performing our oversight function, we rely upon advice and
information received in our discussions with management and the
independent registered public accounting firm.
We have (a) reviewed and discussed our companys
audited consolidated financial statements for the fiscal year
ended January 29, 2011 with management; (b) discussed
with Deloitte & Touche, our companys independent
registered public accounting firm, the matters required to be
discussed by the FASB Accounting Standard Codification relating
to Auditors Communication with Those Charged with
Governance; and (c) received the written disclosures and
the letter from Deloitte & Touche required by
applicable requirements of the Public Company Accounting
Oversight Board regarding Deloitte & Touches
communications with the audit committee concerning their
independence, and discussed with Deloitte & Touche
their independence.
Based on the review and discussions with management and our
companys independent registered public accounting firm
referred to above, we recommended to our companys board of
directors that our audited
9
consolidated financial statements be included in our
companys Annual Report on
Form 10-K
for the fiscal year ended January 29, 2011 for filing with
the Securities and Exchange Commission.
The Audit
Committee
Robert J. Korkowski
(Chairman)
Joseph F. Berardino
Randy S. Ronning
OUR BOARD
OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR
PROPOSAL #2 TO RATIFY THE APPOINTMENT OF DELOITTE &
TOUCHE LLP.
CORPORATE
GOVERNANCE
Shareholder
Communications with the Board of Directors
Persons interested in communicating with the board of directors
are encouraged to contact the chairman of the board, all outside
directors as a group or an individual director by submitting a
letter or letters to the desired recipients in sealed envelopes
labeled with chairman of the board or the names of
specified directors. This letter should be placed in a larger
envelope and mailed to ValueVision Media, Inc., 6740 Shady Oak
Road, Eden Prairie, Minnesota
55344-3433,
Attention: Corporate Secretary. The corporate secretary will
forward the sealed envelopes to the designated recipients.
Attendance
at Shareholder Meetings
The directors are encouraged, but not required, to attend all
meetings of our shareholders. Except for one director, all of
our then-serving directors attended our 2010 Annual Meeting of
Shareholders.
Composition
of the Board During Fiscal 2010
At the beginning of fiscal 2010 our board of directors consisted
of Joseph Berardino, John Buck, Robert Korkowski, Keith
Stewart, Randy Ronning and Edwin Garrubbo, who were elected by
the holders of our common stock and Catherine Dunleavy and
Patrick Kocsi, who were elected by the holders of our preferred
stock. Mr. Korkowski plans to retire at the end of the 2011
Annual Meeting of Shareholders.
Board
Leadership Structure and Risk Oversight
The companys corporate governance guidelines provide that
the chairman of the board and the chief executive officer
currently are separate offices, with a non-executive chairman of
the board. While the board retains the right to exercise its
discretion in combining or separating the offices of chairman of
the board and chief executive officer, there currently is not an
intention to combine the offices. This determination will be
made depending upon what our board believes is best for our
company and our shareholders in light of all circumstances at
any particular time.
The companys management is responsible for risk management
on a
day-to-day
basis. The board oversees the risk management activities of
management directly and through the committees of the board by
discussing with management the policies and practices utilized
by management in assessing and managing risks and by providing
input on those policies and practices. In general, the board
oversees risk management activities relating to business
strategy, strategic transactions, capital allocation, legal and
regulatory risk, and operational risks; the audit committee
oversees risk management activities related to certain financial
risks; the human resources and compensation committee oversees
risk management activities relating to the companys
compensation policies and practices and organizational risk; and
the nominating and governance committee oversees risk management
activities relating to board composition and function. Each
committee reports to the full board on a regular basis,
including reports with respect to the respective
committees risk oversight activities as appropriate. The
company develops an assessment of major risks facing the company
and mitigation plans as part of its annual strategic
10
planning process. Certain key risks and related mitigation plans
are also reviewed throughout the year either by the board or its
committees.
Director
Independence
Messrs. Berardino, Buck, Kocsi, Korkowski and Ronning, and
Ms. Dunleavy, constituting a majority of the board of
directors, have been determined to be independent as that term
is used in Section 10A of the Exchange Act of 1934 and as
that term is defined in Rule 5605(a)(2) of the NASDAQ Stock
Market. Our board of directors has determined that
Mr. Garrubbo is not independent as that term is defined in
Rule 5605(a)(2) of the NASDAQ Stock Market. Our board has
determined that Messrs. Evans and Orr would be independent
as that term is used in Section 10A of the Exchange Act of
1934 and as that term is defined in Rule 5605(a)(2) of the
NASDAQ Stock Market if they were elected as directors by our
shareholders.
Committees
of the Board of Directors
Committees established and maintained by the board of directors
include the audit committee, the human resources and
compensation committee, known as the compensation committee, and
the corporate governance and nominating committee, known as the
governance committee. From time to time the board of directors
also may establish additional committees for specific purposes
such as the special committee, which was formed to consider
capital structure and corporate finance proposals with respect
to fiscal 2010. The special committee is not a standing
committee of the board.
The following table summarizes the current membership of each of
our on-going committees:
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Audit
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Compensation
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Governance
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Director
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Committee
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Committee
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Committee
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Joseph F. Berardino
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Member
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Member
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Chairman
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John D. Buck
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Member
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Edwin P. Garrubbo
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Robert J. Korkowski
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Chairman
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Member
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Member
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Randy S. Ronning
|
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Member
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Chairman
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Keith R. Stewart
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Catherine Dunleavy
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Patrick O. Kocsi
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Audit
Committee
The audit committee consists of Messrs. Korkowski
(chairman), Berardino and Ronning. All members of the audit
committee are independent as that term is used in
Section 10A of the Securities Exchange Act of 1934, as that
term is defined in Rule 5605(a)(2) of the NASDAQ Stock
Market and as that term is defined by Section 301 of the
Sarbanes-Oxley Act of 2002. The board of directors has
determined that Mr. Korkowski, chairman of the audit
committee, and Mr. Berardino are each an audit committee
financial experts as defined by the Securities and Exchange
Commissions regulations.
The audit committee assists the board of directors in carrying
out its oversight responsibilities for our financial reporting
process, audit process and internal controls. The audit
committee:
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reviews our audited financial statements and recommends to the
board of directors that the audited financial statements be
included in our annual report on
Form 10-K;
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recommends to the board of directors the selection of the
independent registered public accounting firm to audit our books
and records;
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reviews our accounting and auditing principles and procedures
with a view toward providing for adequate internal controls and
reliable financial records;
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11
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approves all fees of, as well as the provision of any non-audit
services by, our independent registered public accounting
firm; and
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reviews our quarterly reports on
Form 10-Q
and our earnings press releases before they are issued publicly.
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To this end, the audit committee oversees our financial
reporting process by, among other things, reviewing and
reassessing the audit committee charter, reviewing with the
independent auditors the plans and results of the auditing
engagement, recommending and taking action to oversee the
independence of our independent registered public accounting
firm and recommending to the board of directors the engagement
of our independent registered public accounting firm. The audit
committee charter was amended in 2004 and complies with the
standards set forth in Securities and Exchange Commission and
applicable stock exchange regulations. A copy of the audit
committee charter is available on our website at
www.valuevisionmedia.com.
Human
Resources and Compensation Committee
The human resources and compensation committee, known as the
compensation committee, consists of Messrs. Ronning
(chairman), Berardino and Korkowski. All members of the
compensation committee are independent directors as that term is
defined in Rule 5605(a)(2) of the NASDAQ Stock Market and
for purposes of Internal Revenue Code Section 162(m).
The responsibilities of the compensation committee are set forth
in the compensation committee charter, which is reviewed
regularly and amended as appropriate in light of Securities and
Exchange Commission and applicable stock exchange regulations,
and which is available on our website at
www.valuevisionmedia.com.
Among other duties, the compensation committee has the
responsibility to:
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establish executive compensation strategy, including base
salary, incentive compensation and any other compensation
elements;
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assure that all executive officers are compensated in a manner
consistent with such strategy, internal considerations,
competitive practices and the requirements of regulatory
agencies;
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oversee our stock-based incentive plans and approve all grants
to executive officers made in connection with those plans;
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review and make recommendations to the board of directors
regarding (i) the components of and total cash compensation
for our chief executive officer, and (ii) stock-based
grants to our chief executive officer;
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review and, if appropriate, recommend to the board of directors
any employment agreements or severance arrangements for the
chief executive officer or other members of senior management,
including
change-in-control
provisions, plans or agreements;
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monitor our employee benefit plans and discharge the duties
imposed on the committee by the terms of those plans;
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oversee succession planning for the chief executive officer and
other members of the senior executive team;
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annually evaluate the performance of the committee and the
adequacy of the committees charter, and report the
evaluation to the board of directors; and
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perform other duties or functions deemed appropriate by the
board of directors.
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Compensation decisions for the named executive officers (other
than the chief executive officer) and the other corporate
officers directly reporting to the chief executive officer are
made by the compensation committee, upon the recommendation of
our chief executive officer. For the chief executive officer,
the compensation decisions are made by the board of directors
upon the recommendation of the committee. Under its charter, the
compensation committee has the authority to engage, review and
approve the payment of fees to or terminate advisors and
consultants as it deems necessary to assist in the fulfillment
of its responsibilities.
The compensation committees meeting agendas are determined
by its chairman, with the assistance of the senior vice
president of human resources and the corporate secretary. The
committee reports on its actions regarding
12
executive compensation to the board of directors for all
corporate officers except in the case of the chief executive
officer. For the chief executive officer, the committee will
make a recommendation to the board of directors for review and
action.
The committee is supported by our human resources and legal
departments upon request. In addition, the committee has engaged
Towers Watson, a global human resources consulting firm, to
assist the committee in discharging its responsibilities, which
include conducting periodic reviews of its total compensation
program for executive officers. Under a policy established by
the committee, Towers Watson only performs work for the
committee, the board of directors and other committees of the
board of directors, and is not retained by our management for
other benefits, compensation or recruiting services, or any
other purposes.
Corporate
Governance and Nominating Committee
The corporate governance and nominating committee, known as the
governance committee, consists of Messrs. Berardino
(chairman), Buck and Korkowski. All members of the governance
committee are independent directors as that term is defined in
Rule 5605(a)(2) of the NASDAQ Stock Market.
The governance committee advises and makes recommendations to
the board of directors on all matters concerning the selection
of candidates as nominees for election as directors, corporate
governance, compensation of directors and other matters as
specified in the governance committees charter or as
directed by the board of directors. The governance committee has
recommended to the board of directors that each of the nominees
listed for election to the board of directors in
proposal #1 be elected to the board of directors. The
responsibilities of the governance committee are set forth in
the governance committee charter, which is reviewed regularly in
light of Securities and Exchange Commission and applicable stock
exchange regulations and is available on our website at
www.valuevisionmedia.com.
Director
Qualifications, Board Diversity and Shareholder Nominations for
Directors
The governance committee charter describes the attributes we
seek in considering director candidates. The governance
committee will consider persons recommended by shareholders in
selecting nominees for election to the board of directors. The
governance committee recommends qualified individuals who, if
added to the board of directors, will provide the mix of
director characteristics and diverse experiences, perspectives
and skills appropriate for our company. We have determined that
a majority of our directors should be independent directors. The
governance committee uses the following additional guidelines,
which are set forth in its charter, in analyzing the
qualifications for directors:
The committee will consider the ability of the director
candidate to devote sufficient time to fulfilling his or her
duties as a director, the candidates judgment, skill,
experience with businesses and other organizations in industries
related to the business of our company (such as consumer
merchandising and retail; TV home shopping; TV programming and
media; retail operations and fulfillment; direct response
marketing;
e-commerce
and technology; finance; mergers and acquisitions; and corporate
law), experience as an executive with a publicly traded company,
the interplay of the candidates experience with the
experience of other board members and the extent to which the
candidate would be a desirable addition to the board of
directors and any committees of the board of directors.
Shareholders who wish to suggest qualified candidates should
write to: ValueVision Media, Inc., 6740 Shady Oak Road, Eden
Prairie, Minnesota
55344-3433,
Attention: Corporate Governance and Nominating Committee,
c/o Corporate
Secretary. All recommendations should state in detail the
qualifications of the person for consideration by the governance
committee and should be accompanied by an indication of the
persons willingness to serve.
Business
Ethics Policies
We have adopted a business ethics policy applicable to all of
our directors and employees, including our principal executive
officer, principal financial officer, principal accounting
officer, controller and other employees performing similar
functions. A copy of this business ethics policy is available on
our website at
13
www.valuevisionmedia.com. In addition, we have adopted a code of
ethics for our chief executive officer and senior financial
management; this policy also is available on our website at
www.valuevisionmedia.com.
Attendance
and Meetings of the Board of Directors and Its
Committees
Our business and affairs are managed by the board of directors,
which held eight meetings during fiscal 2010 and took action by
written consent seven times. During fiscal 2010, the audit
committee held six meetings and took action by written consent
one time; the compensation committee held three meetings and
took action by written consent two times; and the governance
committee held two meetings. The special committee met on seven
occasions. During fiscal 2010, none of our directors attended
fewer than 75% of the aggregate number of meetings of the board
and the various committees on which he or she served during 2010.
Compensation
Committee Interlocks and Insider Participation
No member of the compensation committee is now, or was during
the last fiscal year, an officer or employee of our company or
of any of our subsidiaries. None of our executive officers has
served on the board of directors or on the compensation
committee of any other entity, any officers of which served
either on our board of directors or on our compensation
committee.
14
SECURITY
OWNERSHIP OF PRINCIPAL SHAREHOLDERS AND MANAGEMENT
The following table sets forth certain information regarding the
beneficial ownership of our securities as of April 29, 2011
based on a total of 47,359,188 shares of common stock
outstanding as of that date by (i) each person known by us
to be the beneficial owner of more than 5% of the outstanding
shares of common stock, (ii) each of the directors, and
(iii) our chief executive officer and each of the other
named executive officers named in the summary compensation table
who is or was a named executive officer during fiscal 2010 and
(iv) all directors and executive officers as a group.
Shareholders listed below possess sole voting and investment
power with respect to their shares and have a mailing address of
6740 Shady Oak Road, Eden Prairie, Minnesota
55344-3433
unless otherwise indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
Percent of
|
Name and Address of Beneficial Owner
|
|
Title of Class
|
|
Beneficially Owned
|
|
Class
|
|
Non-Employee Directors:
|
|
|
|
|
|
|
|
|
|
|
Joseph F. Berardino(1)
|
|
Common Stock
|
|
|
145,000
|
|
|
|
*
|
|
John D. Buck(2)
|
|
Common Stock
|
|
|
798,643
|
|
|
|
1.66
|
%
|
Catherine Dunleavy
|
|
|
|
|
|
|
|
|
|
|
Edwin P. Garrubbo(3)
|
|
Common Stock
|
|
|
157,342
|
|
|
|
*
|
|
Patrick O. Kocsi
|
|
|
|
|
|
|
|
|
|
|
Robert J. Korkowski(4)
|
|
Common Stock
|
|
|
211,361
|
|
|
|
*
|
|
Randy S. Ronning(5)
|
|
Common Stock
|
|
|
184,266
|
|
|
|
*
|
|
Named Executive Officers:
|
|
|
|
|
|
|
|
|
|
|
Keith R. Stewart(6)
|
|
Common Stock
|
|
|
2,037,033
|
|
|
|
4.25
|
%
|
William McGrath(7)
|
|
Common Stock
|
|
|
73,180
|
|
|
|
*
|
|
G. Robert Ayd(8)
|
|
Common Stock
|
|
|
174,580
|
|
|
|
*
|
|
Carol Steinberg(9)
|
|
Common Stock
|
|
|
113,478
|
|
|
|
*
|
|
Jean-Guillaume Sabatier
|
|
Common Stock
|
|
|
109,979
|
|
|
|
*
|
|
Nathan Fagre(10)
|
|
Common Stock
|
|
|
116,907
|
|
|
|
*
|
|
Frank Elsenbast(11)
|
|
|
|
|
|
|
|
|
|
|
All directors and executive officers as a group
(18 persons)(12)
|
|
Common Stock
|
|
|
4,676,225
|
|
|
|
9.45
|
%
|
Other 5% or Greater Shareholders:
|
|
|
|
|
|
|
|
|
|
|
Archon Capital Management LLC(13)
|
|
Common Stock
|
|
|
2,539,900
|
|
|
|
5.36
|
%
|
1301 Fifth Avenue, Suite 3008
Seattle, Washington
98101-2662
|
|
|
|
|
|
|
|
|
|
|
Capital World Investors(14)
|
|
Common Stock
|
|
|
2,415,000
|
|
|
|
5.10
|
%
|
333 South Hope Street
Los Angeles, CA 90071
|
|
|
|
|
|
|
|
|
|
|
Comcast Corporation(15)
|
|
Common Stock
|
|
|
6,466,938
|
|
|
|
13.65
|
%
|
One Comcast Center
Philadelphia, PA
19103-2838
|
|
|
|
|
|
|
|
|
|
|
GE Capital Equity Investments, Inc.(16)
|
|
Common Stock
|
|
|
6,000,000
|
|
|
|
11.24
|
%
|
Palisades West, Building One
6300 Bee Cave Road
Austin, Texas, 78746
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Less than 1%
|
|
(1)
|
|
Includes options to purchase 30,000 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
|
(2)
|
|
Includes options to purchase 782,643 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
15
|
|
|
(3)
|
|
Includes options to purchase 30,000 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
|
(4)
|
|
Includes options to purchase 65,000 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
|
(5)
|
|
Includes approximately 60,266 shares pledged as collateral
for an outstanding line of credit with Merrill Lynch.
|
|
(6)
|
|
Includes options to purchase 583,333 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
|
(7)
|
|
Includes 1,000 shares held by Mr. McGraths
spouse and options to purchase 15,000 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
|
(8)
|
|
Includes options to purchase 93,333 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
|
(9)
|
|
Includes options to purchase 66,667 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011.
|
|
(10)
|
|
Includes options to purchase 100,000 shares that are
presently exercisable or may become exercisable within
60 days of April 29, 2011. Effective January 28,
2011, Mr. Fagre voluntarily resigned as our senior vice
president and general counsel.
|
|
(11)
|
|
Effective March 5, 2010, Mr. Elsenbast voluntarily
resigned as our senior vice president and chief financial
officer.
|
|
(12)
|
|
Includes options to purchase 2,143,648 shares of common
stock that are presently exercisable or will become exercisable
within 60 days of April 29, 2011 granted to directors
and executive officers.
|
|
(13)
|
|
Information with respect to Archon Capital Management LLC is
provided in reliance upon information included in a
Schedule 13G filed on February 14, 2010. Archon
Capital Management LLC disclaims beneficial ownership with
respect to all shares.
|
|
(14)
|
|
Information with respect to Capital World Investors, a division
of Capital Research and Management Company, is provided in
reliance upon information included in a Schedule 13G filed
on February 14, 2010. Capital World Investors disclaims
disclaim beneficial ownership with respect to all shares.
|
|
(15)
|
|
Information with respect to Comcast Corporation
(Comcast), for and on behalf of itself,
NBCUniversal, LLC (NBCUniversal Holdings) and
NBCUniversal Media, LLC (NBCUniversal and together
with Comcast and NBCUniversal Holdings, the Reporting
Persons), is provided in reliance upon information
included in a Schedule 13D filed on February 7, 2011.
NBCUniversal (f/k/a NBC Universal, Inc.) is a wholly owned
subsidiary of NBCUniversal Holdings, which is owned 51% by
Comcast (through wholly owned subsidiaries) and 49% by General
Electric Company together with its subsidiaries
(GE). As of February 7, 2011, NBCUniversal had
sole beneficial ownership of an aggregate of
6,466,938 shares composed of (i) 6,452,194 shares
of outstanding common stock and (ii) 14,744 shares of
common stock issuable upon exercise of warrants issued on
November 11, 2002 pursuant to a Distribution and Marketing
Agreement dated March 8, 1999. The shares beneficially
owned by Comcast do not include the shares of common stock to be
issued to NBCUniversal on May 15, 2011, pursuant to
Amendment No. 2 to Trademark License Agreement. Under
Amendment No. 2 to Trademark License Agreement, the Company
agreed to issue to NBCUniversal, on May 15, 2011, shares in
an amount equal to the quotient obtained by dividing
$4 million by the per share price of common stock equal to
the average closing price of the common stock as quoted on the
Nasdaq Stock Market during the six months immediately preceding
the date of issuance of such shares.
|
|
(16)
|
|
Information with respect to GE Capital Equity Investments, Inc.
is provided in reliance upon information included in a
Schedule 13D filed on November 24, 2010, and upon
related information with respect to Comcast, for and on behalf
of itself, NBCUniversal Holdings and NBCUniversal, included in a
Schedule 13D filed on February 7, 2011. Common stock
shown for GE Capital Equity Investments, Inc. represents
6,000,000 shares of common stock issuable upon the exercise
of warrants to purchase our common stock at an exercise price of
$0.75 per share.
|
16
EXECUTIVE
COMPENSATION
Compensation
Discussion and Analysis
This compensation discussion and analysis
(CD&A) is intended to provide an overview of
the compensation awarded to, earned by, or paid to our named
executive officers, including the material elements of the
compensation paid to our named executive officers as outlined in
the compensation tables included in this proxy statement.
Compensation
Objectives and Philosophy
The primary objective of our executive compensation program is
to attract and retain exceptional leaders and enable them to
behave like an owner. When setting executive compensation, we
apply a consistent approach for all executive officers and
intend that the combination of compensation elements closely
aligns the executives financial interest with those of our
shareholders. The program is mainly designed to:
|
|
|
|
1.
|
Attract, motivate and retain a highly capable and
performance-focused executive team;
|
|
|
2.
|
Promote a culture of employee owners whose financial interests
are aligned with those of our shareholders;
|
|
|
3.
|
Pay for performance such that total compensation reflects the
individual performance of executives and our absolute and
relative performance;
|
|
|
4.
|
Promote equity emphasis by tying executive compensation to the
long-term enhancement of shareholder value;
|
|
|
5.
|
Exercise independence the Human
Resources & Compensation Committee (the
Committee) exercises independent judgment and
approval authority with respect to establishing executive team
compensation programs, performance measures, and awards; and
|
|
|
6.
|
Consider the potential stock dilution, cash flow, tax and
reported earnings implications of executive compensation,
consistent with the other objectives of the program.
|
Target total compensation is comprised of base salary, annual
cash incentive compensation, and long-term incentive
compensation in the form of both cash and equity. In support of
our emphasis on significant ownership by executives, the Human
Resources & Compensation Committee (the
Committee) offers long-term incentive opportunities
that encourage ownership. Generally, the amount of compensation
realized or potentially realizable does not directly impact the
level at which future pay opportunities are set. However, when
granting equity awards, the Committee reviews and considers both
individual performance and the number of outstanding and
previously granted equity awards.
