Panera Bread Company (PNRA)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 14A
(Rule 14a-101)

PANERA BREAD COMPANY

6710 Clayton Road

Richmond Heights, Missouri 63117

 

April 13, 2009

 

Dear Stockholder:

 

You are cordially invited to attend the 2009 Annual Meeting of Stockholders of Panera Bread Company to be held at 10:30 a.m., Central Daylight Time, on Thursday, May 21, 2009 at the Sheraton Clayton Plaza Hotel, 7730 Bonhomme Avenue, Clayton, Missouri 63105.

 

At the Annual Meeting, you will be asked to elect two directors to our Board of Directors and to ratify the selection of PricewaterhouseCoopers LLP as our independent registered public accounting firm. The Board of Directors recommends approval of each of these proposals.

 

We hope you will be able to attend the Annual Meeting. Whether or not you plan to attend the Annual Meeting, it is important that your shares are represented. Therefore, if you do not plan to attend the Annual Meeting, we urge you to promptly vote your shares on the Internet, by telephone or by completing, signing, dating and returning the enclosed proxy card in accordance with the instructions.

 

On behalf of all of our team members and directors, I would like to thank you for your continuing support and confidence.

 

Sincerely,

 

 

Ronald M. Shaich

Chairman and Chief Executive Officer

 

 

 

TABLE OF CONTENTS

 

PANERA BREAD COMPANY

6710 Clayton Road

Richmond Heights, Missouri 63117

 

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS

To Be Held on May 21, 2009

 

The Annual Meeting of Stockholders of Panera Bread Company will be held on Thursday, May 21, 2009 at 10:30 a.m., Central Daylight Time, at the Sheraton Clayton Plaza Hotel, 7730 Bonhomme Avenue, Clayton, Missouri 63105, to consider and act upon the following matters:

 

1. To elect two directors to our Board of Directors, each to serve for a term ending in 2012, or until his successor has been duly elected and qualified;

 

2. To consider and act upon a proposal to ratify the appointment of PricewaterhouseCoopers LLP as our independent registered public accounting firm for the fiscal year ending December 29, 2009; and

 

3. To transact such other business as may properly come before the Annual Meeting and any adjournment or adjournments thereof.

 

Stockholders of record on our books at the close of business on March 23, 2009 are entitled to notice of and to vote at the meeting.

 

Whether or not you plan to attend the meeting personally, please vote your shares on the Internet, by telephone or by completing, signing, dating and returning the enclosed proxy as soon as possible in the envelope provided. You may obtain directions to the location of the meeting by contacting our Investor Relations Coordinator at (314) 633-7100, ext. 6500. If you attend the meeting and prefer to vote at that time, you may do so.

 

By Order of the Board of Directors,

 

 

Scott G. Blair

Secretary

 

Dated: April 13, 2009

PANERA BREAD COMPANY

6710 Clayton Road

Richmond Heights, Missouri 63117

 

PROXY STATEMENT

Solicitation of Proxies

 

We are first mailing this proxy statement and the accompanying proxy card to stockholders on or about April 13, 2009 in conjunction with mailing our 2008 Annual Report to Stockholders. The Board of Directors solicits the accompanying proxy for use at our Annual Meeting of Stockholders to be held at 10:30 a.m., Central Daylight Time, on May 21, 2009, and any adjournment or postponement. We will pay the cost of soliciting proxies. Our directors, officers and employees may assist in the solicitation of proxies by mail, telephone, facsimile, Internet and personal interview without additional compensation. We have also engaged MacKenzie Partners, Inc. to assist in the solicitation of proxies by mail, telephone, facsimile or Internet, or in person, for a fee of approximately $7,000, plus out-of-pocket expenses relating to the solicitation.

 

Proposals to be Voted Upon

 

Proposal 1.  The first proposal is to elect two directors to our Board of Directors, each to serve for a term ending in 2012, or until his respective successor has been duly elected and qualified.

 

Proposal 2.  The second proposal is to ratify the appointment of PricewaterhouseCoopers LLP as our independent registered public accounting firm for the fiscal year ending December 29, 2009.

 

When you return your proxy properly signed (or vote on the Internet or by telephone), your shares will be voted by the persons named as proxies in accordance with your directions. You are urged to specify your choices on the enclosed proxy card. If you sign and return your proxy without specifying choices, your shares will be voted “FOR” election of each of the two nominees listed in Proposal 1 and “FOR” Proposal 2, and in the discretion of the persons named as proxies in the manner they believe to be in our company’s best interests as to other matters that may properly come before the meeting.

Voting Procedures

 

You may vote either in person, at the Annual Meeting or by proxy. To vote by proxy, you must select one of the following options:

 

 

 

 

 

 

 

Telephone and Internet voting ends at 11:59 p.m., Eastern Daylight Time, on May 20, 2009. If you vote in a timely manner by the Internet or telephone, you do not have to return your proxy card for your vote to count. Please be aware that if you vote on the Internet, you may incur costs such as normal telephone and Internet access charges for which you will be responsible.

 

The Internet and telephone voting procedures appear on the enclosed proxy card. You may also log on to change your vote or to confirm that your vote has been properly recorded before the deadline.

 

Whether or not you expect to be present in person at the Annual Meeting, you are requested to complete, sign, date and return the enclosed form of proxy or to vote by telephone or Internet. The shares represented by your proxy will be voted in accordance with your instructions. If you attend the meeting, you may vote by ballot. If you want to vote in person at the Annual Meeting, and you own your shares through a custodian, broker or other agent, you must obtain a proxy from that party in their capacity as owner of record for your shares and bring the proxy to the Annual Meeting.

 

Shares represented by proxies on the enclosed proxy card will be counted in the vote at the Annual Meeting if we receive your proxy card by May 20, 2009. Proxies submitted by the Internet or by telephone will be counted in the vote only if they are received by 11:59 p.m., Eastern Daylight Time, on May 20, 2009.

Your properly completed proxy/voting instruction card will appoint Jeffrey W. Kip and Scott G. Blair as proxy holders, or your representatives, to vote your shares in the manner directed therein by you. Mr. Kip is our Senior Vice President, Chief Financial Officer and Mr. Blair is our Senior Vice President, Chief Legal Officer, General Counsel and Secretary. Your proxy permits you to direct the proxy holders to:

 

 

 

All shares entitled to vote and represented by properly completed proxies received prior to the meeting and not revoked will be voted at the meeting in accordance with your instructions. If you do not indicate how your shares are to be voted on a matter, the shares represented by your properly completed proxy will be voted “FOR” the election of both of the nominees for director and “FOR” the proposal to ratify the appointment of PricewaterhouseCoopers LLP as our independent registered public accounting firm for the fiscal year ending December 29, 2009.

Revocation of Proxies

 

You may revoke your proxy at any time before its use by casting a new vote on the Internet or by telephone or by delivering to us a duly executed proxy or written notice of revocation bearing a later date. If you execute a proxy but are present at the meeting, and you wish to vote in person, you may do so by revoking your proxy. Shares represented by valid proxies, received in time for use at the meeting and not revoked at or prior to the meeting, will be voted at the meeting.

Stockholders Entitled to Vote

 

Our Board of Directors has fixed March 23, 2009 as the record date for the meeting. You are entitled to vote (in person or by proxy) at the Annual Meeting if you were a stockholder of record on the record date. On the record date, we had 29,549,863 shares of Class A Common Stock outstanding (each of which entitles its holder to one vote), and 1,392,242 shares of Class B Common Stock outstanding (each of which entitles its holder to three votes). Unless indicated otherwise, we refer to our Class A and Class B Common Stock in this proxy statement as the “Common Stock.” Holders of Common Stock do not have cumulative voting rights.

