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) January 4, 2016 (December 29, 2015)

 

 

VITAMIN SHOPPE, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-34507   11-3664322

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

300 Harmon Meadow Blvd.

Secaucus, New Jersey 07094

(Address of Principal Executive Offices, including Zip Code)

(201) 868-5959

(Registrant’s Telephone Number, including Area Code)

Not Applicable

(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 (see General Instruction A.2. below):

 

¨ 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 1.01 Entry into a Material Definitive Agreement.

On December 31, 2015, the Employment and Non-Competition Agreement dated January 1, 2015 (the “Markee Employment Agreement”), among Vitamin Shoppe, Inc. (“Parent”), Vitamin Shoppe Industries Inc. (the “Company”) and Richard L. Markee expired, as a result of which Mr. Markee’s employment as Executive Chairman of the Company ceased.

Markee Letter Agreement

In connection with the expiration of the Markee Employment Agreement, on December 31, 2015, Parent, the Company and Mr. Markee entered into a Letter Agreement (the “Markee Letter Agreement”).

Under the Markee Letter Agreement, Mr. Markee’s employment as Executive Chairman was extended to January 4, 2016, Mr. Markee was appointed Non-Executive Chairman of the Board of Directors of Parent as of January 4, 2016, and Mr. Markee will be entitled to certain payments and benefits, including accelerated vesting to the date of Parent’s next annual stockholder meeting for restricted stock scheduled to vest on January 2, 2017, subject to his release of Parent and the Company and certain related parties from liability arising out of Mr. Markee’s employment by, termination of employment by, and service as a director of, Parent and the Company (subject to certain exceptions), and compliance with certain surviving covenants in the Markee Employment Agreement.

The description of the Markee Letter Agreement contained herein is qualified in its entirety by reference to the full text of the Markee Letter Agreement, which is filed as Exhibit 10.1 hereto, and is incorporated herein by reference.

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

Executive Chairman

On January 4, 2016, Mr. Markee’s employment as Executive Chairman of the Company ceased. The Company does not currently intend to appoint a new Executive Chairman.

In connection with the expiration of the Markee Employment Agreement, on December 31, 2015, Parent, the Company and Mr. Markee entered into a Letter Agreement. The description of the Markee Letter Agreement contained in Item 1.01 above, and the full text of the Markee Letter Agreement, which is filed as Exhibit 10.1 hereto, is incorporated herein by reference.

Non-Executive Chairman

Effective January 4, 2016, the Board of Directors of Parent appointed Mr. Markee to the newly created role of Non-Executive Chairman of the Board of Directors of Parent, pursuant to the Markee Letter Agreement.

Lead Director

On December 29, 2015, the Board of Directors of Parent appointed John D. Bowlin, who is currently a director of Parent, to serve as Lead Director of the Board of Directors of Parent (David H. Edwab rotated off as lead director and will continue as a member of the Board of Directors of Parent).

Director Compensation Plan and Stock Ownership Guidelines

Effective on January 1, 2016, Parent adopted the Director Compensation Plan and Stock Ownership Guidelines (the “Guidelines”).


Annual Retainers

Under the Guidelines, non-employee directors will receive the following annual cash retainers:

 

    Non-Executive Chairman — $200,000

 

    Non-employee director (other than non-executive chairman) — $55,000 (the “Base Retainer”)

 

    Lead Director of the Board, if any — additional $17,000

 

    Chairman of the Audit Committee — additional $20,000

 

    Member of the Audit Committee (other than the Chairman of the Audit Committee) — additional $10,000

 

    Chairman of the Compensation Committee — additional $15,000

 

    Member of the Compensation Committee (other than the Chairman of the Compensation Committee) — additional $7,500

 

    Chairman of the Nomination and Governance Committee — additional $10,000

 

    Member of the Nomination and Governance Committee (other than the Chairman of the Nomination and Governance Committee) — additional $5,000

Non-employee directors will also be reimbursed for out-of-pocket expenses. No director will receive fees for attending meetings.

Restricted Stock Units

Each of Parent’s non-employee directors will receive an annual grant of restricted stock units with a grant date value of approximately $70,000, subject to pro ration for partial year service, vesting, and deferral rights.

