WILHELMINA
INTERNATIONAL, INC.
200
Crescent Court, Suite 1400
Dallas,
Texas 75201
May 7,
2009
Dear
Stockholder:
You are
invited to attend the 2009 Annual Meeting of Stockholders (the “Annual Meeting”)
of Wilhelmina International, Inc. The Annual Meeting will be held on
June 4, 2009, at 9:00 a.m. local time, at our offices located at 200 Crescent
Court, Suite 1400, Dallas, Texas, or at any adjournment or postponement
thereof.
This
year, you are being asked to act upon the following matters: (i) the election of
seven directors to serve until our 2010 Annual Meeting of Stockholders and until
their respective successors are duly elected and qualified; and (ii) the
approval and adoption of the 2009 Incentive Stock Plan. These matters
are discussed in greater detail in the attached Notice of Annual Meeting of
Stockholders and Proxy Statement.
Your vote is important regardless of
the number of shares you own. Whether or not you plan to attend the
Annual Meeting, please sign, date and return the enclosed proxy card as soon as
possible in the prepaid envelope provided. Submitting your
proxy now will not prevent you from voting your shares in person at the Annual
Meeting if you desire to do so, as your proxy is revocable at your option before
it is exercised at the Annual Meeting.
On behalf
of the Board of Directors, I would like to express our appreciation for your
continued interest in Wilhelmina International, Inc. We look forward
to seeing you at the Annual Meeting.
Sincerely,
Mark E.
Schwarz
Chairman
of the Board
and
Chief Executive Officer
WILHELMINA
INTERNATIONAL, INC.
200
Crescent Court, Suite 1400
Dallas,
Texas 75201
_________________________________
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
May 7,
2009
To the
Stockholders of Wilhelmina International, Inc.:
NOTICE IS
HEREBY GIVEN that the 2009 Annual Meeting of Stockholders (the “Annual Meeting”)
of Wilhelmina International, Inc., a Delaware corporation, will be held on June
4, 2009, at 9:00 a.m. local time, at our offices located at 200 Crescent Court,
Suite 1400, Dallas, Texas 75201, or at any adjournment or postponement
thereof. You are cordially invited to attend the Annual Meeting,
which will be held for the following purposes:
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1.
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to
elect seven directors to our Board of Directors to serve until the 2010
Annual Meeting of Stockholders and until their successors are duly elected
and qualified;
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2.
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to
consider and vote upon a proposal to approve and adopt the 2009 Incentive
Stock Plan; and
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3.
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to
consider such other business as may properly be brought before the Annual
Meeting.
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These
items of business are described in the attached Proxy Statement, which we
encourage you to read in its entirety before voting. Only holders of
record of our common stock at the close of business on May 5, 2009 are entitled
to notice of the Annual Meeting and to vote and have their votes counted at the
Annual Meeting.
A
complete list of our stockholders of record entitled to vote at the Annual
Meeting will be available for 10 days before the Annual Meeting at our principal
executive offices for inspection by stockholders during ordinary business hours
for any purpose germane to the Annual Meeting.
Your vote is important regardless of
the number of shares you own. Whether or not you plan to attend the
Annual Meeting, please sign, date and return the enclosed proxy card as soon as
possible in the prepaid envelope provided. Submitting your
proxy now will not prevent you from voting your shares in person at the Annual
Meeting if you desire to do so, as your proxy is revocable at your option before
it is exercised at the Annual Meeting.
Thank you
for your participation. We look forward to your continued
support.
By Order
of the Board of Directors
Mark E.
Schwarz
Chairman
of the Board
and
Chief Executive Officer
Important
Notice Regarding the Availability of Proxy Materials for the Wilhelmina
International,
Inc. 2009 Annual Meeting of Stockholders to be Held on June 4, 2009
The
Proxy Statement and 2008 Annual Report on Form 10-K are available
at
www.wilhelmina.com/investorrelations.cfm
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WILHELMINA
INTERNATIONAL, INC.
200
Crescent Court, Suite 1400
Dallas,
Texas 75201
_________________________________
PROXY
STATEMENT
This
Proxy Statement is furnished by the Board of Directors (the “Board”) of
Wilhelmina International, Inc., a Delaware corporation (the “Company,” “we,”
“our” or “us”), in connection with the Board’s solicitation of proxies for use
at the 2009 Annual Meeting of Stockholders (the “Annual Meeting”) to be held on
June 4, 2009, at 9:00 a.m. local time, at the Company’s offices located at 200
Crescent Court, Suite 1400, Dallas, Texas 75201, or at any adjournment or
postponement thereof. This Proxy Statement, along with either a proxy
card or a voting instruction card, is being mailed to stockholders beginning on
or around May 7, 2009.
QUESTIONS AND ANSWERS ABOUT THE ANNUAL MEETING AND
VOTING
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Q:
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Why
did I receive this Proxy Statement?
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A:
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The
Board of Directors is soliciting your proxy to vote at the Annual Meeting
because you were a stockholder at the close of business on Tuesday, May 5,
2009 (the “Record Date”), and are entitled to vote at the Annual
Meeting.
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This
Proxy Statement summarizes the information you need to know to vote at the
Annual Meeting. You do not need to attend the Annual Meeting to
vote your shares.
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Q:
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What
information is contained in this Proxy
Statement?
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A:
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The
information in this Proxy Statement relates to the proposals to be voted
on at the Annual Meeting, the voting process, the compensation of
directors and certain executive officers, and certain other required
information.
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Q:
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What
am I voting on at the Annual
Meeting?
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A:
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You
are voting on the following
matters:
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·
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the
election of seven directors to the Board to serve until the 2010 Annual
Meeting of Stockholders and until their successors are duly elected and
qualified;
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·
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the
approval and adoption of the 2009 Incentive Stock Plan;
and
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·
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the
consideration of such other business as may properly be brought before the
Annual Meeting.
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A
majority of the Board recommends a vote “FOR” the election of each of the
director nominees and “FOR” the approval and adoption of the 2009 Incentive
Stock Plan.
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Q:
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What
are the voting requirements to approve each of the
proposals?
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A:
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A
plurality of the total votes cast by the stockholders entitled to vote and
represented at the Annual Meeting is required for the election of
directors, meaning the seven nominees who receive the most votes will be
elected. You may withhold votes from any or all
nominees. Except for the votes that stockholders of record
withhold from any or all nominees, the persons named in the proxy card
will vote “FOR” the nominees.
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The
affirmative vote of a majority of the votes cast by the stockholders entitled to
vote and represented at the Annual Meeting is required to approve and adopt the
2009 Incentive Stock Plan.
Your
broker, bank or nominee cannot vote your shares on any proposal unless you
provide instructions on how to vote in accordance with the information and
procedures provided to you by your broker, bank or nominee. If you
hold shares beneficially in street name and do not provide your broker with
voting instructions, your shares may constitute “broker
non-votes.” Abstentions and broker non-votes (withhold votes in the
case of the election of directors) will be considered present for the purposes
of establishing a quorum, but will have no effect on the election of directors
and will have the same effect as a vote against the approval and adoption of the
2009 Incentive Stock Plan.
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Q:
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How
many votes do I have?
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A:
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You
are entitled to one vote for each share of the Company’s common stock
(“Common Stock”) that you hold. As of the Record Date, there
were 129,440,752 shares of Common Stock issued and
outstanding.
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A:
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You
may vote using any of the following
methods:
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·
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Proxy card or voting
instruction card. Be sure to complete, sign and date the
card and return it in the prepaid envelope. If you are a
stockholder of record and you return your signed proxy card but do not
indicate your voting preferences, the persons named in the proxy card will
vote “FOR” the election of each of the nominees, “FOR” the approval and
adoption of the 2009 Incentive Stock Plan and in the discretion of the
proxy holders, John P. Murray and Evan Stone, on such other business as
may properly be brought before the Annual
Meeting.
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·
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In person at the Annual
Meeting. All stockholders may vote in person at the
Annual Meeting. You may also be represented by another person
at the Annual Meeting by executing a proper proxy designating that
person. If you are a beneficial owner of shares, you must
obtain a legal proxy from your broker, bank or nominee and present it to
the inspectors of election with your ballot when you vote at the Annual
Meeting.
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Q:
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What
can I do if I change my mind after I vote my
shares?
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A:
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If
you are a stockholder of record, you may revoke your proxy at any time
before it is voted at the Annual Meeting
by:
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·
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sending
written notice of revocation to the Company’s Corporate
Secretary;
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·
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submitting
a new, proper proxy dated later than the date of the revoked proxy;
or
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·
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attending
the Annual Meeting and voting in
person.
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If you
are a beneficial owner of shares, you may submit new voting instructions by
contacting your broker, bank or nominee. You may also vote in person
at the Annual Meeting if you obtain a legal proxy as described in the answer to
the previous question. Attendance at the Annual Meeting will not, by
itself, revoke a proxy.
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Q:
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What
happens if a director nominee does not stand for
election?
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A:
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If
for any reason any nominee does not stand for election, any proxies we
receive will be voted in favor of the remainder of the nominees and may be
voted for substitute nominees in place of those who do not
stand. We have no reason to expect that any of the nominees
will not stand for election.
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Q:
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What
happens if additional matters are presented at the Annual
Meeting?
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A:
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Other
than the two items of business described in this Proxy Statement, the
Company is not aware of any other business to be brought before the Annual
Meeting. If you grant a proxy, the persons named as proxy
holders, John P. Murray and Evan Stone, will have the discretion to vote
your shares on any additional matters properly brought before the Annual
Meeting.
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Q:
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How
many shares must be present or represented to conduct business at the
Annual Meeting?
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A:
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A
quorum will be present if at least a majority of the outstanding shares of
our Common Stock entitled to vote, totaling 64,720,377 shares, is
represented at the Annual Meeting, either in person or by
proxy.
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Both
abstentions and broker non-votes (described in more detail above) are counted
for the purpose of determining the presence of a quorum.
|
Q:
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What
is the difference between holding shares as a stockholder of record and as
a beneficial owner?
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A:
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If
your shares are registered directly in your name with our transfer agent,
Securities Transfer Corporation, you are considered, with respect to those
shares, the “stockholder of record.” In that event, this Proxy
Statement and a proxy card have been sent directly to you by the
Company.
|
If your
shares are held in a stock brokerage account or by a bank or other nominee, you
are considered the “beneficial owner” of shares held in street
name. In that event, this Proxy Statement has been forwarded to you
by your broker, bank or nominee who is considered, with respect to those shares,
the stockholder of record. As the beneficial owner, you have the
right to direct your broker, bank or nominee how to vote your shares by using
the voting instruction card included in the mailing or by following their
instructions for voting by telephone or the Internet, if they offer that
alternative. Since a beneficial owner is not the stockholder of
record, you may not vote these shares in person at the Annual Meeting unless you
obtain a legal proxy from the broker, trustee or nominee that holds your shares,
giving you the right to vote the shares at the Annual Meeting.
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Q:
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How
can I attend and vote my shares in person at the Annual
Meeting?
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A:
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You
are entitled to attend the Annual Meeting only if you were a Company
stockholder or joint holder as of the close of business on the Record
Date, or you hold a valid proxy for the Annual Meeting. You
should be prepared to present photo identification for
admittance. In addition, if you are a stockholder of record,
your name will be verified against the list of stockholders of record on
the Record Date prior to your being admitted to the Annual
Meeting. If you are not a stockholder of record but hold shares
through a broker, trustee or nominee (i.e., in street name), and you plan
to attend the Annual Meeting, please send written notification to
Wilhelmina International, Inc., 200 Crescent Court, Suite 1400, Dallas,
Texas 75201, Attn: Corporate Secretary, and enclose evidence of your
ownership (such as your most recent account statement prior to the Record
Date, a copy of the voting instruction card provided by your broker,
trustee or nominee, or other similar evidence of ownership). If
you do not provide photo identification or comply with the other
procedures outlined above, you will not be admitted to the Annual
Meeting.
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The
Annual Meeting will begin promptly on June 4, 2009, at 9:00 a.m. local
time. You should allow adequate time for check-in
procedures.
Shares
held in your name as the stockholder of record may be voted in person at the
Annual Meeting. Shares held beneficially in street name may be voted
in person at the Annual Meeting only if you obtain a legal proxy from the
broker, trustee or nominee that holds your shares giving you the right to vote
the shares. Even if you plan to attend the Annual Meeting, we
recommend that you also submit your proxy card or voting instruction card as
described herein so that your vote will be counted if you later decide not to
attend the Annual Meeting.
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Q:
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What
is the deadline for voting my
shares?
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A:
|
If
you hold shares as the stockholder of record, your vote by proxy must be
received before the polls close at the Annual
Meeting.
|
If you
hold shares beneficially in street name with a broker, trustee or nominee,
please follow the voting instructions provided by your broker, trustee or
nominee. You may vote your shares in person at the Annual Meeting
only if at the Annual Meeting you provide a legal proxy obtained from your
broker, trustee or nominee.
|
Q:
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How
are votes counted?
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A:
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For
the election of directors, you may vote “FOR” or
“WITHHOLD.” For the proposal to approve and adopt the 2009
Incentive Stock Plan, you may vote “FOR,” “AGAINST” or
“ABSTAIN.”
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If you
provide specific instructions with regard to certain items, your shares will be
voted as you instruct on such items. If you sign your proxy card or
voting instruction card without giving specific instructions, your shares will
be voted in accordance with the recommendations of the Board (“FOR” the election
of each of the director nominees and “FOR” the approval and adoption of the 2009
Incentive Stock Plan, and in the discretion of the proxy holders on any other
matters that properly come before the Annual Meeting).
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Q:
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Where
can I find the voting results of the Annual
Meeting?
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A:
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We
intend to announce preliminary voting results prior to the conclusion of
the Annual Meeting. The final voting results will be published
no later than the date of filing of our Quarterly Report on Form 10-Q for
the quarter ending June 30, 2009.
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Q:
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What
should I do if I receive more than one set of voting
materials?
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A:
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You
may receive more than one set of voting materials, including multiple
copies of this Proxy Statement and multiple proxy cards or voting
instruction cards. For example, if you hold your shares in more
than one brokerage account, you may receive a separate voting instruction
card for each brokerage account in which you hold shares. If
you are a stockholder of record and your shares are registered in more
than one name, you will receive more than one proxy
card. Please complete, sign, date and return each proxy card
and voting instruction card that you
receive.
