o
|
Preliminary
Proxy Statement
|
o
|
Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
|
x
|
Definitive
Proxy Statement
|
o
|
Definitive
Additional Materials
|
o
|
Soliciting
Material Pursuant to §240.14a-12
|
BIMINI
CAPITAL MANAGEMENT, INC.
|
(Name
of Registrant as Specified In Its Charter)
|
(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
|
x
|
No
fee required.
|
|
o
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
|
(1)
|
Title
of each class of securities to which transaction
applies:
|
|
(2)
|
Aggregate
number of securities to which transaction applies:
|
|
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
|
|
(4)
|
Proposed
maximum aggregate value of transaction:
|
|
(5)
|
Total
fee paid:
|
|
o
|
Fee
paid previously with preliminary materials.
|
|
o
|
Check
box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
|
|
(1)
|
Amount
Previously Paid:
|
|
|
||
(2)
|
Form,
Schedule or Registration Statement No.:
|
|
|
||
(3)
|
Filing
Party:
|
|
|
||
(4)
|
Date
Filed:
|
|
April
30, 2009
|
Sincerely,
Robert
E. Cauley
Chairman
of the Board and Chief Executive
Officer
|
1.
|
To
elect one Class III director to serve until the 2012 Annual Meeting of
Stockholders and until his successor is duly elected and
qualified;
|
2.
|
To
elect one Class I director to serve until the 2010 Annual Meeting of
Stockholders and until his successor is duly elected and
qualified;
|
3.
|
To
ratify the selection of BDO Seidman, LLP as our independent registered
public accounting firm for the fiscal year ending December 31, 2009;
and
|
4.
|
To
consider and vote upon such other business as may properly come before the
Annual Meeting or any adjournments or postponements
thereof.
|
By Order of the Board of
Directors,
|
|
Robert E. Cauley
|
|
Chairman
of the Board and CEO
|
|
Vero Beach, Florida
|
|
April 30, 2009
|
Proposal 1: FOR the election of the Class III
director nominee to serve until the 2012 Annual Meeting of Stockholders
and until his successor is duly elected and qualified (the “Class III
Director Election Proposal”);
|
Proposal 2: FOR the election of the Class I
director nominee to serve until the 2010 Annual Meeting of Stockholders
and until his successor is duly elected and qualified (the “Class I
Director Election Proposal”);
|
Proposal 3: FOR the ratification of BDO Seidman,
LLP as our independent registered public accounting firm for the fiscal
year ending December 31, 2009 (the “Auditor Proposal”);
and
|
At
the discretion of the persons named in the enclosed Proxy Card, on any
other matter that may properly come before the Annual Meeting or any
adjournment or postponement of the
meeting.
|
|
Page
|
|
Frequently Asked
Questions
|
5
|
|
Matters to be Considered at the
Annual Meeting
|
8
|
|
Corporate Governance
|
9
|
|
Audit Committee
Report
|
11
|
|
Compensation of
Directors
|
12
|
|
Compensation of Executive
Officers
|
13
|
|
Potential Payouts Upon
Termination or a Change of Control
|
15
|
|
Other Information
|
16
|
§
|
Proposal
1: To elect one Class III director (nominee Robert J. Dwyer) to serve
until the 2012 Annual Meeting of Stockholders and until his successor is
duly elected and qualified;
|
§
|
Proposal
2: To elect one Class I director (nominee Frank E. Jaumot) to serve until
the 2010 Annual Meeting of Stockholders and until his successor is duly
elected and qualified; and
|
§
|
Proposal
3: To ratify the selection of BDO Seidman, LLP as our independent
registered public accounting firm for the year ending December 31,
2009.
|
§
|
Proposal 1: FOR the election of the Class III
director nominee to serve until the 2012 Annual Meeting of Stockholders
and until his successor is duly elected and
qualified;
|
§
|
Proposal
2: FOR the
election of the Class I director nominee to serve until the 2010 Annual
Meeting of Stockholders and until his successor is duly elected and
qualified; and
|
§
|
Proposal 3: FOR the ratification of BDO Seidman,
LLP as our independent registered public accounting firm for the year
ending December 31, 2009.
|
§
|
Proposal
1: You may cast your vote in favor of the election the Class III director
nominee or you may elect to abstain from voting your
shares.
|
§
|
Proposal
2: You may cast your vote in favor of the election of the Class
I director nominee or you may elect to abstain from voting your
shares.
