o
|
Preliminary
Proxy Statement
|
¨
|
Confidential,
For Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
x
|
Definitive
Proxy Statement
|
¨
|
Definitive
Additional Materials
|
¨
|
Soliciting
Material Pursuant to §240.14a-12
|
x
|
No
fee required.
|
¨
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(l) and
0-11.
|
|
(1)
|
Title
of each class of securities to which transaction
applies:
|
|
(2)
|
Aggregate
number of securities to which transaction applies:
|
|
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
|
|
(4)
|
Proposed
maximum aggregate value of transaction:
|
|
(5)
|
Total
fee paid:
|
¨
|
Fee
paid previously with preliminary
materials.
|
¨
|
Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its
filing.
|
|
(1)
|
Amount
Previously Paid:
|
|
(2)
|
Form,
Schedule or Registration Statement No.:
|
|
(3)
|
Filing
Party:
|
|
(4)
|
Date
Filed:
|
1.
|
To
elect seven directors to hold office until the next Annual Meeting of
Stockholders and until their respective successors have been duly elected
and qualified;
|
2.
|
To
ratify the appointment of BDO Seidman, LLP as the Company’s independent
registered public accountants for the fiscal year ending December 31,
2010; and
|
3.
|
To
transact such other business as may properly come before the meeting or
any adjournment or adjournments
thereof.
|
Name
|
|
Age
|
|
Position
with the Company
|
Neil
Cole
|
|
53
|
|
Chairman
of the Board, President and Chief Executive Officer
|
Barry
Emanuel
|
|
68
|
|
Director
|
Steven
Mendelow
|
|
67
|
|
Director
|
Drew
Cohen
|
|
41
|
|
Director
|
F.
Peter Cuneo
|
|
66
|
|
Director
|
Mark
Friedman
|
|
46
|
|
Director
|
James
A. Marcum
|
|
50
|
|
Director
|
|
•
|
appointing,
replacing, overseeing and compensating the work of a firm to serve as
the
registered independent public accounting firm to audit our financial
statements;
|
|
•
|
discussing
the scope and results of the audit with the independent registered public
accounting firm
and reviewing with management and the independent registered public
accounting firm our interim
and year-end operating
results;
|
|
•
|
considering
the adequacy of our internal accounting controls and audit procedures;
and
|
|
•
|
approving
(or, as permitted, pre-approving) all audit and non-audit services to be
performed
by the independent registered public accounting
firm.
|
|
Governance/Nominating
Committee
|
|
•
|
identifying,
evaluating and recommending nominees to serve on the Board and committees
of the Board;
|
|
•
|
conducting
searches for appropriate directors and evaluating the performance of the
Board
and of individual directors;
and
|
|
•
|
reviewing
developments in corporate governance practices, evaluating the adequacy
of
our corporate governance practices and reporting and making
recommendations to
the Board concerning corporate governance
matters.
|
|
•
|
setting
the compensation and negotiating the employment arrangements for the chief
executive officer;
|
|
•
|
reviewing
and recommending approval of the compensation of our other executive
officers;
|
|
•
|
administering
our stock option and stock incentive
plans;
|
|
•
|
reviewing
and making recommendations to the Board with respect to our overall
compensation objectives, policies and practices, including with respect to
incentive
compensation and equity plans;
and
|
|
•
|
evaluating
the chief executive officer’s performance in light of corporate
objectives.
|
Name
|
Fees
Earned
or Paid
in Cash
($)
|
Stock
Awards
($) (1)(2)
|
Option
Awards
($) (2)
|
Non-Equity
Incentive Plan
Compensation
($)
|
Change in
Pension Value
and Nonqualified
Deferred
Compensation
Earnings
|
All Other
Compensation
($)
|
Total
($)
|
|||||||||||||||||||||
Barry
Emanuel
|
40,000 | 38,240 | — | — | — | — | 78,240 | |||||||||||||||||||||
Steven
Mendelow
|
55,000 | 38,240 | — | — | — | — | 93,240 | |||||||||||||||||||||
Drew
Cohen
|
50,000 | 38,240 | — | — | — | — | 88,240 | |||||||||||||||||||||
F.
Peter Cuneo
|
40,000 | 38,240 | — | — | — | — | 78,240 | |||||||||||||||||||||
Mark
Friedman
|
50,000 | 38,240 | — | — | — | — | 88,240 | |||||||||||||||||||||
James
A. Marcum
|
40,000 | 38,240 | — | — | — | — | 78,240 |
(1)
|
Represents
the aggregate grant date fair
value.
|
(2)
|
At
December 31, 2009 Mr. Marcum had 5,272 shares of restricted
stock that had not vested. In addition, at December 31, 2009 our
non-employee directors owned the following unexercised options - Drew
Cohen 50,000; Barry Emanuel - 191,173; and Steven Mendelow -
100,250.
|
Name
|
|
Age
|
|
Position
|
Warren Clamen
|
|
45
|
Executive
Vice President and Chief Financial Officer
|
|
Andrew Tarshis
|
|
44
|
Executive
Vice President and General Counsel
|
|
Yehuda
Shmidman
|
28
|
Executive
Vice President of Operations
|
||
David
Blumberg
|
51
|
Executive
Vice President - Head of Strategic
Development
|
·
|
payments
of life insurance premiums; and
|
·
|
car
allowances.
|
·
|
base
salary; and
|
·
|
incentive
compensation, either in the form of equity-based awards under our various
equity incentive and stock option plans; cash payments tied to the
satisfaction of specified performance criteria set forth in the executive
officers employment agreement and to a lesser degree certain of our named
executive officers also have received discretionary cash bonuses not tied
to specific pre established performance
criteria.