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Q:
|
How
may I obtain an additional set of proxy materials, the Company’s 2008
Annual Report on Form 10-K or other financial
information?
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A:
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A
copy of the Company’s 2008 Annual Report on Form 10-K (the “2008 Annual
Report”) is being sent to stockholders along with this Proxy
Statement. Stockholders may request an additional free copy of
all of the proxy materials, the 2008 Annual Report and other financial
information from:
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Wilhelmina
International, Inc.
200
Crescent Court, Suite 1400
Dallas,
Texas 75201
Attention: Corporate
Secretary
Alternatively,
current and prospective investors can access this Proxy Statement and the 2008
Annual Report at www.wilhelmina.com/investorrelations.cfm.
We will
also furnish copies of any exhibit to the 2008 Annual Report if specifically
requested. Our Securities and Exchange Commission (“SEC”) filings are
also available free of charge at the SEC’s website at www.sec.gov.
|
Q:
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What
if I have questions for the Company’s transfer
agent?
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|
A:
|
Please
contact our transfer agent, at the telephone number or address listed
below, with questions concerning stock certificates, transfer of ownership
or other matters pertaining to your stock
account.
|
Securities
Transfer Corporation
2591
Dallas Parkway, Suite 102
Frisco,
Texas 75034
Phone:
(469) 633-0101
|
Q:
|
Who
can help answer my questions?
|
|
A:
|
If
you have any questions about the abovementioned proposals, the Annual
Meeting or how to vote or revoke your proxy, you should contact us
at:
|
Wilhelmina
International, Inc.
200
Crescent Court, Suite 1400
Dallas,
Texas 75201
Attention: Corporate
Secretary
CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth information regarding the number of shares of Common
Stock beneficially owned as of the Record Date by:
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(i)
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each
person who is known by us to beneficially own 5% or more of the Common
Stock;
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(ii)
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each
of our directors, director nominees and named executive officers;
and
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(iii)
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all
of our directors and executive officers as a
group.
|
As of the
Record Date, 129,440,752 shares of Common Stock were
outstanding. Unless otherwise indicated, the Common Stock
beneficially owned by a holder includes shares owned by a spouse, minor children
and relatives sharing the same home, as well as entities owned or controlled by
the named person, and also includes options to purchase shares of our Common
Stock exercisable within 60 days of the Record Date. Except as
otherwise set forth below, the address of each of the persons or entities listed
in the table is c/o Wilhelmina International, Inc., 200 Crescent Court, Suite
1400, Dallas, Texas 75201.
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5%
or Greater Stockholders
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Newcastle
Partners, L.P. (2)
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31,526,517 |
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24.4 |
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Lorex
Investments AG (4)
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30,882,553 |
(5)
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23.9 |
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Krassner
Family Investments Limited Partnership
(6)
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30,464,515 |
(7)
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|
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23.5 |
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Directors,
Nominees and Executive Officers
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Mark
E. Schwarz
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31,626,517 |
(8)
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24.4 |
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John
Murray
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50,000 |
(9)
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|
* |
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Evan
Stone
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0 |
(10)
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- |
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James
Risher
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90,000 |
(11)
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* |
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Jonathan
Bren
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0 |
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- |
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Dr.
Hans-Joachim Bohlk
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50,000 |
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* |
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Derek
Fromm
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1,335,108 |
(12)
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1.0 |
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All
directors and executive officers as a group (seven
persons)
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33,151,625 |
(13)
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25.6 |
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_________________________
* Less
than 1%
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(1)
|
Based
on 129,440,752 shares of Common Stock outstanding as of the Record Date.
With the exception of shares that may be acquired by employees pursuant to
the Company’s 401(k) retirement plan, a person is deemed to be the
beneficial owner of Common Stock that can be acquired within 60 days after
the Record Date upon the exercise of options. Each beneficial
owner’s percentage ownership of Common Stock is determined by assuming
that options that are held by such person, but not those held by any other
person, and that are exercisable within 60 days of the Record Date have
been exercised.
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(2)
|
The
business address of Newcastle Partners, L.P. (“Newcastle”) is 200 Crescent
Court, Suite 1400, Dallas, Texas
75201.
|
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(3)
|
Represents
securities held by Newcastle, as disclosed in a Statement of Changes in
Beneficial Ownership on Form 4 originally filed with the SEC on February
18, 2009 and amended on February 19, 2009. Newcastle Capital
Management, L.P. (“NCM”), as the general partner of Newcastle, may be
deemed to beneficially own the securities beneficially owned by
Newcastle. Newcastle Capital Group, L.L.C. (“NCG”), as the
general partner of NCM, which in turn is the general partner of Newcastle,
may be deemed to beneficially own the securities beneficially owned by
Newcastle. Mark E. Schwarz, as the managing member of NCG, the
general partner of NCM, which in turn is the general partner of Newcastle,
may also be deemed to beneficially own the securities beneficially owned
by Newcastle. Each of NCM, NCG and Mr. Schwarz disclaims
beneficial ownership of the securities beneficially owned by Newcastle
except to the extent of their pecuniary interest
therein.
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(4)
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The
business address of Lorex Investments AG (“Lorex”) is c/o Mattig-Suter und
Partner, Bahnhofstrasse 28, Schwyz, CH-6431,
Switzerland.
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(5)
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Represents
securities held by Lorex, as disclosed in an Initial Statement of
Beneficial Ownership of Securities on Form 3 filed with the SEC on March
5, 2009. Dieter Esch is the sole shareholder of Lorex and Peter
Marty is the sole officer and director of Lorex. Dieter Esch
and Peter Marty share voting and dispositive power over the shares of
Common Stock held by Lorex. Peter Marty has no pecuniary
interest in the shares of Common Stock held by
Lorex.
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(6)
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The
business address of Krassner Family Investments Limited Partnership
(“Krassner L.P.”) is 31 East Rivo Alto, Miami Beach, Florida
33139.
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(7)
|
Represents
securities held by Krassner L.P., as disclosed in an Initial Statement of
Beneficial Ownership of Securities on Form 3 filed with the SEC on March
5, 2009. Krassner Investments, Inc. (“Krassner Inc.”) is the
general partner of Krassner L.P. and therefore has voting and dispositive
power over these securities. Krassner Inc. disclaims any
pecuniary interest in the reported securities except to the extent of its
ownership interest in Krassner L.P. (it owns a 1% interest in Krassner
L.P.). Brad Krassner is the President, Director and sole
stockholder of Krassner Inc. Brad Krassner, individually, and
the Krassner Family Investment Trust (“Krassner Trust”) are the limited
partners of Krassner L.P. Brad Krassner’s children and spouse
are the beneficiaries of the Krassner Trust and his mother is a trustee of
the Krassner Trust. Brad Krassner and the Krassner Trust
disclaim any pecuniary interest in the reported securities except to the
extent of their ownership interest therein (Brad Krassner owns an 83.5%
limited partnership interest in Krassner L.P. and the Krassner Trust owns
a 15.5% limited partnership interest in Krassner L.P.). By
virtue of his position with Krassner L.P., Mr. Krassner has the sole power
to vote and dispose of the shares of the Common Stock owned by Krassner
L.P.
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(8)
|
Consists
of 100,000 shares of Common Stock issuable upon the exercise of options
held by Mr. Schwarz individually and 31,526,517 shares of Common Stock
beneficially owned by Newcastle. Mr. Schwarz may be deemed to
beneficially own the shares of Common Stock beneficially owned by
Newcastle by virtue of his power to vote and dispose of such
shares. Mr. Schwarz disclaims beneficial ownership of the
shares of Common Stock beneficially owned by Newcastle except to the
extent of his pecuniary interest
therein.
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(9)
|
Consists
of shares of Common Stock issuable upon the exercise of options held by
Mr. Murray individually. Mr. Murray is the Chief Financial
Officer of NCM. Mr. Murray disclaims beneficial ownership of
the 31,526,517 shares of Common Stock beneficially owned by
Newcastle.
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(10)
|
Mr.
Stone is the Vice President and General Counsel of NCM. Mr.
Stone disclaims beneficial ownership of the 31,526,517 shares of Common
Stock beneficially owned by
Newcastle.
|
|
(11)
|
Consists
of shares of Common Stock issuable upon the exercise of options held by
Mr. Risher individually.
|
|
(12)
|
Consists
of shares of Common Stock beneficially owned by Greenstone Capital
Services (“GCS”). Mr. Fromm is a director and the Chief
Executive Officer and President of GCS and as a result may be deemed to
beneficially own the shares of Common Stock beneficially owned by
GCS. Mr. Fromm disclaims beneficial ownership of such shares
except to the extent of his pecuniary interest
therein. Pursuant to an agreement between GCS and Penates
Group, Inc. (“Penates”), 917,070 of the shares beneficially owned by GCS
are in the process of being transferred to GCS from
Penates.
|
|
(13)
|
Consists
of 32,911,625 shares of Common Stock and 240,000 shares of Common Stock
issuable upon the exercise of
options.
|
ELECTION
OF DIRECTORS
Seven
directors are to be elected at the Annual Meeting to serve until the 2010 Annual
Meeting of Stockholders and until their successors are duly elected and
qualified. Except where authority to vote for directors has been
withheld, it is intended that the proxies received pursuant to this solicitation
will be voted “FOR” the nominees named below. If for any reason any
nominee does not stand for election, such proxies will be voted in favor of the
remainder of the nominees and may be voted for substitute nominees in place of
those who do not stand. The Company has no reason to expect that any
of the nominees will not stand for election. The election of
directors will be determined by a plurality of the votes cast.
The
Company’s Restated Bylaws (the “Bylaws”) provide that the number of directors
shall be fixed from time to time by the Board, but shall not be less than
three. Each of the seven nominees currently serves as a
director.
Directors, Nominees for Election to the Board, Executive
Officers and Certain Other Employees
Information
regarding all the Company’s incumbent directors, director nominees and executive
officers, including their ages, current positions with the Company and business
experience for the past five years (and, in some instances, for prior years), is
set forth below. Data with respect to the number of shares of Common
Stock beneficially owned by each of the nominees is set forth in the section of
this Proxy Statement titled “Security Ownership of Certain Beneficial Owners and
Management.” All such information has been furnished to the Company
by the Company’s directors, nominees and executive officers.
|
|
|
|
|
|
|
|
|
Mark
E. Schwarz
|
|
48
|
|
Chairman
of the Board, Chief Executive Officer
|
|
June
2004
|
|
Jonathan
Bren
|
|
47
|
|
Director
|
|
June
2005
|
|
James
Risher
|
|
65
|
|
Director
|
|
October
2004
|
|
John
Murray
|
|
39
|
|
Director,
Chief Financial Officer
|
|
February
2009
|
|
Evan
Stone
|
|
37
|
|
Director,
General Counsel and Secretary
|
|
February
2009
|
|
Derek
Fromm
|
|
51
|
|
Director
|
|
February
2009
|
|
Dr.
Hans-Joachim Bohlk
|
|
60
|
|
Director
|
|
February
2009
|
Mark E. Schwarz has served as
Chairman of the Board of the Company since June 2004 and as its Chief Executive
Officer since April 2009. Mr. Schwarz previously functioned as the
Company’s Interim Chief Executive Officer since October 2007 and was formally
appointed its Interim Chief Executive Officer effective in July
2008. He is the Chairman, Chief Executive Officer and Portfolio
Manager of NCM, a private investment management firm he founded in 1993, that is
the General Partner of Newcastle, a private investment firm. Mr.
Schwarz presently serves as Executive Chairman of the Board of Hallmark
Financial Services, Inc. (“Hallmark”), a specialty property and casualty
insurer. He was elected Executive Chairman of Hallmark in August
2006. He served as Chief Executive Officer of Hallmark from January
2003 to August 2006 and as President of Hallmark from November 2003 to March
2006. He currently serves as Chairman of the Boards of Bell
Industries, Inc., a company primarily engaged in providing computer systems
integration services, and Pizza Inn, Inc., an operator and franchisor of pizza
restaurants, and as a director of Nashua Corporation, a manufacturer of
specialty papers, labels and printing supplies, SL Industries, Inc., a power and
data quality products manufacturer (“SL Industries”), and MedQuist Inc., a
provider of clinical documentation workflow solutions in support of electronic
health records.
Jonathan Bren has served as a
director of the Company since June 2005. Mr. Bren serves as the
Global Managing Partner of Bren Ventures L.L.C., an entity he formed in January
2005 to make strategic investments in early stage hedge fund
managers. From July 1998 to December 2004, Mr. Bren was a partner of
Hunt Financial Ventures, L.P., which made strategic investments in early stage
and emerging hedge fund managers and also made direct investments into other
hedge fund operations. He also served as President of HFV Investments
Inc., a broker dealer affiliated with Hunt Financial Ventures,
L.P. During the fifteen years prior to joining Hunt Financial
Ventures, L.P., Mr. Bren worked for a series of asset management, investment
banking and merchant banking organizations.
James A. Risher has served as
a director of the Company since October 2004. Mr. Risher has been the
Managing Partner of Lumina Group, LLC, a private company engaged in the business
of consulting and investing in small and mid-size companies, since
1998. Mr. Risher has served as the Chief Executive Officer and
President of Del Global Technologies Corporation (“Del Global”), a leader in
medical imaging and power electronics, since September 2006. Mr.
Risher was appointed Interim Chief Executive Officer of Del Global in August
2006. In addition, Mr. Risher has served as a director of Del Global
since June 2004. From February 2001 to May 2002, Mr. Risher served as
Chairman and Chief Executive Officer of BlueStar Battery Systems International,
Inc., a Canadian public company that is an e-commerce distributor of electrical
and electronic products to selected automotive aftermarket segments and targeted
industrial markets. From 1986 to 1998, Mr. Risher served as a
director, Chief Executive Officer and President of Exide Electronics Group, Inc.
(“Exide”), a global leader in the uninterruptible power supply
industry. He also served as Chairman of Exide from December 1997 to
July 1998. Mr. Risher currently serves as a director of SL
Industries.
