UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8–K

 

 

CURRENT REPORT

Pursuant to Section 13 OR 15 (d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 21, 2013

 

 

NutriSystem, Inc.

(Exact name of registrant as specified in its charter)

 

 

Commission File Number: 0-28551

 

Delaware   23-3012204

(State or other jurisdiction

of incorporation)

 

(I.R.S. Employer

Identification No.)

Fort Washington Executive Center

600 Office Center Drive

Fort Washington, PA 19034

(Address of principal executive offices)

215-706-5300

(Registrant’s telephone number, including area code)

 

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8–K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a–12 under the Exchange Act (17 CFR 240.14a–12)

 

¨ Pre–commencement communications pursuant to Rule 14d–2(b) under the Exchange Act (17 CFR 240.14d–2(b))

 

¨ Pre–commencement communications pursuant to Rule 13e–4(c) under the Exchange Act (17 CFR 240.13e–4(c))

 

 

 


Item 5.02 – Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

As described in the additional proxy materials filed by NutriSystem, Inc. (the “ Company ”) with the Securities and Exchange Commission on May 23, 2013, the Company and Dawn Zier (the Company’s Chief Executive Officer) entered in the following agreements on May 21, 2013:

 

 

A corrected non-qualified stock option agreement (the “ Corrected Option Agreement ”) to reflect the reduction (from 220,038 to 179,757) in the number of shares subject to the stock option granted to Ms. Zier on November 15, 2012. Other than the number of shares, the Corrected Option Agreement is substantially identical to stock option agreement described in and filed with the Company’s Form 8-K dated November 7, 2012 (the “ Original Agreement ”).

 

 

A new non-qualified stock option agreement to reflect the grant to Ms. Zier of a stock option with respect to 40,281 shares of common stock of the Company. This new stock option has a grant date of May 21, 2013, an exercise price of $9.07 per share and incorporates the same vesting dates, expiration date and other terms of the Original Agreement.

 

 

A letter agreement (the “ Letter Agreement ”) providing for the payment of a special retention bonus of $70,894.56 to Ms. Zier if she remains employed by the Company through November 15, 2014 (the second anniversary of the commencement of her employment), subject to acceleration on the same events and subject to the same conditions as her November 15, 2012 stock option. The Letter Agreement is attached hereto as Exhibit 10.1.

The aforementioned agreements are qualified by reference to the Original Agreement and the Letter Agreement, which are incorporated herein by reference. The additional proxy materials are attached hereto as Exhibit 99.1 and are incorporated herein by reference.

Item 9.01 – Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.

  

Description

10.1    Letter Agreement, dated May 21, 2013, between NutriSystem, Inc. and Dawn Zier.
99.1    Additional Proxy Material for Annual Meeting of Stockholders to be held June 5, 2013.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: May 28, 2013

 

NUTRISYSTEM, INC.
By:  

/s/ Michael P. Monahan

Name:   Michael P. Monahan
Title:   Chief Financial Officer


EXHIBIT INDEX

 

Exhibit
No.

  

Description

10.1    Letter Agreement, dated May 21, 2013, between NutriSystem, Inc. and Dawn Zier.
99.1    Additional Proxy Material for Annual Meeting of Stockholders to be held June 5, 2013.

Exhibit 10.1

 

LOGO

May 21, 2013

Ms. Dawn Zier

[Address redacted]

Dear Dawn:

This letter agreement (this “ Agreement ”) reflects the commitment of NutriSystem, Inc. (the “ Company ”) to pay you a cash bonus on the terms herein set forth.

Subject to your continued employment with the Company through November 15, 2014 (the “ Vesting Date ”), you will receive a cash bonus equal to $70,894.56 (the “ Bonus ”). The Bonus will be paid to you within 45 days following the Vesting Date.