|
·
|
to
attract, retain and motivate highly qualified executives through both
short-term and long-term incentives that reward company and individual
performance;
|
·
|
to
emphasize equity-based compensation to more closely align the interests of
executives with those of our
stockholders;
|
·
|
to
support and encourage our financial growth and
development;
|
·
|
to
motivate our named executive officers to continually provide excellent
performance throughout the year;
|
·
|
to
ensure continuity of services of named executive officers so that they
will contribute to, and be a part of, our long-term success;
and
|
·
|
to
manage fixed compensation costs through the use of performance and
equity-based compensation.
|
Named Executive
Officer
|
2008 Base
Salary
|
2009 Base
Salary
|
Change in
Base
|
Percentage of
2008 Base Salary
|
||||||||||||
Neil
Cole
|
$ | 1,000,000 | $ | 1,000,000 | $ | - | 0 | % | ||||||||
Warren
Clamen
|
350,000 | 400,000 | 50,000 | 14 | % | |||||||||||
Andrew
Tarshis
|
350,000 | 400,000 | 50,000 | 14 | % | |||||||||||
Yehuda
Shmidman
|
250,000 | 350,000 | 100,000 | 40 | % | |||||||||||
David
Blumberg
|
* | 400,000 | - | 0 | % |
|
·
|
initial
grants when a named executive officer is
hired;
|
|
·
|
annual
performance based grants; and
|
|
·
|
retention
grants, which are typically made in connection with new
employment
|
|
agreements
or renewals.
|
Perquisite, Other Benefit or
Other Item of Compensation (1)
|
Aggregate
Amount of This
Perquisite Paid to
All Named
Executive Officers
in 2009
|
Additional Explanation for Offering Certain Perquisites
|
|||
Car
allowances
|
$ | 92,791 |
Serves
to defray the cost of owning and operating an automobile often used for
business purposes; prevents us from having to own and maintain a fleet of
automobiles and is a taxable benefit for the named executive
officer.
|
||
Life Insurance Premiums
|
$ | 22,000 |
Reduces
risk to the beneficiaries of executives in the event of the death of the
executive.
|
|
(1)
|
Perquisites
are generally granted as part of our executive recruitment and retention
efforts.
|
Salary
|
Bonus
|
Stock
Awards
|
Option
Awards
|
Non-Equity
Incentive Plan
Compensation
|
Change in
Pension Value
and Non-
qualified
Deferred
Compensation
Earnings
|
All Other
Compensation
|
Total
|
|||||||||||||||||||||||||||
Name and
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
||||||||||||||||||||||||||
Principal Position
|
Year
|
(a)
|
(b)
|
(c)
|
(d)
|
(e)
|
(f)
|
(g)
|
(h)
|
|||||||||||||||||||||||||
Neil
Cole
|
2009
|
$ | 1,000,000 | $ | - | $ | 8,309,609 | $ | - | $ | 1,500,000 | $ | - | $ | 42,791 | (1) | $ | 10,852,400 | ||||||||||||||||
President
and Chief
|
2008
|
$ | 1,000,000 | $ | 500,000 | $ | 30,400,008 | $ | - | $ | 500,000 | $ | - | $ | 53,264 | (1) | $ | 32,453,272 | ||||||||||||||||
Executive Officer |
2007
|
$ | 600,000 | $ | 649,000 | $ | - | $ | - | $ | - | $ | - | $ | 40,904 | (1) | $ | 1,289,904 | ||||||||||||||||
Warren
Clamen(3)
|
2009
|
$ | 356,806 | $ | 100,000 | $ | 1,235,494 | $ | - | $ | - | $ | - | $ | 18,000 | (2) | $ | 1,710,369 | ||||||||||||||||
Executive
Vice President and
|
2008
|
$ | 306,250 | $ | 50,000 | $ | 80,501 | $ | - | $ | - | $ | - | $ | 18,000 | (2) | $ | 454,751 | ||||||||||||||||
Chief Financial Officer |
2007
|
$ | 279,167 | $ | - | $ | 100,000 | $ | - | $ | - | $ | - | $ | 18,000 | (2) | $ | 397,167 | ||||||||||||||||
Andrew
Tarshis(3)
|
2009
|
$ | 356,806 | $ | 100,000 | $ | 1,235,494 | $ | - | $ | - | $ | - | $ | 18,000 | (2) | $ | 1,710,369 | ||||||||||||||||
Executive
Vice President
|
2008
|
$ | 306,250 | $ | 50,000 | $ | 80,501 | $ | - | $ | - | $ | - | $ | 18,000 | (2) | $ | 454,751 | ||||||||||||||||
and General Counsel |
2007
|
$ | 281,250 | $ | - | $ | 100,000 | $ | - | $ | - | $ | - | $ | 18,000 | (2) | $ | 399,250 | ||||||||||||||||
Yehuda
Shmidman(4)
|
2009
|
$ | 262,121 | $ | 216,667 | $ | 956,219 | $ | - | $ | - | $ | - | $ | 18,000 | (2) | $ | 1,453,007 | ||||||||||||||||
Executive
Vice President,
|
2008
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||||||||||
Operations |
2007
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||||||||||
David
Blumberg(5)
|
2009
|
$ | 400,000 | $ | - | $ | 453,915 | $ | 220,465 | $ | 500,000 | $ | - | $ | 18,000 | (2) | $ | 1,592,380 | ||||||||||||||||
Executive
Vice President,
|
2008
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||||||||||
Head of Strategic Development |
2007
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - |
Estimated Future Payouts Under
Non-Equity Incentive Plan Awards
|
Estimated Future Payouts Under
Equity Incentive Plan Awards
|
||||||||||||||||||||||||||||||||||||||||||||
Name
|
Grant
Date
|
Threshold
($) |
Target
($) |
Maximum
($)
|
Threshold
(#)
|
Target
(#)
|
Maximum
(#)
|
All Other
Stock
Awards:
Number
of Shares
of Stock
or Units
(#)
|
All Other
Option
Awards:
Number of
Securities
Underlying
Options
(#)
|
Exercise
or
Base Price
of Option
Awards
($/Sh)
($)
|
Closing
Price of
Common
Stock
Units on