John Murray has served as a
director of the Company since February 2009 and as the Chief Financial Officer
of the Company since June 2004. Mr. Murray has served as the Chief
Financial Officer of NCM since January 2003. From November
1995 until December 2002, Mr. Murray was a Certified Public Accountant engaged
in his own private practice in Dallas, Texas. From October 1991 until
November 1995, Mr. Murray served as an accountant with Ernst & Young,
LLP. Mr. Murray has been a Certified Public Accountant since January
1992.
Evan Stone has served as a
director of the Company since February 2009, as General Counsel of the Company
since April 2009 and as its Secretary since July 2008. Mr. Stone has
served as Vice President and General Counsel of NCM since May
2006. Prior to joining NCM, from June 2003 to April 2006 and from
October 1997 to December 1999 he served as a mergers and acquisitions attorney
at the law firm Skadden, Arps, Slate, Meagher & Flom LLP in New
York. From January 2002 to September 2002, Mr. Stone served as Vice
President, Corporate Development at Borland Software Inc., a provider of
software application lifecycle products. From March 2000 to November
2001, Mr. Stone was a member of the investment banking department of Merrill
Lynch & Co.
Dr. Hans-Joachim Bohlk has
served as a director of the Company since February 2009. He is an
attorney in private practice in Frankfurt, Germany, where he has been practicing
law since 1982. He is the sole shareholder of NORA
Unternehmensberatung GmbH, a consulting company he founded in 1988.
Derek Fromm has served as a
director of the Company since February 2009. He is the principal of
Greenstone Capital, a corporate advisory firm he founded in London in 1997 and
in Scottsdale, Arizona in 2002 (“Greenstone Capital”). Mr. Fromm is a
director and the Chief Executive Officer and President of GCS, a consulting and
advisory company he co-founded in 1999, a director and the Chief Executive
Officer and President of Greenstone Capital Group, Inc., a consulting and
advisory company he founded in 2002 (“Greenstone Group”), and the director,
President and Chief Executive Officer of Greenstone Capital, Inc., a consulting
and advisory company he founded in 2006 (“GCI”). Mr. Fromm is the
controlling stockholder of each of Greenstone Group, GCS and GCI and is the sole
proprietor of Greenstone Capital. Mr. Fromm has served as a
registered representative with Penates, a broker-dealer, since May
2006. From 1987 to 1997, Mr. Fromm was an investment banker at UBS
Limited in London, prior to which he practiced law in New York. Mr.
Fromm is a member of the New York State Bar Association.
Biographical
information regarding any other employees required to be included in this Proxy
Statement is set forth below.
Sean Patterson, age 37, has
served as the President of Wilhelmina International Ltd., a subsidiary of the
Company (“Wilhelmina Ltd.”), since 2003.
Arrangements Regarding Nomination for Election to the
Board
The
Company was required to nominate the following persons for election to the Board
at the Company’s 2008 Annual Meeting of Stockholders pursuant to an acquisition
agreement (the “Acquisition Agreement”) consummated in February 2009 in
connection with the Company’s acquisition of Wilhelmina Ltd. and certain of its
affiliates (the “Acquisition”): Mark E. Schwarz, Jonathan Bren, James Risher,
one designee of Dieter Esch, one designee of Brad Krassner and two designees of
Newcastle. Mr. Esch’s designee was Dr. Hans-Joachim Bohlk, Mr.
Krassner’s designee was Derek Fromm, and Newcastle’s designees were John Murray
and Evan Stone (collectively, the “Designees”). Each of Messrs.
Fromm, Murray and Stone and Dr. Bohlk were elected to the Board at the Company’s
2008 Annual Meeting of Stockholders.
Pursuant
to a mutual support agreement entered into in connection with the Acquisition
(the “Mutual Support Agreement”), Mr. Esch, Lorex, Mr. Krassner, Krassner L.P.
and Newcastle agreed, effective upon the closing of the Acquisition, that, among
other things, each of the parties would (i) use their commercially reasonable
efforts to cause their representatives serving on the Board to vote to nominate
and recommend the election of the Designees and, in the event the Board will
appoint directors without stockholder approval, to use their commercially
reasonable efforts to cause their representatives on the Board to appoint the
Designees to the Board, (ii) vote their shares of Common Stock to elect the
Designees at any meeting of the Company’s stockholders or pursuant to any action
by written consent in lieu of a meeting pursuant to which directors are to be
elected to the Board, and (iii) not to propose, and to vote their Common Stock
against, any amendment to the Company’s Certificate of Incorporation or Bylaws,
or the adoption of any other corporate measure, that frustrates or circumvents
the provisions of the Mutual Support Agreement with respect to the election of
the Designees. The parties also agreed that for a period of three
years after the closing of the Acquisition, the parties will use their
commercially reasonable efforts to cause their representatives on the Board to
vote to maintain the size of the Board at no more than nine persons, unless
otherwise agreed to by the Designees. The obligations of the parties
under the Mutual Support Agreement terminate upon the earlier of (i) the written
agreement of all of the parties, or (ii) the date on which two of the three
groups of parties to the Mutual Support Agreement (Mr. Esch and his affiliates
as one group, Mr. Krassner and his affiliates as another group and Newcastle as
another group) each owns less than 5% of the Common Stock
outstanding.
Although
the Company is not a party to the Mutual Support Agreement, a majority of the
Board has approved the nomination of each of the Designees for election to the
Board at the Annual Meeting.
Transactions with Related Persons
Transactions with Newcastle and its
Affiliates
The
Company’s corporate headquarters is currently located at 200 Crescent Court,
Suite 1400, Dallas, Texas 75201, which is also an office of
NCM. Pursuant to an oral agreement, the Company previously occupied a
portion of NCM’s office space on a month-to-month basis at no charge, and
received accounting and administrative services from employees of NCM at no
charge. Effective October 1, 2006, the parties formalized this
arrangement by executing a services agreement. Pursuant to the
services agreement, the Company continues to occupy a portion of NCM’s office
space on a month-to-month basis at $2,500 per month and incurs additional fees
to NCM for accounting and administrative services provided by employees of
NCM. During the fiscal year ended December 31, 2007, the Company
incurred fees (including the payments for the NCM office space) of approximately
$30,000 under the services agreement. During the fiscal year ended
December 31, 2008, the Company incurred fees (including the payments for the NCM
office space) of approximately $102,000 under the services
agreement.
On August
25, 2008, concurrently with the execution of the Acquisition Agreement, the
Company entered into a purchase agreement with Newcastle for the purpose of
obtaining financing to complete the Acquisition (the “Equity Financing
Agreement”). Pursuant to the Equity Financing Agreement, upon the
closing of the Acquisition, the Company sold to Newcastle $3,000,000 (12,145,749
shares) of Common Stock at $0.247 per share, or approximately (but slightly
higher than) the per share price applicable to the Common Stock issuable under
the Acquisition Agreement. In addition, under the Equity Financing
Agreement, Newcastle committed to purchase, at the Company’s election at any
time or times prior to six months following the closing of the Acquisition, up
to an additional $2,000,000 (8,097,166 shares) of Common Stock on the same
terms. The Equity Financing Agreement was approved by an independent
special committee of the Board (the “Special Committee”) on August 18, 2008 and
recommended to the full Board for approval. The Board approved the
Equity Financing Agreement on the recommendation of the Special Committee on
August 20, 2008.
Concurrently
with the closing of the Equity Financing Agreement, and as a condition thereto,
the parties entered into a registration rights agreement, pursuant to which
Newcastle was granted certain demand and piggyback registration rights with
respect to the Common Stock it holds, including the Common Stock issuable under
the Equity Financing Agreement.
Transactions with Esch and
Krassner
Dr.
Hans-Joachim Bohlk and Derek Fromm were initially nominated for election to the
Board as designees of Messrs. Esch and Krassner, respectively, pursuant to the
Acquisition Agreement, and are designees of Messrs. Esch and Krassner under the
Mutual Support Agreement. Under the Acquisition Agreement, Mr. Esch,
Lorex, Mr. Krassner and Krassner L.P. (the “Control Sellers”) received, in
addition to a cash payment, $7,609,336 (63,411,131 shares) of Common Stock upon
the consummation of the Acquisition (based on the closing price of the shares on
such date). The purchase price is subject to certain post-closing
adjustments, which may be effected against 19,229,746 shares of Common Stock
issued to the Control Sellers that are held in escrow pursuant to the
Acquisition Agreement in respect of the “core” business price adjustment, and
may be repurchased by the Company for a nominal amount, subject to certain
earnouts and offsets. Additionally, Krassner L.P. received $6,000,000
in repayment of an outstanding note held by Krassner L.P.
The
Control Sellers are also parties to a registration rights agreement entered into
in connection with the Acquisition Agreement, pursuant to which the Control
Sellers, among others, obtained certain demand and piggyback registration rights
with respect to the Common Stock issued to them under the Acquisition
Agreement.
Transactions with Derek
Fromm
GCS, of
which Derek Fromm is the Chief Executive Officer and President and which is
controlled by Mr. Fromm, was party to an agreement with Krassner L.P. pursuant
to which GCS provided consulting and advisory services to Krassner L.P. in
connection with the Acquisition and unrelated matters (the “GCS
Agreement”). Under the terms of the GCS Agreement, upon the closing
of the Acquisition, GCS received from Krassner L.P. a total of $100,000 of
Common Stock, based on an agreed book value per share of Common Stock of $0.247
(subject to an adjustment identical to the purchase price adjustment set forth
in the Acquisition Agreement), or 418,038 shares. At the direction of
Krassner L.P., the Company issued such shares of Common Stock directly to GCS in
lieu of issuing such shares to Krassner L.P. as part of the consideration to be
received by Krassner L.P. in connection with the Acquisition.
Pursuant
to a separate engagement agreement by and among Wilhelmina Ltd., the Control
Sellers and Penates (the “Engagement Agreement”), Penates was to be paid a
commission upon the closing of the Acquisition equal to the higher of $450,000
or 1.5% of the transaction value, payable in cash and shares of Common Stock
(based on an agreed book value per share of Common Stock of $0.247, subject to
an adjustment identical to the purchase price adjustment set forth in the
Acquisition Agreement) in the same proportion as received by the Control
Sellers. Pursuant to a separate agreement between Penates and
Mr. Fromm, a representative of Penates, Mr. Fromm was to receive 97.5% of such
commission payable to Penates, or 917,070 shares of Common Stock and
$219,375. Pursuant to further agreement between Mr. Fromm and GCS,
such shares and cash were to be made due and payable to GCS and, as a result,
the 917,070 shares initially payable to Penates are currently in the process of
being transferred by Penates directly to GCS.
In
addition, pursuant to the Engagement Agreement, a fee is to be paid by the
Control Sellers to Penates calculated as a percentage of any earned deferred
consideration paid for Wilhelmina Artist Management LLC and Wilhelmina-Miami,
Inc., subsidiaries of Wilhelmina Ltd., as and when such earnout is paid under
the terms of the Acquisition Agreement. The exact amount of such fee
is currently unknown, but is estimated to be (i) 10% of any earnout payments due
to the selling parties by the Company under the Acquisition Agreement in excess
of $30,000,000 but less than $40,000,000, plus (ii) 5% of any earnout payments
between $40,000,000 and $50,000,000, plus (iii) 2.5% of any earnout payment in
excess of $50,000,000 (the “Supplemental Payment”). The Supplemental
Payment is also to be shared and paid ratably by each of the selling parties
under the Acquisition Agreement.
GCS has
also received consulting and advisory fees from Wilhelmina Ltd. and its
affiliates in an amount of $125,000, plus reimbursement of directly-related
expenses, in relation to work performed during 2008 for such
companies. Receipt of these fees was not contingent upon the closing
of the Acquisition.
Review,
Approval or Ratification of Transactions with Related Persons
The Board
reviews all relationships and transactions in which the Company and its
directors and executive officers or their immediate family members are
participants to determine whether such persons have a direct or indirect
material interest. The Board is primarily responsible for the
development and implementation of processes and controls to obtain information
from the directors and executive officers with respect to related person
transactions and for then determining, based on the facts and circumstances,
whether the Company or a related person has a direct or indirect material
interest in the transaction. As required under SEC rules,
transactions that are determined to be directly or indirectly material to the
Company or a related person are disclosed in the Company’s proxy statements in
connection with action to be taken with respect to the election of
directors. In addition, the Audit Committee reviews and approves or
ratifies any related person transaction that is required to be
disclosed. In the course of its review and approval or ratification
of a related party transaction to be disclosed, the Audit Committee considers:
(i) the nature of the related person’s interest in the transaction, (ii) the
material terms of the transaction, including, without limitation, the amount and
type of transaction, (iii) the importance of the transaction to the related
person, (iv) the importance of the transaction to the Company, (v) whether the
transaction would impair the judgment of a director or executive officer to act
in the best interest of the Company and (vi) any other matters the Audit
Committee deems appropriate.
Any
member of the Board who is a related person with respect to a transaction under
review may not participate in the deliberations or vote respecting approval or
ratification of the transaction, provided, however, that such director may be
counted in determining the presence of a quorum at a meeting of the Board or
committee that considers the transaction.
Involvement in Certain Legal Proceedings
As of the
date of this Proxy Statement, there is no material proceeding to which any of
our directors, executive officers or affiliates, any owner of record or
beneficially of more than five percent of any class of our voting securities, or
any associate of any such director, officer, affiliate or security holder, is a
party or has a material interest adverse to us or any of our
subsidiaries. None of the events described in Item 401(f) of
Regulation S-K have occurred during the past five years and are material to an
evaluation of the ability or integrity of any director, nominee or executive
officer.
Family Relationships Between Directors and Executive
Officers
There are
no family relationships among the Company’s incumbent directors, director
nominees or executive officers.
Section 16(a) Beneficial Ownership Reporting
Compliance
Section
16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
requires the Company’s directors, executive officers and persons who own more
than 10% of a registered class of the Company’s equity securities to file with
the SEC initial reports of ownership and reports of changes in ownership of the
Common Stock and other equity securities of the Company. Such persons
are required by SEC regulations to furnish the Company with copies of all
Section 16(a) reports they file.
Based
solely on a review of the copies of the Section 16(a) reports furnished to the
Company and written representations that no other reports were required during
the fiscal year ended December 31, 2008, the Company believes that its
directors, executive officers and greater than 10% stockholders complied with
all applicable Section 16(a) filing requirements during fiscal
2008.