|
§
|
Proposal
3: You may cast your vote in favor of the ratification of BDO Seidman, LLP
or you may elect to abstain from voting your
shares.
|
§
|
Proposal 1: FOR the election of the Class III
director nominee to serve until the 2012 Annual Meeting of Stockholders
and until his successor is duly elected and
qualified;
|
§
|
Proposal
2: FOR the
election of the Class I director nominee to serve until the 2010 Annual
Meeting of Stockholders and until his successor is duly elected and
qualified; and
|
§
|
Proposal 3: FOR the ratification of BDO Seidman,
LLP as our independent registered public accounting firm for the year
ending December 31, 2009.
|
§
|
By
mail: Mark your votes, sign and return the proxy card or vote instruction
form in the postage paid envelope
provided.
|
§
|
By
Internet: Log onto the website indicated on your proxy card or vote
instruction form and follow the instructions
provided.
|
§
|
By
telephone: Call the toll-free number shown on your proxy card or vote
instruction form and follow the voice
prompts.
|
§
|
Quorum:
In order to conduct the Annual Meeting, the presence, in person or by
proxy, of stockholders entitled to cast a majority of all the votes
entitled to be cast at the Annual Meeting is required. This is referred to
as a quorum. If you submit a properly executed proxy card or authorize a
proxy by telephone or by Internet, you will be treated as present at the
Annual Meeting for purposes of determining the presence of a quorum. Proxy
cards marked as abstaining and broker non-votes on any proposal to be
acted on by stockholders will be treated as present at the Annual Meeting
for purposes of determining the presence of a
quorum.
|
§
|
Proposals:
The vote of a plurality of all of the votes cast at a meeting at which a
quorum is present is necessary for the election of directors. For purposes
of the election of directors, abstentions will not be counted as votes
cast and will have no effect on the result of the vote. The
affirmative vote of a majority of all of the votes entitled to be cast on
the matter is required for approval of the Auditor Proposal. For purposes
of the vote on the Auditor Proposal, abstentions and broker non-votes will
have the same effect as votes against the
proposal.
|
Audit
|
Compensation
|
Corporate
Governance and
|
||
Committee
|
|
Committee
|
|
Nominating
Committee
|
Robert J. Dwyer*+
|
Robert
J Dwyer*
|
Robert
J. Dwyer*
|
||
*
|
Current
Committee Chair.
|
+
|
Audit
Committee Financial Expert.
|
Services
|
2008(5)
|
2007(4)
|
||||||
Audit
Fees(1)
|
$ | 550,000 | $ | 1,194,036 | ||||
Audit
Related Fees(2)
|
- | 4,126 | ||||||
Tax
Fees(3)
|
- | - | ||||||
All
Other Fees
|
- | - | ||||||
Total
|
$ | 550,000 | $ | 1,198,162 |
(1)
|
Fees related to the audit of the
consolidated financial statements, consents, quarterly reviews,
consultations concerning financial accounting and reporting standards
arising during the audits.
|
(2)
|
Audit-related
fees consist of Sarbanes Oxley compliance review and
consultation.
|
(3)
|
Tax
services consist of tax compliance and tax planning and
advice.
|
(4)
|
Audit
services rendered in the fiscal year ended December 31, 2007 were
performed by Ernst & Young,
LLP.
|
(5)
|
Audit
services rendered in the fiscal year ended December 31, 2008 were
performed by BDO Seidman, LLP.
|
§
|
The
terms of the transaction;
|
§
|
The
benefits to the Company of the
transaction;
|
§
|
The
availability of other sources for comparable products or
services;
|
§
|
The
terms available to unrelated third parties or to employees generally;
and
|
§
|
The
impact on a director’s independence in the event that such director is a
party to the transaction or such director, an immediately family member of
such director, or an entity in which such director is an executive officer
or has a direct or indirect material interest is a party to the
transaction.
|
§
|
Reviewed
and discussed the Company’s audited consolidated financial statements with
management;
|
§
|
Discussed with the Company’s
independent registered public accounting firm, BDO Seidman, LLP, the
matters required by Statement on Auditing Standards (“SAS”) No. 61, as
amended (AICPA, Professional
Standards, Vol. 1.