Date of
Grant
($)
|
Grant
Date
Fair
Value of
Stock and
Option
Awards
|
|||||||||||||||||||||||||||||||||
Neil
Cole
|
8/13/09
|
- | - | - | 472,674 | 472,674 | - | - | - | - | 17.58 | $ | 8,309,609 | ||||||||||||||||||||||||||||||||
Warren
Clamen
|
6/5/09
|
- | - | - | - | - | - | 1,624 | - | - | 15.39 | $ | 24,993 | ||||||||||||||||||||||||||||||||
9/22/09
|
- | - | - | - | - | - | 70,542 | - | - | 17.16 | $ | 1,210,501 | |||||||||||||||||||||||||||||||||
Andrew
Tarshis
|
6/5/09
|
- | - | - | - | - | - | 1,624 | - | - | 15.39 | $ | 24,993 | ||||||||||||||||||||||||||||||||
9/22/09
|
- | - | - | - | - | - | 70,542 | - | - | 17.16 | $ | 1,210,501 | |||||||||||||||||||||||||||||||||
Yehuda
Shmidman
|
6/5/09
|
- | - | - | - | - | - | 2,166 | - | - | 15.39 | $ | 33,335 | ||||||||||||||||||||||||||||||||
11/18/09
|
- | - | - | - | - | - | 74,788 | - | - | 12.34 | $ | 922,884 | |||||||||||||||||||||||||||||||||
David
Blumberg
|
9/22/09
|
- | - | - | - | - | - | 15,000 | - | 17.16 | - | $ | 148,424 | ||||||||||||||||||||||||||||||||
10/30/09
|
- | - | - | - | - | - | 15,000 | - | 11.66 | - | $ | 72,041 | |||||||||||||||||||||||||||||||||
12/31/09
|
- | - | - | - | - | - | 35,826 | - | - | 12.67 | $ | 453,915 |
Annual Level of Targeted EBITDA Achieved
|
% of Base Salary
|
|
less
than 80%
|
0%
|
|
80%
(threshold)
|
50%
|
|
90%
|
75%
|
|
100%
(target)
|
100%
|
|
105%
|
110%
|
|
110%
|
122.5%
|
|
115%
|
135%
|
|
120%
or more (maximum)
|
150%
|
Option
Awards
|
Stock
Awards
|
|||||||||||||||||||||||||||||||||||||||
Number
of
Securities
Underlying
Unexercised
Options
Exerciseable
|
Number
of
Securities
Underlying
Unexercised
Options
Unexerciseable
|
Equity
Incentive
Plan
Awards:
Number
of
Securities
Underlying
Unexercised
Options
|
Option
Exercise
Price
|
Option
Expiration
Date
|
Number
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
|
Vesting
Date
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
|
Market
Value
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested
|
Equity
Incentive
Plan
Awards:
Market
or
Payout
Value
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested
|
|||||||||||||||||||||||||||||||
Name
|
(#)(a) | (#) | (#) |
($)
|
(#) |
($)
|
(#) |
($)
|
||||||||||||||||||||||||||||||||
Neil
Cole(1)
|
245,366 | - | - | $ | 1.25 |
8/18/2010
|
236,337 | (1) |
12/31/2010
|
$ | 2,994,390 | 157,558 | (2) | $ | 1,996,260 | |||||||||||||||||||||||||
76,500 | - | - | 2.30 |
10/26/2011
|
236,337 | (1) |
12/31/2011
|
2,994,390 | 157,558 | (2) | 1,996,260 | |||||||||||||||||||||||||||||
273,500 | - | - | 2.30 |
10/26/2011
|
236,337 |
12/31/2012
|
2,994,390 | 157,558 | (2) | 1,996,260 | ||||||||||||||||||||||||||||||
600,000 | - | - | 2.75 |
4/23/2012
|
- | - | - | 78,779 | 998,130 | |||||||||||||||||||||||||||||||
15,000 | - | - | 4.41 |
5/22/2012
|
- | - | - | 118,168 | 1,497,189 | |||||||||||||||||||||||||||||||
800,000 | - | - | 4.62 |
3/29/2015
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
200,000 | - | - | 10.00 |
12/28/2015
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
Warren
Clamen
|
60,000 | - | - | $ | 5.06 |
3/9/2015
|
2,982 |
4/11/2010
|
$ | 37,769 | - | - | ||||||||||||||||||||||||||||
50,000 | - | - | 10.00 |
2/28/2015
|
1,624 |
6/5/2010
|
20,576 | - | - | |||||||||||||||||||||||||||||||
- | - | - | - | - | 23,514 |
11/11/2010
|
297,922 | - | - | |||||||||||||||||||||||||||||||
- | - | - | - | - | 23,514 |
11/11/2011
|
297,922 | - | - | |||||||||||||||||||||||||||||||
Andrew
Tarshis
|
10,000 | - | - | $ | 8.81 |
7/22/2015
|
2,982 |
4/11/2010
|
$ | 37,769 | - | - | ||||||||||||||||||||||||||||
- | - | - | - | - | 1,624 |
6/5/2010
|
20,576 | - | - | |||||||||||||||||||||||||||||||
23,514 |
11/11/2010
|
297,922 | - | - | ||||||||||||||||||||||||||||||||||||
23,514 |
11/11/2011
|
297,922 | - | - | ||||||||||||||||||||||||||||||||||||
Yehuda
Shmidman
|
10,000 | - | - | $ | 8.58 |
10/31/2015
|
24,930 |
11/16/2010
|
$ | 315,863 | - | - | ||||||||||||||||||||||||||||
10,000 | - | - | 10.00 |
12/28/2015
|
24,930 |
11/16/2010
|
315,863 | - | - | |||||||||||||||||||||||||||||||
- | - | - | - | 24,929 |
11/16/2010
|
315,850 | - | - | ||||||||||||||||||||||||||||||||
2,166 |
6/5/2010
|
27,433 | ||||||||||||||||||||||||||||||||||||||
4,979 |
4/11/2010
|
63,084 | ||||||||||||||||||||||||||||||||||||||
David
Blumberg (3)
|
30,000 | - | - | $ | 20.18 |
3/9/2017
|
- | - | - | - | - | |||||||||||||||||||||||||||||
55,000 | - | - | 20.40 |
3/30/2017
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
55,000 | - | - | 23.66 |
10/3/2017
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
30,000 | - | - | 20.02 |
12/17/2017
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
20,000 | - | - | 6.65 |
10/2/2018
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
15,000 | - | - | 17.16 |
9/22/2019
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
15,000 | - | - | 11.66 |
10/30/2019
|
- | - | - | - | - | |||||||||||||||||||||||||||||||
15,000 | - | - | 11.66 |
10/30/2019
|
- |
(1)
|
Mr.