A
plurality of the votes cast at the Annual Meeting is required for the election
of each of the nominees.
A
MAJORITY OF THE BOARD RECOMMENDS A VOTE “FOR”
THE
ELECTION OF EACH OF THE NOMINEES .
ADOPTION
AND APPROVAL OF THE 2009 INCENTIVE STOCK PLAN
On
April 30, 2009, a majority of the Board approved, and is now proposing for
stockholder approval and adoption, the 2009 Incentive Stock Plan, a copy of
which is attached hereto as Annex
A. The 2009 Incentive Stock Plan is intended as an incentive
to retain and to attract new directors, officers, consultants, advisors and
employees, as well as to encourage a sense of proprietorship and stimulate the
active interest of such persons in the development and financial success of the
Company and its subsidiaries.
As of the
date of this Proxy Statement, no options to purchase shares of Common Stock or
other rights have been granted to any person under the 2009 Incentive Stock
Plan. The benefits and amounts to be derived under the 2009 Incentive
Stock Plan are not determinable.
Description of the 2009 Incentive Stock Plan
The
following is a brief summary of the 2009 Incentive Stock Plan, which is
qualified in its entirety by reference to the text of the 2009 Incentive Stock
Plan, which is attached hereto as Annex A.
Purpose
The
purpose of the 2009 Incentive Stock Plan is to provide incentive to retain and
to attract new directors, officers, consultants, advisors and employees who are
primarily responsible for the management and growth of the Company.
The
Company intends that the 2009 Incentive Stock Plan meet the requirements of Rule
16b-3 (“Rule 16b-3”) promulgated under the Exchange Act and that transactions of
the type specified in subparagraphs (c) to (f) inclusive of Rule 16b-3 by
officers and directors of the Company pursuant to the 2009 Incentive Stock Plan
will be exempt from the operation of Section 16(b) of the Exchange
Act. Further, the 2009 Incentive Stock Plan may satisfy the
performance-based compensation exception to the limitation on the Company’s tax
deductions imposed by Section 162(m) of the United States Internal Revenue Code
of 1986, as amended (the “Code”), with respect to those options for which
qualification for such exception is intended.
Administration
The
2009 Incentive Stock Plan is to be administered by a committee consisting of two
or more directors appointed by the Board (the “Plan Committee”), which may be
the Compensation Committee. The Plan Committee will be comprised
solely of “non-employee directors” within the meaning of Rule 16b-3 and “outside
directors” within the meaning of Section 162(m) of the Code, which individuals
will serve at the pleasure of the Board. In the event that for any
reason the Plan Committee is unable to act or if the Plan Committee at the time
of any grant, award or other acquisition under the 2009 Incentive Stock Plan
does not consist of two or more “non-employee directors,” or if there is no such
Plan Committee, then the 2009 Incentive Stock Plan will be administered by the
Board, provided that grants to the Company’s Chief Executive Officer or to any
other covered employee within the meaning of Section 162(m) of the Code that are
intended to qualify as performance-based compensation under Section 162(m) of
the Code may only be granted by a properly constituted Plan
Committee.
Subject
to the other provisions of the 2009 Incentive Stock Plan, the Plan Committee
will have full power and authority to do the following: (i) to designate
recipients of options (“Options”), stock appreciation rights (“Stock
Appreciation Rights”), restricted stock (“Restricted Stock”) and other equity
incentives or stock or stock based awards (“Equity Incentives,” and together
with Options, Stock Appreciation Rights and Restricted Stock, “Rights”); (ii) to
determine the terms and conditions of each Right granted (which need not be
identical); (iii) to interpret the 2009 Incentive Stock Plan and all Rights
granted thereunder; and (iv) to make all other determinations necessary or
advisable for the administration of the 2009 Incentive Stock Plan.
Eligibility
The
persons eligible for participation in the 2009 Incentive Stock Plan as
recipients of Rights include directors, officers and employees of, and
consultants and advisors to, the Company or any subsidiary; provided that
incentive stock options may only be granted to employees of the Company and its
subsidiaries. In selecting participants, and determining the number
of shares covered by each Right, the Plan Committee may consider any factors
that it deems relevant.
Shares Subject to the 2009 Incentive
Stock Plan
A total
of 6,000,000 shares of Common Stock may be issued or subject to Rights issued
pursuant to the 2009 Incentive Stock Plan, except the maximum number of shares
that may be issued or subject to Rights issued pursuant to the 2009 Incentive
Stock Plan to any individual in any calendar year may not exceed
1,000,000. Should any Right expire or be canceled prior to its
exercise or vesting in full or should the number of shares of Common Stock to be
delivered upon the exercise or vesting in full of a Right be reduced for any
reason, the shares of Common Stock theretofore subject to such Right may be
subject to future Rights under the Plan, unless such reissuance is inconsistent
with the provisions of Section 162(m) of the Code.
In the
event of any merger, reorganization, consolidation, recapitalization, stock
dividend, stock split or similar type of corporate restructuring affecting the
shares of Common Stock, the Plan Committee will make an appropriate and
equitable adjustment in the number and kind of shares reserved for issuance
under the 2009 Incentive Stock Plan and in the number and exercise price of
shares subject to outstanding Options granted under the 2009 Incentive Stock
Plan, to the end that after such event each optionee’s proportionate interest
will be maintained as immediately before the occurrence of such event. The Plan
Committee will, to the extent feasible, make such other adjustments as may be
required under the tax laws so that any incentive stock options previously
granted will not be deemed modified within the meaning of Section 424(h) of the
Code. Appropriate adjustments will also be made in the case of
outstanding Stock Appreciation Rights and Restricted Stock granted under the
2009 Incentive Stock Plan.
Options
An Option
granted under the 2009 Incentive Stock Plan is designated at the time of grant
as either an incentive stock option (an “ISO”) or as a non-qualified stock
option (a “NQSO”). Upon the grant of an Option to purchase shares of
Common Stock, the Plan Committee will fix the number of shares of Common Stock
that the optionee may purchase upon exercise of such Option and the price at
which the shares may be purchased. Such price may not be less than
100% of the fair market value of such share of Common Stock on the date the
Option is granted; provided, however, that with respect to an optionee who, at
the time an ISO is granted, owns more than 10% of the total combined voting
power of all classes of stock of the Company or of any subsidiary, the purchase
price per share under an ISO must be at least 110% of the fair market value per
share of Common Stock on the date of grant. The term of each Option
will also be fixed by the Plan Committee, except no Option may be exercisable
more than ten years after the grant date, and in the case of an ISO granted to
an optionee who, at the time of the grant, owns more than 10% of the total
combined voting power of all classes of stock of the Company or of any
subsidiary, the ISO may not be exercisable more than five years after the grant
date.
Stock Appreciation Rights
Stock
Appreciation Rights may be granted with an exercise price that is not less than
100% of the fair market value of a share of Common Stock on the grant date and
will be exercisable at such time or times and subject to such terms and
conditions as determined by the Plan Committee. Unless otherwise
provided, Stock Appreciation Rights will become immediately exercisable and
remain exercisable until expiration, cancellation or termination of the
award. Such rights may be exercised in whole or in part by giving
written notice to the Company.
Restricted Stock
Restricted
Stock may be granted under the 2009 Incentive Stock Plan aside from, or in
association with, any other award and will be subject to certain conditions and
contain such additional terms and conditions, not inconsistent with the terms of
the 2009 Incentive Stock Plan, as the Plan Committee deems
desirable. A grantee will have no rights to an award of Restricted
Stock unless and until such grantee accepts the award within the period
prescribed by the Plan Committee and, if the Plan Committee deems desirable,
makes payment to the Company in cash, or by check or such other instrument as
may be acceptable to the Plan Committee. Shares of Restricted Stock
are forfeitable until the terms of the Restricted Stock grant have been
satisfied.
A
recipient of Restricted Stock will not have taxable income upon grant, but will
have ordinary income at the time of vesting equal to the fair market value on
the vesting date of the shares (or cash) received minus any amount paid for the
shares. A recipient of Restricted Stock may instead, however, elect
to be taxed at the time of grant. The Company will generally be
entitled to a corresponding tax deduction, but such deduction could be subject
to limitation under Section 162(m) of the Code.
Other Equity Incentives or Stock Based
Awards
Subject
to the provisions of the 2009 Incentive Stock Plan, the Plan Committee may grant
Equity Incentives (including the grant of unrestricted shares) to such key
persons, in such amounts and subject to such terms and conditions, as the Plan
Committee in its discretion determines. Such awards may entail the
transfer of actual shares of Common Stock to 2009 Incentive Stock Plan
participants, or payment in cash or otherwise of amounts based on the value of
shares of Common Stock.
Term of the Rights
The Plan
Committee, in its sole discretion, will fix the term of each Right, subject to
certain limitations set forth in the 2009 Incentive Stock Plan. The
2009 Incentive Stock Plan provides for the earlier expiration of Rights in the
event of certain terminations of employment of the holder.
Restrictions on
Transferability
Options
and Stock Appreciation Rights granted hereunder are not transferable and may be
exercised solely by the optionee or grantee during his lifetime or after his
death by the person or persons entitled thereto under his will or the laws of
descent and distribution. The Plan Committee, in its sole discretion,
may permit a transfer of a NQSO to (i) a trust for the benefit of the optionee
or (ii) a member of the optionee’s immediate family (or a trust for his or her
benefit). Any attempt to transfer, assign, pledge or otherwise
dispose of, or to subject to execution, attachment or similar process, any
Option or Stock Appreciation Right contrary to the provisions hereof will be
void and ineffective and will give no right to the purported
transferee. Shares of Restricted Stock may become transferable if the
Plan Committee specifies a date on which the transfer restrictions
lapse.
Termination
No Right
may be granted pursuant to the 2009 Incentive Stock Plan following April 30,
2019.
Amendments
The Board
may at any time amend, suspend or terminate the 2009 Incentive Stock Plan,
except that no amendment may be made that would impair the rights of any
optionee or grantee under any Right previously granted without the optionee’s or
grantee’s consent, and except that no amendment may be made which, without the
approval of the Company’s stockholders, would do any of the following: (i)
materially increase the number of shares that may be issued under the 2009
Incentive Stock Plan, except as permitted under the 2009 Incentive Stock Plan;
(ii) materially increase the benefits accruing to the optionees or grantees
under the 2009 Incentive Stock Plan; (iii) materially modify the requirements as
to eligibility for participation in the 2009 Incentive Stock Plan; (iv) decrease
the exercise price of an ISO to less than 100% of the fair market value on the
grant date or the exercise price of a NQSO to less than 100% of the fair market
value on the grant date; or (v) extend the term of any Option beyond that
permitted in the 2009 Incentive Stock Plan.
U.S.
Federal Income Tax Consequences
Incentive Stock Options
Options
that are granted under the 2009 Incentive Stock Plan and that are intended to
qualify as ISOs must comply with the requirements of Section 422 of the
Code. An Option holder is not taxed upon the grant or exercise of an
ISO; however, the difference between the fair market value of the shares on the
exercise date will be an item of adjustment for purposes of the alternative
minimum tax. If an Option holder holds the shares acquired upon the
exercise of an ISO for at least two years following the date of the grant of the
Option and at least one year following the exercise of the Option, the Option
holder’s gain, if any, upon a subsequent disposition of such shares will be
treated as long-term capital gain for federal income tax
purposes. The measure of the gain is the difference between the
proceeds received on disposition and the Option holder’s basis in the shares
(which generally would equal the exercise price). If the Option
holder disposes of shares acquired pursuant to exercise of an ISO before
satisfying the one and two year holding periods described above, the Option
holder may recognize both ordinary income and capital gain in the year of
disposition. The amount of the ordinary income will be the lesser of
(i) the amount realized on disposition less the Option holder’s adjusted basis
in the shares (generally the Option exercise price); or (ii) the difference
between the fair market value of the shares on the exercise date and the Option
price. The balance of the consideration received on such disposition
will be long-term capital gain if the shares had been held for at least one year
following exercise of the ISO.
The
Company is not entitled to an income tax deduction on the grant or the exercise
of an ISO or on the Option holder’s disposition of the shares after satisfying
the holding period requirement described above. If the holding
periods are not satisfied, the Company will generally be entitled to an income
tax deduction in the year the Option holder disposes of the shares, in an amount
equal to the ordinary income recognized by the Option holder.
Nonqualified Stock Options
In the
case of a NQSO, an Option holder is not taxed on the grant of such
Option. Upon exercise, however, the participant recognizes ordinary
income equal to the difference between the Option price and the fair market
value of the shares on the date of the exercise. The Company is
generally entitled to an income tax deduction in the year of exercise in the
amount of the ordinary income recognized by the Option holder. Any
gain on subsequent disposition of the shares is long-term capital gain if the
shares are held for at least one year following the exercise. The
Company does not receive an income tax deduction for this gain.
Restricted Stock
A
recipient of Restricted Stock will not have taxable income upon grant, but will
have ordinary income at the time of vesting equal to the fair market value on
the vesting date of the shares (or cash) received minus any amount paid for the
shares. A recipient of Restricted Stock may instead, however, elect
to be taxed at the time of grant. The Company will generally be entitled
to a corresponding tax deduction, but such deduction could be subject to
limitation under Section 162(m) of the Code.
Stock Appreciation Rights
No
taxable income will be recognized by an Option holder upon receipt of a Stock
Appreciation Right and the Company will not be entitled to a tax deduction upon
the grant of such right.
Upon the
exercise of a Stock Appreciation Right, the holder will include in taxable
income, for federal income tax purposes, the fair market value of the cash and
other property received with respect to the Stock Appreciation Right and the
Company will generally be entitled to a corresponding tax
deduction.
Equity Compensation Plan Information
The
Company previously adopted the 1996 Employee Comprehensive Stock Plan
(“Comprehensive Plan”) and the 1996 Non-Employee Director Plan (“Director Plan”)
under which officers and employees, and non-employee directors, respectively, of
the Company and its affiliates were eligible to receive stock option
grants. Employees of the Company were also eligible to receive
restricted stock grants under the Comprehensive Plan. The Company
previously reserved 14,500,000 and 1,300,000 shares of Common Stock for issuance
pursuant to the Comprehensive Plan and the Director Plan,
respectively. The Comprehensive Plan and the Director Plan expired on
July 10, 2006. The expiration of the plans preclude the Company from granting
new options under each plan, but do not affect outstanding option grants, which
shall expire in accordance with their terms.
