UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8K
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
(Registrants telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8K 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 14a12 under the Exchange Act (17 CFR 240.14a12) |
¨ | Precommencement communications pursuant to Rule 14d2(b) under the Exchange Act (17 CFR 240.14d2(b)) |
¨ | Precommencement communications pursuant to Rule 13e4(c) under the Exchange Act (17 CFR 240.13e4(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 Companys Chief Executive Officer) entered in the following agreements on May 21, 2013:
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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 Companys Form 8-K dated November 7, 2012 (the Original Agreement ). |
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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. |
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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
|
Description |
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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 |
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Name: | Michael P. Monahan | |
Title: | Chief Financial Officer |
EXHIBIT INDEX
Exhibit
|
Description |
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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
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 Committees goals for these new arrangements included (i) causing target total direct compensation or TDC (the sum of an executives 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. Ziers 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. Ziers 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 years 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 |
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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 | |||||||||||||||||||||
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Total |
626,706 | 626,706 | ||||||||||||||||||||||||||
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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. Ziers 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 Plans 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 Plans individual annual limit by 75,000 shares (in 2010, the Plans 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. Redlings total 2012 compensation (as measured under SEC rules) by approximately 1% and a reduction in Mr. Redlings 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 ):
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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): |
The third paragraph under the heading entitled Compensation for New Chief Executive Officer is restated as follows:
The other material elements of Ms. Ziers 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 $300,000. The PRSU award may be earned based on our total stockholder return ( TSR ) performance of the Company relative to the Russell 3000 Index for the three-year period beginning January 1, 2013. In contrast to inducement grants made by us to other Named Executive Officers, this inducement grant consisted entirely of variable elements and had an aggregate grant date fair value approximately equal to one times base salary. The size and terms of this grant were based on input from Mercer regarding prevailing market practices.
Summary Compensation Table
Ms. Ziers and Mr. Redlings rows of this table, and Mr. Redlings row of the table that appears in footnote 3, are restated as follows:
Name and Principal Position |
Year |
Salary
($) |
Bonus
($) |
Stock
Awards ($) (1) |
Option
Awards ($) (1) |
Non-Equity
Incentive Plan Compensation ($) |
All Other
Compensation ($) |
Total
($) |
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Dawn M. Zier, |
2012 | 62,308 | 500,000 | (2) | 1,100,000 | (3) | 245,081 | | 6,088 | (4) | 1,913,477 | |||||||||||||||||||||
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Chief Executive Officer |
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Joseph M. Redling, |
2012 | 626,832 | | 194,836 | (3) | | | 2,037,088 | (5) | 2,858,756 | ||||||||||||||||||||||
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former Chief Executive Officer |
2011 | 704,395 | | 375,057 | 1,125,000 | | 24,570 | 2,229,022 | ||||||||||||||||||||||||
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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: |
There are no changes in the remainder of, or the other footnotes to, this table.
Grants of Plan-Based Awards Table
Ms. Ziers and Mr. Redlings 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 |
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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) |
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Dawn M. Zier |
11/15/12 | | | | | | | | 179,757 | (4) | 7.31 | 245,081 | ||||||||||||||||||||||||||||||||
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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 | |||||||||||||||||||||||||||||||||
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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. Ziers 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 ($) (2) |
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Dawn M. Zier |
| 179,757 | 7.31 | 11/15/2019 | 109,439 | (3) | 894,117 | 20,268 | (4) | 165,590 | ||||||||||||||||||||||
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There are no changes in the remainder of, or the footnotes to, this table.
Payments and Potential Payments Upon Termination or Change in Control
Ms. Ziers table and footnote 2 to that table are restated as follows:
Event |
Cash
Severance ($) (1) |
2013
Minimum Bonus ($) |
Waiver of
Repayment Obligation for Replacement Cash Award ($) |
Accelerated
Equity Vesting ($) (2) |
Other
Benefits ($) (3) |
Total
($) |
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Termination without cause or for good reason |
1,200,000 | 250,000 | 500,000 | 1,048,708 | 37,455 | 3,036,163 | ||||||||||||||||||
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Termination due to death or disability |
| 250,000 | 500,000 | 378,114 | | 1,128,114 | ||||||||||||||||||
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Change of control |
| | 500,000 | 1,048,708 | | 1,548,708 | ||||||||||||||||||
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(2) | Ms. Ziers 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. Ziers 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.