Cole was granted 1,181,684 RSUs, and 571,150 performance-based restricted
common stock units, or PSUs, on February 19, 2008 pursuant to his
employment agreement with us. On December 24, 2008, Mr. Cole agreed, in an
amendment to his employment agreement, to defer the issuance of 1,181,684
shares of common stock underlying the RSUs until the earlier of (i) the
date Mr. Cole is no longer employed by either (a) us or (b) any
corporation or other entity owning, directly or indirectly, 50% or more of
our outstanding common stock, or in which we or any such corporation or
other entity owns, directly or indirectly, 50% or more of the outstanding
capital stock (determined by aggregate voting rights) or other voting
interests or (ii) a change in control (as defined in the employment
agreement). In consideration of Mr. Cole’s agreement to delay the
distribution to him of such shares of our common stock to which he will be
entitled to receive under the RSUs as noted above, the agreement also
provided for the award to Mr. Cole of an annual cash bonus to be granted
under our executive incentive bonus plan, in the amount equal to $500,000
for each of the four completed calendar years commencing with the calendar
year from January 1, 2009 through December 31, 2009, and ending with the
calendar year from January 1, 2012 through December 31, 2012 if either one
of two performance measures specified in the agreement have been
satisfied. The 1,181,684 RSUs continue to vest in five substantially equal
installments on each December 31st, beginning on December 31, 2008 and
subject to Mr. Cole’s continuous employment with us, although the delivery
of the shares underlying such RSUs has been deferred as described
above.
|
(2)
|
As
noted above, Mr. Cole was granted 1,181,684 RSUs and 571,150 PSUs on
February 19, 2008 pursuant to his employment agreement with us. On May 21,
2008, Mr. Cole entered into an agreement with us that provided for the
rescission of 256,034 of the previously granted 571,150 PSUs, which
rescinded PSUs were then added to 216,639 additional PSUs was entitled to
under his employment agreement(a total of 472,673 PSUs). These 472,673
PSUs were granted to Mr. Cole in
2009.
|
(3)
|
At
December 31, 2009 Mr. Blumberg had been awarded 35,826 of 107,476 shares
of common stock issuable under his employment agreement. All of the 35,826
shares vested on such date.
|
Name
|
Number
of
Securities
Underlying
Unvested
Restricted
Stock
|
Number
of
Securities
Underlying
Unexercised
Options
Exerciseable
|
Grant
Date
|
Vesting
Date
|
|||||||
(#)
|
(#)
|
||||||||||
Neil
Cole
|
- | 245,366 |
8/18/2000
|
8/18/2000
|
|||||||
- | 76,500 |
10/26/2001
|
10/26/2001
|
||||||||
- | 273,500 |
10/26/2001
|
10/26/2001
|
||||||||
- | 200,000 |
4/23/2002
|
2/1/2003
|
||||||||
- | 200,000 |
4/23/2002
|
2/1/2004
|
||||||||
- | 200,000 |
4/23/2002
|
2/1/2005
|
||||||||
- | 15,000 |
5/22/2002
|
5/22/2002
|
||||||||
- | 800,000 |
3/29/2005
|
3/29/2005
|
||||||||
- | 200,000 |
12/28/2005
|
12/28/2005
|
||||||||
236,337 | - |
1/28/2008
|
12/31/2009
|
||||||||
39,390 | - |
1/28/2008
|
12/31/2009
|
||||||||
78,779 | - |
1/28/2008
|
12/31/2012
|
||||||||
236,337 | - |
8/13/2009
|
12/31/2010
|
||||||||
236,337 | - |
8/13/2009
|
12/31/2011
|
||||||||
236,337 | - |
8/13/2009
|
12/31/2012
|
||||||||
118,168 | - |
8/13/2009
|
12/31/2012
|
||||||||
157,558 | - |
8/13/2009
|
12/31/2010
|
||||||||
157,558 | - |
8/13/2009
|
12/31/2011
|
||||||||
157,558 | - |
8/13/2009
|
12/31/2012
|
||||||||
Warren
Clamen
|
- | 60,000 |
3/9/2005
|
6/1/2005
|
|||||||
- | 50,000 |
12/28/2005
|
12/28/2005
|
||||||||
2,982 | - |
4/11/2008
|
4/11/2010
|
||||||||
1,624 | - |
6/5/2009
|
6/5/2010
|
||||||||
23,514 | - |
9/22/09
|
11/10/2010
|
||||||||
23,514 | - |
9/22/09
|
11/10/2011
|
||||||||
Andrew
Tarshis
|
- | 10,000 |
7/22/2005
|
7/22/2005
|
|||||||
2,982 | - |
4/11/2008
|
4/11/2010
|
||||||||
1,624 | - |
6/5/2009
|
6/5/2010
|
||||||||
23,514 | - |
9/22/09
|
11/10/2010
|
||||||||
23,514 | - |
9/22/09
|
11/10/2011
|
||||||||
Yehuda
Shmidman
|
- | 10,000 |
10/31/2005
|
10/31/2005
|
|||||||
- | 10,000 |
12/28/2005
|
12/28/2005
|
||||||||
4,979 | - |
4/11/2008
|
4/11/2010
|
||||||||
2,166 | - |
6/5/2009
|
6/5/2010
|
||||||||
24,930 | - |
11/17/2009
|
11/16/2010
|
||||||||
24,929 | - |
11/17/2009
|
11/16/2011
|
||||||||
24,929 | - |
11/17/2009
|
11/16/2011
|
||||||||
David
Blumberg
|
- | 30,000 |
3/9/2007
|
3/9/2007
|
|||||||
- | 55,000 |
3/30/2007
|
3/30/2007
|
||||||||
- | 55,000 |
10/3/2007
|
10/3/2007
|
||||||||
- | 30,000 |
12/17/2007
|
12/17/2007
|
||||||||
- | 20,000 |
10/2/2008
|
10/2/2008
|
||||||||
- | 15,000 |
9/22/2009
|
9/22/2009
|
||||||||
- | 15,000 |
10/30/2009
|
10/30/2009
|
||||||||
35,826 |
12/31/2009
|
12/31/2009
|