Stock Ownership Guidelines

Non-employee directors are prohibited from selling any shares of Parent stock unless at the time of such sale, and on a pro forma basis giving effect to such sale, such director holds an aggregate value of five times such director’s Base Retainer in certain qualifying shares, subject to certain exceptions.

The description of the Director Compensation Plan and Stock Ownership Guidelines contained herein is qualified in its entirety by reference to the full text of the Director Compensation Plan and Stock Ownership Guidelines, which is filed as Exhibit 10.2, and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.

  

Description of Document

10.1    Letter Agreement dated as of December 31, 2015 among Parent, the Company and Richard L. Markee.
10.2    Director Compensation Plan and Stock Ownership Guidelines.


SIGNATURES

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.

 

    VITAMIN SHOPPE, INC.
Date: January 4, 2016     By:  

/s/ David M. Kastin

      Name:   David M. Kastin
      Title:   Senior Vice President, General Counsel and Corporate Secretary


EXHIBIT INDEX

 

Exhibit

No.

  

Description of Document

10.1    Letter Agreement dated as of December 31, 2015, among Parent, the Company and Richard L. Markee.
10.2    Director Compensation Plan and Stock Ownership Guidelines.

Exhibit 10.1

Mr. Richard L. Markee

c/o Vitamin Shoppe, Inc.

300 Harmon Meadow Blvd.

Secaucus, New Jersey 07094

Dear Rick:

Reference is made to the Employment and Non-Competition Agreement (the “ Agreement ”) dated January 1, 2015, as amended, between you and Vitamin Shoppe, Inc. (the “ Parent ”) and Vitamin Shoppe Industries Inc. (the “ Company ”). Capitalized terms used herein without definition have the meanings specified in the Agreement. The purpose of this letter is to notify you that your employment will end, upon expiration of the Agreement, by its terms, on January 4, 2016, and you will at that time serve as Non-Executive Chairman of the Board of Directors of the Parent. The termination of your employment is intended as a separation of service for purposes of Section 409A of the Internal Revenue Code of 1986, as amended.

Accordingly, the following describes the payments and benefits that the Parent and the Company are offering you subject to your execution of the release (without revocation) attached hereto as Exhibit A and your continued compliance with the covenants contained in Sections 7, 8 and 9 of the Agreement (which remain in full force and effect):

(i) Payment of your Base Salary through January 4, 2016 and payment for accrued but not taken vacation in accordance with the Company’s payroll practices.

(ii) Payment of your Annual Cash Bonus as determined in accordance with Section 2(B) of the Agreement, payable at the time specified in Section 2(B).

(iii) In the event you elect COBRA and for so long as you are eligible for COBRA, the Company will make payments (“ COBRA Payments ”) to you (subject to tax withholdings) equal to that portion of your COBRA premium for you (and your covered dependents) that is in excess over the same rate as paid by similarly situated employees for non-COBRA coverage. The COBRA Payments will be payable in accordance with Section 5(J)(iii) of the Agreement; as contemplated by such provision, the first six months of COBRA Payments shall be paid to you on the first payroll date following six months from the Separation Date.

Following expiration of your eligibility for COBRA coverage and until you and your spouse are eligible for coverage under Medicare, the Company will arrange to provide you with medical insurance benefits substantially similar to those provided to executive officers of the Company. You will be responsible for paying the full cost of the premium for such medical insurance policy, and the Company will reimburse you for the amount paid by you in excess of the amount that would be paid by an executive officer of the Company for substantially similar benefits (the “ Post-COBRA Payments ”). The Post-COBRA Payments will be treated as a bonus, subject to applicable withholding taxes, and paid on a monthly basis within thirty days following the end of the applicable month.


In the event that applicable law prevents, or imposes a tax liability (in addition to the tax withholdings referenced above) or penalty in connection with, the provision of COBRA Payments and the Post-COBRA Payments, you and the Company agree to revisit the issue and discuss resolution, with the intent that the resolution would be consistent with the Company’s commitment to you to assist you and your spouse with the cost of medical coverage post-employment and pending Medicare eligibility. Except as modified herein, the terms and conditions of Section 5(J) remain in full force and effect.

