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CACH > SEC Filings for CACH > Form 8-K on 15-Aug-2013All Recent SEC Filings

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Form 8-K for CACHE INC


15-Aug-2013

Entry into a Material Definitive Agreement, Material Modification to Rights of Security


Item 1.01 Entry into a Material Definitive Agreement

Reincorporation of in Delaware

On August 14, 2013, Cache, Inc. (the "Company") changed its state of incorporation from Florida to Delaware. This reincorporation was effected by merging the Company with and into a wholly owned Delaware subsidiary established for this purpose, following approval by the requisite vote of the Company's shareholders at the 2013 Annual Meeting of Shareholders on August 14, 2013 (the "Annual Meeting"), as set forth in Item 5.07 below. Cache, Inc., a Delaware corporation ("Cache Delaware"), is deemed to be the successor issuer of Cache, Inc., a Florida corporation ("Cache Florida"), under Rule 12g-3 of the Securities Exchange Act of 1934, as amended. A copy of the Agreement and Plan of Merger of Cache Delaware and Cache Florida is attached hereto as Exhibit 2.1.

The reincorporation of the Company did not result in any change in the name, Nasdaq listing, CUSIP number, business, management, fiscal year, accounting, location of the principal executive officers, assets or liabilities of the Company. In addition, the Company's common stock will continue to trade on the Nasdaq Global Select Market ("Nasdaq") under the symbol "CACH." Shareholders are not required to exchange Company shares in connection with the reincorporation since shares in Cache Florida are deemed to represent an equal number of shares in Cache Delaware.

As of August 14, 2013, the effective date of the reincorporation, the rights of the Company's stockholders began to be governed by the Delaware General Corporation Law, the Cache, Inc. Certificate of Incorporation attached hereto as Exhibit 3.1 and the By-Laws of Cache, Inc. attached hereto as Exhibit 3.2. The form of common stock certificate of Cache Delaware is attached hereto as Exhibit 4.1.

Additional information about the reincorporation and a comparison of the rights of stockholders of Cache Florida and Cache Delaware can be found in the Company's Proxy Statement for the 2013 Annual Meeting of Shareholders, filed with the Securities and Exchange Commission on July 12, 2013.

Joinder Agreement

On August 14, 2013, Cache Delaware (the "New Lead Borrower"); and Wells Fargo Bank, National Association, as administrative agent and collateral agent (in such capacities, the "Agent") entered into a Joinder and Assumption Agreement (the "Joinder Agreement"). The Joinder Agreement was entered into pursuant to
(1) the Credit Agreement dated as of July 25, 2013 (the "Credit Agreement") and
(2) that certain Security Agreement dated as of July 25, 2013 (the "Security Agreement"). Pursuant to the Joinder Agreement, the New Lead Borrower became a party to, and is bound by the terms of, the Credit Agreement, the Security Agreement and the other Loan Documents, in the same capacity and to the same extent as Cache Florida, the Existing Lead Borrower thereunder.

The foregoing description of the Joinder Agreement is qualified in its entirety by reference to the complete terms of the Joinder Agreement, which is attached hereto as Exhibit 10.1.



Item 3.03 Material Modification to Rights of Security Holders

Please see the disclosure set forth under Item 1.01, which is incorporated by reference into this Item 3.03.



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

The 2013 Stock Incentive Plan

At the Annual Meeting, the stockholders approved a proposal to adopt Company's 2013 Stock Incentive Plan (the "2013 Plan"), which replaces the Company's 2008 Stock Option and Performance Incentive Plan (the "2008 Plan"). The 2013 Plan contemplates a total of 1,065,693 shares being available for issuance by the Compensation Committee, which may be granted in the form of options, Tandem Stock Appreciation Rights, Nontandem Stock Appreciation Rights, Restricted Shares, Performance Units and Unrestricted Shares.

The 2013 Plan, as amended, is filed as Exhibit 10.1 to this Form 8-K and incorporated herein by reference.