Number
of
Shares
Acquired
on
Exercise(2)
|
Value
Realized
on
Exercise(1)
|
Number
of
Shares
Acquired
on
Vesting
|
Value
Realized
on
Vesting
|
|||||||||||||
Name
|
(#)
|
($)
|
(#)
|
($)
|
||||||||||||
Neil
Cole
|
361,759 | $ | 5,021,419 | 236,337 | (3) | $ | 2,994,390 | |||||||||
39,390 | (3) | 499,071 | ||||||||||||||
Warren
Clamen
|
- | - | 2,981 | $ | 32,880 | |||||||||||
- | - | 23,514 | 284,990 | |||||||||||||
Andrew
Tarshis
|
- | - | 2,981 | $ | 32,880 | |||||||||||
6,154 | 105,603 | |||||||||||||||
- | - | 23,514 | 284,990 | |||||||||||||
Yehuda
Shmidman
|
5,000 | $ | 28,250 | 4,979 | $ | 54,918 | ||||||||||
5,000 | 28,000 | 5,875 | 70,559 | |||||||||||||
David
Blumberg
|
- | - | 35,826 | $ | 453,915 |
|
(1)
|
Included
in this column is the aggregate dollar amount realized by the named
executive officer upon exercise of the
options.
|
|
(2)
|
The
number of shares reflects the gross amount issued upon the exercise of the
options and does not give effect to the withholding of a portion of the
shares by the Company to satisfy certain withholding tax liability of the
person exercising the options.
|
|
(3)
|
Includes
236,337 shares of common stock underlying RSU’s that vested on December
31, 2009 and 39,390 shares of common stock underlying PSU’s that were
deemed earned by the compensation committee for the year ended December
31, 2009 as more fully discussed in footnote 2 to the table of Outstanding
Equity Awards at Fiscal Year-End. The delivery of the 236,337 shares of
common stock underlying the RSU’s was deferred, as more fully discussed in
footnote 1 to the table of Outstanding Equity Awards at Fiscal
Year-End.
|
Covenant
|
Neil
Cole
|
Warren
Clamen
|
Andrew
Tarshis
|
Yehuda
Shidman
|
David
Blumberg
|
|||||
Confidentiality
|
Infinite
duration
|
Infinite
duration
|
Infinite
duration
|
Infinite
duration
|
Infinite
duration
|
|||||
Non-solicitation
|
Two
years
|
Three
years(1)
|
Three
years(1)
|
Three
years(1)
|
Two
years(3)
|
|||||
Non-competition
|
One
year
|
Two
years(1)
|
Two
years(1)
|
Three
years(1)
|
Three
years(3)
|
|||||
Non-interference
|
(2)
|
Three
years(1)
|
Three
years(1)
|
Three
years(1)
|
Two
years(3)
|
|||||
Non-disparagement
|
Five
years
|
None
|
None
|
None
|
None
|
(1)
|
Covenant
runs from the date of the executive’s current employment
agreement.
|
(2)
|
Mr.
Cole’s employment agreement with us provides that during the term and a
period of (i) two years thereafter, Mr. Cole cannot solicit our employees
and (ii) one year thereafter, Mr. Cole cannot solicit our
customers.
|
(3)
|
Covenant
runs from the date the executive’s employment is
terminated.
|
Estimated
Amount of Termination Payment to:
|
||||||||||||||||||||||
Type
of Payment
|
Termination
Event
|
Neil
Cole(1)
|
Warren
Clamen
|
Andrew
Tarshis
|
Yehuda
Shmidman
|
David
Blumberg
|
||||||||||||||||
Payment
of earned but unpaid salary, unreimbursed expense, and accrued
but unused vacation time (2)
|
Termination
for Cause or by executive without Good Reason
|
none
|
none
|
none
|
none
|
none
|
||||||||||||||||
Earned
but unpaid bonuses (2)
|
Termination
without Cause or by executive for Good Reason, death or
disability
|
none
|
none
|
none
|
none
|
none
|
||||||||||||||||
Lump
Sum Severance Payment
|
Termination
without Cause or by executive for Good Reason
|
$ | 4,500,000 | (3) | $ | 744,110 | (4) | $ | 744,110 | (4) | $ | 1,036,644 | (4) | 800,000 | (4) | |||||||
Pro
rata portion of current year bonuses
|
Death,
termination without Cause, or termination by executive for Good
Reason
|
$ | none | (6) |
none
|
(5) |
none
|
(5) |
none
|
(5) |
none
|
(6) | ||||||||||
Continued
coverage under medical, dental, hospitalization and life insurance
plans
|
Death,
termination without Cause, or termination by executive for Good
Reason
|
$ | 45,815 | $ | 1,112 | $ | 38,939 | 38,669 | 39,074 |
Cash
Severance
Payment
|
Continuation
of
Medical/Welfare
Benefits
(Present
Value)
|
Present
Value
of
Accelerated
Vesting
of
Equity
Awards
|
Present
Value
of
Accelerated
Payment
of
Bonus
|
Total
Termination
Benefits
|
||||||||||||||||
Name
|
($)(1)
|
($)
|
($)(1)
|
($)
|
($)
|
|||||||||||||||
Neil
Cole
|
$ | 6,149,000 | (2) | $ | 39,741 | $ | 3,805,802 | $ | - | $ | 9,994,543 | |||||||||
Warren
Clamen
|
2,602,298 | (3) | 1,085 | 81,838 | - | 2,685,221 | ||||||||||||||
Andrew
Tarshis
|
2,029,854 | (4) | 33,705 | 81,838 | - | 2,145,397 | ||||||||||||||
Yehuda
Shmidman
|
2,202,906 | (5) | 33,705 | 241,885 | - | 2,478,496 | ||||||||||||||
David
Blumberg
|
1,999,900 | (6) | 33,705 | 583,595 | - | 2,617,200 |
(1)
|
This
amount represents the unrealized value of the unvested portion of the
respective named executive officer’s restricted stock based upon the
closing price of our common stock on December 31,
2009.