In addition to promoting share ownership, our executive
compensation objectives and philosophy focus on rewarding
performance. This means that shareholder returns along with
corporate, operating unit, and individual performance, both
short-term and long-term, determine the largest portion of
executive pay.
Role
of the Committee and Executive Compensation
Consultant
The Committee oversees the administration of the executive
compensation program and determines the compensation of our
executive officers. The Committee is solely composed of
non-management directors, all of whom meet the independence
requirements of applicable NASDAQ rules. To assist the Committee
in discharging its responsibilities, the Committee engages an
independent consultant (Consultant). This Consultant
is employed by Towers Watson. The Consultants role is to
develop recommendations for the Committee related to all aspects
of executive compensation programs and the Consultant works with
management to obtain information necessary to develop the
recommendations for the Committee related to all aspects of our
executive compensation program.
Process
for Determining Executive Compensation
Typically, the Committee reviews and adjusts executive total
compensation levels, including equity grants, annually in
November of each year. This practice was utilized when reviewing
2010 executive total compensation.
17
Our chief executive officers (the CEO) target
total compensation package is set by the Committee during an
executive session based on the Committees review of the
competitive information prepared by the Consultant, assessment
of the CEOs individual performance in conjunction with our
financial and operating performance, and each members good
faith business judgment.
A recommendation for the target total compensation of our other
executive officers is made by the CEO and Senior Vice President
of Human Resources after reviewing the executives and the
companys performance in conjunction with the
executives responsibility and experience when compared to
the competitive information prepared by the Consultant. The
compensation package for the other executive officers is
established by the Committee, taking into consideration the
recommendation of the CEO and Senior Vice President of Human
Resources, and the executive officers individual job
responsibilities, experience and overall performance.
To facilitate this process, the Senior Vice President of Human
Resources summarizes the total compensation for each executive
and this information is used by the Committee when setting
target total compensation for the CEO and other executive
officers. The summary outlines each executives annual
target and actual pay as well as total accumulated pay under
various performance and employment scenarios and corporate
performance, both recent and projected. The Senior Vice
President of Human Resources also prepares for the Committee a
review and recommendation of the CEOs compensation. In its
deliberations, the Committee meets with the CEO and other
members of senior management, as appropriate, to discuss the
application of the competitive benchmarking (pay and
performance) relative to our companys unique structure and
needs.
Market
Benchmarking
We begin the annual process by reviewing each executive
officers target total compensation in relation to the
50th percentile of comparably sized companies based on
general industry data. We also take into account, as an
additional reference point, competitive compensation data from a
selected group of peer companies (Peer Group),
specifically retail,
e-commerce,
media, and mail order catalog companies. This Peer Group, along
with market data from companies that average $750 million
in revenue, will be used for 2011 executive compensation
planning and was used for 2010 executive compensation planning.
The companies comprising our Peer Group included the following:
|
|
|
|
|
1-800-Flowers.com
|
|
Alloy
|
|
Bidz.com
|
Blue Nile
|
|
Coldwater Creek
|
|
dELIA*s
|
drugstore.com
|
|
GSI Commerce
|
|
J. Crew Group
|
Liberty Interactive Group
|
|
Liquidity Services
|
|
NutriSystem
|
Overstock.com
|
|
PC Mall
|
|
priceline.com
|
School Speciality
|
|
U.S. Auto Parts Network
|
|
|
For 2010, the components of this survey included base salary and
target bonus for annual incentive plans similar to our annual
incentive plan. The information that we received from our Peer
Group for positions similar to the positions held by our current
named executive officers is summarized on the table below. As
demonstrated on the chart below, while the Committee adjusted
base salary based on the Peer Group information, it targeted
base salary and target bonuses at (a) below the 50th
percentile for Mr. Stewart, Mr. McGrath and
Mr. Sabatier, (b) at the
18
50th percentile for Mr. Ayd, and (c) slightly above
the 50th percentile for Ms. Steinberg. The actual
compensation for our named executive officers is included in the
Summary Compensation Table.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Actual Base Salary
|
|
|
|
|
Base Salary and
|
|
as of May 3, 2011
|
|
|
Base Salary of
|
|
Target Bonus of
|
|
and Bonus for
|
|
|
Peer Group at 50th
|
|
Peer Group at 50th
|
|
Fiscal Year
|
Named Executive Officer
|
|
Percentile*
|
|
Percentile
|
|
2010**
|
|
Keith R. Stewart,
|
|
$
|
705,000
|
|
|
$
|
1,304,000
|
|
|
$
|
1,170,000
|
|
Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
William McGrath
|
|
$
|
360,000
|
|
|
$
|
540,000
|
|
|
$
|
397,300
|
|
Senior Vice President and Chief Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
G. Robert Ayd,
|
|
$
|
450,000
|
|
|
$
|
675,000
|
|
|
$
|
675,000
|
|
President
|
|
|
|
|
|
|
|
|
|
|
|
|
Carol Steinberg,
|
|
$
|
390,000
|
|
|
$
|
585,000
|
|
|
$
|
596,000
|
|
Senior Vice President
E-Commerce,
Marketing and Business Development
|
|
|
|
|
|
|
|
|
|
|
|
|
Jean-Guillaume Sabatier,
|
|
$
|
310,000
|
|
|
$
|
430,000
|
|
|
$
|
409,000
|
|
Senior Vice President Sales and Product Planning and Programming
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Peer Group base salary is aged, which means that it reflects
future levels of Peer Group base salary, until July 1, 2011.
|
|
**
|
|
Bonus was paid in restricted stock as described further below.
|
Risk
Assessment
The Committee has reviewed the concept of risk as it relates to
our compensation programs and does not believe our compensation
programs encourage excessive or inappropriate risk. Overall, our
internal risk assessment confirms that our compensation
arrangements are low in risk and do not foster undue risk
taking, because they focus on performance of company-wide annual
goals, including EBITDA, as adjusted, working capital and
operating expenses, that are aligned with the long-term
interests of our shareholders and have strong governance and
control mechanisms. The Committees approach to long-term
incentives is and will be predominantly risk-based equity and
thus tied to shareholder returns.
Revised
Stock Ownership Guidelines for Directors and
Officers
Consistent with our ownership philosophy, the board established
stock ownership guidelines for members of the board of directors
and officers in February 2009, and revised the guidelines in
April 2011. Under the revised guidelines, our board has also
adopted stock ownership guidelines for non-management directors
of four times their annual cash retainer and the committee fees
paid by the company, to be attained within five years from April
2011. The new guidelines also require that within five years of
April 2011, each executive officer must achieve an equity
ownership level equal to a specified multiple of his or her
annual base salary. The minimum equity ownership levels are four
times the annual base salary for our CEO and two times the
annual base salary for the other executive officers. Progress
toward the stock ownership guidelines is measured once each year
at the time of the March board meeting. Ownership levels are
calculated using the market value each March multiplied by the
number of restricted shares, unrestricted shares, and value of
vested options in the money. New directors and new executive
officer hires will have five years from date of appointment or
hire to achieve these stock ownership guidelines. The current
directors and officers own a significant amount of shares and
the group is making significant progress in achieving our stock
ownership guidelines.
19
The table below summarizes the key terms of both the old
guidelines and the new guidelines:
Stock Ownership Guidelines (Effective February 2009)
|
|
|
Covered Persons
|
|
Requirement
|
|
Non-Management Director
|
|
Ten percent (10%) of such directors annual cash retainer
and committee fees towards open market purchases
|
Executive Officers
|
|
Ten percent (10%) of such officers base salary towards
open market purchases
|
Stock Ownership Guidelines (Effective April 2011)
|
|
|
Covered Persons
|
|
Requirement
|
|
Non-Management Director
|
|
Four times annual cash retainer and committee fees
|
CEO
|
|
Four times annual base salary
|
Executive Officers
|
|
Two times annual base salary
|
Our
Executive Compensation Program and 2010
Performance
The primary elements of our executive compensation program are
designed to be consistent with the compensation objectives
described above. The primary components (current and proposed),
form, purpose, performance measures and performance outcomes are
outlined in the following table. The purpose of each element is
provided to demonstrate how each fits with the overall
compensation objectives established by the Committee,
specifically, stock ownership and pay for performance. The 2010
performance column describes the result of each component based
on our financial performance in the last fiscal year for those
components that were in effect during the last fiscal year. In
addition to base compensation and our annual incentive plan, the
Committee
20
intends to consider proposals to establish a long-term incentive
plan during 2011 that would first be effective for the 2012
fiscal year.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010
|
|
|
|
|
|
|
Performance
|
|
Performance
|
Component
|
|
Form
|
|
Purpose
|
|
Measures
|
|
Outcomes
|
|
Base Compensation
|
|
Base salary paid in the form of cash compensation
|
|
Fixed element of pay based on individuals primary duties
and responsibilities
|
|
Individual performance and contribution on primary duties and
responsibilities
|
|
CEO and Executive Officers received base pay increases based on
the market data disclosed above
|
Annual Incentive Plan
|
|
Historically, performance based cash compensation but paid in
restricted stock in 2010
|
|
Designed to reward achievement of specified annual corporate
goals
|
|
Results were measured against EBITDA, as adjusted Cash
Flow Working Capital Operating Expense, as adjusted
|
|
Resulted in an award of 106.5 percent of target for the CEO
and Executive Officer group, paid out in restricted stock
|
Long Term Incentive Plan Performance Based Cash
|
|
Performance-based cash compensation based on terms of a plan
|
|
Designed to promote long-term creation of shareholder value and
relative terms, and provide an executive retention incentive
|
|
Committee will be reviewing proposals in November 2011 for
fiscal year 2012
|
|
Not applicable
|
Long-Term Incentive Plan Performance Based Equity
|
|
Performance-based equity compensation comprised of:
stock options
restricted stock
stock appreciation rights
stock units
performance units
other stock based awards
|
|
Designed to promote share ownership and long-term performance
resulting in the creation of shareholder value
|
|
Committee will be reviewing proposals in November 2011 for
fiscal year 2012
|
|
Not applicable
|
Fiscal
2010 Target Compensation
The committee approved the targeted annual compensation for
fiscal 2010 as listed below for each of the named executive
officers. The fiscal 2010 target amount is comprised of the
following primary components of compensation reviewed and
approved for each officer by the Committee on an annual basis:
base salary and the short-term annual incentive award assuming
achievement of target performance.
|
|
|
|
|
|
|
Fiscal 2010 Targeted
|
Name
|
|
Cash Compensation
|
|
Keith Stewart
|
|
$
|
1,137,500
|
|
William McGrath
|
|
$
|
350,000
|
|
G. Robert Ayd
|
|
$
|
660,000
|
|
Carol Steinberg
|
|
$
|
455,000
|
|
Jean-Guillaume Sabatier
|
|
$
|
420,000
|
|
The fiscal 2010 target amounts differ from the amounts reflected
in the Summary Compensation Table provided below because the
above table reflects targeted annual cash incentive, while the
Summary Compensation Table includes actual cash incentive paid
for the fiscal year (which was paid in restricted stock after
the end of the
21
fiscal year as described below). It also differs from the actual
base salary as of May 3, 2011 and bonus for Fiscal Year
2010 disclosed under Market Benchmarking because
that information was used to set base salaries for the next
fiscal year in light of our performance in fiscal year 2010.
Fiscal
2010 Performance Measures for Short-Term Annual Incentive
Award
For fiscal 2010, the Committee selected EBITDA, as adjusted,
cash flow-working capital and operating expense, as adjusted.
EBITDA, as adjusted, is the earnings number reported in our
press releases; a reconciliation of EBITDA, as adjusted, is
included in our press releases and public filings. These
performance measures were selected by the Committee following
discussions with the CEO and executive officers on the business
plan for fiscal 2010. EBITDA, as adjusted, was given a 60%
weighting, based on the importance the committee subscribed to
the company focusing on a return to profitability and raising
its stock price. Achieving cash flow-working capital and
managing operating expense, as adjusted, were each given a 20%
weighting. Maintaining cash flow-working capital and controlling
operating expense, as adjusted was identified by the Committee
and senior management as corporate objectives that would ensure
enough capital to execute the companys strategic plan.
Controlling operating expense, as adjusted, was identified as
critical in achieving positive EBITDA, as adjusted.
Shown below are our three performance measures, weights,
targets, and actual results for fiscal 2010, each reflected in
millions of dollars.
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance Measure
|
|
Weight
|
|
Target
|
|
Actual
|
|
EBITDA, as adjusted
|
|
|
60
|
%
|
|
$
|
1.50
|
|
|
$
|
2.4
|
|
Cash Flow-Working Capital
|
|
|
20
|
%
|
|
$
|
(4.50
|
)
|
|
$
|
(14.4
|
)
|
Operating Expense, as adjusted
|
|
|
20
|
%
|
|
$
|
222.2
|
|
|
$
|
210.5
|
|
For fiscal 2010, the actual payout for the CEO and Executive
Officers was 106.5% of target. This payout was made in
restricted stock in lieu of cash as further described below.
Fiscal
2011 Performance Measures for Short-Term Annual Incentive
Award
For fiscal 2011, the Committee will continue to use EBITDA, as
adjusted, cash flow-working capital and operating expense, as
adjusted, as the corporate objectives for our annual incentive
plan. However, the Committee has decided to measure operating
expense as a percentage of net sales in the next fiscal year.
The Committee has approved challenging targets for 2011, but it
believes that these levels are achievable if our company is able
to meet shareholder expectations.
Specifics
Related to the 2010 Executive Compensation Elements
Base
Salary
The level of base salary takes into account job
responsibilities, experience level and market competitiveness.
Base salaries are generally reviewed annually in November, with
any changes becoming effective in May the following year. Annual
adjustments are based on individual performance, performance of
the area of responsibility, the companys performance,
competitiveness versus the external market and budget
availability for internal merit increases.
Mr. Stewarts employment agreement with our company
gave him the option to elect to receive restricted stock or cash
for payment of his base salary. In fiscal 2008 and 2009,
Mr. Stewart elected to receive restricted stock for a large
portion of his base compensation and in fiscal 2010, he elected
to receive cash as disclosed in the Summary Compensation Table.
Annual
Incentive
This short-term pay for performance incentive is used to
encourage and reward the CEO and executive officers for making
decisions that improve performance as measured by EBITDA, as
adjusted, cash-flow, working capital and operating expense, as
adjusted. It is designed to produce sustained shareholder value
by establishing a direct link between these measures and
incentive compensation. This annual incentive to the CEO and
executive officers is administered by the Committee.
22
Targets are established annually for the company as a whole are
based on our prior performance. The plan design motivates
continuous improvement in order to achieve payouts at or above
target over time.
The companys and departments performance determines
the amount, if any, of awards earned under the annual incentive
compensation plan. Such awards are based on performance relative
to the established target.
For a given year, a payout at 100 percent of target annual
incentive compensation is achieved when company performance
achieves the performance measures. Actual incentive payments
each year can range from 0 to 200 percent of the targeted
incentive opportunity based on corporate performance
and/or
the
performance of the department over which the executive has
responsibility.
This annual performance-based incentive opportunity is
established each year as a percentage of an executives
annual base salary and is targeted at approximately the
50th percentile of our previously determined competitive
market with the opportunity to earn more for above-target
performance or less for below-target performance. For 2010, the
target incentive opportunities and the actual award earned for
the CEO and other named executive officers are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Actual Annual
|
|
|
|
Actual Shares of
|
|
|
Target Annual
|
|
Incentive Percent
|
|
Actual Bonus Value
|
|
Restricted Stock
|
|
|
Incentive Percent
|
|
of Target Based on
|
|
Based on 100% of
|
|
Awarded Based on
|
Name
|
|
of Base Salary
|
|
Performance
|
|
Target
|
|
Target
|
|
Keith Stewart
|
|
|
75
|
%
|
|
|
100
|
%
|
|
$
|
487,500
|
|
|
|
72,545
|
|
William McGrath
|
|
|
40
|
%
|
|
|
100
|
%
|
|
$
|
97,300
|
|
|
|
14,480
|
|
G. Robert Ayd
|
|
|
65
|
%
|
|
|
100
|
%
|
|
$
|
255,000
|
|
|
|
37,947
|
|
Carol Steinberg
|
|
|
40
|
%
|
|
|
170
|
%
|
|
$
|
221,000
|
|
|
|
32,887
|
|
Jean-Guillaume Sabatier
|
|
|
40
|
%
|
|
|
83
|
%
|
|
$
|
99,600
|
|
|
|
14,822
|
|
Nathan Fagre*
|
|
|
40
|
%
|
|
|
NA
|
|
|
|
NA
|
|
|
|
NA
|
|
Frank Elsenbast*
|
|
|
40
|
%
|
|
|
NA
|
|
|
|
NA
|
|
|
|
NA
|
|
|
|
|
*
|
|
Messrs. Fagre and Elsenbast were ineligible for awards as
they were not employed by the Company when the awards were made.
|
We executed restricted stock agreements with our Chief Executive
Officer, Keith R. Stewart, our Chief Financial Officer, William
McGrath, and our other named executive officers to provide
restricted stock grants in lieu of an annual cash bonus for
fiscal year 2010. Each named executive officer received
restricted stock in an amount equal to the amount of cash that
such named executive officer would have received pursuant to our
2010 annual incentive plan, dividing such cash amount by a $6.72
average stock price determined by a
20-day
simple average (beginning
10-days
before our March 17, 2011 earnings release and ending
10-days
after the release, including day of release). The restricted
stock will vest in two equal annual installments beginning
March 31, 2012 and ending March 31, 2013.
Long
Term Equity Incentive Plan (Stock Options)
The companys only current form of long term incentives are
in the form of stock options. During fiscal 2011, the Committee
will consider other long term incentive plan options for
implementation in fiscal 2012.
Stock options that are issued for newly hired executive officers
or individuals that are promoted into an executive officer role
adhere to the following guidelines:
|
|
|
|
|
Title
|
|
Stock Option Award
|
|
Senior Vice President
|
|
|
100,000 shares
|
|
Vice President
|
|
|
50,000 shares
|
|
The company has utilized inducement grants for new hires that
have been approved by the Committee in reliance on NASDAQ
Rule 5635(c)(4). The terms of each stock option granted to
any new hire have been disclosed in a press release that has
described the material terms of the grant, including the number
of shares involved.
23
The CEO and President roles are evaluated and compared to market
data to determine their appropriate number of stock options.
Keith Stewart (as discussed later) and G. Robert Ayd (as a new
hire) and William McGrath (as an appointment to his CFO role)
were all granted options to purchase shares of our common stock
in fiscal 2010 as detailed below in the Grants of
Plan-Based Awards table. No other executive officers
received stock options in fiscal 2010.
Stock options generally have a grant date that is
the same date as the date of committee or board approval and
have an exercise price equal to the fair market value on the
grant date or, in some cases, equal to a higher stock price. In
addition, the standard is for stock options to have a ten-year
exercise term and vest 33% on each of the next three
anniversaries of the date of grant, with limited exceptions,
subject to the following post-termination and change of control
provisions:
|
|
|
|
|
|
|
|
|
Event
|
|
Award Vesting
|
|
Exercise Term
|
|
Death or Disability
|
|
|
None
|
|
|
|
1 year
|
|
Retirement or Termination without Cause
|
|
|
None
|
|
|
|
90 days
|
|
Change of Control
|
|
|
Accelerated
|
|
|
|
NA
|
|
Long-Term
Incentive Plan Performance Based Equity Awards and
Performance Based Cash Awards
The Committee plans to consider a proposal to establish a
long-term incentive plan during 2011, to be effective as of
fiscal 2012, which would include both performance based equity
awards and performance based cash awards. This would be designed
to provide ownership and cash opportunities to promote the
achievement of longer term financial performance goals and
enhanced total shareholder returns. The companys long-term
incentive opportunity will be generally provided through a
combination of equity and cash awards, which the Committee
believes best matches the compensation principles for the
program.
The design for fiscal year 2012 will include a mix of long-term
incentives through performance-based cash awards and
performance-based equity or equivalent awards. This award mix
will be set to achieve the objective described above, while
viewed in light of market practices and cost implications. The
total amount of long-term incentives will be established in
relation to the 50th percentile of our previously
determined competitive market as well as individual performance
and the companys performance. This emphasis on long-term
compensation, through cash, equity awards, or equivalent awards,
ensures a strong continued alignment with our executive
ownership and shareholder value creation objectives.
Employment
Agreement
We currently have an employment agreement Keith Stewart, our
chief executive officer, which was amended and restated on
February 23, 2010. The initial term ran to January 26,
2011 and is automatically extended for successive one-year
periods unless terminated by either party by written notice at
least 90 days prior to the end of the term or any
extension. Mr. Stewarts employment agreement provides
for base salary, an annual cash incentive, a long-term
incentive, under which he received an option to purchase
500,000 shares of our common stock on November 18,
2010 at a per share exercise price of $2.95, which vests in
annual increments of one-third which began on January 26,
2011, certain severance benefits and assessment of certain tax
liabilities to Mr. Stewart. The amended agreement also
provides for payment of severance benefits in the event of
certain changes of control as described below under
Potential Severance Payments upon Termination following a
Change of Control.
This is the only employment agreement that the company has with
any named executive officer. We have an employment agreement
with our CEO because the Committee believes that it is
consistent with market practices and functions as a retention
vehicle.
Accounting
and Tax Considerations
When establishing pay elements or associated programs, the
Committee reviews projections of the estimated pro forma expense
and tax impact of all material elements of the executive
compensation program. Generally, an accounting expense is
accrued over the requisite service period of the particular pay
element, which in many cases is
24
equal to the performance period, and the company realizes a tax
deduction upon payment to
and/or
realization by the executive.
Our compensation program is intended to meet the deductibility
requirements of Section 162(m) of the Internal Revenue Code
of 1986, as amended (Code) as performance-based pay,
resulting in amounts paid being tax deductible to us. Code
Section 162(m) generally provides that publicly-held
corporations may not deduct in any one taxable year certain
compensation in excess of $1 million paid to the CEO and
the next four most highly-compensated executive officers.
Compensation
Committee Report
The Committee has discussed and reviewed the Compensation
Discussion and Analysis with management. Based upon this review
and discussion, the Committee recommended to the board of
directors that this Compensation Discussion and Analysis be
included in this proxy statement.
