SCOTT F. FROST
Senior Vice President,
Chief Financial Officer and Treasurer
August 16, 2013
Filed via EDGAR
Mr. Dietrich A. King for
Ms. Mara L. Ransom
Assistant Director
United States Securities and Exchange Commission
Division of Corporation Finance
Washington, D.C. 20549
RE: Weis Markets, Inc.
Form 10-K for Fiscal Year Ended December 29, 2012
Filed March 14, 2013
File No. 001-05039
Dear Mr. King:
We reviewed your letter dated August 2, 2013, regarding the above referenced Weis Markets, Inc. (the "Company") filings and have addressed each of your comments in this response letter. We respectfully request to correct all comments, if appropriate, in future filings.
- the Company is responsible for the adequacy and accuracy of the disclosure in the filing;
- staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and
- the Company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.
Definitive Proxy Statement on Schedule 14A
Compensation Discussion and Analysis, page 8
Use of Comparable Data in Setting Executive Compensation Levels, page 8
- SEC Comment: You state that "[t]he Compensation Committee used the Stanton Group's '2011 Wholesale/Retail Group Compensation Survey' and the Hewitt 2011 Total Compensation Measurement Survey to benchmark total compensation for the CEO, Executive Vice President of Sales and Merchandising ('EVP') and the CFO." It does not appear that you have identified the companies that are included in these two surveys. Please identify these companies or tell us why you believe this is unnecessary. Please also provide us with your proposed disclosure in this regard. Please see Item 402(b)(2)(xiv) of Regulation S-K and Question 118.05 of our Regulation S-K Compliance and Disclosure Interpretations located on our website, www.sec.gov.
Company Response:
We acknowledge the SEC position concerning the identification of companies that are included in surveys used by the Compensation Committee to set compensation for the named executive officers. The companies that were included in the two surveys contained in the Company's 2013 proxy statement are listed below.
In the future, to the extent that the Committee uses any such survey, the companies included in the survey will be named. As an example, our proposed disclosure of what was contained in the third paragraph under the section entitled "Use of Comparable Data in Setting Executive Compensation Levels" of the Company's 2013 proxy statement is as follows:
Use of Comparable Data in Setting Executive Compensation Levels
***
In 2012, the Compensation Committee used Hewitt's 2011 Total Compensation Measurement Survey to benchmark the total compensation for the Chairman. The Compensation Committee used the Stanton Group's "2011 Wholesale/Retail Group Compensation Survey" and the Hewitt 2011 Total Compensation Measurement Survey to benchmark total compensation for the CEO, Executive Vice President of Sales and Merchandising ("EVP") and the CFO.
The Stanton Group is a Division of Gallagher Benefit Services, Inc. The Stanton study benchmarked compensation and benefits for management employees for 33 grocery retailers and wholesalers nationwide. The companies that were included in the Stanton Group's "2011 Wholesale/Retail Group Compensation Survey" were:Ahold USA Retail Harris Teeter, Inc Sears Holdings Corporation Alex Lee, Inc. H-E-B. Spartan Stores, Inc. Associated Food Stores, Inc. Hy-Vee, Inc SUPERVALU, Inc. Associated Wholesale Grocers, Inc.. Marsh Supermarkets, LLC. The Kroger Company Big Y Foods, Inc Meijer Inc. Tops Markets LLC BI-LO LLC. Nash Finch Company Unified Grocers, Inc. BJ's Wholesale Club, Inc Price Chopper Supermarkets/The Golub Corporation Wakefern Food Corporation Brookshire Grocery Company. Publix Super Markets, Inc. Wegmans Food Markets, Inc. C&S Wholesale Grocers, Inc Raley's Supermarkets Weis Markets, Inc. Delhaize America. Roundy's Supermarkets, Inc. Whole Foods Market, Inc. Giant Eagle, Inc. Safeway, Inc. Winn-Dixie Stores, Inc.
The Hewitt 2011 Total Compensation Measurement Survey included 358 companies in varied lines of business. A list of the companies in such survey is attached as Appendix 1 to this proxy statement.