|
(2)
|
Payable
within 60 days of termination.
|
(3)
|
$745,205
is payable within 30 days of termination. The difference is due within 15
days of termination
|
(4)
|
$745,205
is payable within 30 days of termination. The difference is due within 15
days of termination.
|
(5)
|
$1,082,808
is payable within 30 days of termination. The difference is due within 15
days of termination.
|
(6)
|
$
800,000 is payable within 30 days of termination. The difference is due
within 15 days of termination.
|
Name
|
Fees
Earned
or
Paid
in
Cash
($)
|
Stock
Awards
($) (1)(2)
|
Option
Awards
($) (2)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
Change
in
Pension
Value
and
Nonqualified
Deferred
Compensation
Earnings
|
All
Other
Compensation
($)
|
Total
($)
|
|||||||||||||||||||||
Barry
Emanuel
|
40,000 | 38,240 | — | — | — | — | 78,240 | |||||||||||||||||||||
Steven
Mendelow
|
55,000 | 38,240 | — | — | — | — | 93,240 | |||||||||||||||||||||
Drew
Cohen
|
50,000 | 38,240 | — | — | — | — | 88,240 | |||||||||||||||||||||
F.
Peter Cuneo
|
40,000 | 38,240 | — | — | — | — | 78,240 | |||||||||||||||||||||
Mark
Friedman
|
50,000 | 38,240 | — | — | — | — | 88,240 | |||||||||||||||||||||
James
A. Marcum
|
40,000 | 38,240 | — | — | — | — | 78,240 |
(1)
|
Represents
the aggregate grant date fair value. See Note 6 to Notes to the
Consolidated Financial Statements included in our Annual Report on Form
10-K for a discussion for the relevant assumptions used in calculating
grant date fair value.
|
(2)
|
At
December 31, 2009 Mr. Marcum had 3,515 shares of restricted stock that had
not vested. In addition, at December 31, 2009 our non-employee directors
owned the following unexercised options - Drew Cohen 50,000; Barry Emanuel
- 191,173; and Steven Mendelow -
100,250.
|
Name
and Address of Beneficial Owner
|
Number
of
Shares
of
Common
Stock
Beneficially
Owned
|
Percentage
of Company’s
Outstanding
Common
stock
Beneficially Owned
|
||||
Neil
Cole
|
2,821,209
|
(1)
|
3.8
|
% | ||
Warren
Clamen
|
135,138
|
(2)
|
*
|
|||
Andrew
Tarshis
|
32,870
|
(3)
|
*
|
|||
Yehuda
Shmidman
|
25,719
|
(4)
|
*
|
|||
David
Blumberg
|
260,842
|
(5)
|
*
|
|||
Barry
Emanuel
|
209,529
|
(6)
|
*
|
|||
Steven
Mendelow
|
154,214
|
(7)
|
*
|
|||
Drew
Cohen
|
75,158
|
(8)
|
*
|
|||
F.
Peter Cuneo
|
119,776
|
*
|
||||
Mark
Friedman
|
34,140
|
*
|
||||
James
A. Marcum
|
26,320
|
*
|
||||
Baron
Capital Group, Inc.
767
Fifth Avenue
New
York, NY 10153
|
3,750,000
|
(9)
|
5.2
|
% | ||
FMR
LLC
82
Devonshire Street
Boston,
MA 02109
|
10,738,131
|
(10)
|
14.8
|
% | ||
Black
Rock Inc.
40
East 52nd
Street
New
York, NY 10022
|
6,339,529
|
(11)
|
8.7
|
% | ||
Neuberger
Berman Group LLC
Neuberger
Berman LLC
605
Third Avenue
New
York, NY 10158
|
4,779,687
|
(12)
|
6.6
|
% | ||
All
directors and executive officers as a group (11 persons)
|
3,894,915
|
(13)
|
5.2
|
% |
*
|
Less
than 1%
|
(1)
|
Includes
(i) 2,210,366 shares of common stock issuable upon exercise of options
(ii) 472,674 shares of common stock underlying restricted common stock
units that have vested but the delivery of which Mr. Cole has
agreed to defer and (iii) 20,000 shares of common stock owned by Mr.
Cole’s children. Does not include (i) shares held in Mr. Cole’s account
under the Company’s 401(k) savings plan over which Mr. Cole has no current
voting or investment power or (ii) 709,010 shares of common stock
underlying restricted common stock units that have not vested, the
delivery of which Mr. Cole has agreed to
defer.
|
(2)
|
Includes
110,000 shares of common stock issuable upon exercise of
options.
|
(3)
|
Includes
10,000 shares of common stock issuable upon exercise of
options.
|
(4)
|
Includes
20,000 shares of common stock issuable upon exercise of
options.
|
(5)
|
Includes
(i) 45,000 shares of common stock issuable upon exercise of options owned
by Mr. Blumberg, (ii) 190,000 shares of common stock issuable upon
exercise of options owned by Blumberg Associates, LLC, and (iii) 16,000
shares owned by Blumberg Associates, LLC. Mr. Blumberg has
voting and investment control over securities of the Company owned by
Blumberg Associates, LLC.
|
(6)
|
Includes
191,173 shares of common stock issuable upon exercise of
options.
|
(7)
|
Includes
50,000 shares of common stock issuable upon exercise of options and 60,750
shares of common stock owned by C&P Associates, with which Mr.