The Human Resources
And
Compensation Committee
Randy S. Ronning
(Chair)
Joseph F. Berardino
Robert J. Korkowski
Summary
Compensation Table
The table below shows all elements of compensation for our CEO
and named executive officers for each of our last three
completed fiscal years. As permitted by SEC rules, certain
columns in the Summary Compensation Table and the other
compensation tables have been omitted if no compensation would
be required to be reported in such column in any fiscal year.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
Option
|
|
All Other
|
|
|
|
|
|
|
Salary
|
|
Bonus
|
|
Awards
|
|
Awards
|
|
Compensation
|
|
Total
|
Name & Principal Position
|
|
Year
|
|
($)(1)
|
|
($)
|
|
($)(2)
|
|
($)(3)
|
|
($)
|
|
($)
|
|
Keith Stewart
|
|
|
2010
|
|
|
|
650,000
|
|
|
|
|
|
|
|
|
|
|
|
1,083,363
|
|
|
|
|
|
|
|
1,733,363
|
|
Chief Executive Officer
|
|
|
2009
|
|
|
|
361,539
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
361,539
|
|
|
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
750,000
|
|
|
|
451,914
|
|
|
|
324,081
|
(4)
|
|
|
1,525,995
|
|
William McGrath
|
|
|
2010
|
|
|
|
212,404
|
|
|
|
52,000
|
|
|
|
|
|
|
|
72,384
|
|
|
|
21,446
|
(5)
|
|
|
358,234
|
|
Senior Vice President and
|
|
|
2009
|
|
|
|
6,731
|
|
|
|
|
|
|
|
|
|
|
|
155,323
|
|
|
|
|
|
|
|
162,054
|
|
Chief Financial Officer
|
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
G. Robert Ayd
|
|
|
2010
|
|
|
|
392,308
|
|
|
|
|
|
|
|
|
|
|
|
982,532
|
|
|
|
37,570
|
(6)
|
|
|
1,412,410
|
|
President
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carol Steinberg
|
|
|
2010
|
|
|
|
325,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49,571
|
(7)
|
|
|
374,571
|
|
Senior Vice President
E-Commerce,
|
|
|
2009
|
|
|
|
212,500
|
|
|
|
112,500
|
|
|
|
|
|
|
|
55,205
|
|
|
|
95,786
|
(7)
|
|
|
475,991
|
|
Marketing and Business Development
|
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jean-Guillaume Sabatier
|
|
|
2010
|
|
|
|
300,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
300,000
|
|
Senior Vice President, Sales and
|
|
|
2009
|
|
|
|
300,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
300,000
|
|
Product Planning and Programming
|
|
|
2008
|
|
|
|
69,231
|
|
|
|
|
|
|
|
|
|
|
|
33,127
|
|
|
|
34,609
|
(8)
|
|
|
136,967
|
|
Nathan Fagre(9)
|
|
|
2010
|
|
|
|
318,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
318,600
|
|
Senior Vice President
|
|
|
2009
|
|
|
|
318,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
318,600
|
|
and General Counsel
|
|
|
2008
|
|
|
|
329,839
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,265
|
(10)
|
|
|
338,104
|
|
Frank Elsenbast(11)
|
|
|
2010
|
|
|
|
35,377
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35,377
|
|
Senior Vice President
|
|
|
2009
|
|
|
|
306,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
306,600
|
|
and Chief Financial Officer
|
|
|
2008
|
|
|
|
317,377
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,365
|
(10)
|
|
|
328,742
|
|
|
|
|
(1)
|
|
Represents base salary paid during fiscal 2008, fiscal 2009 and
fiscal 2010. As described above in the section entitled
Compensation Discussion of Analysis-Specifics Related to
the 2010 Compensation Elements.
|
25
|
|
|
|
|
Keith Stewart was paid in the form of restricted stock
instead of cash for his salary in fiscal 2008 and for a
significant portion of his salary in fiscal 2009.
|
|
(2)
|
|
Amounts shown do not reflect compensation actually received by
the named executive officer. Instead, the amounts shown are the
aggregate grant date fair value of restricted stock awards
granted as determined pursuant to FASB ASC Topic 718.
|
|
(3)
|
|
Amounts shown do not reflect compensation actually received by
the named executive officer. Instead, the amounts shown are the
aggregate grant date fair value of stock option awards made to
each individual during the respective fiscal year as determined
pursuant to FASB ASC Topic 718. The assumptions used to
calculate the value of option awards are set forth in
Note 11, Shareholders Equity Stock-Based
Compensation, of the Notes to the Consolidated Financial
Statements included in our Annual Report on
Form 10-K
for fiscal 2010 filed with the SEC on March 22, 2011 and
for fiscal 2009 filed with the SEC on April 15, 2010 and
under Note 9, Shareholders Equity and Redeemable
Preferred Stock Stock Based Compensation, of the
Notes to the Consolidated Financial Statements included in our
Annual Report on
Form 10-K
for fiscal 2008 filed with the SEC on April 16, 2009.
|
|
(4)
|
|
Represents $74,081 in relocation expenses and a signing bonus in
the amount of $250,000.
|
|
(5)
|
|
Represents $21,446 in commuting expenses paid in 2010.
|
|
(6)
|
|
Represents $37,570 in commuting expenses paid in 2010.
|
|
(7)
|
|
Represents $49,571 in commuting expenses paid in 2010, $33,286
in commuting expenses paid in 2009 and a $62,500 incentive
payment paid upon hire in 2009.
|
|
(8)
|
|
Represents $34,609 in relocation expenses paid in 2008.
|
|
(9)
|
|
On January 28, 2011, Mr. Fagre resigned as Senior Vice
President and General Counsel and Ms. Teresa Dery was
appointed Interim General Counsel.
|
|
(10)
|
|
Represents receipts of an auto allowance of $1,015 in fiscal
2008. The amount also represents a company match in the 401(k)
plan equal to 50% for the first 6% of eligible compensation
deferred, up to IRS compensation limits: $7,250 for
Mr. Fagre in fiscal 2008 and $10,350 for Mr. Elsenbast
in fiscal 2008. The company match and the auto allowance was
discontinued after fiscal 2008.
|
|
(11)
|
|
On March 5, 2010, Mr. Elsenbast resigned as Senior
Vice President & Chief Financial Officer.
|
Grants of
Plan-Based Awards in Fiscal 2010
The following table sets forth certain information concerning
plan-based awards granted to our named executive officers during
fiscal 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Exercise or
|
|
|
|
|
|
|
|
|
|
Estimated Future Payouts Under
|
|
|
Securities
|
|
|
Base Price
|
|
|
Grant Date Fair
|
|
|
|
|
|
|
Non-Equity Incentive Plan Awards(1)
|
|
|
Underlying
|
|
|
of Option
|
|
|
Value of
|
|
|
|
Grant
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Options
|
|
|
Awards
|
|
|
Stock or Option
|
|
Name
|
|
Date
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(#)(2)
|
|
|
($/SH)
|
|
|
Awards ($)(6)
|
|
|
Keith Stewart
|
|
|
11/18/2010
|
|
|
|
243,750
|
|
|
|
487,500
|
|
|
|
975,000
|
|
|
|
500,000
|
(3)
|
|
$
|
2.95
|
|
|
|
1,083,363
|
|
William McGrath
|
|
|
8/2/2010
|
|
|
|
48,650
|
|
|
|
97,300
|
|
|
|
194,600
|
|
|
|
55,000
|
(4)
|
|
$
|
1.82
|
|
|
|
72,384
|
|
G. Robert Ayd
|
|
|
2/1/2010
|
|
|
|
127,500
|
|
|
|
255,000
|
|
|
|
510,000
|
|
|
|
280,000
|
(4)
|
|
$
|
3.99
|
|
|
|
786,026
|
|
|
|
|
2/1/2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
70,000
|
(5)
|
|
$
|
3.99
|
|
|
|
196,506
|
|
Carol Steinberg
|
|
|
|
|
|
|
65,000
|
|
|
|
130,000
|
|
|
|
260,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jean-Guillaume Sabatier
|
|
|
|
|
|
|
60,000
|
|
|
|
120,000
|
|
|
|
240,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nathan Fagre
|
|
|
|
|
|
|
NA
|
|
|
|
NA
|
|
|
|
NA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Frank Elsenbast
|
|
|
|
|
|
|
NA
|
|
|
|
NA
|
|
|
|
NA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
SEC rules require that we disclose the applicable range of
estimated payouts denominated in dollars (with the threshold
referring to the minimum amount payable for a certain level of
performance, the target referring to the amount payable if the
specified performance targets are reached and the maximum
referring to the maximum
|
26
|
|
|
|
|
payout possible) upon satisfaction of the conditions in question
under certain non-equity incentive plan awards, like our annual
incentive plan, granted in the fiscal year. Accordingly, the
amounts in the columns above reflect possible payouts under
awards made to our named executive officers under our annual
incentive plan. As described in this proxy statement under
Compensation, Discussion & Analysis
Fiscal 2010 Performance Measures & Objectives,
the payouts were based on our company achieving certain
corporate objectives, including EBITDA, as adjusted, Cash
Flow-Working Capital and Operated Expense, as adjusted. As
described above, the payouts were made in restricted stock
granted after the end of the fiscal year in lieu of cash.
Accordingly, there is no cash payout disclosed in the Summary
Compensation Table related to the annual incentive plan for 2010.
|
|
(2)
|
|
Amounts shown equal the number of shares underlying options.
|
|
(3)
|
|
Stock option grant vests 1/3 on date of grant, 1/3 on
January 26, 2011 and 1/3 on January 26, 2012.
|
|
(4)
|
|
Stock option grants vest in equal installments over a three year
period beginning on the first anniversary date of grant.
|
|
(5)
|
|
Stock option grant vests immediately upon relocation of
executive to Minnesota to be determined by the Committee in its
sole discretion.
|
|
(6)
|
|
Amounts shown equal the grant date fair value of each equity
award computed in accordance with FAS 123R.
|
Outstanding
Equity Awards at Fiscal 2010 Year-End
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
|
|
Number of
|
|
Number of
|
|
|
|
|
|
|
|
|
Securities
|
|
Securities
|
|
|
|
|
|
|
|
|
Underlying
|
|
Underlying
|
|
|
|
|
|
|
|
|
Unexercised
|
|
Unexercised
|
|
Option
|
|
|
|
|
|
|
Options
|
|
Options
|
|
Exercise
|
|
|
|
|
|
|
(#)
|
|
(#)
|
|
Price
|
|
Option
|
Name
|
|
Grant Date
|
|
Exercisable
|
|
Unexercisable
|
|
($/Share)
|
|
Expiration Date
|
|
Keith Stewart
|
|
|
8/27/08
|
|
|
|
125,000
|
|
|
|
125,000
|
(1)
|
|
$
|
2.30
|
|
|
8/25/18
|
|
|
|
8/27/08
|
|
|
|
62,500
|
|
|
|
62,500
|
(1)
|
|
$
|
6.00
|
|
|
8/25/18
|
|
|
|
8/27/08
|
|
|
|
62,500
|
|
|
|
62,500
|
(1)
|
|
$
|
7.00
|
|
|
8/25/18
|
|
|
|
11/18/10
|
|
|
|
333,333
|
|
|
|
166,667
|
(2)
|
|
$
|
2.95
|
|
|
11/18/20
|
William McGrath
|
|
|
1/7/10
|
|
|
|
15,000
|
|
|
|
30,000
|
(3)
|
|
$
|
4.97
|
|
|
1/7/20
|
|
|
|
8/2/10
|
|
|
|
|
|
|
|
55,000
|
(3)
|
|
$
|
1.82
|
|
|
8/2/20
|
G. Robert Ayd
|
|
|
2/1/10
|
|
|
|
|
|
|
|
70,000
|
(4)
|
|
$
|
3.99
|
|
|
2/1/20
|
|
|
|
2/1/10
|
|
|
|
|
|
|
|
280,000
|
(3)
|
|
$
|
3.99
|
|
|
2/1/20
|
Carol Steinberg
|
|
|
6/1/09
|
|
|
|
33,333
|
|
|
|
66,667
|
(3)
|
|
$
|
0.81
|
|
|
6/1/19
|
Jean-Guillaume
Sabatier
|
|
|
11/3/08
|
|
|
|
|
|
|
|
33,334
|
(3)
|
|
$
|
0.60
|
|
|
11/3/18
|
Nathan Fagre(5)
|
|
|
7/1/04
|
|
|
|
16,500
|
|
|
|
|
|
|
$
|
13.02
|
|
|
7/1/14
|
|
|
|
3/2/05
|
|
|
|
26,660
|
|
|
|
|
|
|
$
|
12.82
|
|
|
3/2/15
|
|
|
|
12/21/06
|
|
|
|
100,000
|
|
|
|
|
|
|
$
|
12.70
|
|
|
12/21/16
|
|
|
|
12/13/07
|
|
|
|
100,000
|
|
|
|
|
|
|
$
|
6.48
|
|
|
12/13/17
|
Frank Elsenbast(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Stock option grants vest in four equal annual installments
beginning on August 25, 2009. Options expire 10 years
from date of grant.
|
|
(2)
|
|
Stock option grant vests 1/3 on date of grant, 1/3 on
January 26, 2011 and 1/3 on January 26, 2012.
|
|
(3)
|
|
Stock option grants vest in three equal annual installments
beginning on the first anniversary of the date of grant. Options
expire 10 years from date of grant.
|
|
(4)
|
|
Stock option grant vests upon board discretion or immediately
upon relocation of executive to Minnesota.
|
|
(5)
|
|
Mr. Fagres last date of employment was
January 28, 2011. All of the options disclosed above have
expired (all options expired 90 days following the
termination of employment), except the option grant dated
12/13/07,
which will expire 180 days following his January 28,
2011 termination date.
|
|
(6)
|
|
Mr. Elsenbasts last day of employment was
March 5, 2010.
|
27
Option
Exercises and Stock Vested
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Number of Shares
|
|
Value Realized
|
Name
|
|
Acquired on Exercise (#)
|
|
on Exercise ($)(1)
|
|
Keith Stewart
|
|
|
|
|
|
|
|
|
William McGrath
|
|
|
|
|
|
|
|
|
G. Robert Ayd
|
|
|
|
|
|
|
|
|
Carol Steinberg
|
|
|
|
|
|
|
|
|
Jean-Guillaume Sabatier
|
|
|
33,333
|
|
|
|
79,666
|
(2)
|
Nathan Fagre
|
|
|
|
|
|
|
|
|
Frank Elsenbast
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Represents the aggregate dollar amount realized upon exercise by
the difference between the market price of the underlying
securities at exercise and the exercise price of the options.
|
|
(2)
|
|
Exercised on November 19, 2010 pursuant to option granted
on November 3, 2008 with an exercise price of $0.60 per
share and a fair market value of $2.99.
|
Retirement
Benefits
Historically, the company provided matching contributions equal
to 50% of an employees contributions, up to the first 6%
of pay and funded this match each pay period regardless of
company performance. In fiscal 2009, the company match equal to
50% of the first 6% of pay was suspended and no match was
provided in fiscal year 2010.
Starting in fiscal 2011, the company will provide match
contributions based upon company performance against our
business objectives and the match amount will differ depending
upon level of goal achievement. The company match for retirement
contributions may range anywhere from zero to 100% on the dollar
up to the first 6% of the employees contribution. See
table below for the match formula. The achieved match will be
funded annually after financial results have been released in
approximately April of each year. Participants must be actively
employed at the time of payout.
|
|
|
|
|
|
|
Objective Achievement Level
|
|
Match Formula
|
|
Match %
|
|
0%
|
|
0%
|
|
|
0
|
%
|
50%
|
|
25% up to 6%
|
|
|
1.5
|
%
|
100%
|
|
50% up to 6%
|
|
|
3
|
%
|
150%
|
|
75% up to 6%
|
|
|
4.5
|
%
|
200%
|
|
100% up to 6%
|
|
|
6
|
%
|
Vesting on retirement contributions will remain at 100%.
Employer contributions that employees received in the past will
remain in employee plans and be vested according to the
following schedule:
|
|
|
|
|
Years of Service
|
|
Vesting %
|
|
Less than 1
|
|
|
0
|
%
|
1
|
|
|
20
|
%
|
2
|
|
|
40
|
%
|
3
|
|
|
60
|
%
|
4
|
|
|
80
|
%
|
5
|
|
|
100
|
%
|
28
Effective July 1, 2011, vesting on retirement contributions
will be in accordance with the following schedule:
|
|
|
|
|
Years of Service
|
|
Vesting %
|
|
Less than 1
|
|
|
0
|
%
|
1
|
|
|
34
|
%
|
2
|
|
|
67
|
%
|
3
|
|
|
100
|
%
|
We do not provide a defined benefit plan to our named executive
officers or any of our other executive officers.
Nonqualified
Deferred Compensation
We currently do not provide any nonqualified deferred
compensation plans to our named executive officers or other
executive officers.
Severance
Agreements and Severance Guidelines (non-change of
control)
Our employment agreement with our chief executive officer, Keith
Stewart, provides for severance payments in the event of his
termination of employment under certain circumstances. If
Mr. Stewarts employment is terminated without cause
or he resigns from employment for good reason, whether or not
pursuant to a change of control, he is eligible to receive
twelve months of his base salary at the time of termination, one
year of his target bonus opportunity amount for the fiscal year
in which the removal or resignation occurs, and twelve months of
medical coverage under COBRA. All transition and severance pay
or benefits (including the change in control severance benefit
described below) are conditional upon his execution of an
effective release in a specified form.
The company also has severance pay guidelines for our named
executive officers and other executive officers that would
entitle them to one year of base salary severance pay and one
year of subsidized group medical coverage under COBRA if they
are terminated without cause or resign for good reason, as each
such term is defined below.
Potential
Payments upon Termination (non-change of control)
In the event a named executives employment terminated on
January 29, 2011 (the last day of the companys fiscal
year) and the named executive was entitled to a severance
payment, the named executive would have realized the payments
set forth below, which represent base salary and one year of
subsidized group medical coverage:
|
|
|
|
|
Name
|
|
Termination
|
|
Keith Stewart
|
|
$
|
1,194,375
|
|
William McGrath
|
|
$
|
300,000
|
|
G. Robert Ayd
|
|
$
|
420,000
|
|
Carol Steinberg
|
|
$
|
375,000
|
|
Jean-Guillaume Sabatier
|
|
$
|
310,000
|
|
Severance
Agreements and Severance Guidelines (change of
control)
The company also has change of control severance guidelines for
executive officers. Following a change of control, Keith Stewart
is eligible for two years of base salary severance pay if
terminated without cause or he resigns for
good reason within 12 months following a change
of control. Other executive officers are eligible for one year
of base salary severance pay and one year of subsidized group
medical coverage under COBRA if they are terminated without
cause or resign for good reason within
12 months following a change of control.
Any such severance payments pursuant to the change of control
severance agreements will be reduced
dollar-for-dollar
by any other severance payment the officer is entitled to
receive from the company in connection with the termination of
his or her employment. In order to receive the severance, the
executive officer must sign a release of claims in favor of the
company and be in compliance with the terms of the change of
control severance agreement.
29
The term cause as used in the severance agreements
and severance pay guidelines means (i) a material act or
act of fraud which results in or is intended to result in the
officers personal enrichment at the expense of the
company; (ii) public conduct by the officer materially
detrimental to the reputation of company; (iii) material
violation by the officer of any written company policy,
regulation or practice; (iv) the officers failure to
adequately perform the duties of the officers position to
the detriment of the company; (v) commission of conduct
constituting a felony; (vi) habitual intoxication, drug use
or chemical substance use by any intoxicating or chemical
substance; or (vii) a material breach by the officer of any
of the terms and conditions of the change of control severance
agreement, which breach remains uncured 10 days after
receipt by the officer of written notice of such breach.
The term good reason as used in the severance
agreements means (i) a material reduction in the
officers duties, responsibilities or authority;
(ii) any material reduction (greater than 10%), in the
aggregate, to the compensation and benefit plans, programs and
perquisites applicable to the officer; (iii) material
diminution in the duties, responsibilities or authority of the
employee or officer to whom the officer is required to report;
(iv) the company requiring the officer to be based at any
office or location more than 50 miles from the location at
which the officer was previously based or the company requiring
the officer to travel on company business to a substantially
greater extent than previously required; or (v) any
material breach of the change in control severance agreement by
the company. In addition, for any of these circumstances to
constitute good reason the officer must have given notice
thereof to the company which the company failed to cure within
30 days.
Potential
Payments upon Termination After Change of Control
In the event a named executives employment terminated on
January 28, 2011 (the last day of our last completed fiscal
year) and the named executive was entitled to a severance
payment, the named executive would have realized the payments
set forth below, which represent base salary and one year of
subsidized group medical coverage:
|
|
|
|
|
|
|
Change of Control
|
|
|
& Qualifying
|
Name
|
|
Termination
|
|
Keith Stewart
|
|
$
|
1,365,000
|
|
William McGrath
|
|
$
|
300,000
|
|
G. Robert Ayd
|
|
$
|
420,000
|
|
Carol Steinberg
|
|
$
|
375,000
|
|
Jean-Guillaume Sabatier
|
|
$
|
310,000
|
|
Additional
Potential Payments for Accelerated Options Upon Change in
Control
Our stock option plans provide that stock options will
immediately vest and become exercisable upon a change of
control, subject to certain exceptions. If any such transaction
or event had occurred on January 29, 2011 (the last day of
our fiscal year) and the price per share of our common stock
payable in connection with such transaction or event equaled the
closing sales price of a share of our common stock on the NASDAQ
Stock Market on such date
30
(closing price was $6.45 per share), then each of our named
executive officers would have received the following payments in
respect of their options (assuming full exercise of the same):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option
|
|
|
|
|
Grant
|
|
Options
|
|
Exercise
|
|
|
Name
|
|
Date
|
|
Outstanding
|
|
Price
|
|
Total Payment
|
|
Keith Stewart
|
|
|
8/27/08
|
|
|
|
125,000
|
|
|
$
|
2.30
|
|
|
$
|
518,750
|
|
|
|
|
8/27/08
|
|
|
|
62,500
|
|
|
$
|
6.00
|
|
|
$
|
28,125
|
|
|
|
|
8/27/08
|
|
|
|
62,500
|
|
|
$
|
7.00
|
|
|
|
|
|
|
|
|
11/18/10
|
|
|
|
166,667
|
|
|
$
|
2.95
|
|
|
$
|
583,335
|
|
Total:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
1,130,210
|
|
William McGrath
|
|
|
1/7/10
|
|
|
|
30,000
|
|
|
$
|
4.97
|
|
|
$
|
44,400
|
|
|
|
|
8/2/10
|
|
|
|
55,000
|
|
|
$
|
1.82
|
|
|
$
|
254,650
|
|
Total:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
299,050
|
|
G. Robert Ayd
|
|
|
2/1/10
|
|
|
|
280,000
|
|
|
$
|
3.99
|
|
|
$
|
688,800
|
|
Total:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
688,800
|
|
Carol Steinberg
|
|
|
6/1/09
|
|
|
|
66,667
|
|
|
$
|
0.81
|
|
|
$
|
376,002
|
|
Total:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
376,002
|
|
Jean-Guillaume Sabatier
|
|
|
11/3/08
|
|
|
|
33,334
|
|
|
$
|
0.60
|
|
|
$
|
195,004
|
|
Total:
|
|
|
|
|
|
|
|
|
|
|
|
|
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$
|
195,004
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The table above does not include shares of restricted stock
which were granted after the 2010 fiscal year in lieu of a cash
bonus, the terms of which are further discussed above in the
Compensation Discussion and Analysis.