(iv) So long as you remain a member of the Board of Directors of Parent, you shall continue to vest in all equity awards previously granted to you; provided, however, that the vesting of the restricted stock that is scheduled to vest on January 2, 2017 shall be accelerated to the date on which the Parent’s annual meeting of stockholders occurs so long as you remain a director through such date.

(v) You shall receive under separate cover information about the compensation that you will receive for your service as Non-Executive Chairman of the Board.

Sincerely,

 

VITAMIN SHOPPE, INC.    
By:  

/s/ David Kastin

   

December 31, 2015

Name:   David Kastin     Date  
Title:   Senior Vice President-General Counsel      
VITAMIN SHOPPE INDUSTRIES, INC.      
By:  

/s/ David Kastin

   

December 31, 2015

Name:   David Kastin     Date  
Title:   Senior Vice President-General Counsel      

 

Agreed and Acknowledged:    

/s/ Richard L. Markee

   

December 31, 2015

Richard L. Markee     Date

 

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Exhibit A

RELEASE AGREEMENT

1. Release . (a) In consideration of the obligations contained in the letter dated December     , 2015 to which this Release is attached (the “ December 2015 Letter ”) and for other valuable consideration, Richard Markee (“ you ”), for yourself, your heirs, dependents, legal representatives, executors, administrators and assigns), hereby release and forever discharge Vitamin Shoppe Industries Inc. (the “ Company ”) and Vitamin Shoppe, Inc. (the “Parent”) and their respective subsidiaries, affiliates and divisions, and each of their respective directors, officers, employees, shareholders, agents, administrators, trustees, employee benefit plans and assigns (in their official and individual capacities) (collectively, the “ Released Parties ”) from any and all claims, liabilities, causes of action, demands or rights of any kind (including without limitation for general, special or punitive damages, attorneys’ fees and expenses, and other compensation and/or equitable remedy), known or unknown, fixed or contingent, which have arisen at any time up to and including the date of execution of this Release arising during or in any manner out of your employment and the termination of your employment with the Company or your service as a Director of the Company and Parent (the “ Claims ”).

Without limiting the generality of the foregoing, this Release is intended and shall release all Claims, including, but are not limited to, those that concern, relate to, or might arise out of the following: salary, overtime, bonuses, employee benefits, expenses, equity, severance, retirement or other benefits; breach of express or implied contract or promise; tort, harassment, intentional injury or intentional tort, fraud, misrepresentation, battery, assault, defamation, breach of fiduciary duty, public policy claims, whistleblower claims, negligence (including negligent hiring, retention and/or supervision), wrongful or retaliatory discharge, infliction of emotional injury, or any other facts or claims; the Age Discrimination in Employment Act (ADEA) (29 U.S.C. §621, et seq.); Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et seq.); ERISA (the Employee Retirement Income Security Act of 1974 (29 U.S.C. §1001, et seq.) other than any vested ERISA benefit; the federal WARN Act and similar state mini-WARN Acts; the American with Disabilities Act (42 U.S.C. §12101, et seq.); the National Labor Relations Act and the Labor Management Relations Act, 29 U.S.C. §141 et seq.; the Family and Medical Leave Act (29 U.S.C. §2601, et seq.); the United States Constitution; the Civil Rights Act of 1991; the Civil Rights Acts of 1866 or 1871 (42 U.S.C. §§1981,1983,1985, et seq.); retaliation under any federal, state, or local law; any claims for costs or attorney fees; the fair employment practices (FEP) laws and employment-related laws of any federal, state, or local jurisdiction (including the New Jersey Law Against Discrimination, New Jersey Conscientious Employee Protection Act, New Jersey Family Leave Act, New Jersey Paid Family Leave Law, New Jersey Equal Pay Act, New Jersey Civil Rights Act, New Jersey Administrative Code), and any other federal, state, city, county or other common law, law, or ordinance, including but not limited to those where you work and/or reside.

(b) Notwithstanding the foregoing, the release and discharge set forth in Section 1(a) above shall not apply to (i) Claims for payments and benefits to which you are entitled under the December 2015 Letter, (ii) your vested benefits under the Company’s employee benefit plans,

 

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including the 401(k) plan, (iii) the Company’s ongoing obligations under the equity agreements between you and the Company (as modified by the December 2015 Letter) and any Claims as a stockholder, (iv) the Company’s obligations to indemnify you to the maximum extent permitted by the Company’s organizational documents and law and Section 13 of the Employment and Noncompetition Agreement referred to in the December 2015 Letter, and (iv) any Claims that the law states may not be released.