AU section 380), as adopted by the Public Company Accounting Oversight
Board in Rule 3200T; and
|
§
|
Received the written independence
disclosures from BDO Seidman, LLP required by the Public Company Accounting
Oversight Board in Rule
3526.
|
Nature of
Retainer
|
Retainer
Amount
|
|||
Audit Committee Chair
|
$ | 25,000 | ||
Corporate Governance and
Nominating Committee Chair
|
$ | 10,000 | ||
Compensation Committee
Chair
|
$ | 10,000 |
Fees
|
Non-Qualified
|
|||||||||||||||||||||||||||
Earned
or
|
Non-Equity
|
Deferred
|
||||||||||||||||||||||||||
Paid
in
|
Stock
|
Option
|
Incentive
Plan
|
Compensation
|
All
Other
|
|||||||||||||||||||||||
Name
|
Cash1,6
|
Awards2,6
|
Awards
|
Compensation
|
Earnings
|
Compensation
|
Total
|
|||||||||||||||||||||
K.
L. Bespolka3
|
$ | 7917 | $ | 57,445 | $ | — | $ | — | $ | — | $ | — | $ | 65,362 | ||||||||||||||
R.
J. Dwyer
|
$ | 10,000 | $ | 115,445 | $ | — | $ | — | $ | — | $ | — | $ | 125,445 | ||||||||||||||
W.
C. Mortenson4
|
$ | 107,450 | $ | 22,000 | $ | — | $ | — | $ | — | $ | — | $ | 129,450 | ||||||||||||||
B.
H. Ortale5
|
$ | 8,750 | $ | - | $ | — | $ | — | $ | — | $ | — | $ | 8,750 |
1 During
2008, director fees included an annual retainer of $70,000 and additional
committee chair retainers. The chair of the Audit Committee received an
additional annual retainer of $25,000, while the chairs of the
Compensation Committee and the Corporate Governance and Nominating
Committee each received an additional annual retainer of $10,000. These
retainer fees were paid quarterly and directors were entitled to elect to
receive shares of the Company’s Class A Common Stock in lieu of all or any
portion of their retainer fees that would otherwise be payable in cash. In
addition, except for directors that own, through direct ownership or
voting control, 50,000 shares or more of the Company’s Class A Common
Stock, a minimum of one-half of the compensation paid to the Company’s
non-employee directors is paid in the form of shares of the Company’s
Class A Common Stock.
|
2 Amounts
in this column represent the expense, rounded to the nearest dollar,
recognized for financial statement purposes for the fiscal year ended
December 31, 2008, in accordance with Statement of Financial Accounting
Standards No. 123R (“FAS 123R”) of shares of the Company’s Class A Common
Stock issued to directors in lieu of any retainer fees that would
otherwise be payable in cash. The grant date fair value of shares of the
Company’s Class A Common Stock so issued during 2008 to each non-employee
director is shown in the accompanying table below entitled “Stock Awards
to Non-Employee Directors in Lieu of Cash
Payments.”
|
3 Mr.
Bespolka resigned as a director on September 10, 2008. His compensation as
a director and Chair of the Corporate Governance and Nominating Committee
was prorated to the date of his
resignation
|
4 Mr.
Mortenson resigned as a director on December 18, 2008. His compensation as
a director was prorated to the date of his
resignation.
|
5 Mr.
Ortale resigned as a director on January 17, 2008. His
compensation as a director was prorated to the date of his
resignation
|
6. Directors
fees are paid in advance on December 15, March 15, June 15, and September
15 of each year. The amount reflected is the ratable portion of the
fees earned through December 31.
|
Stock
Awards:
|
Grant
Date
|
|||||||||
Number
of
|
Fair
Value
|
|||||||||
Securities
|
of
Stock
|
|||||||||
Name
|
Grant
Date
|
Underlying
(#)
|
Awards1
|
|||||||
R.
J. Dwyer
|
2/19/2008
|
61,225 | $ | 30,000.25 | ||||||
5/15/2008
|
50,000 | 17,000.00 | ||||||||
6/16/2008
|
108,871 | 33,750.01 | ||||||||
9/16/2008
|
129,725 | 25,945.00 | ||||||||
12/16/2008
|
218,750 | 8,750.00 | ||||||||
K.L.
Bespolka
|
2/19/2008
|
53,572 | $ | 26,250.28 | ||||||
6/16/2008
|
92,742 | 28,750.02 | ||||||||
9/16/2008
|
12,225 | 2,445.00 | ||||||||
W.