DIRECTOR
COMPENSATION FOR FISCAL 2010
We use a combination of cash and stock-based compensation to
attract and retain qualified board members. In setting director
compensation, we consider the significant amount of time that
directors spend in fulfilling their duties as directors,
committee members and chairs. The governance committee also
reviews analyses completed by Towers Watson relative to director
compensation. Towers Watson provides the governance committee
with relevant market data, including data from proxy sources in
our peer group, and alternatives to consider when making
compensation decisions for director compensation.
The summary below represents compensation paid to directors
during fiscal 2010. The director compensation program consists
of an annual cash retainer for all board members, additional
cash retainers for the non-executive chairman, committee chairs
and audit committee members and an annual stock-based grant.
Additionally, the non-executive chairman receives an annual
stock option grant equal to an option to purchase
20,000 shares of common stock. New directors receive a
one-time stock option grant equal to an option to purchase
30,000 shares of common stock upon joining the board. The
annual retainer for directors did not increase during fiscal
2010. The annual grant of 8,000 restricted shares of common
stock, subject to one-year vesting, also remained unchanged. A
special retainer was paid to members of the special committee
for review of capital structure alternatives, with the chairman
of that committee receiving an additional amount. The directors
who were elected by the holders of the preferred stock at the
2010 annual meeting of shareholders did not receive compensation
for their service as directors pursuant to the terms of our
amended and restated shareholders agreement with GE Equity and
GE policy. Mr. Kocsi and Ms. Dunleavy will not receive
compensation in 2011 pursuant to this agreement. In addition,
Keith Stewart, our chief executive officer, did not receive any
additional compensation for his service on the board of
directors.
31
The following table shows information concerning compensation
provided to each of our non-employee directors for services
provided as a director during fiscal 2010.
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Fees Earned or
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Paid In Cash
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Stock Awards
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Total
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Name
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|
($)
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|
($)(1)
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|
($)
|
|
John D. Buck
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65,000
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(2)
|
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|
15,200
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80,200
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Joseph F. Berardino
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|
|
224,500
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(3)
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|
|
15,200
|
|
|
|
239,700
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Edwin P. Garrubbo
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|
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202,500
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(4)
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|
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15,200
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|
|
|
217,700
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|
Robert J. Korkowski
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|
|
85,000
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(5)
|
|
|
15,200
|
|
|
|
100,200
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|
Randy S. Ronning
|
|
|
202,000
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(6)
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|
|
15,200
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|
|
|
217,200
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(1)
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Amount reported represents 100% of the grant date fair value of
the annual stock grant of 8,000 shares given to each of the
directors. The valuation of these awards is based on the closing
price of our common stock on June 24, 2010, the date of
grant. These shares are restricted and vest in full on
June 14, 2011, the day before our 2011 Annual Meeting.
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(2)
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Represents a $65,000 annual board retainer.
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(3)
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Consists of: $65,000 annual board retainer, $10,000 for serving
as a member of the audit committee, $12,000 for serving as
chairman of the governance committee, and $137,500 for services
on special committees of the board.
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(4)
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Consists of: $65,000 annual board retainer and $137,500 for
service on special committees of the board.
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(5)
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|
Consists of: $65,000 annual board retainer and $20,000 for
serving as chairman of the audit committee.
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(6)
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Consists of: $65,000 annual board retainer, $65,000 for serving
as chairman of the board of directors, $10,000 for serving as a
member of the audit committee, $12,000 for serving as chairman
of the compensation committee and $50,000 for service on special
committees of the board.
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The governance committee generally reviews and makes
recommendations to the board of directors as to director
compensation issues at its June board meeting, with advice and
analysis from its independent compensation advisor, Towers
Watson. Under the current director compensation structure, each
director receives an annual retainer of $65,000 (payable
quarterly). In addition, the chairman of the board receives a
supplemental annual retainer of $65,000 and an annual grant of
20,000 stock options; the chairman of the audit committee
receives a supplemental annual retainer of $20,000; the chairman
of the compensation or governance committee receives a
supplemental annual retainer of $12,000; and members of the
audit committee receive a supplemental annual retainer of
$10,000. Furthermore, under the current compensation program,
each director is awarded 8,000 shares of restricted stock
at the June meeting, subject to a one-year vesting requirement.
Directors do not receive any per-meeting fees. All directors are
reimbursed for their reasonable
out-of-pocket
expenses incurred in attending meetings of the board of
directors and committees. Directors who serve on special
committees of the board which are established from time to time
may receive additional compensation as determined by the board.
PROPOSAL
#3
APPROVAL
OF THE VALUEVISION MEDIA, INC. 2011 OMNIBUS INCENTIVE
PLAN
Introduction
On May 2, 2011, our board of directors adopted the
ValueVision Media, Inc. 2011 Omnibus Incentive Plan (the
2011 Plan), subject to shareholder approval. The
2011 Plan is intended to replace the ValueVision International,
Inc. 2001 Omnibus Stock Plan, which will expire on June 21,
2011 (the 2001 Plan). The ValueVision Media, Inc.
2004 Omnibus Stock Plan (the 2004 Plan) will
continue in effect whether or not our shareholders approve the
2011 Plan.
The 2011 Plan is intended to advance the interests of our
company and its shareholders by enabling the company and its
subsidiaries to attract and retain qualified individuals for
positions of responsibility with the
32
company, provide them with additional incentives that will align
their interests with those of our shareholders, and thereby
promote our long-term business success.
If approved by our shareholders, the 2011 Plan authorizes the
issuance of up to 3,000,000 shares of our common stock.
This is the same number of shares that were authorized under our
2001 Plan. As of January 29, 2011, there were
821,000 shares of our common stock remaining available for
future grants under the 2004 Plan until its expiration date of
June 22, 2014. This number is not expected to change to any
significant degree prior to the date of our 2011 Annual Meeting
of Shareholders.
Under the terms of the 2011 Plan, the pool of shares available
for issuance may be used for all types of awards available under
the 2011 Plan, which include stock options, stock appreciation
rights (SARs), restricted stock awards, stock unit
awards, performance unit awards and other stock-based awards, as
described in more detail below.
Shareholder
Approval Requirement
Shareholder approval of the 2011 Plan is necessary in order for
us to (i) meet the shareholder approval requirements of the
NASDAQ Stock Market, (ii) take tax deductions for certain
compensation resulting from awards granted under the 2011 Plan
qualifying as performance-based compensation under
Section 162(m) of the Code, and (iii) grant incentive
stock options under the 2011 Plan.
Compensation
Best Practices
The 2011 Plan incorporates a number of compensation best
practices and makes certain changes necessary for regulatory
compliance, including the following key features:
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No Repricing or Replacement of Underwater Options or Stock
Appreciation Rights
. The 2011 Plan prohibits,
without shareholder approval, actions to reprice, replace or
repurchase options or SARs when the exercise price per share of
an option or SAR exceeds the fair market value of the underlying
shares.
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No
In-the-Money
Option or Stock Appreciation Right Grants
. The
2011 Plan prohibits the grant of options or SARs with an
exercise price less than the fair market value of our common
stock on the date of grant (except in the limited case of
substitute awards as described below).
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Double Trigger Accelerated Vesting/Payment Following a Change
in Control
. The 2011 Plan provides that if
outstanding awards are continued, assumed or replaced in
connection with a corporate transaction involving the company,
accelerated vesting or payment of an award will occur only if
employment is terminated involuntarily without cause within one
year of the change in control.
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Compensation Recovery.
Awards under the 2011
Plan may provide for the forfeiture to the company of cash or
shares received as the result of an award under the 2011 Plan in
the event of occurrences such as a participants violation
of a non-compete or non-disclosure obligation, or business
ethics policy of the company. Awards may also be made subject to
any compensation recovery policy adopted by our board of
directors or the compensation committee related to financial
restatements.
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Independent Administration.
The compensation
committee of our board of directors, which consists of only
independent directors, will have overall administrative
authority over the 2011 Plan with respect to awards to
participants other than non-employee directors, and only this
committee may make awards to our executive officers.
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The major features of the 2011 Plan are summarized below. The
summary is qualified in its entirety by reference to the full
text of the 2011 Plan, which is attached to this proxy statement
as
Appendix A
.
Eligible
Participants
All employees, consultants and advisors of our company or any
subsidiary, as well as all non-employee directors of the
company, will be eligible to receive awards under the 2011 Plan.
As of April 18, 2011, there were approximately
867 persons employed by or otherwise in the service of our
company and its subsidiaries who would
33
be eligible to receive awards under the 2011 Plan. Although not
necessarily indicative of future grants under the 2011 Plan,
approximately 279 of the 867 eligible recipients have been
granted awards under the 2004 Plan.
Administration
The 2011 Plan will be administered by the compensation committee
of our board of directors, except that our board of directors
will administer awards to our non-employee directors. The
compensation committee is referred to in this description of the
2011 Plan as the Committee. To the extent consistent
with applicable law, the Committee may delegate its duties,
power and authority under the 2011 Plan to any of its members,
to officers of the company with respect to awards to
participants who are not directors or executive officers of the
company or, in connection with non-discretionary administrative
duties, to one or more agents or advisors.
The Committee has the authority to determine the persons to whom
awards will be granted, the timing, type and number of shares
covered by each award, and the terms and conditions of the
awards. The Committee may also establish and modify rules to
administer the 2011 Plan, interpret the 2011 Plan and any
related award agreement, cancel or suspend an award or the
exercisability of an award, or modify the terms of outstanding
awards to the extent permitted under the 2011 Plan. Unless an
amendment to the terms of an award is necessary to comply with
applicable laws or stock exchange rules, a participant who would
be adversely affected by such an amendment must consent
to it.
Except in connection with equity restructurings and other
situations in which share adjustments are specifically
authorized, the 2011 Plan also prohibits the Committee from
repricing any outstanding underwater option or SAR
without prior approval of the companys shareholders. For
these purposes, repricing includes amending the
terms of an underwater option or SAR to lower the exercise
price, canceling an underwater option or SAR and granting in
exchange replacement options or SARs having a lower exercise
price or other forms of awards, or repurchasing the underwater
option or SAR.
Subject to certain limits in the 2011 Plan, the Committee may
also establish subplans or modify the terms of awards under the
2011 Plan with respect to participants resident outside of the
United States or employed by a
non-U.S. subsidiary
in order to comply with local legal requirements or meet the
objectives of the 2011 Plan.
Available
Shares and Limitations on Awards
A maximum of 3,000,000 shares of common stock are available
for issuance under the 2011 Plan. Under the terms of the 2011
Plan, the number of shares of common stock subject to options or
SARs granted to any one participant during a calendar year may
not exceed 1,500,000. These share limitations are subject to
adjustment for changes in the corporate structure or shares of
the company, as described below. The shares of common stock
covered by the 2011 Plan are authorized but unissued shares.
Shares of common stock that are issued under the 2011 Plan or
that are potentially issuable pursuant to outstanding awards
will reduce the maximum number of shares remaining available for
issuance under the 2011 Plan by one share for each share issued
or issuable pursuant to an award.
Any shares of common stock subject to an award under the 2011
Plan that expires, is forfeited, is settled in cash or otherwise
does not result in the issuance of all shares subject to the
award (including due to the stock settlement of an SAR), will,
to the extent of such expiration, forfeiture, cash settlement or
non-issuance, automatically again become available for issuance
under the 2011 Plan. If payment of the exercise price of, or
withholding taxes in connection with, any award under the 2011
Plan is made by the tendering or withholding of shares, the
shares tendered or withheld also will again become available for
grant under the 2011 Plan.
Awards granted under the 2011 Plan upon the assumption of, or in
substitution for, outstanding equity awards previously granted
by an entity acquired by our company or any of its subsidiaries
(referred to as substitute awards) will not reduce
the number of shares of common stock authorized for issuance
under the 2011 Plan. Additionally, if a company acquired by our
company or any of its subsidiaries has shares available under a
pre-existing plan approved by shareholders and not adopted in
contemplation of such acquisition, the shares available for
grant pursuant to the terms of that pre-existing plan may be
used for awards under the 2011 Plan and will not reduce the
shares authorized for issuance under the 2011 Plan, but only if
the awards are made to individuals who
34
were not employed by or providing services to our company or any
of its subsidiaries immediately prior to such acquisition.
Share
Adjustment Provisions
If certain transactions with the companys shareholders
occur that cause the per share value of the common stock to
change, such as stock splits, spin-offs, stock dividends or
certain recapitalizations (referred to as equity
restructurings), the Committee will equitably adjust
(i) the class of shares issuable and the maximum number and
kind of shares subject to the 2011 Plan, (ii) outstanding
awards as to the class, number of shares and price per share,
and (iii) award limitations prescribed by the 2011 Plan.
Other types of transactions may also affect the common stock,
such as reorganizations, mergers or consolidations. If there is
such a transaction and the Committee determines that adjustments
of the type previously described in connection with equity
restructurings would be appropriate to prevent any dilution or
enlargement of benefits under the 2011 Plan, the Committee will
make such adjustments as it may deem equitable.
Types of
Awards
The 2011 Plan allows the company to award eligible recipients
stock options, SARs, restricted stock awards, stock unit awards,
performance unit awards and other stock-based awards. These
types of awards are described in more detail below. Awards other
than options and SARs are sometimes referred to collectively as
full-value awards.
Options.
Employees of our company or any
subsidiary may be awarded options to purchase common stock that
qualify as incentive stock options within the
meaning of Section 422 of the Code, and any eligible
recipient may be awarded options to purchase common stock that
do not qualify as incentive stock options, referred to as
non-statutory options. The per share exercise price
to be paid by a participant at the time an option is exercised
may not be less than 100% of the fair market value of one share
of our common stock on the date of grant, unless the option is
granted as a substitute award as described earlier. Fair
market value under the 2011 Plan as of any date means the
closing sale price for a share of common stock on the NASDAQ
Stock Market on that date. As of May 2, 2011, the closing
sale price of a share of our common stock on the NASDAQ Stock
Market was $6.35.
The total purchase price of the shares to be purchased upon
exercise of an option will be paid by the participant in cash
unless the Committee allows exercise payments to be made, in
whole or in part, (i) by means of a broker-assisted sale
and remittance program, (ii) by delivery to the company (or
attestation as to ownership) of shares of common stock already
owned by the participant, or (iii) by a net
exercise of the option in which a portion of the shares
otherwise issuable upon exercise of the option are withheld by
the company. Any shares delivered or withheld in payment of an
exercise price will be valued at their fair market value on the
exercise date.
An option will vest and become exercisable at such time, in such
installments and subject to such conditions as may be determined
by the Committee, and no option may have a term greater than
10 years from its date of grant.
The aggregate fair market value of shares of common stock with
respect to which incentive stock options granted to any
participant may first become exercisable during any calendar
year may not exceed $100,000. Any incentive stock options that
become exercisable in excess of this amount will be treated as
non-statutory options.
Stock Appreciation Rights.
A SAR is the right
to receive a payment from the company, in the form of shares of
common stock, cash or a combination of both, equal to the
difference between (i) the fair market value of a specified
number of shares of common stock on the date of exercise of the
SAR, and (ii) the aggregate exercise price under the SAR of
that number of shares. SARs will be subject to such terms and
conditions, consistent with the other provisions of the 2011
Plan, as may be determined by the Committee. The Committee will
have the sole discretion to determine the form in which payment
of SARs will be made to a participant.
The exercise price per share of a SAR will be determined by the
Committee, but may not be less than 100% of the fair market
value of one share of common stock on the date of grant, unless
the SAR is granted as a substitute award as described earlier. A
SAR will vest and become exercisable at such time, in such
installments and subject to such conditions as may be determined
by the Committee, and no SAR may have a term greater than
10 years from its date of grant.
35
Restricted Stock Awards.
A restricted stock
award is an award of common stock that vests at such times and
in such installments as may be determined by the Committee.
Until it vests, the shares subject to the award are subject to
restrictions on transferability and the possibility of
forfeiture. The Committee may impose such restrictions or
conditions to the vesting of restricted stock awards as it deems
appropriate, including that the participant remain continuously
employed by, or in the service of, the company or a subsidiary
for a certain period of time or that the participant or the
company (or any division of the company) satisfy specified
performance criteria.
Unless otherwise specified by the Committee, a participant who
receives a restricted stock award is entitled to vote and
receive any regular cash dividends on the unvested shares,
except that regular cash dividends paid on restricted shares
whose vesting is subject to performance conditions will be
subject to the same restrictions as the underlying shares. Any
distributions or dividends other than regular cash dividends
paid with respect to unvested restricted shares will also be
subject to the same restrictions as the underlying shares unless
the Committee determines otherwise.
Stock Unit Awards.
A stock unit award is a
right to receive the fair market value of one or more shares of
common stock, payable in cash, shares of common stock, or a
combination of both, that vests at such times and in such
installments as may be determined by the Committee. Until it
vests, a stock unit award is subject to restrictions on
transferability and the possibility of forfeiture. The Committee
will establish the terms of stock unit awards, consistent with
the provisions of the 2011 Plan.
Performance Unit Awards.
A performance unit
award is a right to receive, in cash
and/or
shares of common stock as determined by the Committee, future
payments based on the achievement of pre-established performance
objectives during a specified performance period. Each
performance unit will have an initial value that is established
by the Committee as of the grant date. Until it vests following
the end of the applicable performance period, a performance unit
award is subject to restrictions on transferability and the
possibility of forfeiture. The Committee will establish the
terms of performance unit awards, consistent with the provisions
of the 2011 Plan.
Other Stock-Based Awards.
The Committee may
grant awards of common stock and other awards that are valued by
reference to
and/or
payable in common stock under the 2011 Plan. The Committee has
complete discretion in determining the terms and conditions of
such awards.
The Committee may provide in an agreement for a stock unit award
or another stock-based award that the participant will be
entitled to receive dividend equivalents on the units or other
share equivalents subject to the award based on dividends
actually declared on outstanding Shares. Dividend equivalents
payable with respect to units or share equivalents that are
subject to the unvested portion of an award subject to
performance-based vesting conditions will be subject to the same
restrictions as apply to the underlying units or share
equivalents.
Term and
Amendment of the 2011 Plan
Unless terminated earlier, the 2011 Plan will terminate on the
tenth anniversary of its approval by the companys
shareholders. This was the same term as our 2001 Plan. Awards
outstanding under the 2011 Plan at the time it is terminated
will continue to be outstanding in accordance with their terms.
The board of directors may suspend or terminate the 2011 Plan or
any portion of it at any time. The board of directors may amend
the 2011 Plan from time to time, but no amendments to the 2011
Plan will be effective without shareholder approval if such
approval is required under applicable laws or regulations or
under the rules of the NASDAQ Stock Market, including
shareholder approval for any amendment that seeks to modify the
prohibition on underwater option re-pricing discussed above.
Termination, suspension or amendment of the 2011 Plan will not
adversely affect any outstanding award without the consent of
the affected participant, except for amendments necessary to
comply with applicable laws or stock exchange rules.
Transferability
of Awards
In general, no right or interest in any award under the 2011
Plan may be assigned or transferred by a participant, except by
will or the laws of descent and distribution, or subjected to
any lien or otherwise encumbered. However,
36
the Committee may provide that an award (other than an incentive
stock option) may be transferable by gift to a
participants family member or pursuant to a qualified
domestic relations order. Any permitted transferee of such an
award will remain subject to all the terms and conditions of the
award applicable to the participant.
Performance-Based
Compensation Under Section 162(m)
The Committee may grant full-value awards to employees who are
or may be covered employees, as defined in
Section 162(m) of the Code, that are intended to be
performance-based compensation within the meaning of
Section 162(m) in order to preserve the deductibility of
those awards for federal income tax purposes. Under current IRS
interpretations, covered employees of a company for
any taxable year are its chief executive officer and any other
executive officer (other than the chief financial officer) who
is among the three other most highly compensated executive
officers employed by the company at that year end. Participants
are entitled to receive payment for a Section 162(m)
performance-based award for any given performance period only to
the extent that pre-established performance goals set by the
Committee for the performance period are satisfied. Options and
SARs granted under the 2011 Plan need not be conditioned upon
the achievement of performance goals in order to constitute
performance-based compensation for Section 162(m) purposes.
The pre-established performance goals set by the Committee must
be based on one or more of the following performance criteria
specified in the 2011 Plan: earnings or earnings per share
before income tax (profit before taxes); earnings before
interest, taxes, depreciation, amortization and other
adjustments; net earnings or net earnings per share (profit
after taxes); inventory, total or net operating asset turnover;
accounts receivable (measured in terms of days sales
outstanding); operating expenses; operating profit; total
shareholder return; return on equity; pre-tax and pre-interest
expense return on average invested capital, which may be
expressed on a current value basis; profit before taxes or
profit after taxes less the Companys cost of capital;
sales growth; working capital; and growth in customer base.
The Committee may select one criterion or multiple criteria for
measuring performance, and the measurement may be based upon
corporate, subsidiary or business unit performance, and may be
expressed in absolute amounts, on a per share basis, as a growth
rate or change from preceding periods, or by relative comparison
to the performance of other companies or other external
measures. The Committee will define in an objective fashion the
manner of calculating the performance goals based on the
performance criteria it selects to use in any performance
period, and will establish such performance goals within the
time period prescribed by, and will otherwise comply with the
requirements of, Section 162(m). In determining the actual
amount to be paid with respect to an individual
performance-based award for a performance period, the Committee
may reduce (but not increase) the amount that would otherwise be
payable as a result of satisfying the applicable performance
goals.
With respect to awards of performance-based compensation for
Section 162(m) purposes, the maximum number of shares that
may be the subject of any full-value awards that are denominated
in shares or share equivalents and that are granted to any one
participant during any calendar year shall not exceed
1,000,000 shares (subject to the share adjustment
provisions described above). The maximum amount payable with
respect to any full-value awards that are denominated other than
in shares or share equivalents and that are granted to any one
participant during any calendar year shall not exceed $6,000,000
multiplied by the number of full or partial years in the
applicable performance period.