Mendelow and his wife are affiliated and over whose securities they
exercise shared voting and investment
control.
|
(8)
|
Includes
50,000 shares of common stock issuable upon exercise of
options.
|
(9)
|
Baron
Capital Group, Inc. (“BCG”) is deemed to have beneficial ownership of
these shares, which are held by BCG or entities that it controls. BCG and
Ronald Baron disclaim beneficial ownership of the shares held by their
controlled entities (or the investment advisory clients thereof) to the
extent that persons other than BCG and Ronald Baron hold such shares.
BAMCO, Inc. disclaims beneficial ownership of shares held by its
investment advisory clients to the extent such shares are held by persons
other than BAMCO, Inc. and its affiliates. The information provided is
based upon Schedule 13G filed by BCG and its affiliates: Bamco, Inc.;
Baron Small Cap Fund; and Ronald Baron, as amended on February 4,
2010.
|
(10)
|
According
to an amendment to a Schedule 13G filed on February 16, 2010, Fidelity
Management & Research Company, herein referred to as Fidelity, 82
Devonshire Street, Boston, Massachusetts 02109, a wholly-owned subsidiary
of FMR LLC and an investment adviser registered under Section 203 of the
Investment Advisers Act of 1940, at December 31, 2009 was the beneficial
owner of 7,423,420 shares of our common stock as a result of
acting as investment adviser to various investment companies registered
under Section 8 of the Investment Company Act of 1940. The number of
shares of our common stock owned by the investment companies at December
31, 2009 included 297,533 shares of common stock resulting from the
assumed conversion of $8,200,000 principal amount of our 1.875%
convertible senior subordinated notes (36.2845 shares of common stock for
each $1,000 principal amount of convertible notes). Edward C. Johnson 3d
and FMR LLC, through its control of Fidelity, and the funds each has sole
power to dispose of the 7,423,420 shares owned by the funds. Members of
the family of Edward C. Johnson 3d, Chairman of FMR LLC, are the
predominant owners, directly or through trusts, of Series B voting common
shares of FMR LLC, representing 49% of the voting power of FMR LLC. The
Johnson family group and all other Series B shareholders have entered into
a shareholders’ voting agreement under which all Series B voting common
shares will be voted in accordance with the majority vote of Series B
voting common shares. Accordingly, through their ownership of voting
common shares and the execution of the shareholders’ voting agreement,
members of the Johnson family may be deemed, under the Investment Company
Act of 1940, to form a controlling group with respect to FMR LLC. Neither
FMR LLC nor Edward C. Johnson 3d, Chairman of FMR LLC, has the sole power
to vote or direct the voting of the shares owned directly by the Fidelity
Funds, which power resides with the Funds’ Boards of Trustees. Fidelity
carries out the voting of the shares under written guidelines established
by the Funds’ Boards of Trustees. Pyramis Global Advisors, LLC, herein
referred to as PGALLC, 900 Salem Street, Smithfield, RI, 02917, an
indirect wholly-owned subsidiary of FMR LLC and an investment adviser
registered under Section 203 of the Investment Advisers Act of 1940, is
the beneficial owner of 189,310 shares of our outstanding common stock as
a result of its serving as investment adviser to institutional accounts,
non-U.S. mutual funds, or investment companies registered under Section 8
of the Investment Company Act of 1940 owning such shares. Edward C.
Johnson 3d and FMR LLC, through its control of PGALLC, each has sole
dispositive power over 61,873 shares and sole power to vote or to direct
the voting of 189,310 shares of our common stock owned by the
institutional accounts or funds advised by PGALLC as reported above.
Pyramis Global Advisors Trust Company, herein referred to as PGATC, 900
Salem Street, Smithfield, RI, 02917, an indirect wholly-owned subsidiary
of FMR LLC and a bank as defined in Section 3(a)(6) of the Securities
Exchange Act of 1934, as amended, or Exchange Act, is the beneficial owner
of 659,051 shares of our common stock as a result of its serving as
investment manager of institutional accounts owning such
shares. Edward C. Johnson 3d and FMR LLC, through its control
of PGATC, each has sole dispositive power over 659,051 shares and sole
power to vote or to direct the voting of 659,051 shares of our common
stock owned by the institutional accounts managed by PGATC as reported
above. FIL Limited, herein referred to as FIL, Pembroke Hall, 42 Crow
Lane, Hamilton, Bermuda, and various foreign-based subsidiaries provide
investment advisory and management services to a number of non-U.S.
investment companies and certain institutional investors. FIL, which is a
qualified institution under section 240.13d-1(b)(1) (ii), is the
beneficial owner of 2,466,350 shares of our common stock. The number of
shares of our common stock owned by the institutional account(s) at
December 31, 2009 included 754,717 shares of common stock resulting from
the assumed conversion of $20,800,000 principal amount of our 1.875%
convertible senior subordinated notes (36.2845 shares of common stock for
each $1,000 principal amount of convertible
note). Partnerships controlled predominantly by members
of the family of Edward C. Johnson 3d, Chairman of FMR LLC and FIL, or
trusts for their benefit, own shares of FIL voting stock with the right to
cast approximately 47% of the total votes which may be cast by all holders
of FIL voting stock. FMR LLC and FIL are separate and independent
corporate entities, and their Boards of Directors are generally composed
of different individuals. FMR LLC and FIL are of the view that they are
not acting as a “group” for purposes of Section 13(d) under the Exchange
Act and that they are not otherwise required to attribute to each other
the “beneficial ownership” of securities “beneficially owned” by the other
corporation within the meaning of Rule 13d-3 promulgated under the
Exchange Act. Therefore, they are of the view that the shares held by the
other corporation need not be aggregated for purposes of Section 13(d).