Shares Held in 401(k) Plan

 

On March 23, 2009, our 401(k) plan, which is called the Panera Bread Company 401(k) Savings Plan, held 33,935 shares of our Class A Common Stock in the name of Fidelity Management Trust Company, as trustee of the 401(k) Plan. If you are a participant in the 401(k) Plan, you may instruct Fidelity Management Trust how to vote shares of Class A Common Stock credited to your 401(k) Plan account by indicating your instructions on your proxy card and returning it to us by May 18, 2009. Any shares held in the 401(k) Plan for which no instructions are received will not be voted. The trustee will vote the shares as instructed if proper instructions are received by 11:59 p.m., Eastern Daylight Time, on May 18, 2009.

Quorum

 

For all proposals on the agenda for the meeting, the holders of a majority in interest of the combined voting power of the Common Stock issued and outstanding entitled to vote must be present in person or by proxy for a quorum. Shares represented by all proxies received, including proxies that withhold authority for the election of a director and/or abstain from voting on a proposal, as well as “broker non-votes” described below, will be counted toward establishing the presence of a quorum.

Votes Required

 

Each of the directors will be elected by plurality vote of the combined voting power of the shares of Common Stock present at the meeting in person or by proxy and entitled to vote. Shares for which the vote is withheld will be excluded entirely and will have no effect on the election of the directors.

Under our by-laws, Proposal 2 requires an affirmative vote of a majority of the combined voting power of the shares of Common Stock present at the meeting in person or by proxy and entitled to be cast at the meeting. For this purpose, abstentions are considered present and will have the effect of a vote against. In addition, “broker non-votes” will be excluded entirely and will have no effect on Proposal 2.

 

If you hold shares of Common Stock through a broker, bank or other representative, generally the broker, bank or representative may only vote the Common Stock in accordance with your instructions. However, if your representative does not timely receive instructions, your representative may only vote on those matters for which it has discretionary voting authority. If your representative cannot vote on a particular matter because it does not have discretionary voting authority, this is a “broker non-vote” on that matter.

Information Regarding Directors and Director Nominees

 

Our certificate of incorporation provides for a classified Board of Directors in which our Board of Directors is divided into three classes, each having as nearly as possible an equal number of directors. The term of service of each class of directors is staggered so that the term of one class expires at each annual meeting of stockholders. In addition, our by-laws allow the Board to select one or more persons as an honorary “Director Emeritus,” who provides advice and counsel to the Board, but does not vote.

 

Our Board of Directors currently consists of six members, divided into three classes: Domenic Colasacco and W. Austin Ligon, with terms ending in 2009; Larry J. Franklin and Charles J. Chapman, III, with terms ending in 2010; and Ronald M. Shaich and Fred K. Foulkes, with terms ending in 2011. At each annual meeting of stockholders, directors are elected for a full term of three years to continue or succeed those directors whose terms are expiring. The Board has nominated Domenic Colasacco and W. Austin Ligon for re-election at the Annual Meeting as Class II directors with a term ending in 2012, if elected. In addition, in gratitude for his lengthy and valued service to our company, the Board has selected George E. Kane to continue his service as a Director Emeritus until 2010.

 

The following table and biographical descriptions set forth information regarding the principal occupation, other affiliations, committee memberships and age of the nominees for election as director, for each director continuing in office and for our Director Emeritus, based on information furnished to us by those persons. The following information is as of March 31, 2009, unless otherwise noted.

 

 

 

 

 

Nominees for Election as a Director

 

Domenic Colasacco.  Mr. Colasacco has served as a director since March 2000 and as Lead Independent Director since January 2008. Mr. Colasacco has been President and Chief Executive Officer of Boston Trust & Investment Management, a banking and trust company providing fiduciary and investment management services, since 1992, and also serves as Chairman of its Board of Directors. Mr. Colasacco joined Boston Trust in 1974 after beginning his career in the research division of Merrill Lynch & Co. in New York City.

 

W. Austin Ligon.  Mr. Ligon has served as a director since January 2008. Mr. Ligon is a co-founder of CarMax, Inc., a national retailer of used cars, and served as CarMax’s President from 1995 and its Chief Executive Officer from October 2002, in each case until his retirement in June 2006. Prior to CarMax, Mr. Ligon served as Senior Vice President of Corporate Planning and Senior Vice President Automotive at Circuit City Stores from 1991 to 1995. Mr. Ligon is the advisory board chairman of the Center for Talented Youth — Johns Hopkins University; an advisory board member of the Yale School of Management; and a member of the governing boards of each of the University of Virginia — Board of Visitors, the University of Virginia Investment Management Company, and St. John’s College — Annapolis and Santa Fe.

 

Directors Continuing in Office

 

Larry J. Franklin.  Mr. Franklin has served as a director since June 2001. Mr. Franklin has been the President and Chief Executive Officer of Franklin Sports, Inc., a branded sporting goods manufacturer and marketer, since 1986. Mr. Franklin joined Franklin Sports, Inc. in 1970 and served as its Executive Vice President from 1981 to 1986. Mr. Franklin currently serves on the Board of Directors of Bradford Soap International, Inc., a private manufacturer of private label soaps.

 

Charles J. Chapman, III.  Mr. Chapman has served as a director since January 2008. Mr. Chapman has been the Chief Operating Officer of American Dairy Queen Corporation, a leading franchisor of quick service restaurants and wholly-owned subsidiary of Berkshire-Hathaway, since October 2005. From January 2001 to October 2005, Mr. Chapman held a number of senior positions at American Dairy Queen. Prior to joining American Dairy Queen, Mr. Chapman served as Chief Operating Officer of Bruegger’s Bagels, Inc. and President and co-owner of a Bruegger’s franchise, Beantown Bagels, and held marketing and operations positions with Darden Restaurants. Mr. Chapman began his career as a consultant at Bain & Company.

 

Ronald M. Shaich.  Mr. Shaich is a co-founder of our company and has served as a director since March 1981. Mr. Shaich has also served as our Chief Executive Officer since May 1994, and as Chairman of the Board since May 1999. Mr. Shaich previously served as Co-Chief Executive Officer from January 1988 to May 1994, and as Co-Chairman of the Board from January 1988 to May 1999. Mr. Shaich serves as a director of the non-profit Lown Cardiovascular Research Foundation and as a trustee of the non-profit Rashi School.

 

Fred K. Foulkes, D.B.A.  Dr. Foulkes has served as a director since June 2003. Dr. Foulkes has been a Professor of Organizational Behavior and the director of the Human Resources Policy Institute at Boston University School of Management since 1981 and has taught courses in human resources management and strategic management at Boston University since 1980. From 1968 to 1980, Dr. Foulkes was a member of the Harvard Business School faculty. Dr. Foulkes served on the board of directors and was chairman of the Compensation Committee of Bright Horizons Family Solutions, a provider of employer-sponsored child care, early education and work/life consulting services, until its acquisition in May 2008 by Bain Capital.

Director Emeritus

 

George E. Kane.  Mr. Kane has served as our Director Emeritus since May 2004. Mr. Kane served as a director from November 1988 to May 2004. Mr. Kane was also one of our directors from December 1981 to December 1985 and a Director Emeritus from December 1985 to November 1988. Mr. Kane retired in 1970 as President of Garden City Trust Company (now University Trust Company) and served as an Honorary Director of University Trust Company from December 1985 to January 2000.

Corporate Governance Matters

 

Our Board of Directors has long believed that good corporate governance is important to ensure that our company is managed for the long-term benefit of our stockholders. This section describes key corporate governance guidelines and practices that we have adopted. Complete copies of the corporate governance guidelines, committee charters and code of conduct described below are available on the Corporate Governance page of the About Us — Investor Relations section of our website at www.panerabread.com. Alternatively, you can request a copy of any of these documents by writing to our Investor Relations Coordinator, Panera Bread Company, 6710 Clayton Road, Richmond Heights, Missouri 63117.