2012 Executive Compensation Components, page 9
- SEC Comment: For each of the years under which an award was granted under the Vice Chairman Incentive Award Plan, CEO Incentive Award Plan and Long Term Incentive Award Plan, please provide the Net Income for both the Prior Year and Current Year based on the "same store profit comparison" referenced in your disclosure. Alternatively, please tell us where this disclosure is located. Please also revise your Grant of Plan Based Awards table to reflect each of these award plans and provide us with your proposed disclosure in this regard. Please see Instruction 1 to Item 402(d) of Regulation S-K.
Company Response:
The Net Income for the Prior Year and the Current Year, for each year in which an award was granted under the Vice Chairman Incentive Award Plan, the CEO Incentive Award Plan and the Long Term Incentive Plan, is the actual "net income" set forth in the Consolidated Statements of Income, as contained in the audited financial statements of the Company in the Forms 10-K filed by the Company each year. The reference to "same store profit comparison" in the proxy is not a formal calculation that is done each year, but rather is a reference to the fact that the Compensation Committee has the authority under the plans to consider the effects of acquisitions and dispositions of stores, among other things, in connection with determining year to year Net Income. To date, the Compensation Committee has not made any adjustments to the Company's reported net income (contained in the financial statements in its Forms 10-K) in determining awards.
To better describe this in the proxy, we will in the future, in the sections of the proxy entitled "Vice Chairman Incentive Award Plan," CEO Incentive Award Plan" and "Long Term Incentive Plan," replace the current definition of Net Income with the following:
"Net Income" is the net income as set forth in the Company's Consolidated Statements of Income, as contained in the audited financial statements of the Company in the Forms 10-K filed by the Company, but in comparing the Net Income for a particular fiscal year (the "Current Year") to the Net Income of the prior fiscal year (the "Prior Year"), the Compensation Committee may take into account, in an objectively determinable manner, certain changes that occur between years, including in particular, changes that are due to the addition or disposition of stores. [For the past fiscal year, the Committee did not make any adjustments to the Company's reported net income.] [For purposes of the determination of Net Income under plan, the Committee made certain adjustments to the Company's reported net income or the last fiscal year, as follows….].
We will revise the Grant of Plan Based Awards table for next year's proxy to reflect each of the award plans. Our proposed disclosure using 2012 numbers is as follows:
Grants of Plan-Based Awards
The following table shows the grants of plan-based awards made to the Named Officers for fiscal 2012.Estimated Possible Payouts Under Non-Equity Incentive Plan Awards Name Threshold ($) Target ($) Maximum ($) Robert F. Weis Non-Equity Incentive Plan (1) 120,124 800,825 1,041,073 Jonathan H. Weis Non-Equity Incentive Plan (1) 83,286 555,239 721,810 Vice Chairman Incentive Award Plan (2) -- -- 1,339,000 David J. Hepfinger Non-Equity Incentive Plan (1) 96,099 640,660 832,858 CEO Incentive Award Plan (3) -- -- 1,500,000 Kurt A. Schertle Non-Equity Incentive Plan (1) 25,438 169,583 220,458 Long Term Incentive Plan (4) -- -- 97,250 Scott F. Frost Non-Equity Incentive Plan (1) 20,215 134,767 175,197 Long Term Incentive Plan (4) -- -- 84,500
(1) Represents the amounts that could have been earned by each of the Named Officers for fiscal 2012 for performance at the threshold, target and maximum levels under the Non-Equity Incentive Plan described in the "Compensation Discussion and Analysis."
(2) The amount set forth in the table is the maximum amount that could have been earned by Mr. Weis for fiscal 2012 under the Vice Chairman Incentive Award Plan (this plan does not have a "threshold" or a "target" award). As described in the "Compensation Discussion and Analysis," Mr. Weis would be entitled to (i) his base salary of $694,048 for the fiscal year if he remains employed for the entire fiscal year and (ii) the same amount of his base salary for the fiscal year if the "Net Income" of the Company increases by 5% or more from the "Net Income" of the previous fiscal year, as more particularly set forth in the plan description in the "Compensation Discussion and Analysis." However, the maximum amount that Mr. Weis can earn under this plan for fiscal 2012 is $1,339,000.