Approval of the 2011 Plan at the annual meeting of shareholders
will be deemed to include, among other things, approval of the
eligibility of executive officers and other employees to
participate in the 2011 Plan, the performance criteria upon
which awards intended to be performance-based
compensation under Section 162(m) may be made, and
the qualification of options and SARs granted under the 2011
Plan as performance-based compensation for purposes
of Section 162(m).
Change in
Control of the Company
If a change in control of our company that involves a corporate
transaction occurs, then the consequences will be as described
in this paragraph unless the Committee provides otherwise in an
applicable award agreement. If any outstanding award is
continued, assumed or replaced by the surviving or successor
entity in connection with such corporate transaction, and if
within one year after the change in control a participants
employment or other service
37
is involuntarily terminated without cause, then (i) each of
the participants outstanding options and SARs will become
exercisable in full and remain exercisable for one year, and
(ii) each of the participants unvested restricted
stock, stock unit, performance unit and other stock-based awards
will fully vest. If any outstanding award is not continued,
assumed or replaced in connection with a change in control
involving a corporate transaction, then (i) all outstanding
options and SARs will become fully exercisable for a period of
time prior to the effective time of the corporate transaction
and will then terminate at the effective time of the corporate
transaction and (ii) all other awards will fully vest
immediately prior to the effective time of the corporate
transaction. Alternatively, the Committee may elect to terminate
awards in exchange for a payment with respect to each award in
an amount equal to the excess, if any, between the fair market
value of the shares subject to the award (as determined by the
value of the consideration to be received in the corporate
transaction for the same number of shares) over the aggregate
exercise price (if any) for the shares subject to such award
(or, if there is no excess, such award may be terminated without
payment).
If a change in control of our company that does not involve a
corporate transaction occurs, the Committee may provide that
(i) any award will become fully vested and exercisable upon
the change in control or upon the involuntary termination of the
participant without cause within [one year] of the change in
control, (ii) any option or SAR will remain exercisable
during all or some portion of its remaining term, or
(iii) awards will be canceled in exchange for payments in a
similar manner as described above with respect to a change in
control involving a corporate transaction.
For purposes of the 2011 Plan, the following terms have the
meanings indicated:
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A change in control of the company generally occurs
if (i) a person or group acquires 30% or more of our
companys outstanding common stock or voting power,
(ii) certain changes occur in the composition of our board
of directors, or (iii) a corporate transaction is
consummated (unless the holders of our common stock and voting
securities immediately prior to the transaction are the holders
of over 70% of the common stock and voting power of the
surviving entity immediately after the transaction).
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Cause for termination means, unless defined
differently in an agreement between our company and the
participant, (i) a material act of fraud, (ii) public
conduct that is materially detrimental to the companys
reputation, (iii) material violation of any company policy,
(iv) willful or grossly negligent failure to adequately
perform ones duties, (v) commission of a felony,
(vi) material breach of any agreement with the company, or
(vii) continuing material failure to perform assigned
duties.
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A corporate transaction means (i) a
reorganization, merger or consolidation of the company,
(ii) a statutory share exchange of outstanding voting
securities of the company, or (iii) a sale or disposition
of all or substantially all of the assets of the company.
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Effect of
Termination of Employment or Other Services
If a participant ceases to be employed by or provide other
services to our company and its subsidiaries, awards under the
2011 Plan then held by the participant will be treated as set
forth below unless provided otherwise in the applicable award
agreement.
Upon termination for cause, all unexercised options and SARs and
all unvested portions of any other outstanding awards shall be
immediately forfeited.
Upon termination for any other reason, all unvested and
unexercisable portions of any outstanding awards shall be
immediately forfeited.
Upon termination for any reason other than cause, death or
disability, the currently vested and exercisable portions of
options and SARs may be exercised for three months after such
termination, provided that if a participant dies during such
three-month period, the vested and exercisable portions of the
options and SARs may be exercised for one year after the date of
termination.
Upon termination due to death or disability, the currently
vested and exercisable portions of options and SARs may be
exercised for one year after such termination.
38
U.S.
Federal Income Tax Consequences
The following is a summary of the principal United States
federal income tax consequences to the company and to
participants subject to U.S. taxation with respect to
awards granted under the 2011 Plan. This summary is not intended
to be exhaustive and does not discuss the income tax laws of any
city, state or foreign jurisdiction in which a participant may
reside.
Non-Statutory Options.
If a participant is
granted a non-statutory option under the 2011 Plan, the
participant will not recognize taxable income upon the grant of
the option. Generally, the participant will recognize ordinary
income at the time of exercise in an amount equal to the
difference between the fair market value of the shares acquired
at the time of exercise and the exercise price paid. The
participants basis in the common stock for purposes of
determining gain or loss on a subsequent sale or disposition of
such shares generally will be the fair market value of our
common stock on the date the option was exercised. Any
subsequent gain or loss will be taxable as a capital gain or
loss. The company will generally be entitled to a federal income
tax deduction at the time and for the same amount as the
participant recognizes ordinary income.
Incentive Stock Options.
If a participant is
granted an incentive stock option under the 2011 Plan, the
participant will not recognize taxable income upon grant of the
option. Additionally, if applicable holding period requirements
(a minimum of two years from the date of grant and one year from
the date of exercise) are met, the participant will not
recognize taxable income at the time of exercise. However, the
excess of the fair market value of the shares acquired at the
time of exercise over the aggregate exercise price is an item of
tax preference income potentially subject to the alternative
minimum tax. If shares acquired upon exercise of an incentive
stock option are held for the holding period described above,
the gain or loss (in an amount equal to the difference between
the fair market value on the date of sale and the exercise
price) upon disposition of the shares will be treated as a
long-term capital gain or loss, and the company will not be
entitled to any deduction. If the holding period requirements
are not met, the incentive stock option will be treated as one
that does not meet the requirements of the Code for incentive
stock options and the tax consequences described for
non-statutory options will apply.
Other Awards.
The current federal income tax
consequences of other awards authorized under the 2011 Plan
generally follow certain basic patterns. SARs are taxed and
deductible in substantially the same manner as non-statutory
options. An award of nontransferable restricted stock subject to
a substantial risk of forfeiture results in income recognition
by a participant in an amount equal to the fair market value of
the shares received (determined as if the shares were not
subject to any risk of forfeiture) at the time the restrictions
lapse and the shares vest, unless the participant elects under
Section 83(b) of the Code to accelerate income recognition
and the taxability of the award to the date of grant. Stock unit
and performance unit awards generally result in income
recognition by a participant at the time payment of such an
award is made in an amount equal to the amount paid in cash or
the then-current fair market value of the shares received, as
applicable. In each of the foregoing cases, the company will
generally have a corresponding deduction at the time the
participant recognizes income, subject to Section 162(m) of
the Code with respect to covered employees.
Section 162(m) of the
Code.
Section 162(m) of the Code denies a
deduction to any publicly held corporation for compensation paid
to certain covered employees in a taxable year to
the extent that compensation to the covered employee exceeds
$1,000,000, unless, among other exceptions, the compensation
qualifies as performance-based compensation. The
2011 Plan is designed to meet the requirements of
Section 162(m), but awards other than options and SARs
granted under the 2011 Plan will only be treated as qualified
performance-based compensation under Section 162(m) if the
awards and the procedures associated with them comply with all
other requirements of Section 162(m), including that the
maximum amount of compensation a covered employee may receive is
based on the satisfaction of pre-established performance goals.
Section 409A of the Code.
The foregoing
discussion of tax consequences of awards under the 2011 Plan
assumes that the award discussed is either not considered a
deferred compensation arrangement subject to
Section 409A of the Code, or has been structured to comply
with its requirements. If an award is considered a deferred
compensation arrangement subject to Section 409A but fails
to comply, in operation or form, with the requirements of
Section 409A, the affected participant would generally be
required to include in income when the award vests the amount
deemed deferred, would be required to pay an
additional 20% income tax, and would be
39
required to pay interest on the tax that would have been paid
but for the deferral. The 2011 Plan will be administered in a
manner intended to comply with Section 409A.
New Plan
Awards
No awards will be made under the 2011 Plan until after it has
been approved by our shareholders. Because all awards under the
2011 Plan are within the discretion of the Committee or our
board of directors, neither the number nor types of future 2011
Plan awards to be received by or allocated to particular
participants or groups of participants is presently
determinable. Neither the number nor types of future 2011 Plan
awards to be received by or allocated to particular participants
or groups of participants is presently determinable. Information
regarding awards made under the 2004 Plan during 2010 to our
named executive officers is provided under the caption
Grants of Plan-Based Awards For 2010 in this proxy
statement.
The affirmative vote of the holders of a majority of the shares
of common stock present in person or by proxy at the meeting and
entitled to vote. A shareholder who abstains with respect to a
proposal will have the effect of casting a negative vote on this
proposal. In addition, the rules of the NASDAQ Stock Market
require that holders of at least a majority of our common stock
must vote on this proposal. Therefore, a shareholder who does
not vote (including a broker non-vote) will not count toward
this requirement and will have the effect of not meeting the
requirement for this proposal to pass.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE
APPROVAL OF THE VALUEVISION MEDIA, INC. 2011 OMNIBUS INCENTIVE
PLAN.
PROPOSAL
#4 ADVISORY VOTE ON EXECUTIVE COMPENSATION
In accordance with Section 951 of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, we are providing our
shareholders the opportunity to vote on a non-binding, advisory
resolution to approve the 2010 compensation of our named
executive officers. This is known as a
say-on-pay
vote and is a new item for our Annual Meeting of Shareholders in
2011.
Our compensation philosophy is described in the Compensation
Discussion and Analysis contained in this proxy statement.
Shareholders are urged to read the Compensation Discussion and
Analysis which also discusses how our compensation policies and
procedures implement our compensation philosophy, as well as the
Summary Compensation Table and other related tables and
narrative disclosure which describe the compensation of our
named executive officers set forth under the Executive
Compensation section above. The compensation committee and
the board of directors believe the policies and procedures
articulated in the Compensation Discussion and Analysis are
effective in implementing our compensation philosophy and in
achieving its goals and that the compensation of our executive
officers in 2010 reflects and supports these compensation
policies and procedures.
Shareholders are being asked to vote on the following resolution:
RESOLVED, the shareholders of ValueVision Media, Inc. approve,
on an advisory basis, the compensation of the companys
named executive officers as described in the Compensation
Discussion and Analysis, compensation tables, and related
disclosures contained in the section of the proxy statement for
the 2011 Annual Meeting of Shareholders captioned
Executive Compensation.
Although this advisory vote is not binding on our board of
directors, the board and compensation committee will take into
account the result of the vote when structuring our executive
compensation programs.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE 2010
COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS AS DISCLOSED IN
THIS PROXY STATEMENT.
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PROPOSAL
#5
FREQUENCY
OF ADVISORY VOTE
ON
EXECUTIVE COMPENSATION
We are providing shareholders an advisory vote on the frequency
with which our shareholders shall have the advisory
say-on-pay
vote on executive compensation as provided for in
Proposal #4 above. This is also a new item for our Annual
Meeting of Shareholders in 2011.
The advisory vote on the frequency of the
say-on-pay
vote is a non-binding vote as to how often the
say-on-pay
vote should occur: every year, every two years, or every three
years. In addition, shareholders may abstain from voting. We are
required to hold the advisory vote on the frequency of the
say-on-pay
vote at least once every six years.
Our board of directors concluded that an annual vote to obtain
shareholder feedback on our executive compensation program is
appropriate for our organization. If we conclude over the next
several years that this annual vote is not a useful tool, we
will so advise our shareholders and reduce the frequency as so
allowed. We believe this approach is consistent with the type of
open and transparent dialogue we want to have with our
shareholders.
Shareholders are being asked to vote on a resolution to
determine, on an advisory basis, whether the frequency with
which the shareholders shall have an advisory vote on executive
compensation set forth in the Companys proxy statement for
its annual meeting of shareholders, beginning with the 2011
Annual Meeting of Shareholders, should be (i) every year,
(ii) every two years, or (iii) every three years.
Although this advisory vote on the frequency of the
say-on-pay
vote is not binding on our board of directors, the board and
compensation committee will take into account the result of the
vote when determining the frequency of future
say-on-pay
votes.
The enclosed proxy card gives you four choices for voting on
this proposal. The choice which receives the highest number of
votes will be considered by our board of directors as reflecting
the choice of the shareholders.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR HAVING AN
ADVISORY VOTE ON THE COMPENSATION OF OUR NAMED EXECUTIVE
OFFICERS INCLUDED IN OUR PROXY STATEMENT EVERY YEAR.
CERTAIN
TRANSACTIONS
Strategic
Alliance with GE Equity and NBCUniversal Media
Overview
In March 1999, we entered into a strategic alliance with GE
Capital Equity Investments, Inc. (GE Equity) and
NBCUniversal Media, LLC, formerly known as NBC Universal, Inc.
(NBCUniversal) pursuant to which we issued
Series A Redeemable Convertible Preferred Stock and common
stock warrants, and entered into a shareholder agreement, a
registration rights agreement, a distribution and marketing
agreement and, the following year, a trademark license
agreement. On February 25, 2009, we entered into an
exchange agreement with the same parties, pursuant to which GE
Equity exchanged all outstanding shares of our Series A
Preferred Stock for (i) 4,929,266 shares of our
Series B Redeemable Preferred Stock, (ii) warrants to
purchase up to 6,000,000 shares of our common stock at an
exercise price of $0.75 per share and (iii) a cash payment
in the amount of $3.4 million. In connection with the
exchange, the parties also amended and restated both the
1999 shareholder agreement and the registration rights
agreement.
In January 2011, General Electric Company (GE)
consummated a transaction with Comcast Corporation
(Comcast) pursuant to which GE contributed all of
its holdings in NBCUniversal to NBCUniversal, LLC, a newly
formed entity beneficially owned 51% by Comcast and 49% by GE.
Following the transaction, NBCUniversal became a wholly owned
subsidiary of NBCUniversal, LLC, and the aggregate equity
ownership of GE Equity in us became 4,929,266 shares of
Series B Preferred Stock and warrants to purchase up to
6,000,000 shares of common stock and the direct ownership
of NBCUniversal in the Company became 6,452,194 shares of
common stock and
41
warrants to purchase 14,744 shares of common stock. We are
currently making arms length negotiated payments to
Comcast for cable distribution under a pre-existing contract.
In connection with the transfer of its ownership in
NBCUniversal, GE also agreed with Comcast that, for so long as
GE Equity is entitled to appoint two members of our board of
directors, NBCUniversal will be entitled to retain a board seat
provided that NBCUniversal beneficially owns at least 5% of our
adjusted outstanding common stock. GE also agreed to obtain the
consent of NBCUniversal prior to consenting to our adoption of
any shareholders rights plan or certain other actions that would
impede or restrict the ability of NBCUniversal to acquire or
dispose of shares of our voting stock or taking any action that
would result in NBCUniversal being deemed to be in violation
Federal Communications Commission multiple ownership regulations.
Subsequent to our 2010 fiscal year end, the Company redeemed for
cash all of its outstanding shares of Series B Redeemable
Preferred Stock on April 6, 2011, in accordance with the
terms of those shares (the Series B Redemption).
The outstanding agreements with GE Equity and NBCUniversal are
described in more detail below as they applied during the 2010
fiscal year prior to the Series B Redemption and as they
will apply after the Series B Redemption.
Dividends
on Series B Preferred Stock
Prior to the Series B Redemption, the Series B
Preferred Stock accrued cumulative dividends at a base annual
rate of 12%, subject to adjustment. On each of November 16,
2010 and February 18, 2011, we made a $2.5 million
payment to GE Equity, reducing the outstanding accrued dividends
on the Series B Preferred Stock prior to the Series B
Redemption.
Amended
and Restated Shareholder Agreement
On February 25, 2009, we entered into an amended and
restated shareholder agreement with GE Equity and NBCUniversal,
which provides for certain corporate governance and standstill
matters. The amended and restated shareholder agreement provides
that GE Equity is entitled to designate nominees for three
members of our board of directors so long as the aggregate
beneficial ownership of GE Equity and NBCUniversal (and their
affiliates, which, for NBCUniversal, now includes Comcast
Corporation) is at least equal to 50% of their beneficial
ownership as of February 25, 2009 (50% of their beneficial
ownership would require that these entities hold in excess of
approximately 8.7 million common shares), and two so long
as their aggregate beneficial ownership is at least 10% of the
adjusted outstanding shares of common stock, as
defined in the amended and restated shareholder agreement. In
addition, the amended and restated shareholder agreement
provides that GE Equity may designate any of its director-
designees to be an observer of the Audit, Human Resources and
Compensation, and Corporate Governance and Nominating Committees
of our board of directors.
The amended and restated shareholder agreement requires the
consent of GE Equity prior to our entering into any material
agreements with any of CBS, Fox, Disney, Time Warner or Viacom
(and their respective affiliates), provided that this
restriction will no longer apply when either (i) our
trademark license agreement with NBCUniversal (described below)
has terminated or (ii) GE Equity is no longer entitled to
designate at least two director nominees. In addition, the
amended and restated shareholder agreement requires the consent
of GE Equity prior to our (i) exceeding certain thresholds
relating to the issuance of securities, the payment of
dividends, the repurchase or redemption of common stock,
acquisitions (including investments and joint ventures) or
dispositions, and the incurrence of debt, (ii) entering
into any business different than our current business and
(iii) amending the Companys articles of incorporation
to adversely affect GE Equity and NBCUniversal; provided, that
these restrictions will no longer apply when both (a) GE
Equity is no longer entitled to designate three director
nominees and (b) GE Equity and NBCUniversal no longer hold
any Series B Preferred Stock. Because GE Equity continues
to hold beneficial ownership of in excess of 50% of their
beneficial ownership as of February 25, 2009 after the
redemption of all of the Series B Stock, the right to
nominate three members of our board of directors under the
shareholders agreement, among other rights, continues to apply.
For the 2011 Annual Meeting of Shareholders, GE Equity only
nominated two directors, Mr. Kocsi and Ms. Dunleavey.
We are also prohibited from taking any
42
action that would cause any ownership interest by us in
television broadcast stations from being attributable to GE
Equity, NBCUniversal or their affiliates.
The amended and restated shareholder agreement provides that
during the standstill period (as defined in the amended and
restated shareholder agreement), subject to certain limited
exceptions, GE Equity and NBCUniversal are prohibited from:
(i) any asset/business purchases from us in excess of 10%
of the total fair market value of our assets;
(ii) increasing their beneficial ownership above 39.9% of
our shares (treating as outstanding and actually owned for such
purpose shares of our common stock issuable to GE Equity upon
exercise of the warrant for 6,000,000 shares of our common
stock); (iii) making or in any way participating in any
solicitation of proxies; (iv) depositing any securities of
our company in a voting trust; (v) forming, joining or in
any way becoming a member of a 13D Group with
respect to any voting securities of our company;
(vi) arranging any financing for, or providing any
financing commitment specifically for, the purchase of any
voting securities of our company; (vii) otherwise acting,
whether alone or in concert with others, to seek to propose to
us any tender or exchange offer, merger, business combination,
restructuring, liquidation, recapitalization or similar
transaction involving us, or nominating any person as a director
of our company who is not nominated by the then incumbent
directors, or proposing any matter to be voted upon by our
shareholders. If, during the standstill period, any inquiry has
been made regarding a takeover transaction or
change in control, each as defined in the
shareholder agreement, that has not been rejected by the board
of directors, or the board pursues such a transaction, or
engages in negotiations or provides information to a third party
and the board has not resolved to terminate such discussions,
then GE Equity or NBCUniversal may propose to us a tender offer
or business combination proposal.
In addition, unless GE Equity and NBCUniversal beneficially own
less than 5% or more than 90% of the adjusted outstanding shares
of common stock, GE Equity and NBCUniversal shall not sell,
transfer or otherwise dispose of any securities of our company
except for transfers: (i) to certain affiliates who agree
to be bound by the provisions of the amended and restated
shareholder agreement, (ii) that have been consented to by
us, (iii) pursuant to a third-party tender offer,
(iv) pursuant to a merger, consolidation or reorganization
to which we are a party, (v) in an underwritten public
offering pursuant to an effective registration statement,
(vi) pursuant to Rule 144 of the Securities Act of
1933, or (vii) in a private sale or pursuant to
Rule 144A of the Securities Act of 1933; provided, that in
the case of any transfer pursuant to clause (v), (vi) or
(vii), the transfer does not result in, to the knowledge of the
transferor after reasonable inquiry, any other person acquiring,
after giving effect to such transfer, beneficial ownership,
individually or in the aggregate with that persons
affiliates, of more than 10% (or 20% in the case of a transfer
by NBCUniversal) of the adjusted outstanding shares of the
common stock, as determined in accordance with the amended and
restated shareholders agreement.
The standstill period will terminate on the earliest to occur of
(i) the ten-year anniversary of the amended and restated
shareholder agreement, (ii) our entering into an agreement
that would result in a change in control (subject to
reinstatement), (iii) an actual change in
control (subject to reinstatement), (iv) a
third-party tender offer (subject to reinstatement), or
(v) six months after GE Equity and NBCUniversal can no
longer designate any nominees to the board of directors.
Following the expiration of the standstill period pursuant to
clause (i) or (v) above (indefinitely in the case of
clause (i) and two years in the case of clause (v)), GE
Equity and NBCUniversals beneficial ownership position may
not exceed 39.9% of our diluted outstanding stock, except
pursuant to issuance or exercise of any warrants or pursuant to
a 100% tender offer for our company.
Subsequent to the Series B Redemption, GE Equity and
NBCUniversal no longer have class voting rights to elect the GE
Equity director-designees to our board of directors. However, so
long as GE Equity is otherwise entitled to designate nominees
for election as directors, our board of directors is required to
nominate each such designee for election as a director as part
of the management slate that is included in the proxy statement
(or consent solicitation or similar document) of us relating to
the election of directors, and shall provide the same support
for the election of each such designee as it provides to other
persons standing for election as part of our management slate.
After the Series B Redemption the director-designees will
now be elected to the Companys board by all of the holders
of the common stock of the Company voting together as a single
class.
43
Registration
Rights Agreement
On February 25, 2009, we entered into an amended and
restated registration rights agreement providing GE Equity,
NBCUniversal and their affiliates and any transferees and
assigns, an aggregate of four demand registrations and unlimited
piggy-back registration rights. In addition, NBCUniversal was
granted one additional demand registration right pursuant to the
second amendment to the NBCUniversal Trademark License Agreement.
NBCUniversal
Trademark License Agreement
On November 16, 2000, we entered into a trademark license
agreement with NBCUniversal, pursuant to which NBCUniversal
granted us an exclusive, worldwide license for a term of ten
years to use certain NBC trademarks, service marks and domain
names to rebrand our business and corporate name and website. We
subsequently selected the names ShopNBC and ShopNBC.com.