Corporate Governance Guidelines

 

Our Board of Directors has adopted Corporate Governance Principles and Practices to assist the Board in the exercise of its duties and responsibilities and to serve the best interests of our company and our stockholders. These principles, which provide a framework for the conduct of the Board’s business, provide that:

 

Board Determination of Independence

 

Under applicable Nasdaq rules, a director will only qualify as an “independent director” if, in the opinion of our Board of Directors, that person does not have a relationship which would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Our Board of Directors has determined that none of Charles J. Chapman, III, Domenic Colasacco, Fred K. Foulkes, Larry J. Franklin or W. Austin Ligon has a relationship which would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is an “independent director” as defined under Rule 4200(a)(15) of the Nasdaq Stock Market, Inc. Marketplace Rules.

Director Nomination Process

 

The process followed by the Committee on Nominations and Corporate Governance to identify and evaluate director candidates includes requests to Board members and others for recommendations, meetings from time to time to evaluate biographical information and background material relating to potential candidates, and interviews of selected candidates by members of the Committee and the Board.

In considering whether to recommend any particular candidate for inclusion in the Board’s slate of recommended director nominees, the Committee on Nominations and Corporate Governance applies the criteria specified in our Corporate Governance Principles and Practices. These criteria include the candidate’s integrity, business acumen, knowledge of our business and industry, experience, diligence, conflicts of interest and ability to act in the interests of stockholders. The Committee does not assign specific weights to particular criteria and no particular criterion is a prerequisite for any prospective nominee. Our Corporate Governance Principles and Practices also provide that an objective of Board composition is to bring to our company a variety of perspectives and skills derived from high quality business and professional experience. Our Board recognizes its responsibility to ensure that nominees for our Board of Directors possess appropriate qualifications and reflect a reasonable diversity of backgrounds and perspectives, including those backgrounds and perspectives with respect to age, gender, culture, race and national origin. We believe that the backgrounds and qualifications of our directors, considered as a group, should provide a composite mix of experience, knowledge and abilities that will allow the Board to promote our strategic objectives and to fulfill its responsibilities to our stockholders.

 

Stockholders may recommend individuals to the Committee on Nominations and Corporate Governance for consideration as potential director candidates by submitting their names, together with appropriate biographical information and background materials and a statement as to whether the stockholder or group of stockholders making the recommendation has beneficially owned more than 5% of our Common Stock for at least a year as of the date such recommendation is made, to the Committee on Nominations and Corporate Governance, c/o Corporate Secretary, Panera Bread Company, 6710 Clayton Road, Richmond Heights, Missouri 63117. Assuming that appropriate biographical and background material has been provided on a timely basis, the Committee will evaluate stockholder-recommended candidates by following substantially the same process, and applying substantially the same criteria, as it follows for candidates submitted by others.

 

Stockholders also have the right under our by-laws to directly nominate director candidates, without any action or recommendation on the part of the Committee or the Board, by following the procedures set forth under “Stockholder Proposals for 2010 Annual Meeting.” If the Board determines to nominate a stockholder-recommended candidate and recommends his or her election, then his or her name will be included in our proxy statement and proxy card for the next annual meeting. Otherwise, candidates nominated by stockholders in accordance with the procedures set forth in the by-laws will not be included in our proxy statement and proxy card for the next annual meeting.

Board Meetings and Attendance

 

The Board met six times during the fiscal year ended December 30, 2008, either in person or by teleconference. During the fiscal year ended December 30, 2008, each director attended all of the Board meetings and committee meetings on which he then served.

Director Attendance at Annual Meeting of Stockholders

 

Our Corporate Governance Principles and Practices provide that directors are expected to attend the Annual Meeting of stockholders. All of our directors attended the 2008 annual meeting of stockholders.

Lead Independent Director

 

In January 2008, our Board of Directors established the position of Lead Independent Director and appointed current Board member Domenic Colasacco as Lead Independent Director. Mr. Colasacco was reappointed to the position of Lead Independent Director in March 2009. The Lead Independent Director Position Duty Statement adopted by our Board is posted on the Corporate Governance page of the About Us — Investor Relations section of our website, www.panerabread.com.

 

Pursuant to our Corporate Governance Principles and Practices and the Lead Independent Director Position Duty Statement, the Lead Independent Director is responsible for, among other matters:

 

 

 

Board Committees

 

Our Board of Directors has established three standing committees — the Audit Committee, the Compensation and Stock Option Committee, and the Committee on Nominations and Corporate Governance — each of which operates under a charter that has been approved by the Board. Current copies of each committee’s charter are posted on the Corporate Governance page of the About Us — Investor Relations section of our website, www.panerabread.com.

 

Our Board of Directors has determined that all of the members of each of the Board’s three standing committees are independent as defined under the rules of the Nasdaq Stock Market, including, in the case of all members of the Audit Committee, the independence requirements contemplated by Rule 10A-3 under the Exchange Act.

 

Audit Committee

 

The responsibilities of our Audit Committee include:

 

 

 

 

The members of the Audit Committee are Domenic Colasacco (chair), Fred K. Foulkes and W. Austin Ligon. Our Board of Directors has determined that Mr. Colasacco is an “audit committee financial expert” as defined in Item 401(h) of Regulation S-K. The Audit Committee met seven times during fiscal year 2008.

 

Compensation and Stock Option Committee

 

The responsibilities of our Compensation and Stock Option Committee, which we refer to as our Compensation Committee, include:

 

 

The processes and procedures followed by our Compensation Committee in considering and determining executive and director compensation are described below under the heading “Executive and Director Compensation Processes.”

 

The members of the Compensation Committee are Fred K. Foulkes (chair), Domenic Colasacco and Larry J. Franklin. The Compensation Committee met seven times during fiscal year 2008.

 

Committee on Nominations and Corporate Governance

 

The responsibilities of the Committee on Nominations and Corporate Governance include:

 

 

The processes and procedures followed by the Committee on Nominations and Corporate Governance in identifying and evaluating director candidates are described above under the heading “Director Nomination Process.”

 

The members of the Committee on Nominations and Corporate Governance are Larry J. Franklin (chair), Charles J. Chapman, III and Fred K. Foulkes. The Committee on Nominations and Corporate Governance met five times during fiscal year 2008.

Communicating with the Independent Directors

 

The Board will give appropriate attention to written communications that are submitted by stockholders, and will respond if and as appropriate. The Lead Independent Director and the Chairman of the Committee on Nominations and Corporate Governance, with the assistance of our Chief Legal Officer, are primarily

responsible for monitoring communications from stockholders and for providing copies or summaries to the other directors as they consider appropriate.

 

Under procedures approved by a majority of the independent directors, communications are forwarded to all directors if they relate to important substantive matters and include suggestions or comments that our Chief Legal Officer considers to be important for the directors to know. In general, communications relating to corporate governance and corporate strategy are more likely to be forwarded than communications relating to ordinary business affairs, personal grievances and matters that are duplicative communications.

 

Stockholders who wish to send communications on any topic to the Board should address such communications to: Board of Directors, c/o Corporate Secretary, Panera Bread Company, 6710 Clayton Road, Richmond Heights, Missouri 63117.

 

Additionally, we have established a confidential process for reporting, investigating and resolving employee and other third party concerns related to accounting, auditing and similar matters under the Sarbanes-Oxley Act of 2002. Stockholders may confidentially provide information to one or more of our directors by contacting a representative at our Ethics Hotline who will forward the information to the appropriate director. The Ethics Hotline is operated by an independent, third party service. Within the United States and Canada, the Ethics Hotline can be reached by dialing toll-free 1-888-840-4151.

Standards of Business Conduct

 

We have adopted a written Standards of Business Conduct, a code of ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. We have posted a current copy of the Standards of Business Conduct on the Corporate Governance page of the About Us — Investor Relations section of our website, which is located at www.panerabread.com. In addition, we intend to post on our website all disclosures that are required by law or Nasdaq stock market listing standards concerning any amendments to, or waivers from, any provision of the Standards of Business Conduct.