(3) The amount set forth in the table is the maximum amount that could have been earned by Mr. Hepfinger for fiscal 2012 under the CEO Incentive Award Plan (this plan does not have a "threshold" or a "target" award). As described in the "Compensation Discussion and Analysis," Mr. Hepfinger would be entitled to (i) his base salary of $800,825 for the fiscal year if he remains employed for the entire fiscal year and (ii) the same amount of his base salary for the fiscal year if the "Net Income" of the Company increases by 5% or more from the "Net Income" of the previous fiscal year, as more particularly set forth in the plan description in the "Compensation Discussion and Analysis." However, the maximum amount that Mr. Hepfinger can earn under this plan for fiscal 2012 is $1,500,000.
(4) The amounts set forth in the table are the maximum amounts that could have been earned by each of Mr. Schertle and Mr. Frost for fiscal 2012 under the Long Term Incentive Plan (this plan does not have a "threshold" or a "target" award). As described in the "Compensation Discussion and Analysis," (i) Mr. Schertle would be entitled to 50% of his base salary (as in effect at the end of the fiscal year) of $389,000, and (ii) Mr. Frost would be entitled to 50% of his base salary (as in effect at the end of the fiscal year) of $338,000, if the "Net Income" of the Company increases by 5% or more from the "Net Income" of the previous fiscal year, as more particularly set forth in the plan description in the "Compensation Discussion and Analysis." Due to the fact that the plan was not adopted until July 1, 2012, the amounts which could be earned for 2012 were determined in the plan to be the amounts set forth in the table above.
If you have any further comments, questions or suggestions, please do not hesitate to call or write directly to me. My telephone number is (570) 286-3205 and my e-mail address is sfrost@weismarkets.com.
Sincerely,
Scott F. Frost
Senior Vice President, Chief Financial Officer
and Treasurer
WEIS MARKETS, INC.
1000 SOUTH SECOND STREET l P.O. BOX 471 l SUNBURY, PA 17801-0471 l (570) 286-4571
Appendix 1 | ||
Companies included in the Hewitt 2011 Total Compensation Measurement Survey | ||
1-800 Contacts | Brown-Forman Corporation | Ensco plc |
3M Company | Brunswick Corporation | enXco, Inc. |
7-Eleven, Inc. | Burlington Northern Santa Fe Corporation | ESCO Technologies Inc. |
A. O. Smith Corporation | Bush Brothers & Company | Federal Reserve Information Technology |
Abbott Laboratories | C&S Wholesale Grocers, Inc. | Federal-Mogul Corporation |
ACCO Brands | Calpine Corporation | FedEx Corporation |
Actavis Inc | Campbell Soup Company | Ferro Corporation |
Acuity Brands Inc. | Capital Power Corporation | FirstGroup America, Inc. |
Acxiom Corporation | Career Education Corporation | Florida Municipal Power Agency |
AECOM Technology Corporation | Carestream Health, Inc. | FMC Corporation |
Aerojet-General Corporation | Caterpillar Inc. | Ford Motor Company |
AGC Chemicals Americas, Inc. | CDW Corporation | Fortune Brands, Inc. |
AGL Resources Inc. | Centene Corporation | Foster Wheeler AG |
Air Products and Chemicals, Inc. | CenterPoint Energy | GAF Materials Corporation |
Alcon Laboratories, Inc. | Ceridian Corporation | Gardner Denver, Inc. |
Allergan, Inc. | Chelan County Public Utility District | Garland Power & Light |
Alliant Energy Corporation | Chevron Global Power | GATX Corporation |
Altria Group, Inc. | Chicago Bridge and Iron Company | Gaylord Entertainment |
Alyeska Pipeline Service Company | Chipotle Mexican Grill, Inc. | GDF Suez Energy Resources NA |