Under the license agreement we have agreed, among other things,
to (i) certain restrictions on using trademarks, service
marks, domain names, logos or other source indicators owned or
controlled by NBCUniversal, (ii) the loss of our rights
under the license with respect to specific territories outside
of the United States in the event we fail to achieve and
maintain certain performance targets in such territories,
(iii) not own, operate, acquire or expand our business to
include certain businesses without NBCUniversals prior
consent, (iv) comply with NBCUniversals privacy
policies and standards and practices, and (v) not own,
operate, acquire or expand our business such that one-third or
more of our revenues or our aggregate value is attributable to
certain services (not including retailing services similar to
our existing
e-commerce
operations) provided over the internet. The license agreement
also grants to NBCUniversal the right to terminate the license
agreement at any time upon certain changes of control of our
company, in certain situations upon the failure by NBCUniversal
to own a certain minimum percentage of our outstanding capital
stock on a fully diluted basis, and certain other situations. On
March 28, 2007, we and NBCUniversal agreed to extend the
term of the license by six months, such that the license would
continue through May 15, 2011, and to provide that certain
changes of control involving a financial buyer would not provide
the basis for an early termination of the license by
NBCUniversal.
On November 18, 2010, we announced a further extension of
the license agreement to May 2012, an option to further extend
the license agreement to May 2013 upon the mutual agreement of
both parties, and an agreement to enter into a separate
transition agreement, on the terms and subject to conditions to
be mutually agreed between the parties, relating to the twelve
month period following the ultimate expiration of the license
agreement. In consideration for the license agreement extension,
we agreed to issue shares of the Companys common stock
valued at $4 million to NBCUniversal on May 15, 2011.
Credit
Card Agreement with Affiliate of GE Equity
During fiscal 2006, we introduced and established a private
label and co-branded revolving consumer credit card program (the
Program). The Program is made available to all
qualified consumers for the financing of purchases of products
from ShopNBC and for the financing of purchases of products and
services from other non-ShopNBC retailers. The issuing bank is
the sole owner of the account issued under the program and
absorbs all losses associated with non-payment by cardholders.
The issuing bank, which is an affiliate of GE Equity, pays fees
to us based on the number of credit card accounts activated and
on card usage. The Program provides a number of benefits to
customers including deferred billing options and free shipping
promotions throughout the year. During fiscal 2010 and fiscal
2009, customer use of the private label and co-branded cards
accounted for approximately 15% and 16% of our television and
internet sales, respectively. We believe that the use of the
ShopNBC credit card furthers customer loyalty and reduces our
overall bad debt exposure since the credit card issuing bank
bears the risk of bad debt on ShopNBC credit card transactions
that do not utilize our ValuePay installment payment program.
Consulting
Agreement with Creative Commerce
In April 2009, we entered into marketing agreements with
Creative Commerce, LLC (Creative Commerce) and its
subsidiary, International Commerce Agency, LLC
(International Commerce), under which Creative
Commerce and International Commerce agreed to provide consulting
services to the Company in the electronic retailing industry.
One of our directors, Edwin Garrubbo, is the majority owner of
both Creative Commerce and
44
International Commerce. These agreements were entered into prior
to the time that Mr. Garrubbo was considered as a possible
candidate for the board of directors, and the existence of the
agreements was disclosed to and considered by the audit
committee in light of the related person transaction approval
policy as part of the process in selecting him to fill a vacancy
on the board, and was also disclosed in a filing on a Current
Report on
Form 8-K
at the time of his election to the board of directors. Under the
agreements, we agreed to pay commissions to these companies
based on sales of specified products through vendors identified
by these companies. The Company made payments totaling
approximately $787,000 during fiscal 2010 and $117,000 during
fiscal 2009 relating to these services. At this time, the total
commissions that Creative Commerce may earn in fiscal 2011
cannot be estimated; as of April 18, 2011, approximately
$184,000 in commissions had been paid.
Related
Person Transactions Approval Policy
In February 2007, our board of directors adopted a written
related person transaction approval policy, which sets forth our
companys policies and procedures for the review, approval
or ratification of any transaction required to be reported in
our filings with the Securities and Exchange Commission. This
policy applies to any financial transaction, arrangement or
relationship (including any indebtedness or guarantee of
indebtedness) or any series of similar transactions,
arrangements or relationships in which we are a participant and
in which a related person has a direct or indirect interest
where such persons interest in the transaction(s) involves
at least $120,000 in value. In order for the transaction,
arrangement or relationship to be subject to this policy, there
must a financial aspect to the transaction, which may, for
example, involve payments between us and the related person or
otherwise provides value to one of the parties.
Under the policy, a related person is any (1) person who is
or was since the beginning of the last fiscal year an executive
officer, director or nominee for election as a director of our
company; (2) greater than 5% beneficial owner of our common
stock; or (3) immediate family member of the foregoing.
Immediate family member includes a persons spouse,
parents, stepparents, children, stepchildren, siblings,
mothers-and
fathers-in-law,
sons- and daughters-in law, and brothers- and
sisters-in-law
and anyone residing in such persons home, except for
tenants or employees.
Prior to entering into any related person transaction, the audit
committee of our board of directors must be presented with the
relevant information about the proposed transaction in order for
the committee to assess whether the related person transaction
is beneficial to our company and the proposed terms are fair to
us. The committee is authorized to approve, deny, or approve
subject to specified conditions, any related party transaction
in its sole discretion. The policy also outlines certain factors
that the audit committee may take into account in considering a
related person transaction, and itemizes certain routine
transactions which are exempt from the policy.
The types of routine transactions that are exempt from the
companys related person transaction policy consist of:
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any employment by the company of an executive officer of the
company if (a) the related compensation is required to be
reported in the companys proxy statement under Item 402 of
Regulation S-K
or (b) the executive officer is not an immediate family
member of another executive officer, director or 5% or greater
shareholder of the company, the related compensation would be
reported in the companys proxy statement under
Item 402 of
Regulation S-K
if the executive officer was a named executive
officer, and the companys human resources and
compensation committee approved (or recommended that the board
of directors approve) the compensation;
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any compensation paid to a director if the compensation is
required to be reported in the companys proxy statement
under Item 402 of
Regulation S-K;
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any transaction in which the related persons interest
arises solely from the ownership of the companys common
stock and all holders of the companys common stock
received the same benefit on a pro rata basis (e.g., dividends);
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any transaction with another company at which a related
persons only relationship is as an employee (other than
executive officer), director or beneficial owner of less than
10% of that companys shares, if the
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aggregate amount does not exceed the greater of $1,000,000 or 2%
of that companys total annual revenues; and
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any transaction with a related person involving services as a
bank depositary of funds, transfer agent, registration, trustee
under a trust indenture, or similar services.
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SECTION 16(a)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 and
the regulations promulgated thereunder require directors and
certain officers and persons who own more than ten percent of
any class of our voting securities to file reports of their
ownership of our common stock and changes in their ownership
with the Securities and Exchange Commission. Based on a review
of reports filed by these reporting persons and written
representations by our directors and executive officers, we
believe that all of our directors, executive officers and
persons who own more than ten percent of any class of our voting
securities complied with all filing requirements applicable to
them during fiscal 2010 except that (i) a Form 4
reporting an open market purchase by William J. McGrath, chief
financial officer, on June 22, 2010 was not filed on a
timely basis but was subsequently reported on July 12,
2010, (ii) Forms 4 reporting a grant of restricted
stock in lieu of annual cash bonus given on March 31, 2011
to Mark A. Ahmann, senior vice president, human resources; G.
Robert Ayd, president, William J. McGrath, senior vice president
and chief financial officer; Michael A. Murray, senior vice
president, operations; Carol Steinberg, senior vice president of
e-commerce,
marketing and business development and Keith R. Stewart, chief
executive officer, were not filed on a timely basis but were
subsequently report on April 6, 2011, and (iii) a
Form 4 reporting a stock option exercise by Jean-Guillaume
Sabatier on November 19, 2010, senior vice president,
sales, product planning and programming, and a grant of
restricted stock in lieu of annual cash bonus given on
March 31, 2011, was not filed on a timely basis but was
subsequently reported on April 11, 2011.
46
OTHER
MATTERS
As of the date of this proxy statement, the board of directors
knows of no matters that will be presented for consideration at
the meeting other than as described in this proxy statement. If
any other matters shall properly come before the meeting or any
adjournments or postponements thereof and be voted upon, the
enclosed proxy will be deemed to confer discretionary authority
on the individuals named as proxies therein to vote the shares
represented by the proxies as to any matters. The persons named
as proxies intend to vote or not to vote in accordance with the
recommendation of the management of our company.
Our annual report on
Form 10-K
for fiscal 2010, including financial statements, is being mailed
with this proxy statement to certain of our shareholders who
previously have requested paper copies. Shareholders who receive
a Notice Regarding the Availability of Proxy Materials should
follow the instruction on the notice for obtaining paper copies
of the annual report on
Form 10-K
and the proxy statement.
Our annual report on
Form 10-K
for fiscal 2010 and the proxy statement are available for
viewing on-line, printing or downloading at
www.valuevisionmedia.com/proxy
.
Shareholders who wish to obtain an additional copy of our annual
report on
Form 10-K
for fiscal 2010 may do so without charge by writing to us
at ValueVision Media, Inc., 6740 Shady Oak Road, Eden Prairie,
Minnesota
55344-3433,
Attention: Corporate Secretary.
By Order of the Board of Directors
Teresa Dery
Interim General Counsel
47
Appendix A
VALUEVISION
MEDIA, INC.
2011
OMNIBUS INCENTIVE PLAN
1.
Purpose
. The purpose of the
ValueVision Media, Inc. 2011 Omnibus Incentive Plan (the
Plan) is to attract and retain the best available
personnel for positions of responsibility with the Company, to
provide additional incentives to them and align their interests
with those of the Companys shareholders, and to thereby
promote the Companys long-term business success.
2.
Definitions
. In this Plan, the
following definitions will apply.
(a)
Affiliate
means any corporation that
is a Subsidiary or Parent of the Company.
(b)
Agreement
means the written or
electronic agreement containing the terms and conditions
applicable to an Award granted under the Plan. An Agreement is
subject to the terms and conditions of the Plan.
(c)
Award
means a grant made under the
Plan in the form of Options, Stock Appreciation Rights,
Restricted Stock, Stock Units, Performance Units or an Other
Stock-Based Award.
(d)
Board
means the Board of Directors
of the Company.
(e)
Cause
means what the term is
expressly defined to mean in a then-effective written agreement
(including an Agreement) between a Participant and the Company
or any Affiliate or, in the absence of any such then-effective
agreement or definition, means (i) a material act of fraud
which results in or is intended to result in a
Participants personal enrichment at the expense of
Company, including without limitation, theft or embezzlement
from Company; (ii) public conduct by a Participant that is
materially detrimental to the reputation of Company;
(iii) material violation by a Participant of any written
Company policy, regulation or practice; (iv) the willful or
grossly negligent failure to adequately perform the duties of a
Participants position to the material detriment of the
Company; (v) commission of conduct constituting a felony;
(vi) a material breach by a Participant of any of the terms
and conditions of an agreement with the Company or any
Affiliate; or (vii) a Participant continues to materially
fail to perform the duties associated with Participants
employment or other status as a Service Provider.
(f)
Change in Control
means one of the
following:
(1) The acquisition by any individual, entity or Group of
beneficial ownership (within the meaning of Exchange Act
Rule 13d-3)
of 30% or more of either (i) the then outstanding shares of
Company Stock, or (ii) the combined voting power of the
then outstanding Company Voting Securities. Notwithstanding the
foregoing sentence, the following acquisitions will not
constitute a Change in Control:
(A) any acquisition of Stock or Company Voting Securities
directly from the Company;
(B) any acquisition of Stock or Company Voting Securities
by the Company or any of its wholly-owned Subsidiaries;
(C) any acquisition of Stock or Company Voting Securities
by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its Subsidiaries; or
(D) any acquisition of beneficial ownership by any entity
with respect to which, immediately following such acquisition,
more than 70% of, respectively, the then outstanding shares of
common stock and the combined voting power of the outstanding
Voting Securities of such entity (or its Parent) is beneficially
owned, directly or indirectly, by all or substantially all of
the individuals and entities who beneficially owned,
respectively, the outstanding Stock and outstanding Company
Voting Securities immediately before such acquisition in
substantially the same proportions as their ownership of the
outstanding Stock and outstanding Company Voting Securities, as
the case may be, immediately before such acquisition.
(2) Individuals who are Continuing Directors cease for any
reason to constitute a majority of the members of the Board.
A-1
(3) The consummation of a Corporate Transaction unless,
immediately following such Corporate Transaction, all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the outstanding Stock and
outstanding Company Voting Securities immediately prior to such
Corporate Transaction beneficially own, directly or indirectly,
more than 70% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding Voting Securities, as the case may be, of the of the
surviving or acquiring entity (or its Parent) resulting from
such Corporate Transaction in substantially the same proportions
as their ownership, immediately before such Corporate
Transaction, of the outstanding Stock and outstanding Company
Voting Securities, as the case may be.
Notwithstanding the foregoing:
(i) a Change in Control shall not be deemed to occur with
respect to a Participant if the acquisition of the 30% or
greater interest referred to in Section 2(f)(1) is by a
Group that includes the Participant, or if at least 30% of the
then outstanding common stock or combined voting power of the
then outstanding Voting Securities of the surviving or acquiring
entity referred to in Section 2(f)(3) shall be beneficially
owned, directly or indirectly, immediately after the Corporate
Transaction by a Group that includes the Participant; and
(ii) to the extent that any Award constitutes a deferral of
compensation subject to Code Section 409A, and if that
Award provides for a change in the time or form of payment upon
a Change in Control, then no Change in Control shall be deemed
to have occurred upon an event described in Section 2(f)
unless the event would also constitute a change in ownership or
effective control of, or a change in the ownership of a
substantial portion of the assets of, the Company under Code
Section 409A.
(g)
Code
means the Internal Revenue Code
of 1986, as amended and in effect from time to time, and the
regulations promulgated thereunder.
(h)
Committee
means two or more
Non-Employee Directors designated by the Board to administer the
Plan under Section 3, each member of which shall
(i) satisfy the independence requirements for independent
directors and members of compensation committees as set forth
from time to time in the rules and regulations of the Nasdaq
Stock Market, (ii) be a non-employee director within the
meaning of Exchange Act
Rule 16b-3,
and (iii) be an outside director for purposes of Code
Section 162(m).
(i)
Company
means ValueVision Media,
Inc., a Minnesota corporation, or any successor thereto.
(j)
Continuing Director
means an
individual (A) who is, as of the effective date of the
Plan, a director of the Company, or (B) who is elected as a
director of the Company subsequent to the effective date of the
Plan and whose initial election, or nomination for initial
election by the Companys shareholders, was approved by at
least a majority of the then Continuing Directors, but
excluding, for purposes of this clause (B), any such individual
whose initial assumption of office occurs as a result of an
actual or threatened election contest.
(k)
Corporate Transaction
means a
reorganization, merger or consolidation of the Company, a
statutory exchange of outstanding Company Voting Securities, or
a sale or disposition (in one or a series of transactions) of
all or substantially all of the assets of the Company.
(l)
Disability
means total and
permanent disability within the meaning of Code
Section 22(e)(3).
(m)
Employee
means an employee of the
Company or an Affiliate.
(n)
Exchange Act
means the Securities
Exchange Act of 1934, as amended and in effect from time to time.
(o)
Fair Market Value
means the fair
market value of a Share determined as follows:
(1) If the Shares are readily tradable on an established
securities market (as determined under Code Section 409A),
then Fair Market Value will be the closing sales price for a
Share on the principal securities market on which it trades on
the date for which it is being determined, or if no sale of
Shares occurred on that date, on the next preceding date on
which a sale of Shares occurred, as reported in
The Wall
Street Journal
or such other source as the Committee deems
reliable; or
A-2
(2) If the Shares are not then readily tradable on an
established securities market (as determined under Code
Section 409A), then Fair Market Value will be determined by
the Committee as the result of a reasonable application of a
reasonable valuation method that satisfies the requirements of
Code Section 409A.
(p)
Full Value Award
means an Award
other than an Option or Stock Appreciation Right.
(q)
Grant Date
means the date on which
the Committee approves the grant of an Award under the Plan, or
such later date as may be specified by the Committee on the date
the Committee approves the Award.
(r)
Group
means two or more persons
acting as a partnership, limited partnership, syndicate or other
group for the purpose of acquiring, holding or disposing of
securities of an entity.
(s)
Non-Employee Director
means a member
of the Board who is not an Employee.
(t)
Option
means a right granted under
the Plan to purchase a specified number of Shares at a specified
price during a specified period of time. An Incentive
Stock Option or ISO means any Option
designated as such and granted in accordance with the
requirements of Code Section 422. A Non-Statutory
Stock Option means an Option other than an Incentive Stock
Option.
(u)
Other Stock-Based Award
means an
Award described in Section 11 of this Plan.
(v)
Parent
means a parent
corporation, as defined in Code Section 424(e).
(w)
Participant
means a person to whom
an Award is or has been made in accordance with the Plan.
(x)
Performance-Based Compensation
means
an Award to a person who is, or is determined by the Committee
to likely become, a covered employee (as defined in
Code Section 162(m)(3)) and that is intended to constitute
performance-based compensation within the meaning of
Code Section 162(m)(4)(C).
(y)
Performance Unit
means a right
granted under the Plan to receive, in cash
and/or
Shares as determined by the Committee, future payments based on
the achievement of pre-established performance objectives during
a specified performance period.
(z)
Plan
means this ValueVision Media,
Inc. 2011 Equity Incentive Plan, as amended and in effect from
time to time.
(aa)
Restricted Stock
means Shares
issued to a Participant that are subject to such restrictions on
transfer, forfeiture conditions and other restrictions or
limitations as may be set forth in this Plan and the applicable
Agreement.
(bb)
Service
means the provision of
services by a Participant to the Company or any Affiliate in any
Service Provider capacity. A Service Providers Service
shall be deemed to have terminated either upon an actual
cessation of providing services or upon the entity for which the
Service Provider provides services ceasing to be an Affiliate.
Except as otherwise provided in this Plan or any Agreement,
Service shall not be deemed terminated in the case of
(i) any approved leave of absence; (ii) transfers
among the Company and any Affiliates in any Service Provider
capacity; or (iii) any change in status so long as the
individual remains in the service of the Company or any
Affiliate in any Service Provider capacity.
(cc)
Service Provider
means an Employee,
a Non-Employee Director, or any consultant or advisor who is a
natural person and who provides services (other than in
connection with (i) a capital-raising transaction or
(ii) promoting or maintaining a market in Company
securities) to the Company or any Affiliate.
(dd)
Share
means a share of Stock.
(ee)
Stock
means the common stock, par
value $0.01 per share, of the Company.
(ff)
Stock Appreciation Right
or
SAR
means a right granted under the Plan to
receive, in cash
and/or
Shares as determined by the Committee, an amount equal to the
appreciation in value of a specified number of Shares between
the Grant Date of the SAR and its exercise date.
A-3
(gg)
Stock Unit
means a right granted
under the Plan to receive, in cash
and/or
Shares as determined by the Committee, the Fair Market Value of
a Share, subject to such restrictions on transfer, forfeiture
conditions and other restrictions or limitations as may be set
forth in this Plan and the applicable Agreement.
(hh)
Subsidiary
means a subsidiary
corporation, as defined in Code Section 424(f), of
the Company.
(ii)
Substitute Award
means an Award
granted upon the assumption of, or in substitution or exchange
for, outstanding awards granted by a company or other entity
acquired by the Company or any Affiliate or with which the
Company or any Affiliate combines.
(jj)
Voting Securities
of an entity
means the outstanding securities entitled to vote generally in
the election of directors (or comparable equity interests) of
such entity.
3.
Administration of the Plan
.
(a)
Administration
.
The authority
to control and manage the operations and administration of the
Plan shall be vested in the Committee in accordance with this
Section 3. Notwithstanding the foregoing, the Board shall
perform the duties and have the responsibilities and authority
of the Committee with respect to Awards made to Non-Employee
Directors.
(b)
Scope of Authority
.
Subject to
the terms of the Plan, the Committee shall have the authority,
in its discretion, to take such actions as it deems necessary or
advisable to administer the Plan, including:
(1) determining the Service Providers to whom Awards will
be granted, the timing of each such Award, the types of Awards
and the number of Shares covered by each Award, the terms,
conditions, performance criteria, restrictions and other
provisions of Awards, and the manner in which Awards are paid or
settled;
(2) cancelling or suspending an Award or the exercisability
of an Award, accelerating the vesting or extending the exercise
period of an Award, or otherwise amending the terms and
conditions of any outstanding Award, subject to the requirements
of Sections 15(d) and 15(e);
(3) establishing, amending or rescinding rules to
administer the Plan, interpreting the Plan and any Award or
Agreement made under the Plan, and making all other
determinations necessary or desirable for the administration of
the Plan; and
(4) taking such actions as are described in
Section 3(c) with respect to Awards to foreign Service
Providers.
(c)
Awards to Foreign Service
Providers
.
The Committee may grant Awards to
Service Providers who are foreign nationals, who are located
outside of the United States or who are not compensated from a
payroll maintained in the United States, or who are otherwise
subject to (or could cause the Company to be subject to) legal
or regulatory requirements of countries outside of the United
States, on such terms and conditions different from those
specified in the Plan as may, in the judgment of the Committee,
be necessary or desirable to comply with applicable foreign laws
and regulatory requirements and to promote achievement of the
purposes of the Plan. In connection therewith, the Committee may
establish such subplans and modify exercise procedures and other
Plan rules and procedures to the extent such actions are deemed
necessary or desirable, and may take any other action that it
deems advisable to obtain local regulatory approvals or to
comply with any necessary local governmental regulatory
exemptions.
(d)
Acts of the Committee;
Delegation
.
A majority of the members of the
Committee shall constitute a quorum for any meeting of the
Committee, and any act of a majority of the members present at
any meeting at which a quorum is present or any act unanimously
approved in writing by all members of the Committee shall be the
act of the Committee. Any such action of the Committee shall be
valid and effective even if the members of the Committee at the
time of such action are later determined not to have satisfied
all of the criteria for membership in clauses (i), (ii) and
(iii) of Section 2(h). To the extent not inconsistent
with applicable law or stock exchange rules, the Committee may
delegate all or any portion of its authority under the Plan to
any one or more of its members or, as to Awards to Participants
who are not subject to Section 16 of the Exchange Act, to
one or more executive officers of the Company. The Committee may
also delegate non-discretionary administrative responsibilities
in connection with the Plan to such other persons as it deems
advisable.