Compensation Committee Interlocks and Insider Participation in Compensation Decisions

 

Domenic Colasacco, Fred K. Foulkes and Larry J. Franklin served on the Compensation Committee during the fiscal year ended December 30, 2008. None of the members of the Compensation Committee had interlocking or other relationships with other boards or with us during the 2008 fiscal year that require disclosure under the proxy rules and regulations promulgated by the Securities and Exchange Commission.

Executive Officers Who Are Not Directors

 

Certain information regarding our executive officers as of March 31, 2009, who are not also directors, is set forth below. Generally, our Board of Directors elects our officers annually, although the Board or an authorized committee of the Board may elect or appoint officers at other times.

 

 

John M. Maguire.  Mr. Maguire has served as Chief Operating Officer, and subsequently co-Chief Operating Officer, since March 2008, and as our Executive Vice President since April 2006. Mr. Maguire had previously served as our Senior Vice President, Chief Company and Joint Venture Operations Officer from August 2001 to April 2006. Mr. Maguire joined us in April 1993. From April 2000 to July 2001, Mr. Maguire served as our Vice President, Bakery Operations; from November 1998 to March 2000, Mr. Maguire served as our Vice President, Commisary Operations; and from April 1993 to October 1998, Mr. Maguire was a manager and director of our company.

 

William W. Moreton.  Mr. Moreton re-joined our company in November 2008 as our Executive Vice President, co-Chief Operating Officer. Mr. Moreton previously served as our Executive Vice President, Chief Financial Officer from October 1998 to March 2003. From April 2005 to January 2007, Mr. Moreton served as President and Chief Financial Officer of Potbelly Sandwich Works, a chain restaurant operator, and from January 2004 to April 2005, Mr. Moreton served as Executive Vice President — Subsidiary Brands, and Chief Executive Officer of Baja Fresh, a subsidiary of Wendy’s International, Inc.

 

Cedric Vanzura.  Mr. Vanzura has served as our Executive Vice President and co-Chief Operating Officer since November 2008 and served as our Executive Vice President, Chief Administrative Officer from March 2008 to November 2008. Prior to joining our company, Mr. Vanzura held a variety of roles at Borders Group, Inc., a global retailer of books, music and movies, including serving as Executive Vice President, Emerging Business and Technology from July 2006 to September 2007, President, Borders International from February 2005 to July 2006 and President, Specialty Retail from March 2003 to February 2005.

 

Scott G. Blair.  Mr. Blair has served as our Senior Vice President, Chief Legal Officer, General Counsel and Secretary since January 2008. From March 2003 to January 2008, Mr. Blair served as our Special Counsel for Employee Relations and also maintained a sole proprietorship law firm concentrating on employment law.

 

Mark A. Borland.  Mr. Borland has served as our Senior Vice President, Chief Supply Chain Officer since August 2002. Mr. Borland joined our company in 1986 and held management positions with Au Bon Pain and Panera Bread divisions until 2000, including Executive Vice President, Vice President of Retail Operations, Chief Operating Officer and President of Manufacturing Services. From 2000 to 2001, Mr. Borland served as Senior Vice President of Operations at RetailDNA, a provider of sales and marketing products, then rejoined us as a consultant in 2001.

Scott G. Davis.  Mr. Davis has served as our Senior Vice President, Chief Concept Officer since May 1999. Mr. Davis joined us in 1987 and from May 1996 to May 1999 served as our Director of Concept Services and Customer Experience.

 

Rebecca A. Fine.  Ms. Fine has served as our Senior Vice President, Chief People Officer since August 2004. Ms. Fine was Chief People Officer for Seed Restaurant Group, a chain restaurant operator, from February 2000 to August 2004. She also served as Chief Administrative Officer for Shoney’s Inc., a chain restaurant operator, from March 1996 to February 2000. Ms. Fine is also a board chairman of Winning Women, a nonprofit corporation.

 

Jeffrey W. Kip.  Mr. Kip has served as our Senior Vice President, Chief Financial Officer since May 2006. From November 2003 to May 2006, Mr. Kip served as our Vice President, Finance and Planning and as our Vice President, Corporate Development from May 2003 to November 2003. From November 2002 to April 2003, Mr. Kip was an Associate Director and then Director at UBS, an investment banking firm, and from August 1999 to November 2002, Mr. Kip was an Associate at Goldman Sachs, an investment banking firm.

 

Thomas C. Kish.  Mr. Kish has served as our Senior Vice President, Chief Information Officer since December 2004. From April 2001 to December 2004, Mr. Kish served as our Vice President, Chief Information Officer. Prior to joining us, Mr. Kish was Vice President, Information and Support Services for Papa John’s International, a chain restaurant operator, from 1995 to 2001.

 

Michael J. Kupstas.  Mr. Kupstas has served as our Senior Vice President, Chief Franchise Officer and Assistant Secretary since September 2001. Mr. Kupstas joined us in 1996. From August 1999 to September 2001, Mr. Kupstas served as our Vice President, Franchising and Brand Communication and from January 1996 to August 1999, Mr. Kupstas was our Vice President, Company and Franchise Operations. From April 1991 to January 1996, Mr. Kupstas was Senior Vice President/Division Vice President for Long John Silver’s, Inc., a chain restaurant operator. Mr. Kupstas is also Board Chairman of Operation Food Search.

 

Michael J. Nolan.  Mr. Nolan has served as our Senior Vice President, Chief Development Officer since he joined us in August 2001. From December 1997 to March 2001, Mr. Nolan served as Executive Vice President and Director for John Harvard’s Brew House, L.L.C., a chain restaurant operator, and as Senior Vice President, Development, for American Hospitality Concepts, Inc., a chain restaurant operator. From March 1996 to December 1997, Mr. Nolan was Vice President of Real Estate and Development for Apple South Incorporated, a chain restaurant operator, and from July 1989 to March 1996, Mr. Nolan was Vice President of Real Estate and Development for Morrison Restaurants, Inc., a chain restaurant operator. Prior to 1989, Mr. Nolan served in various real estate and development capacities for Cardinal Industries, Inc., a chemical and chemical equipment manufacturer and Nolan Development and Investment, a private development company.

 

William H. Simpson.  Mr. Simpson has served as our Senior Vice President, Chief Company and Joint Venture Operations Officer since April 2006 and previously served as our Vice President, Retail Operations from February 2005 to April 2006. From November 2002 to February 2005, Mr. Simpson served as our Director of Retail Operations and Joint Venture Partner. From June 1998 to November 2002, Mr. Simpson was Vice President of Franchise Operations and Regional Vice President of Company Operations for Bennigan’s Restaurants, a chain restaurant operator.

Executive and Director Compensation Processes

 

The Compensation Committee has implemented an annual performance review program for our executives under which annual performance goals are determined early in each calendar year for each of our executive officers. These goals include both corporate goals and individual department specific goals that facilitate the achievement of corporate performance. Annual bonuses are tied to the achievement of these performance goals.

 

The payment of an incentive bonus to our Chairman and Chief Executive Officer is determined by the Board on recommendation from the Compensation Committee, and the payment of an incentive bonus to our other executive officers is determined by the Compensation Committee on recommendation from the Chairman and Chief Executive Officer, in each case following a review of the achievement of annual performance goals.

During the first calendar quarter of each year, we evaluate individual and corporate performance against the goals for the recently completed year. The Chairman and Chief Executive Officer presents to the Compensation Committee an evaluation of each of the other executive officers, as well as a recommendation by the Chairman and Chief Executive Officer for annual executive salary increases, if any. These evaluations and recommendations are then discussed by the Compensation Committee, which approves salary and any other awards for the executives. In the case of the Chairman and Chief Executive Officer, his individual performance evaluation is conducted by the Compensation Committee, which recommends his compensation changes to the Board for consideration and approval.