C. Mortenson
|
2/19/2008
|
10,205 | $ | 5,000.45 | ||||||
5/15/2008
|
50,000 | 17,000.00 | ||||||||
1 Amounts
in this column represent the expense, rounded to the nearest dollar,
recognized for financial statement purposes for the year ended December
31, 2008, in accordance with Statement of Financial Accounting Standards
No. 123R (“FAS 123R”) of shares of the Company’s Class A Common Stock
issued to directors in lieu of any retainer fees that would otherwise be
payable in cash.
|
Nonqualified
|
|||||||||||||||||||||||||||
Name
and
|
Non-Equity
|
Deferred
|
|||||||||||||||||||||||||
Principal
|
Stock
|
Option
|
Incentive
Plan
|
Compensation
|
All
Other
|
||||||||||||||||||||||
Position
|
Year
|
Salary1
|
Bonus2
|
Awards3
|
Awards
|
Compensation
|
Earnings
|
Compensation4
|
Total
|
||||||||||||||||||
Jeffrey
J. Zimmer5
|
2008
|
$
|
431,667
|
$
|
111,200
|
$
|
111,640
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
16,762
|
$
|
671,269
|
||||||||||
Chairman,
|
2007
|
500,000
|
111,200
|
1,605,033
|
—
|
—
|
—
|
70,574
|
$
|
2,286,808
|
|||||||||||||||||
President
and
|
|||||||||||||||||||||||||||
Chief
Executive
|
|||||||||||||||||||||||||||
Officer
|
|||||||||||||||||||||||||||
Robert
E. Cauley,
|
2008
|
$
|
400,000
|
$
|
88,800
|
$
|
465,840
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
22,960
|
$
|
977,599
|
||||||||||
Chairman
|
2007
|
400,000
|
88,800
|
1,067,989
|
—
|
—
|
—
|
51,465
|
$
|
1,608,254
|
|||||||||||||||||
Chief
Executive Officer
|
|||||||||||||||||||||||||||
G.
Hunter Haas, IV
|
2008
|
$
|
200,004
|
$
|
227,500
|
$
|
81,824
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
11,605
|
$
|
524,930
|
||||||||||
President,
Chief
Investment Officer,
Chief
Financial Officer, &
Treasurer
|
|||||||||||||||||||||||||||
J.Christopher
Clifton 6
|
2008
|
$
|
250,008
|
$
|
95,000
|
$
|
13,167
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
12,805
|
$
|
370,980
|
||||||||||
Executive
Vice President, General Counsel, Chief Compliance Officer &
Secretary
|
1 Effective
January 1, 2006, the annual salaries of Messrs. Zimmer and Cauley were
increased to $500,000 and $400,000, respectively. Pursuant to the
Employment Agreements of Messrs. Zimmer and Cauley, any future reduction
in these amounts while their respective Employment Agreements remain in
effect would entitle Messrs. Zimmer and Cauley to seek termination of
their respective Employment Agreements resulting in certain severance
payments described below in the section entitled “Potential Payments Upon
Termination or a Change of
Control.”
|
2 On
February 6, 2008, the Compensation Committee awarded cash bonuses to
Messrs. Zimmer and Cauley in respect of 2007 service to the Company in the
amounts of $111,200 and $88,800, respectively. These amounts were paid on
February 15, 2008. During 2007, Messrs. Zimmer and Cauley each received
quarterly cash bonus payments in lieu of any non-equity incentive plan
compensation to which they may have otherwise been granted under the
Company’s 2004 Performance Bonus
Plan.
|
3 The
amounts in this column reflect the FAS 123(R) compensation expense
recognized for financial statement purposes during the Company’s last two
fiscal years of all awards of phantom stock granted to the named executive
officers pursuant to the Company’s 2003 Long-Term Incentive Compensation
Plan. On January 2, 2008, the Compensation Committee granted the following
phantom shares to certain employees: Mr. Clifton-75,000 phantom shares and
Mr. Haas-115,000 phantom shares. The aggregate grant date fair value of
each award of phantom stock is determined by reference to the closing
stock price of the Company’s Class A Common Stock on the date each award
is granted. Assumptions, if any, used in calculating these amounts are set
forth in the Notes to the Company’s consolidated financial statements for
the applicable calendar year ended December 31, which financial statements
are included in the Annual Report on Form 10-K of the Company for the
applicable calendar year. Compensation expense associated with
equity-based awards is generally recognized over the vesting period of the
award.
|
4 For
the executive officers, amounts in this column represent the total of all
other compensation as detailed in the table below entitled “All Other
Compensation Table.”
|
5
|
Mr.