Indemnity Agreements with Directors

Following the Reincorporation, the Company entered into new indemnity agreements with each of the Company's directors, effective August 14, 2013, which replace the previous indemnity agreements entered into between the Company and its directors.

The indemnity agreements are substantially similar to those previously entered into between the Company and its directors and officers except that the new indemnity agreements are governed by Delaware law and have been modified to conform to Delaware law. The indemnity agreements require the Company, among other things, to indemnify the director or officer against specified expenses and liabilities, such as attorneys' fees, judgments, fines and settlements paid by the individual in connection with any action, suit or proceeding arising out of the individual's status or service as the Company's director or officer, and to advance expenses incurred by the individual in connection with any proceeding against the individual with respect to which the individual may be entitled to indemnification by the Company.

The foregoing description of the of indemnity agreements entered into between the Company and each of its directors is qualified in its entirety by reference to the full text of the form of indemnity agreement, which is filed as Exhibit 10.2 to this Form 8-K and incorporated herein by reference.



Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year

Please see the disclosure set forth under Item 1.01, which is incorporated by reference into this Item 5.03. The Cache, Inc. Amended and Restated Certificate of Incorporation attached hereto as Exhibit 3.1 and the By-Laws of Cache, Inc. attached hereto as Exhibit 3.2.



Item 5.07 Submission of Matters to a Vote of Security Holders

The Company held its Annual Meeting on August 14, 2013. The matters voted upon at the Annual Meeting and the results of such voting are set forth below:

Proposal 1: Election of Board of Directors:



Name of Director        For       Withheld   Broker Non-Vote

Jay Margolis         15,759,273    495,520         2,937,711

Gene G. Gage         16,113,681    141,112         2,937,711

Michael F. Price     15,737,140    517,653         2,937,711

Charles J. Hinkaty   15,738,246    516,547         2,937,711

Robert C. Grayson    15,754,566    500,227         2,937,711

J. David Scheiner    16,090,464    164,329         2,937,711

All director nominees were duly elected.

Proposal 2: Company's 2013 Stock Incentive Plan:

For Against Abstain Broker Non-Vote 15,916,187 319,411 19,195 2,937,711

Proposal 2 was approved.

Proposal 3: Advisory (nonbinding) vote on executive compensation:

For Against Abstain Broker Non-Vote 16,097,174 70,413 87,206 2,937,711


Proposal 3 was approved, on a non-binding advisory basis.

Proposal 4: Advisory (nonbinding) vote on the frequency of future advisory votes on executive compensation:

Three Years Two Years One Year Abstain Broker Non-Vote 9,824,992 16,971 6,400,816 12,014 2,937,711

The frequency of once every three years on Proposal 4 was selected by our stockholders.

Consistent with the stated preference of the Company's stockholders, the Company's Board of Directors has determined that it will include an advisory stockholder vote on executive compensation in its proxy materials every three years until the next required advisory vote on the frequency of stockholder votes on executive compensation.

Proposal 5: Reincorporation from Florida to Delaware:

For Against Abstain Broker Non-Vote 15,835,571 417,034 2,188 2,937,711

Proposal 5 was approved.

Proposal 6: Appointment of Mayer Hoffman McCann CPAs, as the Company's independent registered public accounting firm for the fiscal year ending December 28, 2013:

For Against Abstain
19,165,582 15,833 11,089

Proposal 6 was approved.



Item 9.01 Financial Statements and Exhibits

(d) List of Exhibits:

2.1 Agreement and Plan of Merger between Cache, Inc., a Florida corporation and Cache, Inc., a Delaware corporation

3.1 Certificate of Incorporation of Cache, Inc.

3.2 By-Laws of Cache, Inc.

4.1 Form of Common Stock Certificate

10.1 Cache, Inc. 2013 Stock Incentive Plan

10.2 Joinder and Assumption Agreement by and between Cache, Inc. and Wells Fargo Bank, National Association, dated August 14, 2013

10.3 Form of Indemnification Agreement


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