 

For all executives, annual base salary increases and annual bonuses, to the extent awarded, are implemented during the first calendar quarter of the year. In addition, during the third quarter of each year the Compensation Committee and Board of Directors grant long-term equity and performance awards under our 2005 Long Term Incentive Plan to our executive officers. Newly hired and promoted executives may be granted supplemental awards at a committee meeting following their hiring or promotion dates.

 

The Compensation Committee has the authority to retain compensation consultants and other outside advisors to assist in the evaluation of executive officer compensation. During 2008, the Compensation Committee retained an independent compensation consultant, W.T. Haigh & Company, to assist our Compensation Committee with its review of the compensation of our executive officers and with its review of the Compensation Discussion and Analysis and to obtain their recommendation for its inclusion in this Proxy Statement.

Policies and Procedures for Related Person Transactions

 

The Board has adopted written policies and procedures for the review of any transaction, arrangement or relationship in which we are a participant, the amount involved exceeds $120,000, and one of our executive officers, directors, director nominees or 5% stockholders (or their immediate family members), each of whom we refer to as a “related person,” has a direct or indirect material interest.

 

If a related person proposes to enter into such a transaction, arrangement or relationship, which we refer to as a “related person transaction,” the related person must report the proposed related person transaction to our Chief Legal Officer. The policy calls for the proposed related person transaction to be reviewed and, if deemed appropriate, approved by the Board’s Audit Committee. Whenever practicable, the reporting, review and approval will occur prior to entry into the transaction. The policy also permits the Chairman of the Audit Committee and the Chief Legal Officer to review proposed related person transactions that arise between committee meetings, subject to review, approval and ratification by the committee at its next meeting. Any related person transactions that are ongoing in nature will be reviewed annually.

 

A related person transaction reviewed under the policy will be considered approved or ratified if it is authorized by the committee after full disclosure of the related person’s interest in the transaction. The committee will review and consider such information regarding the related person transaction as it deems appropriate under the circumstances.

 

The committee may approve or ratify the transaction only if the committee determines that, under all of the circumstances, the transaction is in, or is not inconsistent with, our best interests. The committee may impose any conditions on the related person transaction that it deems appropriate.

 

In addition to the transactions that are excluded by the instructions to the SEC’s related person transaction disclosure rule, the Board has determined the following interests are not material, and, accordingly, a transaction or arrangement with an entity in which the related person’s sole interest is one of the following will not be considered a related person transaction:

 

 

 

 

In addition, the Board has determined that the following transactions are not related person transactions for purposes of this policy:

 

 

The policy provides that transactions involving compensation of executive officers shall be reviewed and approved by the Board of Directors or the Compensation Committee in the manner specified in its charter and consistent with our policies.

Related Person Transactions

 

Since December 26, 2007 (the beginning of our most recently completed fiscal year), we have not been a party to, and we have no plans to be a party to, any transaction or series of similar transactions in which the amount involved exceeded or will exceed $120,000 and in which any current director, executive officer, holder of more than 5% of our Common Stock, or any member of the immediate family of any of the foregoing, had or will have a material interest, other than in connection with the compensation of our directors and executive officers, employment agreements and other agreements described above under “Compensation of Directors,” “Employment Arrangements with Executive Officers” and “Executive Compensation.”

Report of the Audit Committee of the Board of Directors

 

The Audit Committee has reviewed our audited financial statements for the fiscal year ended December 30, 2008 and has discussed these financial statements with our management and PricewaterhouseCoopers, LLP, our registered public accounting firm.

 

The Audit Committee has also received from, and discussed with, our registered public accounting firm various communications that our registered public accounting firm is required to provide to the Audit Committee, including the matters required to be discussed by PCAOB AU Section 380 (Communication with Audit Committees) as modified or supplemented.

 

Our registered public accounting firm also provided the Audit Committee with the written disclosures and the letter from the independent auditor required by PCAOB Rule 3526 (Communicating with Audit Committees Concerning Independence), as modified or supplemented. The Audit Committee has discussed with the registered public accounting firm their independence from us.

 

Based on its discussions with management and the registered public accounting firm, and its review of the representations and information provided by management and the registered public accounting firm, the Audit Committee recommended to our Board of Directors that the audited financial statements be included in our Annual Report on Form 10-K for the year ended December 30, 2008.

 

By the Audit Committee of the Board of Directors of Panera Bread Company.

 

Respectfully submitted,

 

Domenic Colasacco (chair)

Fred K. Foulkes

W. Austin Ligon

Compensation Discussion and Analysis

 

Overview of Our Compensation Objectives and Philosophy

 

Like all of our employee compensation programs, our executive compensation program has been designed with two objectives in mind: one, to provide a compensation package that is reasonable and competitive within the industry in order to attract and retain qualified and talented executives, and the other, to provide incentives to drive our short and long term performance. We design our executive compensation program to motivate our executive officers and to align their interests with those of our stockholders in order to attain the ultimate objective of increasing stockholder value.

 

We offer total compensation packages at levels we consider to be competitive with a peer group of companies of similar size in the restaurant industry. In determining our executive officer compensation, we may consider generally available source material on companies in the restaurant industry from business periodicals, proxy statements, and other resources. From time to time, we may consider publicly available compensation data from national companies that we believe are generally comparable to us in terms of size, organization structure and growth characteristics, and against which we believe we compete for executive talent. We may also engage third party advisors to perform compensation analysis and peer company benchmarking studies for us to assist our Compensation Committee in its evaluation of executive compensation.

 

Our executive compensation program provides incentives to drive our performance over each of the short, intermediate and long-term. The measures against which incentive compensation is earned include not only short term metrics but also our more intermediate and long term operating and financial performance metrics and are designed to drive the achievement of our overall long-term performance. Our annual incentive bonus rewards achievement of company-wide and department goals keyed to drive our performance for each year, but is adjusted if our performance falls short of or exceeds pre-tax earnings targets, which we establish for our company performance. Our long-term incentive program includes equity awards and also ties awards to the achievement of intermediate and long-term performance metrics, which, in addition to specific earnings per share metrics, also include metrics we have identified to be components or drivers, direct or indirect, of earnings growth.

 

Elements of Compensation

 

Our executive compensation program is essentially the same as the compensation program for all our full-time management employees, with appropriate modifications based on the employee’s level or role within the organization. Our full-time management compensation program is comprised of three basic elements:

 

 

Because our primary objective is to provide incentives that drive our performance, perquisites do not comprise a significant element of our executive compensation program. We do not have employment agreements with any of our executive officers and we do not provide benefits by reason of retirement (other than under our 401(k) plan). We provide standard employee benefits, which we make available to all of our full-time employees.

Determining Executive Compensation

 

Our executive compensation is tied in part to our executive officer levels, which are comprised of Chairman and Chief Executive Officer, Executive Vice President and two Senior Vice President levels. Each component of the compensation of our Chairman and Chief Executive Officer, Ronald M. Shaich, is established by our Board of Directors upon the recommendation of our Compensation Committee, with any third party advisory support to assist the Compensation Committee with recommendations, as determined appropriate. Each component of the compensation of our other executive officers is established by our Compensation Committee, upon the recommendation of our Chairman and Chief Executive Officer and any third party advisers as determined appropriate.

 

In fiscal year 2008, our Compensation Committee retained an independent compensation consultant, W.T. Haigh & Company, to assist our Compensation Committee with its review and determination of the compensation for our executive officers relative to marketplace norms and practices by comparing current proxy statement data and salary survey data. This review was intended to evaluate the competitiveness of our executive compensation levels with those provided for similar executive positions within the restaurant industry and inform our Compensation Committee as to whether changes to our compensation plan were needed. Our Compensation Committee evaluated the competitiveness of our executive compensation through two primary sources consisting of a peer group of 10 public company restaurants and a publicly available database covering 29 restaurants of comparable size with revenues ranging from $350 million to $3 billion. We believe that these companies represent those with whom we compete most closely for executive talent.