(c) You agree that you have been paid and/or have received all compensation, wages, bonuses, benefits and/or leave (paid or unpaid), that are due to you and that no other compensation, wages, bonuses, benefits, expenses, fees and/or leave (paid or unpaid) are due to you, except as provided in the December 2015 Letter. You further represent that you have no known workplace injuries or occupational diseases and have been provided and/or have not been denied any leave requested under the Family and Medical Leave Act or similar law and have been provided and/or have not been denied any reasonable accommodations under the Americans with Disabilities Act or similar law.

(d) You represent and agree that you have not filed, or caused to be filed, any lawsuits or complaints against any Released Party, including with any municipal, state or federal agency charged with the enforcement of any law. Pursuant to and as a part of your release and discharge of the Released Parties, you agree, to the extent permitted by applicable law, not to sue any Released Party in any forum or assist or otherwise participate willingly or voluntarily in any lawsuit or claim, investigation or other proceeding of any kind which relates to any matter that involves any Released Party, and that occurred up to and including the date of your execution of this Release, unless as required to do so by court order, subpoena or other directive by a court, administrative agency or legislative body, other than to enforce the Agreement. This section is not intended to affect your right to file a charge with and/or participate in an investigation or proceeding conducted by a governmental administrative agency (including without limitation the Equal Employment Opportunity Commission, National Labor Relations Board, Securities and Exchange Commission, or other federal, state or local governmental agency charged with the enforcement of any laws), although you agree that you are hereby waiving any right to receive money or any other relief in any action instituted on your behalf by any other person, entity or government agency.

(e) If you breach your promises set forth in this Section 1 and file a complaint or lawsuit based on what you released (which does not include the claims set forth in Section 1(b)), you agree to pay for all liabilities and costs incurred by the Released Parties, including reasonable attorney’s fees and costs, in defending against any such action to the extent permitted by law. In addition, the Company’s obligations to make the payments and provide the benefits under the December 2015 Letter shall cease and the Company will be entitled to seek monetary damages, injunctive relief or any other available legal remedies.

2. Acceptance. You shall have twenty-one (21) days from the date you receive this Release to consider the terms of this Release. In order to receive the benefits and payments provided for by the December 2015 Letter, you must execute this Release and return it to the Company addressed to the General Counsel, at 300 Harmon Meadow Boulevard, Secaucus, NJ 07094, so that it is received any time on or before the expiration of the 21-day period. After executing this Release, you shall have seven (7) days (the “ Revocation Period ”) to revoke it by

 

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indicating your desire to do so in writing addressed to and received by the General Counsel no later than the seventh (7 th ) day following the date you executed the Release. In the event you do not sign this Release, or in the event you revoke this Release during the Revocation Period, the obligations of the Company to make the payments and provide the benefits set forth in the December 2015 Letter shall automatically be deemed null and void.

3. Voluntary Assent. You affirm that you have read this Release and understand all of its terms. You further acknowledge that you have voluntarily entered into this Release; that you have not relied upon any representation or statement, written or oral, not set forth in the Release or Agreement; that the only consideration for signing this Release is as set forth in the Agreement; that the consideration received for executing this Release is greater than that to which you may otherwise be entitled; and that this document gives you the opportunity and encourages you to have this Release reviewed by your attorney and/or tax advisor. You also acknowledge that you have been given up to twenty-one (21) days to consider this Release and that you understand that you have seven (7) days after executing it to revoke it in writing, and that, to be effective, such written revocation must be received by the Company within the seven (7) day Revocation Period.

 

  Agreed and Accepted:

        

 

 

  Richard Markee
           Dated:  

 

 

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Exhibit 10.2

Vitamin Shoppe, Inc.