If, prior to the Vesting Date, your employment with the Company ceases under circumstances that result in the accelerated vesting of your inducement stock option grant (as described in the letter agreement between the Company and you dated November 1, 2012 (the “ Employment Agreement ”)), then subject to your satisfaction of the conditions required for such accelerated option vesting (i.e., timely execution of a release and compliance with certain restrictive covenants), the Bonus will be paid to you within 45 days following your cessation of employment; provided that if such 45 day period begins in one taxable year and ends in a second taxable year, the Bonus will not be paid to you until the second taxable year. Except as otherwise provided in the preceding sentence, if your employment ceases for any reason prior to the Vesting Date, you will forfeit any right to the Bonus.

Any payments made under this Agreement will be subject to tax withholding to the extent required by applicable law. This Agreement is governed by Pennsylvania law, without regard to the principles of conflicts of laws. Nothing contained in this Agreement shall be construed as giving you any right to be retained in the employ or service of the Company or any of its subsidiaries for any particular period of time. This Agreement may not be modified in any way except by a written amendment executed by you and a duly authorized representative of the Company.

To indicate your agreement with the foregoing, please sign and date this letter in the space provided below and return it to me. Please retain a copy for your records.

 

Sincerely,

/s/ Ralph J. Mauro

Ralph J. Mauro
Senior VP & General Counsel

Agreed and accepted on May 21, 2013:

 

/s/ Dawn Zier

Dawn Zier

Exhibit 99.1

We recently filed and mailed a proxy statement for the 2013 Annual Meeting of Stockholders of NutriSystem, Inc. dated April 25, 2013 (the “ Proxy Statement ”). This document is a supplement to the Proxy Statement and is being filed to revise certain information contained in the Proxy Statement regarding equity awards granted to Dawn Zier, our new Chief Executive Officer, and to Joseph Redling, our former Chief Executive Officer.

Dawn M. Zier

Among other things, the Proxy Statement describes the substantial changes made to our compensation practices in the past two years. These changes were the result of significant efforts by our Compensation Committee to respond to concerns raised by stockholders and evolving market practices.

The Proxy Statement also describes how our Compensation Committee, with the support of its independent compensation consultant Mercer (US), Inc., designed and implemented compensation arrangements for our new management team. The Compensation Committee’s goals for these new arrangements included (i) causing target total direct compensation or TDC (the sum of an executive’s base salary, target annual bonus and grant date fair value of annual equity awards) to approximate our benchmark median, (ii) providing the majority of TDC through variable pay elements, (iii) avoiding excise tax gross-ups, and (iv) awarding reasonable equity-based inducement awards to encourage candidates to accept employment with us and to provide those candidates with an immediate stake in our performance. Our arrangements with Ms. Zier were structured to accomplish these objectives.

Therefore, in connection with the commencement of Ms. Zier’s employment, we agreed to make several equity awards to her under our Amended and Restated 2008 Long-Term Incentive Plan (the “ Plan ”). Our agreement with Ms. Zier sized those equity awards based on specific grant date fair values. We implemented this agreement by issuing award agreements to Ms. Zier in 2012 with respect to 390,281 shares of our common stock, including an inducement stock option award with respect to 220,038 shares with an exercise price of $7.31.

It has come to our attention that these awards exceeded the 350,000 share per person annual award limit contained in the Plan. The overage in shares was the result of fluctuations in both the price of our common stock and the Black Scholes value of our stock options between the date we executed Ms. Zier’s employment agreement and the date she commenced employment with us. After considering the cause and circumstances of the overage, the Compensation Committee determined that the inducement stock option issued to Ms. Zier (the “ Original Option ”) was void with respect to 40,281 shares. Therefore, we have entered into a corrected stock option agreement with Ms. Zier to reflect the reduction in the number of shares subject to that award.