 

Our peer group was selected based on the following criteria:

 

 

Based on these criteria, our current peer group used in our review was made up of the following:

 

• California Pizza Kitchen, Inc.		• P.F. Chang’s China Bistro, Inc.
• CEC Entertainment Inc.		• Papa John’s International, Inc.
• The Cheesecake Factory Incorporated		• Red Robin Gourmet Burgers, Inc.
• Chipotle Mexican Grill, Inc.		• Ruby Tuesday, Inc.
• IHOP (DineEquity, Inc.)		• Sonic Corporation

 

In order to gain a broader perspective on general industry compensation levels in the restaurant industry, our Compensation Committee also considered data provided by W.T. Haigh & Company for similar sized companies from a general industry group using additional published compensation surveys. This survey data was used by our Compensation Committee as a secondary market frame of reference.

Our Compensation Committee’s goal is to determine an appropriate mix between cash payments and equity incentive awards to meet short, intermediate and long-term goals and objectives. The mix of compensation is designed to reward recent results and drive long-term company performance. At the target level of performance, annual incentive bonuses and long-term incentive compensation are designed to constitute a significant percentage of an executive’s total compensation. The target percentages and actual percentages for salary, annual incentive bonuses and long-term incentive compensation earned by the named executive officers in fiscal year 2008 are listed in the following table:

 

 

 

 

Base Salary.  The base compensation of our executives is intended to be competitive with the median base compensation levels offered at companies of similar size in the restaurant industry. By establishing base salaries at these levels, we believe we are better positioned to attract and retain talented and qualified executives. In fiscal year 2008, after reviewing the peer group comparative data described above and consulting with our compensation consultant, the Compensation Committee adjusted the base salaries of our executive officers. While the salaries of our executive officers are generally based on their level, they may be adjusted in appropriate circumstances to reflect an individual’s role and responsibility within our company or an individual’s experience and prior performance.

 

As for all our full-time employees, the base salary of each of our executive officers is reviewed annually and increases generally represent cost of living adjustments, provided that additional adjustments may be made to reflect revised market standards (as was the case for fiscal year 2008), promotions or other adjustments, as determined appropriate. Annual base compensation reviews are conducted for cost-of-living increases and promotions during the first quarter of each fiscal year. Base compensation reviews are also conducted during the fiscal year as appropriate for promotions. The base compensation of all our full-time employees is paid through standard payroll payments.

In fiscal year 2008, our Board of Directors, upon the recommendation of the Compensation Committee, increased the annual base salary for our Chief Executive Officer and our Compensation Committee increased the annual base salaries of our Chief Financial Officer and our three other most highly compensated officers, whom we collectively refer to as our named executive officers, as set forth in the following table:

 

 

In fiscal year 2008, we increased the base salaries of our named executive officers by an average of 10.9%. The adjusted salaries were intended to be in-line with the median of the peer group and survey benchmarking salary data for Messrs. Kip, Maguire, Borland and Kupstas. Although increased, we believe that the adjusted salary for Mr. Shaich continues to be below the median for comparable positions based upon review of the overall benchmarking salary data.

 

Annual Incentive Bonus.  We believe that cash bonuses are an important factor in motivating our management team as a whole, and individual executives, in particular, to perform at their highest level toward achievement of established company incentive goals. The incentive goals of our executive officers promote the achievement of our primary company performance objectives. We believe achievement of these goals and objectives will improve short-term operational and financial results and long-term growth and stockholder value consistent with the interests of our stockholders. We also believe establishing cash bonus opportunities is an important factor in both attracting and retaining the services of talented and qualified executives.

 

Annual incentive bonus payments generally are made in March of each year following the fiscal year of performance in a lump sum, in cash, as a means to reward more immediately annual performance. In addition, for fiscal years in which our performance substantially exceeds our pre-established internal pre-tax earnings target, executive officers (other than our Chairman and Chief Executive Officer), along with all other management eligible for our incentive bonus program, are eligible for a supplemental incentive bonus payment to reward individual contributions to our company’s superior performance. The total amount of the supplemental bonus payment to all eligible participants is determined by applying a percentage of the total by which we exceeded an internal pre-tax earnings target typically established in the first quarter of the applicable fiscal year. The total payout is allocated among participants on a pro rata basis based on the amount of the base annual incentive bonus awarded earlier in the year. The percentage applied is determined by our Compensation Committee, upon the recommendation of our Chairman and Chief Executive Officer. The supplemental payment, if any, is made approximately six months following the date of the payment of the annual incentive bonus, following our final determination that the criteria for such payment have been met.

 

On the other hand, for fiscal years in which our performance fails to meet our pre-established pre-tax earnings bonus target, the annual incentive bonus payment is reduced, generally with the greatest dollar and percentage reductions applied at the highest employment levels and continuing with smaller reductions at each lower level thereafter as determined appropriate by the Compensation Committee in its discretion upon management’s recommendation.

 

Chairman and Chief Executive Officer.  The payment and amount of our Chairman and Chief Executive Officer’s annual bonus is discretionary and determined by our Board of Directors following a review of our performance during the fiscal year on which the bonus is based. In making its determination, our Board of Directors, on recommendation from the Compensation Committee, may consider any number of factors,

including the achievement of our performance goals for that year and the recommendation of management and third party advisers. For fiscal year 2008, like fiscal years 2007 and 2006, our Chairman and Chief Executive Officer’s target bonus was 100% of his base salary. In fiscal year 2008, Mr. Shaich was paid an annual incentive bonus in the amount of $630,000, which represents 105% of his targeted amount and which is consistent with the bonus payout achievement attributed to the company incentive goal portion of our incentive bonus program as determined by our Compensation Committee and as described below.

 

Other Executive Officers.  The annual incentive bonus of each eligible participant, other than our Chairman and Chief Executive Officer is also discretionary and is based on a combination of the attainment of company-wide and in some cases department specific incentive goals. We generally establish between four and six company incentive goals, which are designed to improve our overall operational and financial results. Each company incentive goal is weighted as a portion of the total potential bonus payout and collectively, these goals represent at least fifty percent of the total potential bonus payout. In addition, up to fifty percent of the total potential bonus payout may be based upon the achievement of department specific incentive goals established by each department’s manager and approved by our Chairman and Chief Executive Officer. The performance expectations for each incentive goal at the target bonus payment level are generally set at a level that is difficult to achieve, but thought to be attainable. Based on the level of achievement against these goals, the participant will receive a bonus payment equal to a specified percentage of his or her annual salary. Management discretion at several levels — including the direct supervisor, function head and a committee currently comprised of one or more of our Chairman and Chief Executive Officer, our Executive Vice Presidents, and Senior Vice President, Chief People Officer — is applied in evaluating achievement of company-wide and department specific goals as a condition to earning the annual incentive bonus. Our Board of Directors and Compensation Committee also have discretion in evaluating awards.

 

For fiscal year 2008, the bonus payout achievement attributed to the company incentive goal portion of our incentive bonus program was set at 105% of the target level. In determining this level, the Compensation Committee considered our success in delivering results to our shareholders in a challenging economic environment. Specifically, consistent with the recommendation of our Chairman and Chief Executive Officer, the Compensation Committee determined that it was appropriate to reward our executive officers and employees for the Company’s strong overall performance, ability to maintain high earnings and profitability levels and prudent growth in difficult economic circumstances, particularly in the latter half of fiscal 2008.