Ameren Corporation | Chiquita Brands International, Inc. | GenCorp Inc. |
American Axle & Manufacturing, Inc. | CHS Inc. | Generac Holdings Inc. |
American Chemical Society | Cleco Corporation | General Dynamics Corporation |
American Electric Power | Clipper Windpower | General Electric Company |
American Heart Association | Collective Brands, Inc. | General Mills, Inc. |
American Standard | ConAgra Foods, Inc. | General Motors Corporation |
Ameron International Corporation | Constellation Energy | GenOn Energy |
Amgen Inc. | Cooper Industries, Inc. | Genuine Parts Company |
AMSTED Industries Incorporated | Covanta Holding Corporation | Georgia Gulf Corporation |
Andersen Corporation | Covidien | GlaxoSmithKline plc |
Anheuser-Busch InBev | Curtiss-Wright Corporation | Global Crossing Ltd. |
ANN INC. | CVS Corporation | Goodman Global |
APL, Ltd. | Cytec Industries, Inc. | Goodrich Corporation |
Archer Daniels Midland Company | Darden Restaurants, Inc. | Gordon Food Service |
Arizona Public Service | Del Monte Foods Company | Gorton's |
Arkansas Electric Cooperative Corporation | Delhaize America | Graco Inc. |
Armstrong World Industries, Inc. | Delphi Corporation | Great River Energy |
Ash Grove Cement Company | Deluxe Corporation | GROWMARK, Inc. |
Associated Electric Cooperative Inc. | Dole Food Company, Inc. | GWF Power Systems |
Atwood Oceanics, Inc. | Dominion Resources, Inc. | H. B. Fuller Company |
Automatic Data Processing, Inc. | Donaldson Company, Inc. | H. J. Heinz Company |
AutoZone, Inc. | Duke Energy Corporation | Hallmark Cards, Inc. |
Avant Energy, Inc. | Dunkin' Brands, Inc. | Hanesbrands, Inc. |
Avery Dennison Corporation | E. I. du Pont de Nemours and Company | Harley-Davidson Motor Company Inc. |
BAE Systems, Inc. | Eastman Chemical Company | Haworth, Inc. |
Bain & Company, Inc. | Eastman Kodak Company | HDR, Inc |
Ball Corporation | Eaton Corporation | Herman Miller, Inc. |
Banner Health | Ecolab Inc. | HNTB Companies |
Barnes Group Inc. | Eddie Bauer, LLC | Honeywell International Inc. |
Battelle Memorial Institute | Edison International | Hormel Foods Corporation |
Bausch & Lomb Incorporated | Edison Mission Energy | Hot Topic |
Baxter International Inc. | Edwards Lifesciences LLC | Hubbell Incorporated |
Black Hills Corporation | El Paso Corporation | Huntington Ingalls Industries Inc |
Boise Inc | Elkay Manufacturing Company | Hy-Vee, Inc. |
BorgWarner Inc. | Emerson Electric Co. | Iberdrola Renewables Inc. |
Brady Corporation | Energizer Holdings, Inc. | IBM Corporation |
BrightSource Energy Inc. | EnergySolutions, Inc. | ICF International |
Bristol-Myers Squibb Company | EnergySource LLC | Idaho Power Company |
Broadridge Financial Solutions, Inc. | Enpower Management Corp. | Illinois Tool Works Inc. |
IMS Health | OfficeMax Incorporated | Tenaska Energy Inc. |
Indeck Energy Services, Inc. | OGE Energy Corp. | Tenet Healthcare Corporation |
Industrial Electrical Wire & Cable Inc. | Oglethorpe Power Corporation | Tennessee Valley Authority |
Ingersoll-Rand Company | Oil States Industries, Inc. | Terex Corporation |
Integrys Energy Group | Old Dominion Electric Cooperative | Terra-Gen Operating Company |
Intermountain Healthcare | Olin Corporation | Texas Industries, Inc. |
International Paper Company | OMNOVA Solutions Inc. | The Bama Companies, Inc. |
ITT Corporation | ONEOK Inc. | The Bon-Ton Stores, Inc. |
J. C. Penney Company, Inc. | Oshkosh Truck Corporation | The Clorox Company |
James Hardie Building Products | Owens Corning | The Coca-Cola Company |