Zimmer resigned his positions as Chairman of the Board, President and
Chief Executive Officer, and a Member of the Board on April 14,
2008.
|
6
|
Mr.
Clifton resigned as Executive Vice President, General Counsel, Chief
Compliance Office and Secretary of the Company effective February 27,
2009.
|
Estimated
Future Payouts
Under
Non-Equity
Incentive
Plan Awards
|
Estimated
Future Payouts
Under
Equity
Incentive
Plan Awards
|
|||||||||||||||||||
NAME
|
Grant
Date
|
|
Threshold
($)
|
|
Target ($)
|
|
Maximum
($)
|
|
Threshold
($)
|
Target ($)
|
Maximum
($)
|
|
All
Other Stock Awards: Number of Shares of Stock or Unit (#)
|
|
All
Other Option Awards: Number of Securities Underlying Options
(#)
|
Exercise
or Base Price of Option Awards ($/Sh)
|
Grant
Date Fair Value of Stock and Option Awards
|
|||
J.
J. Zimmer
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
||||||||||
R.
E. Cauley
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
||||||||||
G.
H. Haas
|
01/02/08
|
-
|
-
|
-
|
-
|
-
|
-
|
115,000
|
-
|
-
|
$29,900
|
|||||||||
J.C.
Clifton
|
01/02/08
|
-
|
-
|
-
|
-
|
-
|
-
|
75,000
|
-
|
-
|
$19,500
|
Perquisites
|
Other
Compensation
|
||||||||||||||||||||||||||||||||||||
Health
&
|
|||||||||||||||||||||||||||||||||||||
Dental
|
Disability
|
Savings
Plan
|
Life
|
Tax
|
Dividend
|
||||||||||||||||||||||||||||||||
Automobile
|
Insurance
|
Insurance
|
Matching
|
Insurance
|
Gross-Up
|
Equivalent
|
|||||||||||||||||||||||||||||||
NAME
|
Year
|
Allowance1
|
Premiums2
|
Premiums3
|
Other4
|
Contributions5
|
Premiums6
|
Payments7
|
Rights8
|
Total
|
|||||||||||||||||||||||||||
J.
J. Zimmer
|
2008
|
$ | 3,200 | $ | 3,758 | $ | 3,400 | $ | - | $ | 5,167 | $ | 1,237 | $ | - | $ | - | $ | 16,762 | ||||||||||||||||||
2007
|
9,600 | $ | 3,979 | $ | 10,200 | $ | 2,530 | $ | 9,000 | $ | 3,710 | $ | 4,495 | $ | 27,060 | $ | 70,574 | ||||||||||||||||||||
R.
E. Cauley
|
2008
|
$ | 4,000 | $ | 3,796 | $ | 1,053 | $ | - | $ | 9,200 | $ | 4,910 | $ | - | $ | - | $ | 22,960 | ||||||||||||||||||
2007
|
9,600 | $ | 3,979 | $ | 2,528 | $ | 1,580 | $ | 9,000 | $ | 4,910 | $ | 3,257 | $ | 16,610 | $ | 51,465 | ||||||||||||||||||||
G.
H. Haas
|
2008
|
$ | - | $ | 2,405 | $ | - | $ | - | $ | 9,200 | $ | - | $ | - | $ | - | $ | 11,605 | ||||||||||||||||||
J.C.
Clifton
|
2008
|
$ | - | $ | 3,605 | $ | - | $ | - | $ | 9,200 | $ | - | $ | - | $ | - | $ | 12,805 | ||||||||||||||||||
1 Amounts
in this column reflect the actual dollar amount paid by the Company as
reimbursement of automobile expenses, exclusive of any tax gross-up
payments.
|
2 Amounts
in this column reflect the actual dollar amount paid by the Company on
behalf of the executive for health, accidental death and dental insurance
premiums, exclusive of any tax gross-up payments, in excess of the
percentage of such premiums paid by Company for all salaried employees
generally.
|
3 Amounts
in this column reflect the actual dollar amount paid by the Company on
behalf of the executive for disability insurance premiums, exclusive of
any tax gross-up payments.