A-4
(e)
Finality of Decisions
.
The
Committees interpretation of the Plan and of any Award or
Agreement made under the Plan and all related decisions or
resolutions of the Board or Committee shall be final and binding
on all parties with an interest therein.
(f)
Indemnification
.
Each person
who is or has been a member of the Committee or of the Board,
and any other person to whom the Committee delegates authority
under the Plan, shall be indemnified by the Company, to the
maximum extent permitted by law, against liabilities and
expenses imposed upon or reasonably incurred by such person in
connection with or resulting from any claims against such person
by reason of the performance of the individuals duties
under the Plan. This right to indemnification is conditioned
upon such person providing the Company an opportunity, at the
Companys expense, to handle and defend the claims before
such person undertakes to handle and defend them on such
persons own behalf. The Company will not be required to
indemnify any person for any amount paid in settlement of a
claim unless the Company has first consented in writing to the
settlement. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such
person or persons may be entitled under the Companys
Articles of Incorporation or Bylaws, as a matter of law, or
otherwise.
4.
Shares Available Under the Plan
.
(a)
Maximum
Shares Available
.
Subject to
Section 4(b) and to adjustment as provided in
Section 12(a), the number of Shares that may be the subject
of Awards and issued under the Plan shall be 3,000,000. Shares
issued under the Plan shall come from authorized and unissued
Shares. In determining the number of Shares to be counted
against this share reserve in connection with any Award, the
following rules shall apply:
(1) Where the number of Shares subject to an Award is
variable on the Grant Date, the number of Shares to be counted
against the share reserve prior to the settlement of the Award
shall be the maximum number of Shares that could be received
under that particular Award.
(2) Where two or more types of Awards are granted to a
Participant in tandem with each other, such that the exercise of
one type of Award with respect to a number of Shares cancels at
least an equal number of Shares of the other, the number of
Shares to be counted against the share reserve shall be the
largest number of Shares that would be counted against the share
reserve under either of the Awards.
(3) Substitute Awards shall not be counted against the
share reserve, nor shall they reduce the Shares authorized for
grant to a Participant in any calendar year.
(b)
Effect of Forfeitures and Other
Actions
.
Any Shares subject to an Award that
is forfeited, expires, is settled for cash or otherwise does not
result in the issuance of all or a portion of the Shares subject
to such Award (including a payment in Shares on the exercise of
a Stock Appreciation Right) shall, to the extent of such
forfeiture, expiration, cash settlement or non-issuance, again
become available for Awards under this Plan and correspondingly
increase the total number of Shares available for grant and
issuance under Section 4(a). In the event that (i) any
Award is exercised through the tendering of Shares (either
actually or by attestation) or by the withholding of Shares by
the Company in payment of the applicable exercise price, or
(ii) any tax withholding obligations arising from such
Award are satisfied by the tendering of Shares (either actually
or by attestation) or by the withholding of Shares by the
Company, then the Shares so tendered or withheld shall again
become available for Awards under this Plan and correspondingly
increase the total number of Shares available for grant and
issuance under Section 4(a).
(c)
Effect of Plans Operated by Acquired
Companies
.
If a company acquired by the
Company or any Subsidiary or with which the Company or any
Subsidiary combines has shares available under a pre-existing
plan approved by shareholders and not adopted in contemplation
of such acquisition or combination, the shares available for
grant pursuant to the terms of such pre-existing plan (as
adjusted, to the extent appropriate, using the exchange ratio or
other adjustment or valuation ratio or formula used in such
acquisition or combination to determine the consideration
payable to the holders of common stock of the entities party to
such acquisition or combination) may be used for Awards under
the Plan and shall not reduce the Shares authorized for grant
under the Plan. Awards using such available shares shall not be
made after the date awards or grants could have been made under
the terms of the pre-existing plan, absent the acquisition or
combination, and shall only be made to individuals who were not
Employees or Non-Employee Directors prior to such acquisition or
combination.
A-5
(d)
No Fractional Shares
.
Unless
otherwise determined by the Committee, the number of Shares
subject to an Award shall always be a whole number. No
fractional Shares may be issued under the Plan, and in
connection with any calculation under the Plan that would
otherwise result in the issuance or withholding of a fractional
Share, the number of Shares shall be rounded down to the nearest
whole Share.
(e)
Individual Option and SAR
Limit
.
The aggregate number of Shares subject
to Options
and/or
Stock
Appreciation Rights granted during any calendar year to any one
Participant shall not exceed 1,500,000 Shares.
5.
Eligibility
.
Participation
in the Plan is limited to Service Providers. Incentive Stock
Options may only be granted to Employees.
6.
General Terms of Awards
.
(a)
Award Agreement
.
Except for
any Award that involves only the immediate issuance of
unrestricted Shares, each Award shall be evidenced by an
Agreement setting forth the number of Shares subject to the
Award together with such other terms and conditions applicable
to the Award (and not inconsistent with the Plan) as determined
by the Committee. An Award will not become effective unless
acceptance of the Agreement in a manner permitted by the
Committee is received by the Company within 30 days of the
date the Agreement is delivered to the Participant. An Award to
a Participant may be made singly or in combination with any form
of Award. Two types of Awards may be made in tandem with each
other such that the exercise of one type of Award with respect
to a number of Shares reduces the number of Shares subject to
the related Award by at least an equal amount.
(b)
Vesting and Term
.
Each
Agreement shall set forth the period until the applicable Award
is scheduled to expire (which shall not be more than ten years
from the Grant Date), and any applicable performance period. The
Committee may provide in an Agreement for such vesting
conditions as it may determine.
(c)
Transferability
.
Except as
provided in this Section 6(c), (i) during the lifetime
of a Participant, only the Participant or the Participants
guardian or legal representative may exercise an Option or SAR,
or receive payment with respect to any other Award; and
(ii) no Award may be sold, assigned, transferred, exchanged
or encumbered other than by will or the laws of descent and
distribution. Any attempted transfer in violation of this
Section 6(c) shall be of no effect. The Committee may,
however, provide in an Agreement or otherwise that an Award
(other than an Incentive Stock Option) may be transferred
pursuant to a qualified domestic relations order or may be
transferable by gift to any family member (as
defined in General Instruction A(5) to
Form S-8
under the Securities Act of 1933) of the Participant. Any
Award held by a transferee shall continue to be subject to the
same terms and conditions that were applicable to that Award
immediately before the transfer thereof. For purposes of any
provision of the Plan relating to notice to a Participant or to
acceleration or termination of an Award upon the death or
termination of employment of a Participant, the references to
Participant shall mean the original grantee of an
Award and not any transferee.
(d)
Designation of
Beneficiary
.
Each Participant may designate a
beneficiary or beneficiaries to exercise any Award or receive a
payment under any Award payable on or after the
Participants death. Any such designation shall be on a
written or electronic form approved by the Committee and shall
be effective upon its receipt by the Company or an agent
selected by the Company.
(e)
Termination of Service
.
Unless
otherwise provided in an Agreement, and subject to
Section 12 of this Plan, if a Participants Service
with the Company and all of its Affiliates terminates, the
following provisions shall apply (in all cases subject to the
scheduled expiration of an Option or Stock Appreciation Right,
as applicable):
(1) Upon termination of Service for Cause, all unexercised
Options and SARs and all unvested portions of any other
outstanding Awards shall be immediately forfeited without
consideration.
(2) Upon termination of Service for any other reason, all
unvested and unexercisable portions of any outstanding Awards
shall be immediately forfeited without consideration.
(3) Upon termination of Service for any reason other than
Cause, death or Disability, the currently vested and exercisable
portions of Options and SARs may be exercised for a period of
three months after the date of such termination, provided that
if a Participant dies during such three-month period, the vested
and exercisable portions of the Options and SARs may be
exercised for a period of one year after the date of such
termination.
A-6
(4) Upon termination of Service due to death or Disability,
the currently vested and exercisable portions of Options and
SARs may be exercised for a period of one year after the date of
such termination.
(f)
Rights as Shareholder
.
No
Participant shall have any rights as a shareholder with respect
to any securities covered by an Award unless and until the date
the Participant becomes the holder of record of the Shares, if
any, to which the Award relates.
(g)
Performance-Based Awards
.
Any
Award may be granted as a performance-based Award if the
Committee establishes one or more measures of corporate,
divisional or individual performance which must be attained, and
the performance period over which the specified performance is
to be attained, as a condition to the vesting, exercisability,
lapse of restrictions
and/or
settlement in cash or Shares of such Award. In connection with
any such Award, the Committee shall determine the extent to
which performance measures have been attained and other
applicable terms and conditions have been satisfied, and the
degree to which vesting, exercisability, lapse of restrictions
and/or
settlement in cash or Shares of such Award has been earned. Any
performance-based Award that is intended by the Committee to
qualify as Performance-Based Compensation shall additionally be
subject to the requirements of Section 17 of this Plan.
Except as provided in Section 17 with respect to
Performance-Based Compensation, the Committee shall also have
the authority to provide, in an Agreement or otherwise, for the
modification of a performance period
and/or
an
adjustment or waiver of the achievement of performance goals
upon the occurrence of certain events, which may include a
Change of Control, a Corporate Transaction, a recapitalization,
a change in the accounting practices of the Company, or the
Participants death or Disability.
(h)
Dividends and Dividend
Equivalents
.
Any dividends or distributions
paid with respect to Shares that are subject to the unvested
portion of a Restricted Stock Award will be subject to the same
restrictions as the Shares to which such dividends or
distributions relate, except for regular cash dividends on
Shares subject to the unvested portion of a Restricted Stock
Award that is subject only to service-based vesting conditions.
In its discretion, the Committee may provide in an Award
Agreement for a Stock Unit Award or an Other Stock-Based Award
that the Participant will be entitled to receive dividend
equivalents on the units or other Share equivalents subject to
the Award based on dividends actually declared on outstanding
Shares. The terms of any dividend equivalents will be as set
forth in the applicable Award Agreement, including the time and
form of payment and whether such dividend equivalents will be
credited with interest or deemed to be reinvested in additional
units or Share equivalents. Dividend equivalents paid with
respect to units or Share equivalents that are subject to the
unvested portion of a Stock Unit Award or an Other Stock-Based
Award whose vesting is subject to the satisfaction of specified
performance objectives will be subject to the same restrictions
as the units or Share equivalents to which such dividend
equivalents relate. The Committee may, in its discretion,
provide in Award Agreements for restrictions on dividends and
dividend equivalents in addition to those specified in this
Section 6(h).
7.
Stock Option Awards
.
(a)
Type and Exercise Price
.
The
Agreement pursuant to which an Option is granted shall specify
whether the Option is an Incentive Stock Option or a
Non-Statutory Stock Option. The exercise price at which each
Share subject to an Option may be purchased shall be determined
by the Committee and set forth in the Agreement, and shall not
be less than the Fair Market Value of a Share on the Grant Date,
except in the case of Substitute Awards.
(b)
Payment of Exercise Price
.
The
purchase price of the Shares with respect to which an Option is
exercised shall be payable in full at the time of exercise. The
purchase price may be paid in cash or in such other manner as
the Committee may permit, including payment under a
broker-assisted sale and remittance program acceptable to the
Committee or by withholding Shares otherwise issuable to the
Participant upon exercise of the Option or by delivery to the
Company of Shares (by actual delivery or attestation) already
owned by the Participant (in each case, such Shares having a
Fair Market Value as of the date the Option is exercised equal
to the purchase price of the Shares being purchased).
(c)
Exercisability and
Expiration
.
Each Option shall be exercisable
in whole or in part on the terms provided in the Agreement. No
Option shall be exercisable at any time after its scheduled
expiration. When an Option is no longer exercisable, it shall be
deemed to have terminated.
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(d)
Incentive Stock Options
.
(1) An Option will constitute an Incentive Stock Option
only if the Participant receiving the Option is an Employee, and
only to the extent that (i) it is so designated in the
applicable Agreement and (ii) the aggregate Fair Market
Value (determined as of the Options Grant Date) of the
Shares with respect to which Incentive Stock Options held by the
Participant first become exercisable in any calendar year (under
the Plan and all other plans of the Company and its Affiliates)
does not exceed $100,000. To the extent an Option granted to a
Participant exceeds this limit, the Option shall be treated as a
Non-Statutory Stock Option. The maximum number of Shares that
may be issued upon the exercise of Incentive Stock Options shall
equal the maximum number of Shares that may be the subject of
Awards and issued under the Plan as provided in the first
sentence of Section 4(a).
(2) No Participant may receive an Incentive Stock Option
under the Plan if, immediately after the grant of such Award,
the Participant would own (after application of the rules
contained in Code Section 424(d)) Shares possessing more
than 10% of the total combined voting power of all classes of
stock of the Company or an Affiliate, unless (i) the option
price for that Incentive Stock Option is at least 110% of the
Fair Market Value of the Shares subject to that Incentive Stock
Option on the Grant Date and (ii) that Option will expire
no later than five years after its Grant Date.
(3) For purposes of continued Service by a Participant who
has been granted an Incentive Stock Option, no approved leave of
absence may exceed three months unless reemployment upon
expiration of such leave is provided by statute or contract. If
reemployment is not so provided, then on the date six months
following the first day of such leave, any Incentive Stock
Option held by the Participant shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as
a Non-Statutory Stock Option.
(4) If an Incentive Stock Option is exercised after the
expiration of the exercise periods that apply for purposes of
Code Section 422, such Option shall thereafter be treated
as a Non-Statutory Stock Option.
(5) The Agreement covering an Incentive Stock Option shall
contain such other terms and provisions that the Committee
determines necessary to qualify the Option as an Incentive Stock
Option.
8.
Stock Appreciation Rights
.
(a)
Nature of Award
.
An Award of
Stock Appreciation Rights shall be subject to such terms and
conditions as are determined by the Committee, and shall provide
a Participant the right to receive upon exercise of the Stock
Appreciation Right all or a portion of the excess of
(i) the Fair Market Value of a specified number of Shares
as of the date of exercise of the Stock Appreciation Right over
(ii) a specified exercise price that shall not be less than
100% of the Fair Market Value of such Shares on the Grant Date
of the Stock Appreciation Right, except in the case of
Substitute Awards.
(b)
Exercise of SAR
.
Each Stock
Appreciation Right may be exercisable in whole or in part at the
times, on the terms and in the manner provided in the Agreement.
No Stock Appreciation Right shall be exercisable at any time
after its scheduled expiration. When a Stock Appreciation Right
is no longer exercisable, it shall be deemed to have terminated.
Upon exercise of a Stock Appreciation Right, payment to the
Participant shall be made at such time or times as shall be
provided in the Agreement in the form of cash, Shares or a
combination of cash and Shares as determined by the Committee.
The Agreement may provide for a limitation upon the amount or
percentage of the total appreciation on which payment (whether
in cash
and/or
Shares) may be made in the event of the exercise of a Stock
Appreciation Right.
9.
Restricted Stock Awards
.
(a)
Vesting and
Consideration
.
Shares subject to a Restricted
Stock Award shall be subject to vesting conditions, and the
corresponding lapse of forfeiture conditions and other
restrictions, based on such factors and occurring over such
period of time as the Committee may determine in its discretion.
The Committee may provide whether any consideration other than
Services must be received by the Company or any Affiliate as a
condition precedent to the grant of a Restricted Stock Award.
(b)
Shares Subject to Restricted Stock
Awards
.
Unvested Shares subject to a
Restricted Stock Award shall be evidenced by a book-entry in the
name of the Participant with the Companys transfer agent
or by one or more Stock
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certificates issued in the name of the Participant. Any such
Stock certificate shall be deposited with the Company or its
designee, together with an assignment separate from the
certificate, in blank, signed by the Participant, and bear an
appropriate legend referring to the restricted nature of the
Restricted Stock evidenced thereby. Any book-entry shall be
subject to transfer restrictions and accompanied by a similar
legend. Upon the vesting of Shares of Restricted Stock and the
corresponding lapse of the restrictions and forfeiture
conditions, the corresponding transfer restrictions and
restrictive legend will be removed from the book-entry
evidencing such Shares or the certificate evidencing such
Shares, and any such certificate shall be delivered to the
Participant. Such vested Shares may, however, remain subject to
additional restrictions as provided in Section 18(c).
Except as otherwise provided in the Plan or an applicable
Agreement, a Participant with a Restricted Stock Award shall
have all the rights of a shareholder, including the right to
vote the Shares of Restricted Stock.
10.
Stock Unit Awards
.
(a)
Vesting and Consideration
.
A
Stock Unit Award shall be subject to vesting conditions, and the
corresponding lapse of forfeiture conditions and other
restrictions, based on such factors and occurring over such
period of time as the Committee may determine in its discretion.
The Committee may provide whether any consideration other than
Services must be received by the Company or any Affiliate as a
condition precedent to the settlement of a Stock Unit Award.
(b)
Payment of Award
.
Following
the vesting of a Stock Unit Award, settlement of the Award and
payment to the Participant shall be made at such time or times
in the form of cash, Shares (which may themselves be considered
Restricted Stock under the Plan subject to restrictions on
transfer and forfeiture conditions) or a combination of cash and
Shares as determined by the Committee. If the Stock Unit Award
is not by its terms exempt from the requirements of Code
Section 409A, then the applicable Agreement shall contain
terms and conditions intended to avoid adverse tax consequences
specified in Code Section 409A.
11.
Performance Units and Other Stock-Based
Awards
.
(a)
Performance Units
.
Performance
Units may be granted to any Participant in such number and upon
such terms and at such times as shall be determined by the
Committee. Each Performance Unit shall have an initial value
that is established by the Committee as of the Grant Date.
Performance Unit Awards shall be considered performance-based
Awards for purposes of, and subject to, Section 6(g),
subject to such vesting conditions, and the corresponding lapse
of forfeiture conditions and other restrictions, based on such
factors and occurring over such period of time as the Committee
may determine in its discretion. Following the completion of the
applicable performance period and the vesting of a Performance
Unit Award, settlement of the Award and payment to the
Participant shall be made at such time or times in the form of
cash, Shares (which may themselves be considered Restricted
Stock under the Plan subject to restrictions on transfer and
forfeiture conditions) or a combination of cash and Shares as
determined by the Committee and specified in the applicable
Agreement. The level of achievement of performance goals
applicable to a Performance Unit Award will determine the number
and/or
value
of Performance Units that will be paid to a Participant. If a
Performance Unit Award is not by its terms exempt from the
requirements of Code Section 409A, then the applicable
Agreement shall contain terms and conditions intended to avoid
adverse tax consequences specified in Code Section 409A.
(b)
Other Stock-Based Awards
.
The
Committee may from time to time grant Stock and other Awards
that are valued by reference to
and/or
payable in whole or in part in Shares under the Plan. The
Committee, in its sole discretion, shall determine the terms and
conditions of such Awards, which shall be consistent with the
terms and purposes of the Plan. The Committee may, in its sole
discretion, direct the Company to issue Shares subject to
restrictive legends
and/or
stop
transfer instructions that are consistent with the terms and
conditions of the Award to which the Shares relate.
12.
Changes in Capitalization, Corporate
Transactions, Change in Control
.
(a)
Adjustments for Changes in
Capitalization
.
In the event of any equity
restructuring (within the meaning of FASB ASC Topic
718
Stock Compensation
) that causes the per
share value of Shares to change, such as a stock dividend, stock
split, spinoff, rights offering or recapitalization through an
extraordinary dividend, the Committee shall make such
adjustments as it deems equitable and appropriate to
(i) the aggregate number and kind of Shares or other
securities issued or reserved for issuance under the Plan,
(ii) the number and kind of Shares or
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other securities subject to outstanding Awards, (iii) the
exercise price of outstanding Options and SARs, and
(iv) any maximum limitations prescribed by the Plan with
respect to certain types of Awards or the grants to individuals
of certain types of Awards. In the event of any other change in
corporate capitalization, including a merger, consolidation,
reorganization, or partial or complete liquidation of the
Company, such equitable adjustments described in the foregoing
sentence may be made as determined to be appropriate and
equitable by the Committee to prevent dilution or enlargement of
rights of Participants. In either case, any such adjustment
shall be conclusive and binding for all purposes of the Plan. No
adjustment shall be made pursuant to this Section 12(a) in
connection with the conversion of any convertible securities of
the Company, or in a manner that would cause Incentive Stock
Options to violate Section 422(b) of the Code or cause an
Award to be subject to adverse tax consequences under
Section 409A of the Code.
(b)
Corporate Transactions
.
Unless
otherwise provided in an applicable Agreement, the following
provisions shall apply to outstanding Awards in the event of a
Change in Control that involves a Corporate Transaction.
(1)
Continuation, Assumption or Replacement of
Awards
. In the event of a Corporate
Transaction, then the surviving or successor entity (or its
Parent) may continue, assume or replace Awards outstanding as of
the date of the Corporate Transaction (with such adjustments as
may be required or permitted by Sections 12(a) and 6(g)),
and such Awards or replacements therefor shall remain
outstanding and be governed by their respective terms, subject
to Section 12(b)(4) below. A surviving or successor entity
may elect to continue, assume or replace only some Awards or
portions of Awards. For purposes of this Section 12(b)(1),
an Award shall be considered assumed or replaced if, in
connection with the Corporate Transaction and in a manner
consistent with Code Sections 409A and 424, either
(i) the contractual obligations represented by the Award
are expressly assumed by the surviving or successor entity (or
its Parent) with appropriate adjustments to the number and type
of securities subject to the Award and the exercise price
thereof that preserves the intrinsic value of the Award existing
at the time of the Corporate Transaction, or (ii) the
Participant has received a comparable equity-based award that
preserves the intrinsic value of the Award existing at the time
of the Corporate Transaction and provides for a vesting or
exercisability schedule that is the same as or more favorable to
the Participant.
(2)
Acceleration
. If and to the
extent that outstanding Awards under the Plan are not continued,
assumed or replaced in connection with a Corporate Transaction,
then (i) all outstanding Options and SARs shall become
fully exercisable for such period of time prior to the effective
time of the Corporate Transaction as is deemed fair and
equitable by the Committee, and shall terminate at the effective
time of the Corporate Transaction, and (ii) all outstanding
Full Value Awards shall fully vest immediately prior to the
effective time of the Corporate Transaction. The Committee shall
provide written notice of the period of accelerated
exercisability of Options and SARs to all affected Participants.
The accelerated exercisability of any Option or SAR pursuant to
this Section 12(b)(2) and the exercise of any Option or SAR
whose exercisability is so accelerated shall be conditioned upon
the consummation of the Corporate Transaction, and any such
exercise shall be effective only immediately before such
consummation.