JBT Corporation | Owens-Illinois, Inc. | The Hershey Company |
JEA | Packaging Corporation of America | The Home Depot, Inc. |
Johnson Controls, Inc. | Pactiv Corporation | The Marmon Group, Inc. |
Jones Lang LaSalle | Panduit Corp. | The MITRE Corporation |
Joy Global Inc. | Papa Johns International, Inc. | The Mosaic Company |
Kaman Corporation | Pella Corporation | The Procter & Gamble Company |
Kinder Morgan Inc. | Pentair, Inc. | The Sherwin-Williams Company |
Kohler Company | Petco Animal Supplies, Inc. | The Timberland Company |
KONE, Inc. | PETsMART | The Timken Company |
L.L. Bean Incorporated | PG&E Corporation | The Walt Disney Company |
Land O Lakes | Pier 1 Imports, Inc. | The Western Union Company |
Leggett & Platt Inc. | Pioneer Natural Resources Company | The Williams Companies, Inc. |
Lennox International Inc. | Portland General Electric Company | Thirty-One Gifts LLC |
Levi Strauss & Co. | PPG Industries, Inc. | Thomas & Betts Corporation |
LG&E and KU Energy | PPL Corporation | Time Warner Cable |
Limited Brands | Prairie State Generating Company, LLC | T-Mobile |
Linet Americas, Inc. | Progress Energy, Inc. | Topaz Power Group LLC |
Lockheed Martin Corporation | Public Service Enterprise Group, Incorporated | Toys R Us |
L'Oreal USA, Inc. | Puget Sound Energy | Travis County |
Lorillard Tobacco Company | Quad Graphics, Inc. | Treasury Wine Estates Americas |
Luxottica | Quest Diagnostics Incorporated | TriMas Corporation |
Maple Leaf Foods Inc. | Rayonier Inc. | True Value Company |
Marriott International, Inc. | Raytheon Company | Tupperware Corporation |
Mars, Incorporated | Redcats USA | Tyco Electronics Corporation |
Masco Corporation | Revlon Inc. | Tyco International |
Mattel, Inc. | Reynolds American Inc. | Uline, Inc. |
McCormick & Company, Inc. | Rich Products Corporation | Union Pacific Railroad Co. |
McDonald's Corporation | Rockwell Automation | Unisys Corporation |
McGraw-Hill Companies | Ryder System, Inc. | United Launch Alliance, LLC |
Mead Johnson Nutrition Company | S.C. Johnson & Son, Inc. | United Space Alliance |
Medtronic, Inc. | Sandia National Laboratories | United Technologies Corporation |
Meritor, Inc. | Sanofi Pasteur | United Water Inc. |
Milacron Inc. | Sara Lee Corporation | USG Corporation |
MillerCoors | Sauer-Danfoss Inc. | Valero Energy Corporation |
Milliken & Company | SCANA Corporation | Valmont Industries, Inc. |
Mohawk Industries | Schreiber Foods Inc. | VF Corporation |
Molson Coors Brewing Company | Sealed Air Corporation | VHA Inc. |
MoneyGram International, Inc. | Seminole Electric Cooperative Inc. | Viacom Inc. |
Nalco Company | Sempra Energy | Vulcan Materials Company |
Navistar International | Snap-on Incorporated | W. L. Gore & Associates, Inc. |
Navy Exchange Service Command | Solo Cup | W.W. Grainger, Inc. |
NCR Corporation | Solutia Inc. | Waters Corporation |
Nestle Purina PetCare Company | Sonoco Products Company | Wellhead Electric Company, Inc. |
New York Power Authority | Starbucks Corporation | Westinghouse Electric Co. |
NewPage Corporation | Steelcase Inc. | Weyerhaeuser Company |
Nintendo of America | Sunoco, Inc. | Whirlpool Corporation |
NiSource Inc. | SUPERVALU INC. | Wolters Kluwer U.S. |
Nordstrom | Sypris Solutions, Inc. | Wyndham Worldwide Corporation |
North American Energy Services | Takeda Pharmaceuticals North America, Inc. | Xcel Energy, Inc. |
Northern Star Generation Services Company LLC | Target Corporation | Yum Brands, Inc. |
Northrop Grumman Corporation | TDS Telecommunications Corporation | |
NRG Energy, Inc. | Temple-Inland Inc. | |