When informed of the overage, the Compensation Committee again reviewed the size and terms of the inducement stock option we had promised to award Ms. Zier. After consideration, the Compensation Committee determined that the award (both when viewed alone, and in the context of our other commitments to Ms. Zier) was consistent with our current compensation philosophy and our goals for new management arrangements. In this regard, the Compensation Committee noted that inducement awards to Ms. Zier were composed entirely of variable pay elements (stock options and PRSUs) and were limited to a grant date fair value equal to one year’s base salary. Having reaffirmed that the compensation it had promised to Ms. Zier was appropriate and reasonable, the Compensation Committee determined that it should issue an additional option to her with respect to a number of shares equal to the number of shares with respect to which the Original Option was void, and that it could do so without incurring material costs.

Accordingly, effective May 21, 2013, the Compensation Committee issued a new stock option award to Ms. Zier (the “ May Option ”) with respect to 40,281 shares. The May Option has an exercise price equal to $9.07, the fair market value of our common stock on the date of grant, and incorporates the same vesting dates, vesting conditions and expiration date as were applicable to the Original Option. Because annual equity-based awards previously made to Ms. Zier in 2013 were well below the 350,000 share annual limit, there was sufficient capacity under the Plan to make this corrective award to Ms. Zier in 2013.


Below is a chart that illustrates (1) the inducement grant and other equity awards made to Ms. Zier in 2012, both with and without the void portion of her Original Option, and (2) the annual equity awards granted to Ms. Zier in the ordinary course in 2013 (as required by her employment agreement) and the May Option:

 

     Restricted
Stock
     Stock
Options
     PRSUs at
maximum
     Intended
Total
     Excess      New Award      Corrected
Total
 

2012

     109,439         220,038         60,804         390,281         40,281         N/A         350,000   

2013

     25,000         136,600         74,825         236,425         N/A         40,281         276,706   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

        626,706            626,706   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

The Compensation Committee also approved a special retention bonus of $70,894.56 that will become payable to Ms. Zier if she remains employed by us through November 15, 2014 (the second anniversary of her start date), subject to acceleration on the same events and subject to the same conditions as were applicable to the Original Option. The amount of this retention bonus represents the difference in the exercise price between the Original Option and the May Option, multiplied by the excess shares.

The net impact of the foregoing is a reduction in Ms. Zier’s total 2012 compensation (as measured under Securities and Exchange Commission (“ SEC ”) rules) by approximately 3%, an increase in her total expected 2013 compensation by approximately 3% and, if she earns the special retention bonus, an increase in her total expected 2014 compensation by approximately 3%.

Joseph M. Redling

When the Compensation Committee became aware of the share overage with respect to Ms. Zier, the Compensation Committee directed the Company to review prior equity grants to determine if the individual annual limit had been exceeded in other instances.

Upon review, it was determined that the Plan’s individual annual limit was also inadvertently exceeded by equity awards made to Joseph Redling, our former Chief Executive Officer, in 2010. During 2010, we issued award agreements to Mr. Redling with respect to 375,000 shares, which exceeded the Plan’s individual annual limit by 75,000 shares (in 2010, the Plan’s applicable limit was 300,000 shares). Of the 375,000 shares, 66,666 were subject to performance restricted stock units (“ PRSUs ”) reported, for proxy statement purposes, as a 2011 award (the “ 2011 Grant ”) and 66,668 were subject to PRSUs reported, for proxy statement purposes, as a 2012 award (the “ 2012 Grant ”). While granted in 2010, these awards were reported for proxy statement purposes in later years because SEC rules determine the year of reporting based on when the applicable performance goals are established. The goals for the 2011 grant were established in 2011 and the goals for the 2012 grant were established in 2012. Nonetheless, for purposes of the Plan, it is clear that both of these PRSU awards were granted by the Compensation Committee on September 22, 2010, as reported by us on a Form 8-K dated September 24, 2010.

As result of this overage, the entire 2011 Grant was void and the 2012 Grant was void with respect to 8,334 shares at maximum performance (or 4,167 shares at target performance). Because the performance targets applicable to both the 2011 Grant and the 2012 Grant were not attained, these awards were already treated as unearned and expired, and no shares were issued in respect thereof. Accordingly, no curative action is required.