The
following table summarizes the equity compensation plans under which the Common
Stock may be issued as of December 31, 2008:
|
|
|
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
future
issuance under
equity
compensation
plans
(excluding
securities
reflected in
column
(a))
(c)
|
|
Equity
compensation plans approved by security holders
|
|
|
240,000 |
|
|
$ |
0.27 |
|
|
|
0 |
|
|
Equity
compensation plans not approved by security holders
|
|
|
0 |
|
|
|
n/a |
|
|
|
n/a |
|
|
Total
|
|
|
240,000 |
|
|
$ |
0.27 |
|
|
|
0 |
|
The
approval and adoption of the 2009 Incentive Stock Plan requires the affirmative
vote of a majority of the votes cast on the proposal and represented at the
Annual Meeting.
A
MAJORITY OF THE BOARD RECOMMENDS A VOTE “FOR”
THE
APPROVAL AND ADOPTION OF THE 2009 INCENTIVE STOCK PLAN.
Meetings and Committees of the Board of Directors
The
business of the Company is managed under the direction of the
Board. The Board met four times during 2008. Each of the
directors of the Company attended at least 75% of the aggregate of the total
number of meetings of the Board (held during the period for which he has been a
director) and the total number of meetings of all committees of the Board on
which he served (during the periods that he served) held during
2008. Each director is expected to make reasonable efforts to attend
meetings of the Board, meetings of the committees of which he is a member and
the annual meetings of stockholders. Three of the Company’s incumbent
directors were present at the 2008 Annual Meeting of Stockholders, although only
Mr. Schwarz was a director at the time.
The Board
currently has an Audit Committee and a Compensation Committee, but does not have
a Nominating Committee. It is the intention of the Board to establish
a Nominating Committee consisting solely of independent
directors. The two committees of the Board and their principal duties
are described below.
Audit Committee
The Audit
Committee is currently comprised of James Risher, Jonathan Bren and Derek Fromm,
none of whom is an employee of the Company or any of its
subsidiaries. Mr. Fromm is the Chairman of the Audit
Committee. The Audit Committee meets with the Company’s independent
registered public accounting firm and management representatives, recommends to
the Board appointment of an independent registered public accounting firm,
approves the scope of audits and other services to be performed by the
independent registered public accounting firm, considers whether the performance
of any professional services by the independent registered public accounting
firm other than services provided in connection with the audit function could
impair the independence of the independent registered public accounting firm,
and reviews the results of audits and the accounting principles applied in
financial reporting and financial and operational controls. The
independent registered public accounting firm has unrestricted access to the
Audit Committee and vice versa. The Board has determined that each of
Messrs. Risher and Fromm qualifies as an “audit committee financial expert,” as
defined under the Exchange Act. The Audit Committee, which consisted
solely of James Risher during the fiscal year ended December 31, 2008, met four
times during such fiscal year. Each of Messrs. Risher, Bren and Fromm
is an independent director, as independence for Audit Committee members is
defined in the listing standards of The NASDAQ Stock Market LLC
(“Nasdaq”). The Board has adopted a written Charter of the Audit
Committee, which is available at www.wilhelmina.com/investorrelations.cfm.
Compensation Committee
The
Compensation Committee is comprised of Jonathan Bren, Dr. Hans-Joachim Bohlk and
James Risher, none of whom is an employee of the Company or any of its
subsidiaries. Mr. Risher is the Chairman of the Compensation
Committee. Messrs. Bren and Risher and Dr. Bohlk are independent
directors, as independence is defined in Nasdaq listing
standards. The Compensation Committee has primary authority to
determine and make recommendations to the Board on policies and procedures
relating to compensation and employee stock and other benefit plans of key
executives and approval of individual salary adjustments and stock
awards. Compensation is determined pursuant to discussions and
analysis by the Board based on certain factors which may include a review of the
individual’s performance, the scope of responsibility for the applicable
position, the experience level necessary for the applicable position, certain
peer group compensation levels and the performance of the Company.
The
Compensation Committee, which consisted solely of Jonathan Bren during the
fiscal year ended December 31, 2008, did not meet during such fiscal
year. The Compensation Committee does not have a
charter.
The Board
does not have a Nominating Committee. The Company’s independent
directors, Messrs. Bren, Fromm and Risher and Dr. Bohlk, currently serve the
function of a Nominating Committee and the Board may formalize their designation
as such in the future. Each of the independent directors of the Board
that serve the function of a Nominating Committee meet the criteria for being
independent, as independence is defined in Nasdaq listing
standards.
While the
Company does not currently have a charter governing the nomination of directors
or policies with regard to consideration of director candidates recommended by
the Company’s stockholders, the Board’s intention is to adopt a charter
outlining the qualifications for director candidates, as well as policies with
regard to consideration of director candidates by the stockholders of the
Company. Provided that director candidates meet the delineated
qualifications and the nominations are submitted timely pursuant to the Bylaws,
the Board does not anticipate that the Company’s independent directors will
differentiate evaluating nominees based on the source of their
nomination.
The
independent directors of the Board identify prospective candidates to serve as
directors by reviewing candidates’ credentials and qualifications, and
interviewing prospective candidates before submitting their respective names to
the Board. The independent directors of the Board consider
recommendations for director nominees from a wide variety of sources, including
members of the Company’s Board, business contacts, community leaders, other
third-party sources and members of management. The independent
directors of the Board also consider stockholders’ recommendations for director
nominees that are properly received by the Company.
The Board
believes that all of its directors should have the highest personal integrity
and have a record of exceptional ability and judgment. The Board also
believes that its directors should ideally reflect a mix of experience and other
qualifications. There is no firm requirement of minimum
qualifications or skills that candidates must possess. The
independent directors of the Board evaluate director candidates based on a
number of qualifications, including their independence, judgment, leadership
ability, expertise in the industry, experience developing and analyzing business
strategies, financial literacy, risk management skills, and, for incumbent
directors, his or her past performance.
The
independent directors of the Board initially evaluate a prospective nominee on
the basis of his or her resume and other background information that has been
made available to the Board. An independent director of the Board
will contact for further review and interview those candidates who the
independent directors of the Board believe are qualified, who may fulfill a
specific Board need and who would otherwise best make a contribution to the
Board. If, after further discussions with the candidate, and other
review and consideration as necessary, the independent directors of the Board
believe that they have identified a qualified candidate, they will consider
nominating the candidate for election as a director.
For a
description of arrangements with respect to the nomination of directors, see the
section of this Proxy Statement titled “Arrangements Regarding Nomination for
Election to the Board.”
Code of Conduct and Ethics
Effective
April 15, 2009, the Board adopted a revised Code of Business Conduct and Ethics
(the “Code of Ethics”) that amended and restated the Company’s former code of
ethics. The Code of Ethics sets forth legal and ethical standards of
conduct for directors, officers and employees of the Company and includes
provisions specifically designed to help and guide the Company’s directors,
officers and employees to: (i) avoid violations of laws, rules and regulations
and promote disclosure to the Company of any such violations that become known;
(ii) refrain from engaging in any activity or having a personal interest that
presents a “conflict of interest” and promote disclosure to the Company of any
such “conflicts of interest”; (iii) avoid violations of insider trading laws;
(iv) maintain the confidentiality of confidential information entrusted to them
in connection with their position with, or service to, the Company; (v) endeavor
to deal honestly, ethically and fairly with the Company’s suppliers, customers,
competitors and employees; (vi) protect the Company’s assets and refrain from
using the Company’s assets and services for personal benefit; (vii) comply with
applicable law and the Company’s policy regarding gifts, gratuities, favors and
business entertainment expenses; (viii) accurately report all business
transactions and accurately maintain the Company’s books, records and accounts
in accordance with applicable regulations and standards; (ix) disclose concerns
regarding questionable accounting or auditing matters or complaints regarding
accounting, internal accounting controls or auditing matters; (x) avoid making
any direct or indirect materially false or misleading statements to an
accountant in connection with any audit, review or examination of the Company’s
financial statements and avoid any direct or indirect action to coerce,
manipulate, mislead or fraudulently influence any independent public or
certified public accountant engaged in the performance of an audit or review of
the Company’s financial statements; and (xi) comply with reporting and
compliance procedures under the Code of Ethics. The Code of Ethics
also sets forth procedures to obtain waivers of the Code of Ethics, as well as
to amend and disseminate the Code of Ethics.
The Code
of Ethics was filed as Exhibit 14.1 to a Current Report on Form 8-K filed with
the SEC on April 21, 2009. The Code of Ethics is available at www.wilhelmina.com/investorrelations.cfm.
Stockholder Communications with the Board
The Board
has established a process for stockholders to send communications to the
Board. Stockholders may communicate with the Board generally or a
specific director at any time by writing to the Company at 200 Crescent Court,
Suite 1400, Dallas, Texas 75201, Attn: Corporate Secretary. The
Corporate Secretary reviews all messages received, and forwards any message that
reasonably appears to be a communication from a stockholder about a matter of
stockholder interest that is intended for communication to the
Board. Communications are sent as soon as practicable to the director
to whom they are addressed, or if addressed to the Board generally, to the
Chairman of the Board. Because other appropriate avenues of
communication exist for matters that are not of stockholder interest, such as
general business complaints or employee grievances, communications that do not
relate to matters of stockholder interest are not forwarded to the
Board. The Corporate Secretary has the right, but not the obligation,
to forward such other communications to appropriate channels within the
Company.
Annually,
as well as in connection with the election or appointment of a new director to
the Board, the Board considers the business and charitable relationships between
it and each non-employee director to determine compliance with Nasdaq listing
standards for independent directors. Based on that review, the Board
has determined that Messrs. Bren, Fromm and Risher and Dr. Bohlk are
independent, as independence is defined in Nasdaq listing
standards.
The Board
considered all of the matters discussed under the section of this Proxy
Statement titled “Transactions with Related Persons” in determining that Messrs.
Bren, Fromm and Risher and Dr. Bohlk are in compliance with Nasdaq listing
standards for independent directors.
Summary Compensation Table
The
following Summary Compensation Table shows the cash and non-cash compensation
awarded to or earned by the Company’s executive officers for the last two fiscal
years. Other than the individuals named below (the “Named Executive
Officers”), the Company did not have any other executive officers during fiscal
2008.
|
Name
and
|
|
|
|
|
|
|
All
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark
E. Schwarz
|
|
2008
|
|
|
- |
|
|
|
28,000 |
(2)
|
|
|
28,000 |
|
|
Chief
Executive Officer (1)
|
|
2007
|
|
|
- |
|
|
|
28,000 |
(2)
|
|
|
28,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
Murray
|
|
2008
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
Chief
Financial Officer
|
|
2007
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Mr.
Schwarz has served as the Company’s Chief Executive Officer since April
2009. Mr. Schwarz previously functioned as the Company’s
Interim Chief Executive Officer since October 2007 and was formally
appointed its Interim Chief Executive Officer effective in July
2008.
|
|
(2)
|
Represents
director fees paid to Mr. Schwarz in such capacity. For the
years indicated, Mr. Schwarz received no compensation in his capacity as
an employee of the Company.
|
Employment Agreements and Arrangements
Messrs.
Schwarz and Murray are employed at will and do not have employment, severance or
change in control agreements with the Company. Pursuant to
compensation arrangements adopted by the Company in April 2009, Messrs. Schwarz
and Murray will receive annual salary compensation of $150,000 and $175,000,
respectively, in 2009. Messrs. Schwarz and Murray, who were the only
executive officers of the Company during the fiscal year ended December 31,
2008, have not received salary compensation for their day-to-day services to the
Company prior to 2009.
On August
11, 2004, Craig Davis, allegedly a stockholder of the Company, filed a lawsuit
in the Chancery Court of New Castle County, Delaware (the
“Lawsuit”). The Lawsuit asserted direct claims, and also derivative
claims on the Company’s behalf, against five then former and three then current
directors of the Company. On April 13, 2006, the Company announced
that it reached an agreement with all of the parties to the Lawsuit to settle
all claims relating thereto (the “Settlement”). On June 23, 2006, the
Chancery Court approved the Settlement, and on July 25, 2006, the Settlement
became final and non-appealable. As part of the Settlement, the
Company agreed to certain limitations on cash compensation to its employees who
are employees of Newcastle until such time as the Company acquired a revenue
generating business. Such restriction is no longer
applicable.
Potential Payments Upon Termination or Change in
Control
The
Company has no plans or other arrangements in respect of remuneration received
or that may be received by its executive officers to compensate such officers in
the event of termination of employment (as a result of resignation, retirement
or change in control) or other events following a change in
control.
Outstanding Equity Awards at Fiscal Year-End Table
The
following table shows the unexercised stock options held at the end of fiscal
2008 by the Named Executive Officers.
|
|
|
Option
Awards
|
|
|
|
Number
of Securities Underlying Unexercised Options (#)
Exercisable
|
|
Number
of Securities Underlying Unexercised Options (#)
Unexercisable
|
|
Option
Exercise
Price
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark
E. Schwarz
|
|
|
100,000 |
|
|
|
0 |
|
|
|
0.28
|
|
6/21/11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
Murray
|
|
|
50,000 |
|
|
|
0 |
|
|
|
0.28
|
|
6/18/14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A total
of 1,300,000 shares of Common Stock are subject to the Director
Plan. In November 2002, the Board revised the Director Plan to
reflect the following (effective with the Board meetings held in 2003): each
non-employee director of the Company will be entitled to annual compensation
consisting of $28,000 in fees or stock options to purchase 100,000 shares of
Common Stock. As an alternative, each non-employee director may elect
a combination of stock and options. The Director Plan has since
expired.
The
Company anticipates that future equity compensation, if any, to Non-Employee
Directors will be made under the 2009 Incentive Stock Plan.