 

For fiscal year 2008, like fiscal years 2007 and 2006, the target annual incentive bonus of each of our executive officers (other than our Chairman and Chief Executive Officer) ranged from 30% to 50% of the individual’s base salary, based on employment level, with a maximum range of bonus payout potential from zero to two times the individual’s target bonus. Based upon the achievement of their applicable incentive goals, as determined by our Compensation Committee upon the recommendation of our Chairman and Chief Executive Officer, our named executive officers received annual incentive bonus payments at 105% to 141% of their targeted amounts. Mr. Kip received an annual incentive bonus payment for fiscal year 2008 of $147,000. Mr. Maguire received an annual incentive bonus payment for fiscal year 2008 of $210,000. In the case of Mr. Kip and Mr. Maguire, such amounts represented 105% of target amounts, given that these amounts were based entirely on company-wide performance incentive goals. Mr. Kupstas and Mr. Borland received annual incentive bonus payments of $179,200 and $197,680, which respectively represented 128% and 141% of targeted amounts, due to their department’s achievement of individual department specific incentive goals in addition to those related to company-wide performance. Our other employees at the manager level and above received bonus amounts based on the achievement of applicable performance goals under the annual incentive bonus program consistent with the process applied for executive officers.

 

In addition, because our actual fiscal year 2008 pre-tax earnings of $108.7 million was above our pre-tax earnings target of $105.3 million, our executive officers (other than our Chairman and Chief Executive Officer) and other management eligible for our incentive bonus program are eligible for the future supplemental incentive bonus payment described above.

 

Other Eligible Employees and Other Programs.  The annual incentive bonus program is offered not only to executive officers, but also to all of our other employees at the manager level and above. Eligibility for our

other management employees varies primarily by the employment level and level of achievement of each of several pre-established incentive goals approved by our Chairman and Chief Executive Officer.

 

In place of the annual management incentive bonus program, we also offer special cash incentive bonus programs to targeted full-time management employees in an effort to accomplish key company missions. These special cash incentive bonus programs are tailored to drive achievement of our company performance objectives specifically targeted to our store operations, real estate development and manufacturing, as well as to reward applicable individual performance standards such as safe driving records, customer service, sanitation and safety, among other areas.

 

Long-Term Incentive Plan Compensation

 

Our executive officers, along with our other management employees, are eligible to participate in our 2005 Long Term Incentive Plan, which we refer to as our LTIP and which is a sub-plan under our 2006 Stock Incentive Plan.

 

Our long-term incentive compensation program is designed to align each executive’s goals with the intermediate and long-term goals of our stockholders by providing incentives to drive our long-term performance. The LTIP is also designed to provide our executives with the incentive to continue to drive our performance over the periods embedded in the LTIP program. Accordingly, each award to our executive officers includes not only an annual grant of equity (restricted stock and options) which vest over a five-year period, but also earned payments of cash and stock, based on our cumulative achievement of various operating performance metrics over a three-consecutive-fiscal-year period. Participation in our LTIP in any given year is discretionary, as determined by our Compensation Committee, upon the recommendation of our Chairman and Chief Executive Officer.

 

The LTIP awards to our executive officers and other officers at the Vice President level are comprised of:

 

 

The restricted stock award and choice award components, which we describe below in more detail, together comprise one-half of these target awards. The performance award component, also described below in more detail, also comprises one-half of these target award payments. However, the actual award payment of the performance award component will be adjusted, based on our performance over a three-fiscal-year period over which that component is measured. All LTIP grants are made at regularly scheduled meetings of the Board of Directors and Compensation Committee, or, upon determination of the Compensation Committee, at a meeting convened on the first business day of any intervening month as appropriate.

 

Restricted Stock Awards.  The restricted stock awards, which are granted annually, vest over a period of five years. Restricted stock awards are comprised of shares of Class A Common Stock that are subject to forfeiture. The restricted stock subject to the restricted stock awards may not be sold or transferred unless and until it vests, at which time all restrictions will lapse for the number of shares that vest. The shares of restricted stock vest over a five-year period, with 25% vesting two years from grant date and an additional 25% vesting each year thereafter, subject to continued employment with us. In the event of the executive’s death or disability between two vesting accrual periods, a pro rata portion of the additional restricted stock which would have vested had the participant not died or become disabled prior to the vesting accrual period next following the death or disability will be vested. The range of award to our named executive officers under the restricted stock award component, expressed as a percentage of base salary, is 25% to 75% of base salary, based on the named executive officer’s employment level. Restricted stock awards were included in the LTIP to provide eligible participants with direct equity ownership (with voting rights and rights to receive dividends,

if declared for the Class A Common Stock), while also providing retention throughout the five-year period over which the transfer restrictions lapse.

 

Choice Awards.  The choice awards are in the form of an award of restricted stock or non-statutory stock options, which are also granted annually, vest over a period of five years. The executive can elect to receive restricted stock, non-statutory stock options, or a combination of restricted stock and non-statutory stock options. The portion of the choice award elected to be in the form of a stock option is for stock options to purchase a number of shares equal to a multiple of the number of shares of restricted stock that would have been awarded. In fiscal year 2008, the applicable multiple as determined by the Compensation Committee was equal to a multiple of the number of shares of restricted stock determined using the Black-Scholes option pricing model applied as of the date of grant as would cause the stock option to have a value equal to the restricted stock that would have been awarded in respect of that portion had the executive elected to receive such portion as restricted stock. Options granted pursuant to a choice award have an exercise price equal to the closing price of the Class A Common Stock on The Nasdaq Global Select Market on the date of grant, and vest over a five-year period, with 25% vesting two years from grant date and an additional 25% vesting each year thereafter, subject to continued employment with us. In the event of the executive’s death or disability between two vesting accrual periods, a pro rata portion of the additional portion of the option that would have vested had the participant not died or become disabled prior to the vesting accrual period next following the death or disability will be vested. The options expire six years from the date of grant, but will be subject to earlier termination as provided in the award agreement. The provisions of the restricted stock awards described above also apply to the choice awards that the executive elects to receive as restricted stock awards, if any. The range of awards to our named executive officers under the choice award component, like the restricted stock award component, expressed as a percentage of base salary, is 25% to 75% of base salary, based on the named executive officer’s employment level. Taking the restricted stock award and choice award components together, the range of target awards for both components is 50% to 150% of base salary, based on the executive officer’s employment level. Choice awards were included in the LTIP to provide eligible participants with the flexibility to choose the form of award, given that each individual’s financial and other circumstances may vary.

 

Performance Awards.  The performance award component is based on the level of our cumulative achievement of predetermined performance metrics in each of three-fiscal-years which comprise the performance period for which the award is made. The performance award is earned based on our achievement of these predetermined company performance metrics, assuming the recipient remains employed by us throughout the three-fiscal-year performance period and the date of payment. The performance metrics are established by our Compensation Committee and approved by our Board of Directors during the first year of the three-fiscal-year performance period to which the metrics pertain to provide guidelines to our Compensation Committee and Board for the actual award payments. Each performance metric, weighting of each metric, and award levels for each metric of the performance awards are communicated to each recipient. The performance awards are payable in a combination of cash and whole shares of Class A Common Stock as the Compensation Committee determines. In fiscal year 2008, our Compensation Committee approved the payment of performance awards entirely in cash for the three-fiscal-year performance period beginning in 2008 and ending in 2010, as well as for the previously approved three-fiscal-year performance periods commencing in fiscal years 2006 (ending in 2008) and 2007 (ending in 2009). The target award payment ranges from 50% to 150% of base salary, based on employment level. However, the actual award payment will be adjusted, based on our performance over a three-fiscal-year measurement period, and any other factors as determined by our Compensation Committee. The actual award payment for the performance award component ranges from zero, since it is eliminated if we fail to achieve even the minimum threshold level for all of our performance metrics over the three-fiscal-year measurement period, to double the individual’s targeted award payment, if we achieve maximum performance in all of our performance metrics, subject to any adjustments as determined by our Compensation Committee.