The net impact of the foregoing is a reduction in Mr. Redling’s total 2012 compensation (as measured under SEC rules) by approximately 1% and a reduction in Mr. Redling’s total 2011 compensation (as measured under SEC rules) by approximately 18%.

Other Items

The Compensation Committee has engaged Mercer, its independent compensation consultant, to review our equity incentive administration systems for the purpose of evaluating and implementing new processes to help ensure that such overages will not again occur.


To reflect the foregoing, the compensation disclosures in the Proxy Statement are revised as follows (revised text is bold and underlined):

Compensation Discussion and Analysis

The second bullet under the heading “ Response to 2012 “Say on Pay” Advisory Vote” is replaced with the following ( no change to text of the bullet – graph is revised to delete PRSUs from 2011 TDC ):

 

   

We identified and hired a highly qualified new Chief Executive Officer and designed an appropriate compensation structure for her. In doing so, our Compensation Committee adhered to its stated goal of setting TDC (and each element of TDC) at approximately the 50 th percentile of benchmark data. The result was both a material reduction in TDC and a reallocation of TDC elements, as reflected in the following chart (for clarity, we omit 2012 because due to our leadership transition, neither our new or former Chief Executive Officer had a full year of compensation in 2012):

 

LOGO

The third paragraph under the heading entitled “ Compensation for New Chief Executive Officer ” is restated as follows:

The other material elements of Ms. Zier’s compensation package included an “inducement” grant and a “replacement” grant made to her upon commencement of her employment. The inducement grant was made to induce Ms. Zier to accept our offer of employment and consisted of a time-vested stock option award with an intended grant date fair value of $300,000 and a PRSU award with a grant date fair value of $300,000. The PRSU award may be earned based on our total stockholder return (“ TSR ”) performance of the Company relative to the Russell 3000 Index for the three-year period beginning January 1, 2013. In contrast to inducement grants made by us to other Named Executive Officers, this inducement grant consisted entirely of variable elements and had an aggregate grant date fair value approximately equal to one times base salary. The size and terms of this grant were based on input from Mercer regarding prevailing market practices.


Summary Compensation Table

Ms. Zier’s and Mr. Redling’s rows of this table, and Mr. Redling’s row of the table that appears in footnote 3, are restated as follows:

 

Name and Principal Position

   Year      Salary
($)
     Bonus
($)
    Stock
Awards
($) (1)
    Option
Awards
($) (1)
     Non-Equity
Incentive Plan
Compensation
($)
     All Other
Compensation
($)
    Total
($)
 

Dawn M. Zier,

     2012         62,308         500,000 (2)      1,100,000 (3)      245,081         —           6,088 (4)      1,913,477   
            

 

 

         

 

 

 

Chief Executive Officer

                    

Joseph M. Redling,

     2012         626,832         —          194,836 (3)       —           —           2,037,088 (5)      2,858,756   
          

 

 

           

 

 

 

former Chief Executive Officer

     2011         704,395         —          375,057        1,125,000         —           24,570        2,229,022   
          

 

 

           

 

 

 
     2010         691,731         —          3,652,077        —           693,000         18,807        5,055,615   

 

(3) In accordance with SEC rules, the amounts reported in the Stock Awards column for 2012 include the grant date fair value of PRSUs granted during 2012. The grant date fair value for this purpose is required to be shown even where the PRSUs were not ultimately earned. The following table provides information regarding the grant date value of the 2012 PRSUs based on the expected and maximum performance outcomes, as well as the actual grant date realizable value:

 

Named Executive Officer

   Grant Date Fair
Value (i.e., Based  on
Expected
Performance)
($)
     Value at Grant Date
Assuming Maximum
Performance
($)
     Actual Realizable
Value at
Grant Date
($)
 

J. Redling

     194,836         389,671         0   
  

 

 

    

 

 

    

There are no changes in the remainder of, or the other footnotes to, this table.