For the
fiscal year ended December 31, 2008, each of Messrs. Schwarz, Risher and Bren
and Steven Pully (a former director) received their annual compensation all in
cash. Compensation for services performed during fiscal 2008 is shown
in the table below.
|
|
|
Fees
Earned or Paid in Cash ($)
|
|
|
|
|
|
Mark
E. Schwarz
|
|
|
28,000 |
|
|
|
28,000 |
|
|
Steven
Pully (1)
|
|
|
28,000 |
|
|
|
28,000 |
|
|
Jonathan
Bren
|
|
|
28,000 |
|
|
|
28,000 |
|
|
James
Risher
|
|
|
28,000 |
|
|
|
28,000 |
|
|
John
Murray (2)
|
|
|
- |
|
|
|
- |
|
|
Evan
Stone (2)
|
|
|
- |
|
|
|
- |
|
|
Derek
Fromm (2)
|
|
|
- |
|
|
|
- |
|
|
Dr.
Hans-Joachim Bohlk (2)
|
|
|
- |
|
|
|
- |
|
|
(1)
|
Mr.
Pully served as a director until February
2009.
|
|
(2)
|
Messrs.
Murray, Stone and Fromm and Dr. Bohlk were elected to the Board in
February 2009.
|
The Audit
Committee is currently comprised of James Risher, Jonathan Bren and Derek
Fromm. Throughout the fiscal year ended December 31, 2008 and up to
the appointment of Messrs. Bren and Fromm to the Audit Committee on April 15,
2009, Mr. Risher was the sole member of the Audit Committee. All of
the actions of the Audit Committee discussed below were taken by the Audit
Committee when it was comprised solely of Mr. Risher.
The Audit
Committee reviewed and discussed the Company’s audited financial statements for
the fiscal year ended December 31, 2008 with management of the
Company. The Audit Committee discussed with Burton McCumber &
Cortez, L.L.P. (“Burton McCumber”), the Company’s independent registered public
accounting firm for the year ended December 31, 2008, the matters required to be
discussed by the statement on Audit Standards No. 61, as amended, as adopted by
the Public Company Accounting Oversight Board (“PCAOB”) in Rule
3200T.
The Audit
Committee also received the written disclosures and the letter from Burton
McCumber required by applicable requirements of the PCAOB regarding the
independent registered public accounting firm’s communications with the Audit
Committee concerning independence, and has considered and discussed with Burton
McCumber its independence.
Based on
the review and the discussions referred to above, the Audit Committee
recommended to the Board that the Company’s audited financial statements be
included in the Company’s Annual Report on Form 10-K for the year ended December
31, 2008, which was filed with the SEC on April 15, 2009.
This
report is not deemed to be “soliciting material” or to be “filed” with the SEC
or subject to Regulation 14A or 14C promulgated under the Exchange Act or to the
liabilities of Section 18 of the Exchange Act, and this report shall not be
deemed incorporated by reference into any prior or subsequent filing by the
Company under the Securities Act of 1933, as amended, or the Exchange Act,
except to the extent that the Company specifically incorporates it by reference
to such filing.
|
|
AUDIT
COMMITTEE
|
|
|
|
|
|
Derek
Fromm (Chairman)
|
|
|
Jonathan
Bren
|
|
|
James
Risher
|
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
DISCLOSURE
Burton
McCumber served as the Company’s independent registered public accounting firm
for the fiscal years ended December 31, 2008 and December 31,
2007. The Company does not expect a representative of Burton McCumber
to be present at the Annual Meeting.
The
Company is still in the process of selecting an independent registered public
accounting firm to serve during the Company’s fiscal year ending December 31,
2009 as the Company is seeking the input of the Audit Committee, which was
recently reconstituted on April 15, 2009.
Fees Billed During Fiscal 2008 and 2007
Aggregate
fees for professional services rendered to the Company by Burton McCumber for
the fiscal years ending December 31, 2008 and December 31, 2007 were as
follows:
|
|
|
|
|
|
|
|
|
Audit
Fees
|
|
$ |
113,602 |
|
|
$ |
95,217 |
|
|
Audit-Related
Fees
|
|
|
- |
|
|
|
- |
|
|
Tax
Fees
|
|
|
- |
|
|
|
- |
|
|
All
Other Fees
|
|
|
- |
|
|
|
- |
|
|
Total
|
|
$ |
113,602 |
|
|
$ |
95,217 |
|
Audit
Fees
The
aggregate fees billed by Burton McCumber for professional services required for
the audit of the Company’s annual financial statements included in the Company’s
Annual Report on Form 10-K and the review of the interim financial statements
included in the Company’s Quarterly Reports on Form 10-Q were $113,602 and
$95,217 for fiscal years 2008 and 2007, respectively.
Audit-Related
Fees
The
Company did not engage or pay Burton McCumber for assurance and related services
related to the performance of the audit of the Company’s annual financial
statements or the review of the interim financial statements included in the
Company’s Quarterly Reports on Form 10-Q for fiscal years 2008 and
2007.
Tax
Fees
The
Company did not engage or pay Burton McCumber for professional services relating
to tax compliance, tax advice or tax planning in fiscal years 2008 and
2007.
All
Other Fees
Other
than the services described above, the Company did not engage or pay Burton
McCumber for services in fiscal years 2008 and 2007.
Pre-Approval Policies and Procedures
All audit
and non-audit services to be performed by the Company’s independent registered
public accounting firm must be approved in advance by the Audit
Committee. Consistent with applicable law, limited amounts of
services, other than audit, review or attest services, may be approved by one or
more members of the Audit Committee pursuant to authority delegated by the Audit
Committee, provided each such approved service is reported to the full Audit
Committee at its next meeting.
All of
the engagements and fees for the Company’s fiscal years ended December 31, 2008
and December 31, 2007 were pre-approved by the Audit Committee. In
connection with the audit of the Company’s financial statements for the fiscal
year ended December 31, 2008, Burton McCumber only used full-time, permanent
employees.
The Audit
Committee has considered whether the provision by Burton McCumber of the
services covered by the fees other than the audit fees is compatible with
maintaining Burton McCumber’s independence and believes that it is
compatible.
Requirements
for Stockholder Proposals to be Considered for Inclusion in the Company’s Proxy
Materials
Stockholder
proposals submitted pursuant to Rule 14a-8 of the Exchange Act (“Rule 14a-8”),
and intended to be presented at the Company’s 2010 Annual Meeting of
Stockholders, must be received by the Company at 200 Crescent Court, Suite 1400,
Dallas, Texas 75201, Attn: Corporate Secretary, no later than January 7, 2010 to
be considered for inclusion in the Company’s proxy materials for that
meeting.
Requirements
for Stockholder Proposals Outside the Scope of Rule 14a-8
A
stockholder may present a proposal for consideration at the 2010 Annual Meeting
of Stockholders by providing written notice in a timely manner to the Secretary
of the Company setting forth the following information: (a) the name and address
of the stockholder who intends to make the proposal and the text of the proposal
to be introduced; (b) the class and number of shares of stock held of record,
owned beneficially and represented by proxy by such stockholder as of the record
date for the meeting (if such date shall then have been made publicly available)
and as of the date of such notice; and (c) a representation that the stockholder
intends to appear in person or by proxy at the meeting to introduce the proposal
or proposals specified in the notice. To be timely, notice must be
received by the Company’s Secretary not less than (a) in the case of an annual
meeting, 120 days in advance of the date of the Company’s proxy materials for
the previous year’s annual meeting; or (b) in the case of a special meeting, the
close of business on the seventh day following the day on which notice of such
meeting is first given to stockholders. No business shall be
conducted at a meeting except business brought before the meeting in accordance
with the procedures set forth above. The Chairperson of the meeting
may refuse to acknowledge the introduction of any stockholder proposal not made
in compliance with the foregoing procedure.
Requirements
for Stockholder Nominations of Directors
The
advance notification procedures that stockholders must follow in order to
nominate directors (the “Nomination Procedure”), set forth in Section 8.3 of the
Certificate of Incorporation and Section 3.16 of the Bylaws, provide that only
persons who are nominated by or at the direction of the Board, or by a
stockholder who has given timely prior written notice to the Secretary of the
Company prior to the meeting at which directors are to be elected, will be
eligible for election to the Board. To be timely, notice must be
received by the Company no later than (a) in the case of an annual meeting, 90
days prior to the annual meeting, or (b) in the case of a special meeting, the
close of business on the seventh day following the day on which notice of such
meeting is first given to stockholders.
Under the
Nomination Procedure, notice to the Company from a stockholder who proposes to
nominate a person or persons at a meeting for election as a director must
contain certain information, including the following: (a) the name and address
of the stockholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the stockholder is a holder
of record of stock of the Company entitled to vote at each meeting and intends
to appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or person (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the SEC, had the nominee been
nominated or intended to be nominated, by the board of directors; and (e) the
consent of each nominee to serve as a director of the Company if so
elected. The Chairperson of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
This
solicitation of proxies is being made on behalf of the Board and the cost of
preparing, assembling and mailing this Proxy Statement is being paid by the
Company. In addition to solicitation by mail, Company directors,
officers and employees (none of whom will receive any compensation therefor in
addition to their regular compensation) may solicit proxies by telephone or
other means of communication. Arrangements will also be made with
brokerage firms and other custodians, nominees and fiduciaries that hold the
voting securities of record for the forwarding of solicitation materials to the
beneficial owners thereof. The Company will reimburse such brokers,
custodians, nominees and fiduciaries for reasonable out-of-pocket expenses
incurred by them in connection therewith.
The 2008
Annual Report is being sent with this Proxy Statement to each
stockholder. The 2008 Annual Report is also available at www.wilhelmina.com/investorrelations.cfm. The
2008 Annual Report, however, is not to be regarded as part of the proxy
soliciting material.
WILHELMINA
INTERNATIONAL, INC.
2009
INCENTIVE STOCK PLAN
1. Purpose of the
Plan.
This 2009
Incentive Stock Plan (the “Plan”) is intended as an incentive, to retain in the
employ of and as directors, officers, consultants, advisors and employees to
Wilhelmina International, Inc., a Delaware corporation (the “Company”) and any
Subsidiary of the Company, within the meaning of Section 424(f) of the United
States Internal Revenue Code of 1986, as amended (the “Code”), persons of
training, experience and ability, to attract new directors, officers,
consultants, advisors and employees whose services are considered valuable, to
encourage the sense of proprietorship and to stimulate the active interest of
such persons in the development and financial success of the Company and its
Subsidiaries.
Certain
options granted pursuant to the Plan may constitute incentive stock options
within the meaning of Section 422 of the Code (the “Incentive Options”) while
certain other options granted pursuant to the Plan may be nonqualified stock
options (the “Nonqualified Options”). Incentive Options and
Nonqualified Options are hereinafter referred to collectively as
“Options.”
The
Company intends that the Plan meet the requirements of Rule 16b-3 (“Rule 16b-3”)
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and that transactions of the type specified in subparagraphs (c) to (f)
inclusive of Rule 16b-3 by officers and directors of the Company pursuant to the
Plan will be exempt from the operation of Section 16(b) of the Exchange
Act. Further, the Plan may satisfy the performance-based compensation
exception to the limitation on the Company’s tax deductions imposed by Section
162(m) of the Code with respect to those Options for which qualification for
such exception is intended. In all cases, the terms, provisions,
conditions and limitations of the Plan shall be construed and interpreted
consistent with the Company’s intent as stated in this Section 1.
2. Administration of the
Plan.
The Board
of Directors of the Company (the “Board”) shall appoint and maintain as
administrator of the Plan a Committee (the “Committee”), which may be the
Compensation Committee of the Board, consisting of two or more directors who are
“Non-Employee Directors” (as such term is defined in Rule 16b-3) and “Outside
Directors” (as such term is defined in Section 162(m) of the Code), which shall
serve at the pleasure of the Board. The Committee, subject to
Sections 3, 4 and 5 hereof, shall have full power and authority to designate
recipients of Options, stock appreciation rights (“Stock Appreciation Rights”),
restricted stock (“Restricted Stock”) and other equity incentives or stock or
stock based awards (“Equity Incentives”) and to determine the terms and
conditions of respective Option, Stock Appreciation Rights, Restricted Stock and
Equity Incentives agreements (which need not be identical) and to interpret the
provisions and supervise the administration of the Plan. The
Committee shall have the authority, without limitation, to designate which
Options granted under the Plan shall be Incentive Options and which shall be
Nonqualified Options. To the extent any Option does not qualify as an
Incentive Option, it shall constitute a separate Nonqualified
Option.
Subject
to the provisions of the Plan, the Committee shall interpret the Plan and all
Options, Stock Appreciation Rights, Restricted Stock and Equity Incentives
granted under the Plan, shall make such rules as it deems necessary for the
proper administration of the Plan, shall make all other determinations necessary
or advisable for the administration of the Plan and shall correct any defects or
supply any omission or reconcile any inconsistency in the Plan or in any
Options, Stock Appreciation Rights, Restricted Stock or Equity Incentives
granted under the Plan in the manner and to the extent that the Committee deems
desirable to carry into effect the Plan or any Options, Stock Appreciation
Rights, Restricted Stock or Equity Incentives. The act or
determination of a majority of the Committee shall be the act or determination
of the Committee and any decision reduced to writing and signed by all of the
members of the Committee shall be fully effective as if it had been made by a
majority at a meeting duly held. Subject to the provisions of the
Plan, any action taken or determination made by the Committee pursuant to this
and the other Sections of the Plan shall be conclusive on all
parties.
In the
event that for any
reason the Committee is unable to act or if the Committee at the time of any
grant, award or other acquisition under the Plan does not consist of two or more
Non-Employee Directors, or if there shall be no such Committee, then the Plan
shall be administered by the Board, and references herein to the Committee
(except in the proviso to this sentence) shall be deemed to be references to the
Board, and any such grant, award or other acquisition may be approved or
ratified in any other manner contemplated by subparagraph (d) of Rule 16b-3;
provided,
however,
that grants to the Company’s Chief Executive Officer or to any other covered
employee within the meaning of Section 162(m) of the Code that are intended to
qualify as performance-based compensation under Section 162(m) of the Code may
only be granted by the Committee.
3. Designation of Optionees and
Grantees.