The three-fiscal-year performance period for LTIP performance awards granted in fiscal year 2006 was completed at the end of fiscal year 2008. The LTIP performance award structure, performance targets, performance results and value of each component as a percentage of the target value of each award were as follows:

 

 

 

 

Based on the calculated payout as a percent of target award, there were no payments earned or paid to our named executive officers for the LTIP performance awards granted in fiscal year 2006, which were calculated in March 2009, as reflected below:

 

 

 

 

The performance metrics applicable to LTIP performance award grants made in fiscal years 2007 and 2008 include both specific earnings per share targets, and targets we have identified to be components or drivers, direct or indirect, of earnings growth and other critical operating performance measures — such as average weekly sales growth, unit growth and profit metrics. The actual payments applicable to existing grants made in fiscal years 2007 and 2008 cannot be determined because the awards are earned only if performance of each metric is achieved at the end of the three-fiscal-year performance period, which extends through the 2009 and 2010 fiscal years, respectively.

 

Our Chairman and Chief Executive Officer participates in our LTIP, at the highest level of award. Our other named executive officers participate in our LTIP at levels below our Chairman and Chief Executive Officer.

 

The 2008 LTIP grants to our named executive officers are set forth in the table below. Values reflected for each component are expressed as a percentage of annual base salary (at the rate in effect on the grant date) from which they are determined. In the case of the performance award, values are reflected at the target award, which will be adjusted based on our performance over the 2008-2010 fiscal years. The values reflected differ from the values set forth in the Summary Compensation Table and the Grants of Plan-Based Awards Table because the table does not take into account vesting and other disclosure required by the other tables.

 

 

 

 

In March 2008, our Compensation Committee approved additional choice award grants to a number of our employees, including our named executive officers other than Mr. Shaich. The Compensation Committee determined that these stock based grants were an appropriate retention tool for senior management given the levels of total compensation paid for the fiscal years 2006 and 2007, for which there was little or no incentive bonus payments and only a modest performance award payout for the three-fiscal-year period ending 2007. Particularly, the Compensation Committee noted the importance of management retention during a period in which we were embarking on a number of key business initiatives commencing in 2008. The choice award grants were made under our 2006 Stock Incentive Plan and permitted each recipient to elect to receive an award in the form of restricted stock or a non-statutory stock option vesting over three years in three equal annual installments. The number of shares of restricted stock or shares underlying the stock option subject to the choice award was determined by the value of the choice award granted to each recipient, which we refer to as the award value. The award value of the choice award granted to Mr. Maguire, which Mr. Maguire elected to receive 25% in the form of restricted stock and 75% in the form of stock options, was $150,000 and the award value of the choice award granted to Messrs. Kip, Kupstas and Borland was $100,000. Messrs. Borland and Kip elected to receive 100% of this award in the form of stock options and Mr. Kupstas elected to receive this award 100% in the form of restricted stock.

 

Other Eligible Employees.  The LTIP program, with the modifications described below, is generally made available to all our full-time management employees. Various features of, as well as participation in and eligibility for, the LTIP are determined by the employment level or organizational role of the participants, including among other features the percentage of base compensation used to determine the level of the grants at which each award is made. Choice awards are not offered to any employee below the Vice President level. In addition, participants below the Vice President level are not eligible for performance awards, but rather an alternative deferred cash payment, contingent upon continued employment. For fiscal year 2008, approximately 515 employees received LTIP grants, including, in addition to our named executive officers, eight other executive officers and approximately 502 other management employees.

 

Other Compensation

 

We also offer limited perquisites to our executive officers not generally available to all employees, as follows:

 

Chairman and Chief Executive Officer.  As approved by our Board of Directors, we have agreed to pay up to $1,500 monthly of lease and related car expenses incurred by our Chairman and Chief Executive Officer in connection with his use of a motor vehicle, for so long as he serves as our Chief Executive Officer. In addition, our Board of Directors has approved his travel by chartered jet for company business purposes, under hourly lease arrangements with various vendors. However, Mr. Shaich utilizes chartered jet for company business purposes only when reasonably necessary due to specific travel demands such as described below. As approved by our Board in fiscal year 2008, our Chairman and Chief Executive Officer is entitled to receive reimbursement for outside legal expenses related to individual securities law compliance matters, such as beneficial ownership reporting and 10b5-1 trading plans, up to $20,000 annually. In making its determination to approve these services, our Board considered the range of these perquisites at other companies along with the constant travel demands placed on our Chairman and Chief Executive Officer in visiting company bakery-cafes, assessing company-owned and franchise-operated sites and attending numerous meetings including those with our employees, franchisees, vendors and stockholders. Our Chairman and Chief Executive Officer is also approved to have his family accompany him in the chartered jet on business trips as long as there is no incremental cost to us. We do not have an employment agreement with our Chairman and Chief Executive Officer, and we do not provide him any benefits payable by reason of retirement or severance (other than under our 401(k) plan, as described in the Summary Compensation Table).

Other Named Executive Officers.  Other perquisites of our other named executive officers are described below.

 

 

We do not have employment agreements with any of our other named executive officers, and we do not provide them any benefits payable by reason of retirement (other than under our 401(k) plan, as described in the Summary Compensation Table). Each of our other named executive officers is subject to a non-competition agreement. As for all our employees at the director level and above, as well as certain individuals in positions below the director level, these non-competition agreements provide for payments of separation pay in the form and amount of continued base pay for up to specified terms, reduced by compensation received from other sources, along with continued health, dental and in some instances 401(k) benefits for the same term, in the event of our termination of employment without cause. The length of the maximum term during which separation pay may continue correlates to the applicable employment level, which in the case of our named executive officers, and all other executive officers (other than our Chairman and Chief Executive Officer), is one year.

 

We make the following benefit packages generally available to our full-time employees, including our named executive officers, upon satisfaction of eligibility requirements:

 

 

None of our Chairman and Chief Executive Officer or any other named executive officer is offered any other form of compensation qualifying as perquisites, such as reimbursements for country club memberships, commuting costs, personal financial adviser expenses, tax gross-ups or personal use of our property.

 

Accounting and Tax Considerations

 

The financial reporting and income tax consequences to us of individual compensation elements are important considerations for the Compensation Committee when it is analyzing the overall level of compensation and the mix of compensation among individual elements. Overall, the Compensation Committee seeks to balance its objective of ensuring an effective compensation package to the named executive officers with the desire to maximize the immediate deductibility of compensation — while ensuring an appropriate (and transparent) impact on reported earnings and other closely followed financial measures.

In making its compensation decisions the Compensation Committee has considered the potential effect of Section 162(m) of the Internal Revenue Code, which limits the tax deduction available to public companies for annual compensation that is paid to named executive officers in excess of $1,000,000, unless the compensation qualifies as “performance-based” or is otherwise exempt from Section 162(m). Our 2006 Stock Incentive Plan, our annual incentive bonuses and our LTIP awards, other than restricted stock awards, are intended to qualify for the exemption of “performance-based” compensation from the deductibility limit. However, the Compensation Committee may, in its judgment after considering the tax consequences and financial effects such action may have on us, design and authorize compensation elements that may not be deductible within Section 162(m) when it believes that such compensation is appropriate and in our best interests.

Summary Compensation

 

The following table sets forth information regarding the compensation we paid or accrued during the fiscal years indicated to or for our Principal Executive Officer, our Principal Financial Officer, and our three other most highly compensated executive officers whose total compensation exceeded $100,000 for the fiscal year.

 

Summary Compensation Table

 

 

 

 

 

 

 

 

 

Grants of Plan-Based Awards

 

The following table sets forth information concerning each grant of an award made to a named executive officer during the fiscal year ended December 30, 2008 under any plan, contract, authorization or arrangement pursuant to which cash, securities, similar instruments or other property may be received.

 

Fiscal Year 2008 Grants of Plan-Based Awards

 

 

 

Information Relating to Equity Awards and Holdings

 

The following table sets forth information concerning restricted stock that has not vested, stock options that have not been exercised and equity incentive plan awards for each of the named executive officers outstanding as of December 30, 2008.

 

Outstanding Equity Awards at 2008 Fiscal Year End