Grants of Plan-Based Awards Table

Ms. Zier’s and Mr. Redling’s rows of this table are restated as follows:

 

Name

   Grant
Date
     Estimated Future Payouts
Under
Non-Equity Incentive Plan
Awards(1)
     Estimated Future Payouts
Under Equity Incentive
Plan Awards (2)
     All
Other
Stock
Awards:
    All Other            Grant
Date
Fair
 
      Threshold
($)
     Target
($)
     Maximum
($)
     Threshold
(#)
     Target
(#)
     Maximum
(#)
     Number
of
Shares
of
Stock or
Units
(#)
    Option
Awards:
Number of
Securities
Underlying
Options
(#)
    Exercise
or Base
Price of
Option
Awards
($/Sh)
     Value
of
Stock
and
Option
Awards
(6)
 

Dawn M. Zier

     11/15/12         —           —           —           —           —           —           —          179,757 (4)      7.31         245,081   
                         

 

 

      

 

 

 
     11/15/12         —           —           —           —           —           —           109,439 (3)      —          —           800,000   
     11/15/12         —           —           —           20,268         40,536         60,804         —          —          —           300,000   

Joseph M. Redling

     3/30/12         —           —           —           14,584         29,167         58,334         —          —          —           194,836   
              

 

 

    

 

 

    

 

 

           

 

 

 
     3/30/12         354,297         602,304         708,593         —           —           —           —          —          —           —     


There are no changes in the remainder of, or the footnotes to, this table.

Outstanding Equity Awards at Fiscal Year-End Table

Ms. Zier’s row of this table is restated as follows:

 

     Option Awards      Stock Awards (1)  

Name

   Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
     Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
     Option
Exercise
Price
($)
     Option
Expiration
Date
     Number
of
Shares or
Units of
Stock
That
Have
Not
Vested
(#)
    Market
Value
of
Shares
or
Units of
Stock
That
Have

Not
Vested
($) (2)
     Equity
Incentive
Plan
Awards:
Number
of
Unearned
Units
That
Have Not
Vested
(#)
    Equity
Incentive
Plan
Awards:
Market
or Payout
Value of
Unearned
Units
That
Have Not
Vested
($) (2)
 

Dawn M. Zier

     —           179,757         7.31         11/15/2019         109,439 (3)      894,117         20,268 (4)      165,590   
     

 

 

                 

There are no changes in the remainder of, or the footnotes to, this table.

Payments and Potential Payments Upon Termination or Change in Control

Ms. Zier’s table and footnote 2 to that table are restated as follows:

 

Event

   Cash
Severance
($) (1)
     2013
Minimum
Bonus
($)
     Waiver of
Repayment
Obligation
for
Replacement
Cash Award
($)
     Accelerated
Equity
Vesting
($) (2)
     Other
Benefits
($) (3)
     Total
($)
 

Termination without cause or for good reason

     1,200,000         250,000         500,000         1,048,708         37,455         3,036,163   
           

 

 

       

 

 

 

Termination due to death or disability

     —           250,000         500,000         378,114         —           1,128,114   
           

 

 

       

 

 

 

Change of control

     —           —           500,000         1,048,708         —           1,548,708   
           

 

 

       

 

 

 

 

(2) Ms. Zier’s 109,439 restricted shares are valued using the closing stock price of $8.17 on December 31, 2012. Amounts also include “in the money” value of her November 15, 2012 stock option award. No value is attributed to Ms. Zier’s inducement PRSU grant because she is only entitled to a pro-rata portion of those PRSUs based on the portion of the performance period worked by her. However, as of December 31, 2012, the performance period for that award had not yet started and, accordingly, the pro-rata portion would be zero.

There are no changes to the other footnotes to this table.

Except for the corrections set forth above, this supplement does not change any other portions of the Proxy Statement. This supplement should be read in conjunction with the Proxy Statement.