The
persons eligible for participation in the Plan as recipients of Options (the
“Optionees”), Stock Appreciation Rights, Restricted Stock or Equity Incentives
(respectively, the “Grantees”) shall include directors, officers and employees
of, and consultants and advisors to, the Company or any Subsidiary; provided
that Incentive Options may only be granted to employees of the Company and the
Subsidiaries. In selecting Optionees and Grantees, and in determining
the number of shares to be covered by each Option, Stock Appreciation Right,
Restricted Stock or Equity Incentive granted to Optionees or Grantees, the
Committee may consider any factors it deems relevant, including without
limitation, the office or position held by the Optionee or Grantee or the
Optionee or Grantee’s relationship to the Company, the Optionee or Grantee’s
degree of responsibility for and contribution to the growth and success of the
Company or any Subsidiary, the Optionee or Grantee’s length of service,
promotions and potential. An Optionee or Grantee who has been granted
an Option, Stock Appreciation Right, Restricted Stock or Equity Incentive
hereunder may be granted an additional Option or Options, Stock Appreciation
Right(s), Restricted Stock or Equity Incentive(s) if the Committee shall so
determine.
4. Stock Reserved for the Plan.
Subject
to adjustment as provided in Section 10 hereof, a total of 6,000,000 shares of
the Company’s Common Stock, $0.01 par value per share (the “Stock”), shall be
subject to the Plan. The maximum number of shares of Stock that may
be subject to Options and Stock Appreciation Rights granted under the Plan to
any individual in any calendar year shall not exceed 1,000,000 and the method of
counting such shares shall conform to any requirements applicable to
performance-based compensation under Section 162(m) of the Code, if
qualification as performance-based compensation under Section 162(m) of the Code
is intended. The shares of Stock subject to the Plan shall consist of
unissued shares, treasury shares or previously issued shares held by any
Subsidiary of the Company, and such amount of shares of Stock shall be and is
hereby reserved for such purpose. Any of such shares of Stock that
may remain unsold and that are not subject to outstanding Options at the
termination of the Plan shall cease to be reserved for the purposes of the Plan,
but until termination of the Plan the Company shall at all times reserve a
sufficient number of shares of Stock to meet the requirements of the
Plan. Should any Option, Stock Appreciation Right, Restricted Stock,
or Equity Incentives expire or be canceled prior to its exercise or vesting in
full or should the number of shares of Stock to be delivered upon the exercise
or vesting in full of an Option, Stock Appreciation Right, Restricted Stock, or
Equity Incentives be reduced for any reason, the shares of Stock theretofore
subject to such Option, Stock Appreciation Right, Restricted Stock, or Equity
Incentives may be subject to future Rights under the Plan, except in the case of
an Option or Stock Appreciation Right where such reissuance is inconsistent with
the provisions of Section 162(m) of the Code where qualification as
performance-based compensation under Section 162(m) of the Code is
intended.
5. Terms and Conditions of Options.
Options
granted under the Plan shall be subject to the following conditions and shall
contain such additional terms and conditions, not inconsistent with the terms of
the Plan, as the Committee shall deem desirable:
(a) Option
Price. The purchase
price of each share of Stock purchasable under an Option shall be determined by
the Committee at the time of grant, but shall not be less than 100% of the Fair
Market Value (as defined below) of such share of Stock on the date the Option is
granted; provided, however, that with respect to an
Optionee who, at the time an Incentive Option is granted, owns (within the
meaning of Section 424(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or of any Subsidiary, the
purchase price per share of Stock under an Incentive Option shall be
at least 110% of the Fair Market Value per share of Stock on the date of
grant. The exercise price for each Option shall be subject to
adjustment as provided in Section 10 below. “Fair Market
Value” means the closing price of publicly traded shares of Stock on the
business day immediately prior to the grant on the principal securities exchange
on which shares of Stock are listed (if the shares of Stock are so listed), or
on the NASDAQ Stock Market (if the shares of Stock are regularly quoted on the
NASDAQ Stock Market), or, if not so listed or regularly quoted, the mean between
the closing bid and asked prices of publicly traded shares of Stock in the
over-the-counter market, or, if such bid and asked prices shall not be
available, as reported by any nationally recognized quotation service selected
by the Company, or as determined by the Committee in a manner consistent with
the provisions of the Code. Anything in this Section 5(a) to the
contrary notwithstanding, in no event shall the purchase price of a share of
Stock be less than the minimum price permitted under the rules and policies of
any national securities exchange on which the shares of Stock are
listed.
(b) Option
Term. The term of each Option shall be fixed by the Committee,
but no Option shall be exercisable more than ten years after the date such
Option is granted and in the case of an Incentive Option granted to an Optionee
who, at the time such Incentive Option is granted, owns (within the meaning of
Section 424(d) of the Code) more than 10% of the total combined voting power of
all classes of stock of the Company or of any Subsidiary, no such Incentive
Option shall be exercisable more than five years after the date such Incentive
Option is granted.
(c) Exercisability. Subject
to Section 5(e) hereof, Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the
Committee.
Upon the
occurrence of a “Change in Control” (as hereinafter defined), the Committee may
accelerate the vesting and exercisability of outstanding Options, in whole or in
part, as determined by the Committee in its sole discretion. In its
sole discretion, the Committee may also determine that, upon the occurrence of a
Change in Control, each outstanding Option shall terminate within a specified
number of days after notice to the Optionee thereunder, and each such Optionee
shall receive, with respect to each share of Company Stock subject to such
Option, an amount equal to the excess of the Fair Market Value of such shares
immediately prior to such Change in Control over the exercise price per share of
such Option; such amount shall be payable in cash, in one or more kinds of
property (including the property, if any, payable in the transaction) or a
combination thereof, as the Committee shall determine in its sole
discretion.
For
purposes of the Plan, a Change in Control shall be deemed to have occurred
if:
(i) a
tender offer (or series of related offers) shall be made and consummated for the
ownership of 50% or more of the outstanding voting securities of the Company,
unless as a result of such tender offer more than 50% of the outstanding voting
securities of the surviving or resulting corporation shall be owned in the
aggregate by the stockholders of the Company (as of the time immediately prior
to the commencement of such offer), any employee benefit plan of the Company or
its Subsidiaries, and their affiliates;
(ii) the
Company shall be merged or consolidated with another corporation, unless as a
result of such merger or consolidation more than 50% of the outstanding voting
securities of the surviving or resulting corporation shall be owned in the
aggregate by the stockholders of the Company (as of the time immediately prior
to such transaction), any employee benefit plan of the Company or its
Subsidiaries, and their affiliates;
(iii) the
Company shall sell substantially all of its assets to another corporation that
is not wholly owned by the Company, unless as a result of such sale more than
50% of such assets shall be owned in the aggregate by the stockholders of the
Company (as of the time immediately prior to such transaction), any employee
benefit plan of the Company or its Subsidiaries and their affiliates;
or
(iv) a
Person (as defined below) shall acquire 50% or more of the outstanding voting
securities of the Company (whether directly, indirectly, beneficially or of
record), unless as a result of such acquisition more than 50% of the outstanding
voting securities of the surviving or resulting corporation shall be owned in
the aggregate by the stockholders of the Company (as of the time immediately
prior to the first acquisition of such securities by such Person), any employee
benefit plan of the Company or its Subsidiaries, and their
affiliates.
For
purposes of this Section 5(c), ownership of voting securities shall take into
account and shall include ownership as determined by applying the provisions of
Rule 13d-3(d)(I)(i) (as in effect on the date hereof) under the Exchange
Act. In addition, for such purposes, “Person” shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections
13(d) and 14(d) thereof; however, a Person shall not include (A) the Company or
any of its Subsidiaries; (B) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its Subsidiaries; (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities; or (D) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportion as their
ownership of stock of the Company.
(d) Method of
Exercise. Options to the extent then exercisable may be
exercised in whole or in part at any time during the option period, by giving
written notice to the Company specifying the number of shares of Stock to be
purchased, accompanied by payment in full of the purchase price, in cash, or by
check or such other instrument as may be acceptable to the
Committee. As determined by the Committee, in its sole discretion, at
or after grant, payment in full or in part may be made at the election of the
Optionee (i) in the form of Stock owned by the Optionee (based on the Fair
Market Value of the Stock on the trading day before the Option is exercised)
which is not the subject of any pledge or security interest, (ii) in the form of
shares of Stock withheld by the Company from the shares of Stock otherwise to be
received with such withheld shares of Stock having a Fair Market Value on the
date of exercise equal to the exercise price of the Option, or (iii) by a
combination of the foregoing, provided that the combined value of all cash and
cash equivalents and the Fair Market Value of any shares surrendered to the
Company is at least equal to such exercise price and except with respect to (ii)
above, such method of payment will not cause a disqualifying
disposition of all or a portion of the Stock received upon exercise of an
Incentive Option. An Optionee shall have the right to dividends and
other rights of a stockholder with respect to shares of Stock purchased upon
exercise of an Option at such time as the Optionee (i) has given written notice
of exercise and has paid in full for such shares and (ii) has satisfied such
conditions that may be imposed by the Company with respect to the withholding of
taxes.
(e) Limit on Value of Incentive
Option. The aggregate Fair Market Value, determined as of the
date the Incentive Option is granted, of Stock for which Incentive Options are
exercisable for the first time by any Optionee during any calendar year under
the Plan (and/or any other stock option plans of the Company or any Subsidiary)
shall not exceed $100,000.
(f) Incentive Option
Shares. A grant of an Incentive Option under this Plan shall
provide that (i) the Optionee shall be required as a condition of the exercise
to furnish to the Company any payroll (employment) tax required to be withheld,
and (ii) if the Optionee makes a disposition, within the meaning of Section
424(c) of the Code and regulations promulgated thereunder, of any share or
shares of Stock issued to him upon exercise of an Incentive Option granted under
the Plan within the two-year period commencing on the day after the date of the
grant of such Incentive Option or within a one-year period commencing on the day
after the date of transfer of the share or shares to him pursuant to the
exercise of such Incentive Option, he shall, within 10 days after such
disposition, notify the Company thereof and immediately deliver to the Company
any amount of United States federal, state and local income tax withholding
required by law.
6. Terms and Conditions of Stock Appreciation
Rights.
Stock
Appreciation Rights shall granted with an exercise price that is not less than
100% of the Fair Market Value (as defined in Section 5(a) herein) of a share of
Common Stock on the date the Stock Appreciation Right is granted and shall be
exercisable at such time or times and subject to such other terms and conditions
as shall be determined by the Committee. Unless otherwise provided, Stock
Appreciation Rights shall become immediately exercisable and shall remain
exercisable until expiration, cancellation or termination of the
award. Such rights may be exercised in whole or in part by giving
written notice to the Company. Stock Appreciation Rights to the
extent then exercisable may be exercised for payment in cash, shares of Common
Stock or a combination of both, as the Committee shall deem desirable, equal to:
(i) the excess of the Fair Market Value as defined in Section 5(a) herein of a
share of Common Stock on the date of exercise over (ii) the exercise price of
such Stock Appreciation Right.
7. Terms and Conditions of Restricted
Stock.
Restricted
Stock may be granted under this Plan aside from, or in association with, any
other award and shall be subject to the following conditions and shall contain
such additional terms and conditions (including provisions relating to the
acceleration of vesting of Restricted Stock upon a Change of Control), not
inconsistent with the terms of the Plan, as the Committee shall deem
desirable:
(a) Grantee
rights. A Grantee shall have no rights to an award of
Restricted Stock unless and until Grantee accepts the award within the period
prescribed by the Committee and, if the Committee shall deem desirable, makes
payment to the Company in cash, or by check or such other instrument as may be
acceptable to the Committee. After acceptance and issuance of a
certificate or certificates, as provided for below, the Grantee shall have the
rights of a stockholder with respect to Restricted Stock subject to the
non-transferability and forfeiture restrictions described in section 7(d)
below.
(b) Issuance of
certificates. The Company shall issue in the Grantee’s name a certificate
or certificates for the shares of Common Stock associated with the award
promptly after the Grantee accepts such award.
(c) Delivery of
certificates. Unless otherwise provided, any certificate or certificates
issued evidencing shares of Restricted Stock shall not be delivered to the
Grantee until such shares are free of any restrictions specified by the
Committee at the time of grant.
(d) Forfeitability,
Non-transferability of Restricted Stock. Shares of Restricted
Stock are forfeitable until the terms of the Restricted Stock grant have been
satisfied. Shares of Restricted Stock are not transferable until the
date on which the Committee has specified such restrictions has
lapsed. Unless otherwise provided, distributions of additional shares
or property in the form of dividends or otherwise in respect of shares of
Restricted Stock shall be subject to the same restrictions as such shares of
Restricted Stock.
(e) Change of
Control. Upon the occurrence of a Change in Control, the
Committee may accelerate the vesting of outstanding Restricted Stock, in whole
or in part, as determined by the Committee in its sole discretion.
8. Other Equity Incentives or Stock Based
Awards.
The
Committee may grant Equity Incentives (including the grant of unrestricted
shares) to such key persons, in such amounts and subject to such terms and
conditions, as the Committee shall in its discretion determine, subject to the
provisions of the Plan. Such awards may entail the transfer of actual
shares of Common Stock to Plan participants, or payment in cash or otherwise of
amounts based on the value of shares of Common Stock.
9. Term of Plan.
No
Option, Stock Appreciation Rights, Restricted Stock or Equity Incentives shall
be granted pursuant to the Plan on the date which is ten years from the
effective date of the Plan, but Options, Stock Appreciation Rights or Equity
Incentives theretofore granted may extend beyond that date.
10. Capital Change of the Company.
In the
event of any merger, reorganization, consolidation, recapitalization, stock
dividend, or similar type of corporate restructuring affecting the Stock, the
Committee shall make an appropriate and equitable adjustment in the number and
kind of shares reserved for issuance under the Plan and in the number and option
price of shares subject to outstanding Options granted under the Plan, to the
end that after such event each Optionee’s proportionate interest shall be
maintained as immediately before the occurrence of such event. The
Committee shall, to the extent feasible, make such other adjustments as may be
required under the tax laws so that any Incentive Options previously granted
shall not be deemed modified within the meaning of Section 424(h) of the Code.
Appropriate adjustments shall also be made in the case of outstanding Stock
Appreciation Rights and Restricted Stock granted under the Plan.