|
4 Amounts
in this column reflect the aggregate incremental cost to the Company of
tax return preparation and automobile related services. These perquisites
were eliminated effective April
2007.
|
5 Amounts
in this column reflect Company matching contributions under the Company’s
401(k) savings plans.
|
6 Amounts
in this column reflect the actual dollar amount paid by the Company on
behalf of the executive for life insurance premiums, exclusive of any tax
gross-up payments.
|
7 Amounts
in this column reflect the additional income paid by the Company to
reimburse the executive for personal taxes on certain perquisites,
including automobile allowances and disability and life insurance
premiums. These tax gross-up payments were eliminated effective April
2007.
|
8 Amounts
in this column represent the aggregate dollar value of dividend equivalent
rights, rounded to the nearest dollar, paid during each of the Company’s
last two fiscal years in respect of phantom shares that were unvested on
the applicable dividend date. These amounts are required to be reported in
the All Other Compensation column of the accompanying table above entitled
“Summary Compensation Table” because such amounts are not included in
determining the grant date fair value in accordance with Statement of
Financial Accounting Standards No. 123R (“FAS 123R”) of phantom shares
granted to executives. Dividends paid on issued and outstanding shares of
the Company’s Class A Common Stock and Class B Common Stock that was
issued to, or purchased by, an executive prior to the applicable dividend
date are not included in these
amounts.
|
Option
Awards
|
Stock
Awards
|
||||||||||||||||||||||||||||||||
Equity
|
Equity
Incentive
|
||||||||||||||||||||||||||||||||
Incentive
|
Equity
Incentive
|
Plan
Awards:
|
|||||||||||||||||||||||||||||||
Plan
Awards:
|
Market
|
Plan
Awards:
|
Market
or
|
||||||||||||||||||||||||||||||
Number
of
|
Number
of
|
Number
of
|
Number
of
|
Value
of
|
Number
of
|
Payout
|
|||||||||||||||||||||||||||
Securities
|
Securities
|
Securities
|
Shares
|
Shares
or
|
Unearned
|
Value
of
|
|||||||||||||||||||||||||||
Underlying
|
Underlying
|
Underlying
|
or
Units of
|
Units
of
|
Shares,
Units or
|
Unearned
|
|||||||||||||||||||||||||||
Unexercised
|
Unexercised
|
Unexercised
|
Option
|
Stock
That
|
Stock
That
|
Other
Rights
|
Shares,
Units or
|
||||||||||||||||||||||||||
Options
|
Options
|
Unearned
|
Exercise
|
Option
|
Have
|
Have
|
That
Have Not
|
Other
Rights
|
|||||||||||||||||||||||||
(#) | (#) |
Options
|
Price
|
Expiration
|
Not
Vested
|
Not
Vested
|
Vested
|
Not
Vested
|
|||||||||||||||||||||||||
Name
|
Exercisable
|
Unexercisable
|
(#) |
($)
|
Date
|
(#)1 |
($)2
|
(#) |
($)
|
||||||||||||||||||||||||
J.
J. Zimmer
|
— | — | — | — | — | — | — | ||||||||||||||||||||||||||
R.
E. Cauley
|
— | — | — | — | — | — | — | ||||||||||||||||||||||||||
G.H.
Haas
|
81,756 |
3,270
|
|||||||||||||||||||||||||||||||
J.C.
Clifton
|
50,395 |
2,016
|
1 Amounts
in this column represent the number of shares of the Company’s Class A
Common Stock that is issuable upon vesting of phantom shares that were
granted under the Company’s 2003 Long-Term Incentive Compensation Plan and
that remain unvested as of December 31, 2008. These phantom shares time
vest quarterly and are subject to certain forfeiture provisions prior to
vesting, but are not subject to any performance-based vesting criteria.