(3)
Payment for Awards
. If and to
the extent that outstanding Awards under the Plan are not
continued, assumed or replaced in connection with a Corporate
Transaction, then the Committee may provide that some or all of
such outstanding Awards shall be canceled at or immediately
prior to the effective time of the Corporate Transaction in
exchange for payments to the holders as provided in this
Section 12(b)(3). The Committee will not be required to
treat all Awards similarly for purposes of this
Section 12(b)(3). The payment for any Award canceled shall
be in an amount equal to the difference, if any, between
(i) the fair market value (as determined in good faith by
the Committee) of the consideration that would otherwise be
received in the Corporate Transaction for the number of Shares
subject to the Award, and (ii) the aggregate exercise price
(if any) for the Shares subject to such Award. If the amount
determined pursuant to clause (i) of the preceding sentence
is less than or equal to the amount determined pursuant to
clause (ii) of the preceding sentence with respect to any
Award, such Award may be canceled pursuant to this
Section 12(b)(3) without payment of any kind to the
affected Participant. Payment of any amount under this
Section 12(b)(3) shall be made in such form, on such terms
and subject to such conditions as the Committee determines in
its discretion, which may or may not be the same as the form,
terms and conditions applicable to payments to the
Companys shareholders in connection with the Corporate
Transaction, and may, in the Committees discretion,
include subjecting such payments to vesting conditions
comparable to those of the Award surrendered, subjecting such
payments to escrow or holdback terms comparable to those imposed
upon the
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Companys shareholders under the Corporate Transaction, or
calculating and paying the present value of payments that would
otherwise be subject to escrow or holdback terms.
(4)
Termination After a Corporate
Transaction
. If and to the extent that Awards
are continued, assumed or replaced under the circumstances
described in Section 12(b)(1), and if within one year after
the Corporate Transaction a Participant experiences an
involuntary termination of Service for reasons other than Cause,
then (i) outstanding Options and SARs issued to the
Participant that are not yet fully exercisable shall immediately
become exercisable in full and shall remain exercisable for one
year following the Participants termination of Service,
and (ii) any Full Value Awards that are not yet fully
vested shall immediately vest in full.
(c)
Change in Control
.
In
connection with a Change in Control that does not involve a
Corporate Transaction, the Committee may provide (in the
applicable Agreement or otherwise) for one or more of the
following: (i) that any Award shall become fully vested and
exercisable upon the occurrence of the Change in Control or upon
the involuntary termination of the Participant without Cause
within one year of the Change in Control, (ii) that any
Option or SAR shall remain exercisable during all or some
specified portion of its remaining term, or (iii) that
Awards shall be canceled in exchange for payments in a manner
similar to that provided in Section 12(b)(3). The Committee
will not be required to treat all Awards similarly in such
circumstances.
(d)
Dissolution or
Liquidation
.
Unless otherwise provided in an
applicable Agreement, in the event the shareholders of the
Company approve the complete dissolution or liquidation of the
Company, all outstanding Awards shall vest and become fully
exercisable, and will terminate immediately prior to the
consummation of any such proposed action. The Committee will
notify each Participant as soon as practicable of such
accelerated vesting and exercisability and pending termination.
(e)
Limitation on Change in Control
Payments
.
Notwithstanding anything in this
Section 12 to the contrary, if the acceleration of the
vesting and exercisability of any Award or the payment of cash
in exchange for all or part of any Award as provided in this
Section 12 (which acceleration or payment could be deemed a
payment within the meaning of Code
Section 280G(b)(2)), together with other payments in the
nature of compensation to a Participant that are contingent on a
change in the ownership or effective control of the Company or a
substantial portion of the assets of the Company, would result
in any portion thereof being subject to an excise tax imposed
under Code Section 4999, or would not be deductible in
whole or in part by the Company, an affiliate of the Company (as
defined in Code Section 1504) or other person making
such payments as a result of Code Section 280G, then such
acceleration and payments pursuant to Section 12 and other
payments will be reduced (but not below zero) to the largest
aggregate amount as will result in no portion thereof being
subject to such an excise tax or being non-deductible. For
purposes of this Section 12(e), (i) no portion of
payments the receipt or enjoyment of which a Participant will
have effectively waived in writing before the date of
distribution of an Award will be taken into account; and
(ii) the value of any non-cash benefit or any deferred
payment or benefit included in such payment will be determined
by the Companys independent auditors in accordance with
the principles of Code Sections 280G(d)(3) and (4).
13.
Plan Participation and Service Provider
Status
. Status as a Service Provider shall
not be construed as a commitment that any Award will be made
under the Plan to that Service Provider or to eligible Service
Providers generally. Nothing in the Plan or in any Agreement or
related documents shall confer upon any Service Provider or
Participant any right to continued Service with the Company or
any Affiliate, nor shall it interfere with or limit in any way
any right of the Company or any Affiliate to terminate the
persons Service at any time with or without Cause or
change such persons compensation, other benefits, job
responsibilities or title.
14.
Tax Withholding
. The
Company or any Affiliate, as applicable, shall have the right to
(i) withhold from any cash payment under the Plan or any
other compensation owed to a Participant an amount sufficient to
cover any required withholding taxes related to the grant,
vesting, exercise or settlement of an Award, and
(ii) require a Participant or other person receiving Shares
under the Plan to pay a cash amount sufficient to cover any
required withholding taxes before actual receipt of those
Shares. In lieu of all or any part of a cash payment from a
person receiving Shares under the Plan, the Committee may permit
the individual to cover all or any part of the required
withholdings (up to the Participants minimum required tax
withholding rate) through a reduction in the number of Shares
delivered or a delivery or tender to the Company of Shares held
by the Participant or other person, in each case valued in the
same manner as used in computing the withholding taxes under
applicable laws.
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15.
Effective Date, Duration, Amendment and
Termination of the Plan
.
(a)
Effective Date
.
The Plan shall
become effective on the date it is approved by the
Companys shareholders, which shall be considered the date
of its adoption for purposes of Treasury Regulation
§1.422-2(b)(2)(i). No Awards shall be made under the Plan
prior to its effective date. If the Companys shareholders
fail to approve the Plan within 12 months of its approval
by the Board, the Plan shall be of no further force or effect.
(b)
Duration of the Plan
.
The Plan
shall remain in effect until all Shares subject to it shall be
distributed, all Awards have expired or terminated, the Plan is
terminated pursuant to Section 15(c), or the tenth
anniversary of the effective date of the Plan, whichever occurs
first (the Termination Date). Awards made before the
Termination Date shall continue to be outstanding in accordance
with their terms unless limited in the applicable Agreements.
(c)
Amendment and Termination of the
Plan
.
The Board may at any time terminate,
suspend or amend the Plan. The Company shall submit any
amendment of the Plan to its shareholders for approval only to
the extent required by applicable laws or regulations or the
rules of any securities exchange on which the Shares may then be
listed. No termination, suspension, or amendment of the Plan may
materially impair the rights of any Participant under a
previously granted Award without the Participants consent,
unless such action is necessary to comply with applicable law or
stock exchange rules.
(d)
Amendment of Awards
.
Subject
to Section 15(e), the Committee may unilaterally amend the
terms of any Agreement previously granted, except that no such
amendment may materially impair the rights of any Participant
under the applicable Award without the Participants
consent, unless such amendment is necessary to comply with
applicable law or stock exchange rules or any compensation
recovery policy as provided in Section 18(i)(3).
(e)
No Option or SAR
Repricing
.
Except as provided in
Section 12(a), no Option or Stock Appreciation Right
granted under the Plan may be amended to decrease the exercise
price thereof, be cancelled in exchange for the grant of any new
Option or Stock Appreciation Right with a lower exercise price
or any new Full Value Award, be repurchased by the Company or
any Affiliate, or otherwise be subject to any action that would
be treated under accounting rules or otherwise as a
repricing of such Option or Stock Appreciation
Right, unless such action is first approved by the
Companys shareholders.
16.
Substitute Awards
. The
Committee may also grant Awards under the Plan in substitution
for, or in connection with the assumption of, existing awards
granted or issued by another corporation and assumed or
otherwise agreed to be provided for by the Company pursuant to
or by reason of a transaction involving a merger, consolidation,
acquisition of property or stock, separation, reorganization or
liquidation to which the Company or an Affiliate is a party. The
terms and conditions of the Substitute Awards may vary from the
terms and conditions set forth in the Plan to the extent that
the Committee at the time of the grant may deem appropriate to
conform, in whole or in part, to the provisions of the awards in
substitution for which they are granted.
17.
Performance-Based Compensation
.
(a)
Designation of Awards
.
If the
Committee determines at the time a Full Value Award is granted
to a Participant that such Participant is, or is likely to be, a
covered employee for purposes of Code
Section 162(m) as of the end of the tax year in which the
Company would ordinarily claim a tax deduction in connection
with such Award, then the Committee may provide that this
Section 17 will be applicable to such Award, which shall be
considered Performance-Based Compensation.
(b)
Compliance with Code
Section 162(m)
.
If an Award is subject
to this Section 17, then the lapsing of restrictions
thereon and the distribution of cash, Shares or other property
pursuant thereto, as applicable, shall be subject to the
achievement over the applicable performance period of one or
more performance goals based on one or more of the performance
measures specified in Section 17(d). The Committee will
select the applicable performance measure(s) and specify the
performance goal(s) based on those performance measures for any
performance period, specify in terms of an objective formula or
standard the method for calculating the amount payable to a
Participant if the performance goal(s) are satisfied, and
certify the degree to which applicable performance goals have
been satisfied and any amount payable in connection with an
Award subject to this Section 17, all within the time
periods prescribed by and consistent with the other requirements
of Code Section 162(m). In specifying the performance goals
applicable to any performance period, the Committee
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may provide that one or more objectively determinable
adjustments shall be made to the performance measures on which
the performance goals are based, which may include adjustments
that would cause such measures to be considered non-GAAP
financial measures within the meaning of Rule 101
under Regulation G promulgated by the Securities and
Exchange Commission. The Committee may also adjust performance
measures for a performance period to the extent permitted by
Code Section 162(m) in connection with an event described
in Section 12(a) to prevent the dilution or enlargement of
a Participants rights with respect to Performance-Based
Compensation. The Committee may adjust downward, but not upward,
any amount determined to be otherwise payable in connection with
such an Award. The Committee may also provide, in an Agreement
or otherwise, that the achievement of specified performance
goals in connection with an Award subject to this
Section 17 may be waived upon the death or Disability of
the Participant or under any other circumstance with respect to
which the existence of such possible waiver will not cause the
Award to fail to qualify as performance-based
compensation under Code Section 162(m).
(c)
Limitations
.
With respect to
Awards of Performance-Based Compensation, the maximum number of
Shares that may be the subject of any Full Value Awards that are
denominated in Shares or Share equivalents and that are granted
to any one Participant during any calendar year shall not exceed
1,000,000 Shares (subject to adjustment as provided in
Section 12(a)). The maximum amount payable with respect to
any Full Value Awards that are denominated other than in Shares
or Share equivalents and that are granted to any one Participant
during any calendar year shall not exceed $6,000,000 multiplied
by the number of full or partial years in the applicable
performance or vesting period.
(d)
Performance Measures
.
For
purposes of any Full Value Award considered Performance-Based
Compensation subject to this Section 17, the performance
measures to be utilized shall be limited to one or a combination
of two or more of the following: net sales; earnings or earnings
per share before income tax (profit before taxes); earnings
before interest, taxes, depreciation, amortization and other
adjustments; net earnings or net earnings per share (profit
after taxes); inventory, total or net operating asset turnover;
accounts receivable (measured in terms of days sales
outstanding); operating expenses; operating profit; total
shareholder return; return on equity; pre-tax and pre-interest
expense return on average invested capital, which may be
expressed on a current value basis; profit before taxes or
profit after taxes less the Companys cost of capital;
sales growth; working capital; and growth in customer base. Any
performance goal based on one or more of the foregoing
performance measures may, in the Committees discretion, be
expressed in absolute amounts, on a per share basis, relative to
one or more other performance measures, as a growth rate or
change from preceding periods, or as a comparison to the
performance of specified companies or a published or special
index (including stock market indices) or other external
measures, and may relate to one or any combination of Company,
Affiliate or business unit performance.
18.
Other Provisions
.
(a)
Unfunded Plan
.
The Plan shall
be unfunded and the Company shall not be required to segregate
any assets that may at any time be represented by Awards under
the Plan. Neither the Company, its Affiliates, the Committee,
nor the Board shall be deemed to be a trustee of any amounts to
be paid under the Plan nor shall anything contained in the Plan
or any action taken pursuant to its provisions create or be
construed to create a fiduciary relationship between the Company
and/or
its
Affiliates, and a Participant. To the extent any person has or
acquires a right to receive a payment in connection with an
Award under the Plan, this right shall be no greater than the
right of an unsecured general creditor of the Company.
(b)
Limits of Liability
.
Except as
may be required by law, neither the Company nor any member of
the Board or of the Committee, nor any other person
participating (including participation pursuant to a delegation
of authority under Section 3(c) of the Plan) in any
determination of any question under the Plan, or in the
interpretation, administration or application of the Plan, shall
have any liability to any party for any action taken, or not
taken, in good faith under the Plan.
(c)
Compliance with Applicable Legal
Requirements
.
No Shares distributable
pursuant to the Plan shall be issued and delivered unless the
issuance of the Shares complies with all applicable legal
requirements, including compliance with the provisions of
applicable state and federal securities laws, and the
requirements of any securities exchanges on which the
Companys Shares may, at the time, be listed. During any
period in which the offering and issuance of Shares under the
Plan are not registered under federal or state securities laws,
Participants shall
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acknowledge that they are acquiring Shares under the Plan for
investment purposes and not for resale, and that Shares may not
be transferred except pursuant to an effective registration
statement under, or an exemption from the registration
requirements of, such securities laws. Any book-entry or stock
certificate evidencing Shares issued under the Plan that are
subject to such securities law restrictions shall be accompanied
by or bear an appropriate restrictive legend.
(d)
Other Benefit and Compensation
Programs
.
Payments and other benefits
received by a Participant under an Award made pursuant to the
Plan shall not be deemed a part of a Participants regular,
recurring compensation for purposes of the termination,
indemnity or severance pay laws of any country or state and
shall not be included in, nor have any effect on, the
determination of benefits under any other employee benefit plan,
contract or similar arrangement provided by the Company or an
Affiliate unless expressly so provided by such other plan,
contract or arrangement, or unless the Committee expressly
determines that an Award or portion of an Award should be
included to accurately reflect competitive compensation
practices or to recognize that an Award has been made in lieu of
a portion of competitive cash compensation.
(e)
Governing Law
.
To the extent
that federal laws do not otherwise control, the Plan and all
determinations made and actions taken pursuant to the Plan shall
be governed by the laws of the State of Minnesota without regard
to its
conflicts-of-law
principles and shall be construed accordingly.
(f)
Severability
.
If any provision
of the Plan shall be held illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining parts of
the Plan, and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included.
(g)
Code Section 409A
.
It is
intended that (i) all Awards of Options, SARs and
Restricted Stock under the Plan will not provide for the
deferral of compensation within the meaning of Code
Section 409A and thereby be exempt from Code
Section 409A, and (ii) all other Awards under the Plan
will either not provide for the deferral of compensation within
the meaning of Code Section 409A, or will comply with the
requirements of Code Section 409A, and Awards shall be
structured and the Plan administered and interpreted in
accordance with this intent. The Plan and any Agreement may be
unilaterally amended by the Company in any manner deemed
necessary or advisable by the Committee or Board in order to
maintain such exemption from or compliance with Code
Section 409A, and any such amendment shall conclusively be
presumed to be necessary to comply with applicable law.
Notwithstanding anything to the contrary in the Plan or any
Agreement, with respect to any Award that constitutes a deferral
of compensation subject to Code Section 409A:
(1) If any amount is payable under such Award upon a
termination of Service, a termination of Service will be deemed
to have occurred only at such time as the Participant has
experienced a separation from service as such term
is defined for purposes of Code Section 409A; and
(2) If any amount shall be payable with respect to any such
Award as a result of a Participants separation from
service at such time as the Participant is a
specified employee within the meaning of Code
Section 409A, then no payment shall be made, except as
permitted under Code Section 409A, prior to the first
business day after the earlier of (i) the date that is six
months after the Participants separation from service or
(ii) the Participants death. Unless the Committee has
adopted a specified employee identification policy as
contemplated by Code Section 409A, specified employees will
be identified in accordance with the default provisions
specified under Code Section 409A.
(h)
Rule 16b-3
.
It
is intended that the Plan and all Awards granted pursuant to it
shall be administered by the Committee so as to permit the Plan
and Awards to comply with Exchange Act
Rule 16b-3.
If any provision of the Plan or of any Award would otherwise
frustrate or conflict with the intent expressed in this
Section 18(h), that provision to the extent possible shall
be interpreted and deemed amended in the manner determined by
the Committee so as to avoid the conflict. To the extent of any
remaining irreconcilable conflict with this intent, the
A-14
provision shall be deemed void as applied to Participants
subject to Section 16 of the Exchange Act to the extent
permitted by law and in the manner deemed advisable by the
Committee.
(i)
Compensation Recovery
.
(1) An Agreement may provide that if a Participant has
received or is entitled to payment of cash, delivery of Shares,
or a combination thereof under an Award within six months before
the Participants termination of employment with the
Company and its Affiliates, the Committee, in its sole
discretion, may require the Participant to return or forfeit the
cash or Shares received with respect to the Award in the event
of certain occurrences specified in the Agreement. The
occurrences may, but need not, include competition with the
Company or any Affiliate, unauthorized disclosure of material
proprietary information of the Company or any Affiliate, a
violation of applicable business ethics policies of the Company
or Affiliate or any other occurrence specified in the Agreement.
In lieu of forfeiting Shares, a Participant may return or
forfeit to the Company the economic value of such Shares
determined as of:
(A) the date of the exercise of an Option or Stock
Appreciation Right;
(B) the date of, and immediately following, the lapse of
restrictions on Restricted Stock or the receipt of Shares
without restrictions; or
(C) the date on which the right of the Participant to
payment with respect to Performance Units vests, as the case may
be.
(2) The Committees right to require a return or
forfeiture as provided in Section 18(i)(1) must be
exercised within 90 days after discovery of an occurrence
of the type specified in the applicable Agreement but in no
event later than 15 months after the Participants
termination of employment with the Company and its Affiliates.
(3) Awards may be made subject to any compensation recovery
policy adopted by the Board or the Committee at any time in
response to the requirements of Section 10D of the Exchange
Act, and any incentive-based compensation associated with any
such Award may be recovered by the Company pursuant to such
policy under the circumstances and to the extent required by
Section 10D of the Exchange Act and the rules promulgated
by the Securities and Exchange Commission and the Nasdaq Stock
Market thereunder. Any Agreement may be unilaterally amended by
the Committee to comply with any such compensation recovery
policy.
A-15
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VALUEVISION MEDIA,
INC.
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6740 SHADY OAK ROAD
EDEN
PRAIRIE, MN 55344-3433
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VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions
and for electronic delivery of information up until
11:59 P.M. Eastern Time the day before the cut-off
date or meeting date. Have your proxy card in hand
when you access the web site and follow the
instructions to obtain your records and to create an
electronic voting instruction form.
Electronic Delivery of Future PROXY MATERIALS
If you would like to reduce the costs incurred by our
company in mailing proxy materials, you can consent
to receiving all future proxy statements, proxy cards
and annual reports electronically via e-mail or the
Internet. To sign up for electronic delivery, please
follow the instructions above to vote using the
Internet and, when prompted, indicate that you agree
to receive or access proxy materials electronically
in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting
instructions up until 11:59 P.M. Eastern Time the day
before the cut-off date or meeting date. Have your
proxy card in hand when you call and then follow the
instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in
the postage-paid envelope we have provided or return
it to Vote Processing, c/o Broadridge, 51 Mercedes
Way, Edgewood, NY 11717. We must receive your
completed proxy card prior to the meeting.
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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M36456-P13426
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KEEP THIS PORTION FOR YOUR RECORDS
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DETACH AND RETURN THIS PORTION ONLY
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THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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VALUEVISION MEDIA, INC.
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For
All
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Withhold
All
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For All
Except
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To withhold authority to vote
for any individual nominee(s),
mark For All Except and write
the number(s) of the nominee(s)
on the line below.
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The Board of Directors recommends you
vote FOR the following:
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o
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1.
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Election of Directors
Nominees:
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01) Joseph F. Berardino
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02) John D. Buck
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03) Edwin P. Garrubbo
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04) Randy S. Ronning
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05) Keith R. Stewart
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06) Catherine Dunleavy
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07) Patrick O. Kocsi
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08) William F. Evans
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09) Sean F. Orr
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The Board of Directors recommends you vote FOR the following proposals:
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For
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Against
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Abstain
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2.
Ratification of Deloitte & Touche LLP as our independent registered public accounting firm
for the fiscal year ending January 28, 2012
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3.
Approval of the ValueVision Media, Inc. 2011 Omnibus Incentive Plan
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4.
Approval, by non-binding vote, of executive compensation
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o
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The Board of Directors recommends you vote for a frequency of 1 year on the following proposal:
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1 Year
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2 Years
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3 Years
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Abstain
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5.
Vote, on a non-binding basis, on the frequency of future executive
compensation votes
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o
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NOTE:
Such other business as may properly come
before the meeting or any adjournment thereof.
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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. Jointly owned
shares will be voted as directed by one owner unless the
other instructs to the contrary, in which case the shares
will not be voted. 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 and Proxy Statement and Form 10-K are available at
www.proxyvote.com
.
M36457-P13426
VALUEVISION MEDIA, INC.
Annual Meeting
of Shareholders
June 15, 2011 8:00 AM CDT
This proxy is solicited by the Board of Directors
The shareholder(s) hereby appoint(s) William J. McGrath or Teresa J. Dery, or either of them,
as proxies, each with the power to appoint (his/her) substitute, and hereby authorizes them to
represent and to vote, as designated on the reverse side of this ballot, all of the shares of
Common Stock of VALUEVISION MEDIA, INC. that the shareholder(s) is/are entitled to vote at the
Annual Meeting of shareholder(s) to be held at 8:00 AM, CDT on 6/15/2011, at the ValueVision Media,
Inc. Corporate Offices 6740 Shady Oak Road Eden Prairie, MN 55344, and any adjournment or
postponement thereof.
This proxy, when properly executed, will be voted in the manner directed herein. If no such
direction is made, this proxy will be voted in accordance with the Board of Directors
recommendations. Notwithstanding the foregoing, if this proxy is to be voted for any nominee named
on the reverse side and such nominee is unwilling or unable to serve, this proxy will be voted for
a substitute in the discretion of the proxies.
Continued and to be signed on reverse side