11. Purchase for Investment.
Unless
the Options and shares covered by the Plan have been registered under the
Securities Act of 1933, as amended (the “Securities Act”), or the Company has
determined that such registration is unnecessary, each person exercising or
receiving Options, Stock Appreciation Rights, Restricted Stock or Equity
Incentives under the Plan may be required by the Company to give a
representation in writing that he is acquiring the securities (if issued) for
his own account for investment and not with a view to, or for sale in connection
with, the distribution of any part thereof.
12. Taxes.
(a) The
Company may make such provisions as it may deem appropriate, consistent with
applicable law, in connection with any Options, Stock Appreciation Rights,
Restricted Stock or Equity Incentives granted under the Plan with respect to the
withholding of any taxes (including income or employment taxes) or any other tax
matters.
(b) If
any Grantee, in connection with the acquisition of Restricted Stock, makes the
election permitted under section 83(b) of the Code (that is, an election to
include in gross income in the year of transfer the amounts specified in section
83(b)), such Grantee shall notify the Company of the election with the Internal
Revenue Service pursuant to regulations issued under the authority of Code
section 83(b).
(c) If
any Grantee shall make any disposition of shares of Stock issued pursuant to the
exercise of an Incentive Option under the circumstances described in section
421(b) of the Code (relating to certain disqualifying dispositions), such
Grantee shall notify the Company of such disposition within 10 days
hereof.
13. Effective Date of Plan.
The Plan
shall be effective on April 30, 2009; provided, however, that if, and
only if, certain options are intended to qualify as Incentive Stock Options, the
Plan must subsequently be approved by majority vote of the Company’s
stockholders no later than April 30, 2010, and further, that in the event
certain Option grants hereunder are intended to qualify as performance-based
compensation within the meaning of Section 162(m) of the Code, the requirements
as to shareholder approval set forth in Section 162(m) of the Code are
satisfied.
14. Amendment and Termination, Section 409A of the
Code.
The Board
may amend, suspend, or terminate the Plan, except that no amendment shall be
made that would impair the rights of any Optionee or Grantee under any Option,
Stock Appreciation Right, Restricted Stock or Equity Incentive theretofore
granted without the Optionee or Grantee’s consent, and except that no amendment
shall be made which, without the approval of the stockholders of the Company
would:
(a) materially
increase the number of shares that may be issued under the Plan, except as is
provided in Section 10;
(b) materially
increase the benefits accruing to the Optionees or Grantees under the
Plan;
(c) materially
modify the requirements as to eligibility for participation in the
Plan;
(d) decrease
the exercise price of an Incentive Option to less than 100% of the Fair Market
Value per share of Stock on the date of grant thereof or the exercise price of a
Nonqualified Option to less than 100% of the Fair Market Value per share of
Stock on the date of grant thereof; or
(e) extend
the term of any Option beyond that provided for in Section 5(b).
The
Committee may amend the terms of any Option, Stock Appreciation Right,
Restricted Stock or Equity Incentive theretofore granted, prospectively or
retroactively, but no such amendment shall impair the rights of any Optionee or
Grantee without the Optionee or Grantee’s consent. The Committee may
also substitute new Options, Stock Appreciation Rights or Restricted Stock for
previously granted Options, Stock Appreciation Rights or Restricted Stock
including options granted under other plans applicable to the
participant and previously granted Options having higher option prices, upon
such terms as the Committee may deem appropriate.
It is the
intention of the Board that the Plan comply strictly with the provisions of
Section 409A of the Code and Treasury Regulations and other Internal Revenue
Service guidance promulgated thereunder (the “Section 409A Rules) and the
Committee shall exercise its discretion in granting Options, Stock Appreciation
Rights or Restricted Stock hereunder (and the terms of such grants),
accordingly. The Plan and any grant of an Option, Stock Appreciation
right or Restricted Stock hereunder may be amended from time to time (without,
in the case of an Award, the consent of the Participant) as may be necessary or
appropriate to comply with the Section 409A Rules.
15. Government Regulations.
The Plan,
and the grant and exercise of Options, Stock Appreciation Rights, Restricted
Stock and Equity Incentives hereunder, and the obligation of the Company to sell
and deliver shares under such Options, Stock Appreciation Rights, Restricted
Stock and Equity Incentives shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies, national
securities exchanges and interdealer quotation systems as may be
required.
16. General Provisions.
(a) Certificates. All
certificates for shares of Stock delivered under the Plan shall be subject to
such stop transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations and other requirements of the Securities
and Exchange Commission, or other securities commission having jurisdiction, any
applicable Federal or state securities law, any stock exchange or interdealer
quotation system upon which the Stock is then listed or traded and the Committee
may cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions.
(b) Employment
Matters. The adoption of the Plan shall not confer upon any
Optionee or Grantee of the Company or any Subsidiary any right to continued
employment or, in the case of an Optionee or Grantee who is a director,
continued service as a director, with the Company or a Subsidiary, as the case
may be, nor shall it interfere in any way with the right of the Company or any
Subsidiary to terminate the employment of any of its employees, the service of
any of its directors or the retention of any of its consultants or advisors at
any time.
(c) Limitation of
Liability. No member of the Board or the Committee, or any
officer or employee of the Company acting on behalf of the Board or the
Committee, shall be personally liable for any action, determination or
interpretation taken or made in good faith with respect to the Plan, and all
members of the Board or the Committee and each and any officer or employee of
the Company acting on their behalf shall, to the extent permitted by law, be
fully indemnified and protected by the Company in respect of any such action,
determination or interpretation.
(d) Registration of
Stock. Notwithstanding any other provision in the Plan, no
Option may be exercised unless and until the Stock to be issued upon the
exercise thereof has been registered under the Securities Act and applicable
state securities laws, or are, in the opinion of counsel to the Company, exempt
from such registration in the United States. The Company shall not be
under any obligation to register under applicable federal or state securities
laws any Stock to be issued upon the exercise of an Option granted hereunder in
order to permit the exercise of an Option and the issuance and sale of the Stock
subject to such Option, although the Company may in its sole discretion register
such Stock at such time as the Company shall determine. If the
Company chooses to comply with such an exemption from registration, the Stock
issued under the Plan may, at the direction of the Committee, bear an
appropriate restrictive legend restricting the transfer or pledge of the Stock
represented thereby, and the Committee may also give appropriate stop transfer
instructions with respect to such Stock to the Company’s transfer
agent.
(e) Non-transferability. Options
and Stock Appreciation Rights granted hereunder are not transferable and may be
exercised solely by the Optionee or Grantee during his lifetime or after his
death by the person or persons entitled thereto under his will or the laws of
descent and distribution. The Committee, in its sole discretion, may
permit a transfer of a Nonqualified Option to (i) a trust for the benefit of the
Optionee or (ii) a member of the Optionee’s immediate family (or a trust for his
or her benefit). Any attempt to transfer, assign, pledge or otherwise
dispose of, or to subject to execution, attachment or similar process, any
Option or Stock Appreciation Right contrary to the provisions hereof shall be
void and ineffective and shall give no right to the purported
transferee.
(f) No rights as a
Stockholder. No Optionee or Grantee (or other person having the right to
exercise such award) shall have any of the rights of a stockholder of the
Company with respect to shares subject to such award until the issuance of a
stock certificate to such person for such shares. Except as otherwise
provided herein, no adjustment shall be made for dividends, distributions or
other rights (whether ordinary or extraordinary, and whether in cash, securities
or other property) for which the record date is prior to the date such stock
certificate is issued.
(g) Termination by
Death. Unless otherwise determined by the Committee, if any
Optionee or Grantee’s employment with or service to the Company or any
Subsidiary terminates by reason of death, the Option or Stock Appreciation Right
may thereafter be exercised, to the extent then exercisable (or on such
accelerated basis as the Committee shall determine at or after grant), by the
legal representative of the estate or by the legatee of the Optionee or Grantee
under the will of the Optionee or Grantee, for a period of one year after the
date of such death or until the expiration of the stated term of such Option or
Stock Appreciation Right as provided under the Plan, whichever period is
shorter.
(h) Termination by Reason of
Disability. Unless otherwise determined by the Committee, if
any Optionee or Grantee’s employment with or service to the Company or any
Subsidiary terminates by reason of total and permanent disability, any Option or
Stock Appreciation Right held by such Optionee or Grantee may thereafter be
exercised, to the extent it was exercisable at the time of termination due to
Disability (or on such accelerated basis as the Committee shall determine at or
after grant), but may not be exercised after 60 days after the date of such
termination of employment or service or the expiration of the stated term of
such Option or Stock Appreciation Right, whichever period is shorter; provided, however, that, if the
Optionee or Grantee dies within such 60-day period, any unexercised Option or
Stock Appreciation Right held by such Optionee or Grantee shall thereafter be
exercisable to the extent to which it was exercisable at the time of death for a
period of one year after the date of such death or for the stated term of such
Option or Stock Appreciation Right, whichever period is shorter.
(i) Termination by Reason of
Retirement. Unless otherwise determined by the Committee, if
any Optionee or Grantee’s employment with or service to the Company or any
Subsidiary terminates by reason of Normal or Early Retirement (as such terms are
defined below), any Option or Stock Appreciation Right held by such Optionee or
Grantee may thereafter be exercised to the extent it was exercisable at the time
of such Retirement (or on such accelerated basis as the Committee shall
determine at or after grant), but may not be exercised after 60 days after the
date of such termination of employment or service or the expiration of the
stated term of such Option or Stock Appreciation Right, whichever period is
shorter; provided, however, that, if the Optionee or Grantee dies within such
60-day period, any unexercised Option or Stock Appreciation Right held by such
Optionee or Grantee shall thereafter be exercisable, to the extent to which it
was exercisable at the time of death, for a period of one year after the date of
such death or for the stated term of such Option or Stock Appreciation Right,
whichever period is shorter. For purposes of this paragraph (i),
“Normal
Retirement”
shall mean retirement from active employment with the Company or any Subsidiary
on or after the normal retirement date specified in the applicable Company or
Subsidiary pension plan or if no such pension plan, age 65, and “Early
Retirement”
shall mean retirement from active employment with the Company or any Subsidiary
pursuant to the early retirement provisions of the applicable Company or
Subsidiary pension plan or if no such pension plan, age 55.
(j) Other
Termination. Unless otherwise determined by the Committee, if
any Optionee or Grantee’s employment with or service to the Company or any
Subsidiary terminates for any reason other than death, Disability or Normal or
Early Retirement, the Option or Stock Appreciation Right shall thereupon
terminate, except that the portion of any Option or Stock Appreciation Right
that was exercisable on the date of such termination of employment or service
may be exercised for the lesser of 30 days after the date of termination or the
balance of such Option or Stock Appreciation Right’s term if the Optionee or
Grantee’s employment or service with the Company or any Subsidiary is terminated
by the Company or such Subsidiary without cause or for good reason by the
Optionee or Grantee (the determination as to whether termination was for cause
or for good reason to be made by the Committee). The transfer of an
Optionee or Grantee from the employ of or service to the Company to the employ
of or service to a Subsidiary, or vice versa, or from one Subsidiary to another,
shall not be deemed to constitute a termination of employment or service for
purposes of the Plan.
| |
Wilhelmina
International, Inc. |
| |
|
| |
April 30,
2009 |
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
WILHELMINA
INTERNATIONAL, INC.
Annual
Meeting of Stockholders
June
4, 2009
NOTICE
OF INTERNET AVAILABILITY OF PROXY MATERIAL:
The Proxy
Statement and 2008 Annual Report on Form 10-K are available at:
www.wilhelmina.com/investorrelations.cfm
The undersigned, a stockholder of
Wilhelmina International, Inc., a Delaware corporation (the “Company”), does
hereby appoint John Murray and Evan Stone, and each of them, the true and lawful
attorneys and proxies with full power of substitution, for and in the name,
place and stead of the undersigned, to vote all of the shares of Common Stock of
the Company which the undersigned would be entitled to vote if personally
present at the 2009 Annual Meeting of Stockholders of the Company to be held at
the offices of the Company located at 200 Crescent Court, Suite 1400, Dallas,
Texas, on June 4, 2009 at 9:00 a.m., local time, or at any adjournment or
adjournments thereof.
A
MAJORITY OF THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR PROPOSALS 1 AND
2.
The
undersigned hereby instructs said proxies or their substitutes:
|
1.
|
ELECTION
OF DIRECTOR NOMINEES
|
|
Nominees:
|
Mark
E. Schwarz
|
Evan
Stone
|
|
|
Jonathan
Bren
|
Derek
Fromm
|
|
|
James
Risher
|
Dr.
Hans-Joachim Bohlk
|
|
|
John
Murray
|
|
|
FOR
ALL NOMINEES [ ]
|
WITHHOLD
AUTHORITY
TO [ ]
VOTE
FOR ALL NOMINEES
|
| |
|
|
|
TO
WITHHOLD AUTHORITY TO VOTE FOR ANY
INDIVIDUAL
NOMINEE(S), PRINT NAME(S)
ABOVE.
|
|
2.
|
[ ] APPROVAL
OF 2009 INCENTIVE STOCK PLAN
|
DISCRETIONARY
AUTHORITY:
In their
discretion, the proxies are authorized to vote upon such other and further
business as may properly come before the meeting.
THIS
PROXY WILL BE VOTED IN ACCORDANCE WITH ANY DIRECTIONS HEREINBEFORE GIVEN. UNLESS
OTHERWISE SPECIFIED, THIS PROXY WILL BE VOTED FOR THE ELECTION OF THE NOMINEES
NAMED HEREIN AND FOR THE APPROVAL OF THE 2009 INCENTIVE STOCK PLAN.
The
undersigned hereby revokes any other proxy or proxies heretofore given to vote
or act with respect to the shares of Common Stock of the Company held by the
undersigned, and hereby ratifies and confirms all action the herein named
attorneys and proxies, their substitutes, or any of them may lawfully take by
virtue hereof.
Dated:
_______________________, 2009
_____________________________
_____________________________
Signature(s)
NOTE: Please sign exactly as
your name or names appear hereon. When signing as attorney, executor,
administrator, trustee or guardian, please indicate the capacity in which
signing. When signing as joint tenants, all parties in the joint
tenancy should sign. When a proxy is given by a corporation, it should be signed
with full corporate name by a duly authorized officer. Please mark,
date, sign and mail this proxy in the envelope provided for this purpose. No
postage is required if mailed in the United States.