For this reason, these amounts are reflected in this column and not the
“Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other
Rights That Have Not Vested” column. For Mr. Cauley, the 43,999 phantom
shares were fully vested on November 15,
2008.
|
2 Market
value is based on the $0.04 closing price of the Company’s Class A Common
Stock on December 31, 2008, and assumes that the time-based vesting
criteria of all phantom shares unvested as of December 31, 2008, will be
satisfied.
|
·
|
Payment
of any accrued but unpaid salary from the Company through the date that
Mr. Cauley’s or Mr. Haas’ employment
terminates;
|
·
|
Payment
of any bonus that has been approved by the Compensation Committee of the
Board but which remains unpaid as of Mr. Cauley’s or Mr. Haas’ termination
of employment;
|
·
|
Reimbursement
for any expenses that Mr. Cauley or Mr. Haas incurred on behalf of the
Company prior to termination of employment to the extent that such
expenses are reimbursable under the Company’s standard reimbursement
policies;
|
·
|
Payment
for the cost of continued health plan coverage for Mr. Cauley or Mr. Haas
and their qualified beneficiaries for certain periods up to one year if
certain conditions are met;
|
·
|
Payment
for any benefits or payments that Mr. Cauley or Mr. Haas is entitled to
receive under any employee benefit plans or other arrangements or
agreements that cover Executive;
|
·
|
Nonvested
restricted stock, stock options and other equity awards will become
automatically vested on the date of Mr. Cauley’s or Mr. Haas’ termination
of employment;
|
·
|
Indemnification
if certain liabilities are incurred by Executive pursuant to Internal
Revenue Code Section 4999; and
|
·
|
A
severance benefit equal to the amount described in either (i), (ii) or
(iii), as applicable.
|
Amount
and
|
|||||||
Nature
of
|
|||||||
Title
of
|
Name
and
|
Beneficial
|
Percent
of
|
||||
Class
|
|
Address
of Beneficial Owner
|
|
Ownership
|
|
Class
|
|
Class
A
|
Security
Investors, LLC
|
||||||
Common
|
One
Security Benefit Place
|
||||||
Stock
|
Topeka,
KS 66636-0001
|
2,288,200
|
(1)
|
8.5%
|
(1)
|
(1)
|
Based
solely on a Schedule 13G/A filed with the Securities and Exchange
Commission on December 31, 2008, Security Investors, LLC (“Security
Investors”) reported aggregate beneficial ownership of 2,288,200
shares of the Company’s Class A Common Stock outstanding as of
December 31, 2008. Security Investors reported that it possessed sole
voting and dispositive power over 2,288,200 shares of Class A Common
Stock. Security Investors also reported that it did not possess shared
voting or shared dispositive power over any shares beneficially
owned.
|
§
|
all shares the person actually
owns (of record or
beneficially);
|
§
|
all shares over which the person
has or shares voting or dispositive control (such as in the capacity as a
general partner of an investment fund);
and
|
§
|
all
shares the person has the right to acquire within 60 days after April 27,
2009 (such as upon vesting of outstanding phantom shares that are
scheduled to vest within such
period).
|
Name
of
|
Amount
and Nature of
|
Percent
of
|
|||||
Title
of Class
|
|
Beneficial
Owner
|
|
Beneficial
Ownership
|
|
Class
|
|
Class
A
|
|||||||
Common
Stock
|
|||||||
Robert
E. Cauley
|
295,805
|
1.1
|
|||||
G.
Hunter Haas, IV
|
89,232
|
*
|
|||||
Robert
J. Dwyer
|
1,774,821
|
6.6
|
|||||
Frank
E. Jaumot
|
(1)
|
283,335
|
1.1
|
||||
All
Directors and Executive Officers
|
|||||||
as
a Group (2)
|
2,443,193
|
9.1
|
%
|
||||
Name
of
|
Amount
and Nature of
|
Percent
of
|
|||||
Title
of Class
|
Beneficial
Owner
|
Beneficial
Ownership
|
Class
|
||||
Class
B
|
|||||||
Common
Stock
|
|||||||
Jeffrey
J. Zimmer
|
207,602
|
65.0
|
%
|
||||
Robert
E. Cauley
|
111,786
|
35.0
|
%
|
||||
All
Directors and Executive Officers
|
|||||||
as
a Group (2)
|
319,388
|
100.0
|
%
|
*
|
Holdings
represent less than 1% of the issued and outstanding shares of the
Company’s Class A Common Stock.
|
(1)
|
Includes
242,800 shares directly owned by Mr. Jaumot, 22,265 shares held in an IRA
account for the benefit of Frank E. Jaumot, and 18,270 shares held in an
IRA account for the benefit of Janet M. Jaumot, Mr. Jaumot’s
wife.
|
(2)
|
2,544
of the shares reported are shares pursuant to which a director or
executive officer has a right to acquire ownership within 60 days. Also,
to the Company’s knowledge, none of the shares reported are pledged as
collateral.
|
Vero
Beach, Florida
April 30,
2009
|