FMR LLC filed the amendment to the Schedule 13G on a voluntary basis as if
all of the shares are beneficially owned by FMR LLC and FIL on a joint
basis.
|
(11)
|
On
December 1, 2009, Black Rock, Inc. completed its acquisition of Barclays
Global Investors, NA, herein referred to as Barclays
Capital. The reported amounts include shares of our common
stock beneficially owned by Barclays Capital and certain of its
affiliates. The information is based upon a Schedule 13G filed January 29,
2010 by Black Rock, Inc.
|
(12)
|
According
to the Schedule 13G filed on February 17, 2010 by Neuberger
Berman Group LC and Neuberger Berman LLC, Neuberger Berman Group LLC may
be deemed to be a beneficial owner of these securities for purposes of
Rule 13d-3 because certain affiliated persons have shared power to retain
or dispose of the securities of many unrelated clients. Neuberger Berman
Group LLC or its affiliated persons do not, however, have any economic
interest in the securities of those clients. The clients are the actual
owners of the securities and have the sole right to receive and the power
to direct the receipt of dividends from or proceeds from the sale of such
securities. No one client has an interest of more than 5% of
Iconix.
|
(13)
|
Includes
(i) 2,861,539 shares of common stock issuable upon exercise of options and
(ii) 472,674 shares underlying restricted stock and restricted stock unit
awards described in footnote (1)
above.
|
Plan
Category
|
Number
of
securities
to be
issued
upon exercise
of
outstanding
options,
warrants
and rights
(a)
|
Weighted-average
exercise
price of
outstanding
options,
warrants
and rights
(b)
|
Number
of securities
remaining
available for
issuance
under equity
compensation
plans
(excluding
securities
reflected
in column (a))
(c)
|
|||||||||
Equity
compensation plans approved by security holders:
|
2,320,479 | $ | 5.68 | 2,250,651 | ||||||||
Equity
compensation plans not approved by security holders::
(1)
|
1,060,500 | $ | 5.24 | — | ||||||||
Total
|
3,380,979 | $ | 5.54 | 2,250,631 |
(1)
|
Represents
the aggregate number of shares of common stock issuable upon exercise of
individual arrangements with option and warrant holders, including 460,500
options issued under the terms of our 2001 Stock Option Plan. These
options and warrants are up to three years in duration, expire at various
dates through December 28, 2015, contain anti-dilution provisions
providing for adjustments of the exercise price under certain
circumstances and have termination provisions similar to options granted
under stockholder approved plans. See Note 6 of Notes to Consolidated
Financial Statements in our Form 10-K for the year ended December 31, 2009
for a description of our stock option and stock incentive
plans.
|
THE
AUDIT COMMITTEE
|
|
Steven
Mendelow, Chairperson
|
|
Drew
Cohen
|
|
F.
Peter Cuneo
|
|
James
A. Marcum
|
By
order of the Board of Directors,
|
|
Neil
Cole,
|
|
Chairman
of the Board,
|
|
President
and Chief Executive Officer
|
VOTE
BY INTERNET OR TELEPHONE
|
||
QUICK ★ ★ ★ EASY ★ ★ ★ IMMEDIATE
|
|
||||||||||
Vote Your Proxy on the
Internet:
|
Vote Your Proxy by Phone:
|
Vote Your Proxy by Mail:
|
||||||||
Call
1 (866) 894-0537
|
||||||||||
Go to
www.continentalstock.com
Have
your proxy card available when you access the above website. Follow the
prompts to vote your shares.
|
OR
|
Use
any touch-tone telephone to vote your proxy. Have your proxy card
available when you call. Follow the voting instructions to vote your
shares.
|
OR
|
Mark,
sign, and date your proxy card, then detach it, and return it in
the postage-paid envelope provided.
|
PLEASE
DO NOT RETURN THE PROXY CARD IF YOU ARE
|
||
VOTING
ELECTRONICALLY OR BY PHONE
|
||
THIS
PROXY WILL BE VOTED IN ACCORDANCE WITH THE INSTRUCTIONS GIVEN. IF NO
INSTRUCTIONS ARE GIVEN, THIS PROXY WILL BE VOTED FOR THOSE NOMINEES
IN PROPOSAL 1 AND THE OTHER PROPOSAL LISTED BELOW. THE BOARD OF DIRECTORS
RECOMMENDS A VOTE FOR NOMINEES
LISTED IN PROPOSAL 1 AND FOR PROPOSAL
2.
|
ALL
THE
|
Please
mark
your
votes
like
this
|
x |
FOR all
nominees listed
|
WITHHOLD
AUTHORITY
|
||||||
below
(except as indicated
|
to
vote for all nominees
|
||||||
to
the contrary)
|
listed
below
|
||||||
FOR
|
AGAINST
|
ABSTAIN
|
|||||
1. Election of Directors:
|
o
|
o
|
2.
Ratification of the appointment of BDO Seidman, LLP as the Company’s
independent registered public accountants for the fiscal year ending
December 31, 2010.
|
o
|
o
|
o
|
|
01.
Neil Cole, 02. Barry Emanuel, 03. Steven Mendelow, 04. Drew
Cohen, 05. F. Peter Cuneo, 06. Mark Friedman and 07. James A.
Marcum
|
|||||||
(INSTRUCTION:
To withhold authority to vote for any individual nominee, write that
nominee’s name in the space below)
|
3.
In their discretion, the Proxies are authorized to vote upon such
other business as may properly come before the
meeting.
|
||||||
|
COMPANY
ID:
|
|
PROXY
NUMBER:
|
|
ACCOUNT
NUMBER:
|
Signature
|
Signature,
if held jointly
|
Date
|
,
2010.
|