Director Compensation Plan and Stock Ownership Guidelines

Effective January 1, 2016

Director Compensation

1. The non-employee directors will receive the following annual retainers, payable quarterly in advance, on or about the first business day of the fiscal quarter:

(a) The non-executive chairman of the Board will receive a $200,000 annual cash retainer;

(b) Each non-employee director (other than the non-executive chairman) will receive a $55,000 annual cash retainer (the “ Base Retainer ”);

(c) The lead director of the Board, if any, will receive an additional $17,000 annual cash retainer;

(d) The chairman of the Audit Committee will receive an additional $20,000 annual cash retainer;

(e) Each member of the Audit Committee (other than the chairman of the Audit Committee) will receive an additional $10,000 annual cash retainer;

(f) The chairman of the Compensation Committee will receive an additional $15,000 annual cash retainer;

(g) Each member of the Compensation Committee (other than the chairman of the Compensation Committee) will receive an additional $7,500 annual cash retainer;

(h) The chairman of the Nomination and Governance Committee will receive an additional $10,000 annual cash retainer; and

(i) Each member of the Nomination and Governance Committee (other than the chairman of the Nomination and Governance Committee) will receive an additional $5,000 annual cash retainer.

2. Each of the Company’s non-employee directors will receive an annual grant of restricted stock units. Each non-employee director that has successfully been nominated to the Board and received the appropriate stockholder vote at the Company’s annual meeting will be granted an additional award of restricted stock units on the first business day of the month immediately following the month in which the annual meeting is held, with a grant date value of approximately $70,000. These awards will vest in equal quarterly installments on the first business day of each third month following the grant date (for example, if the grant date is the first business day in July, the restricted stock units shall vest on each of the first business days of


October, January, April and July), generally subject to the director’s continued service as a Board member, except that if the director is not nominated or re-elected to serve on the Board after the Company’s next annual meeting, that director’s final quarterly vesting will be accelerated and will vest the day following such next annual meeting.

3. If a director joins the Board during any period between annual meetings, such director will receive on the date such director joins the Board a pro-rata portion of the annual grant of restricted stock units based on the pro-rata portion of the year such director will serve on the Board, and the grant will vest in equal amounts on each of the succeeding regularly scheduled vesting dates; provided that if a director joins the Board after the 45th day of any quarter, such director will instead receive on the first day of the immediately succeeding quarter a pro-rata portion of the annual grant of restricted stock units based on the remaining full quarters of the year such director will serve on the Board, and the grant will vest in equal amounts on each of the succeeding regularly scheduled vesting dates.

4. No member of the Board will receive any fees for attending any meetings of the Board or its committees.

5. Each non-employee director and each member of a Board committee will be reimbursed for any out-of-pocket expenses reasonably incurred by him or her in connection with services provided in such capacity.

Director Stock Ownership Guidelines

6. Effective January 1, 2016, all non-employee directors of the Company will be subject to the following director stock ownership guidelines in order to encourage significant ownership of the Company’s common stock by such directors, and to further align the personal interests of such directors with the interests of the Company’s stockholders.

Non-employee directors are prohibited from selling any shares of Company stock unless at the time of such sale, and on a pro forma basis giving effect to such sale, such director holds an aggregate value of five (5) times such director’s Base Retainer in Qualifying Shares.

“Qualifying Shares” means:

(a) common stock of the Company owned directly;

(b) common stock of the Company obtained through stock option exercises or pursuant to the Company’s employee stock purchase plan;

(c) deferred stock units of the Company; and

(d) common stock of the Company beneficially owned in the director’s “family trust” or by the director’s spouse and/or minor children.

Shares of common stock of the Company that non-employee directors have the right to acquire through the exercise of stock options (whether or not vested) and unvested restricted stock units are not included as Qualifying Shares for director stock ownership guideline purposes.

 

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Notwithstanding the preceding sale prohibition, non-employee directors may sell or otherwise dispose of shares of Company common stock:

(a) to pay the exercise price of Company stock options in a net-share stock option transaction; and/or

(b) to satisfy any applicable tax withholding obligations due in connection with the exercise of options or the vesting or payment of any restricted shares, restricted stock units or deferred stock units.

There may be instances where these director stock ownership guidelines would place a severe hardship on a director. In such instances, the Compensation Committee will make the final decision as to developing an alternative director stock ownership guideline for such director that reflects both the intention of these director stock ownership guidelines and the personal circumstances of the director.

 

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