Exhibit 10.45
COLLECTORS UNIVERSE,
INC.
RESTRICTED STOCK
AGREEMENT
THIS RESTRICTED
STOCK AGREEMENT (the “Agreement”) is entered into as of
July 31, 2009 by and between DAVID G. HALL (hereinafter
referred to as “Executive”), and COLLECTORS UNIVERSE,
INC., a Delaware corporation (hereinafter referred to as the
“Company”), pursuant to the Company’s 2006 Equity
Incentive Plan (the “Plan”).
R
E C I
T A L S :
A. Executive
is the President and a director of the Company and in those
capacities has rendered and is continuing to render services to,
for and on behalf of the Company.
B. The
Compensation Committee of the Company’s Board of Directors
(the “Committee”) (i) has adopted the Fiscal 2010
Management Incentive Plan (the “Management Incentive
Plan”), which provides for awards of restricted shares of the
Company’s common stock, under the Company’s 2006 Equity
Incentive Plan (the “Plan”), to be made to the three
most senior executives of the Company and (ii) by action of
its members, has granted to Executive, effective as of
July 31, 2009, as award of 101,034 shares of the
Company’s common stock, on the terms and subject to the
conditions and restrictions set forth hereinafter, to provide
incentives for Executive to remain in the Company’s service
and to devote his utmost efforts to the achievement by the Company,
of the Performance Goal (set forth hereinafter), all as more
specifically provided in this Agreement.
C. Executive
was notified, on July 31, 2009, of the aforementioned award of
such shares to him by the Committee.
A
G R E
E M E N T :
NOW, THEREFORE,
in consideration of the mutual covenants hereinafter set forth, and
for other good and valuable consideration, the adequacy and receipt
of which is hereby acknowledged, the parties agree as
follows:
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Certain
Definitions and Rules of Construction .
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1.1 Definitions
. For purposes of this Agreement, the terms set forth
below in this Section 1 shall have the following respective
meanings:
(a) The term “
Affiliate ” when used with reference to the Company
shall mean any corporation, limited liability company, general
partnership, joint venture or limited partnership or other entity
that controls or is controlled by, or is under common control with
the Company. Accordingly, an Affiliate of the Company
shall include any such entity (i) that owns voting shares or
other voting securities of the Company or any other Affiliate
thereof that entitle it to vote in the election of, and enable it
to elect, either directly or indirectly, at least a majority of the
Company’s directors (a “Parent”) and
(ii) any such entity with respect to which the Company is a
general partner or owns shares or other securities that entitle it
to vote in the election of, and to elect, either directly or
through one or more other Affiliates, at least a majority of the
directors or persons holding similar positions with such entity (a
“Subsidiary”).
(b) The term “Code”
means the Internal Revenue Code of 1986, as amended.
(c) The term “ Company
” shall mean Collectors Universe, Inc., a Delaware
corporation and any Successor thereto.
(d) The term “
Consultant ” shall mean any natural person who, in a
capacity other than as an employee or Director of the Company,
renders bona fide advisory or consulting services (whether on a
full time or part time basis) to the Company or any Affiliate,
pursuant to a contract entered into directly with the Company or
any such Affiliate, provided , however , that the
services so rendered are not in connection with the offer or sale
of securities in a capital-raising transaction and do not directly
or indirectly promote or maintain a market for the Company’s
securities.
(e) The term “ Continuous
Service with the Company ” shall mean (i) employment
by an Employer Entity (which shall be either the Company or an
Affiliate thereof), (ii) service as a member of the Board of
Directors of the Company or any Parent thereof, or
(iii) service in the capacity of a Consultant to the Company
or any Affiliate thereof, which service is uninterrupted except by
reason of (x) vacations, (y) illnesses (other than
permanent disability, as defined in Section 22(e)(3) of the Code),
or (z) leaves of absence that have been approved in writing by
the Company (each, an “Excused
Absence”). For purposes of this Agreement, a
cessation or termination of Executive’s Continuous Service
with the Company shall be deemed to have occurred if Executive
ceases to provide services to the Company and its Affiliates, in
any of the capacities set forth above in this Paragraph 1.1(e), for
any reason other than an Excused
Absence. Notwithstanding the foregoing, a termination or
cessation of Continuous Service of Executive shall not be deemed to
have occurred if, within not more than ten (10) days following the
termination or cessation of Executive’s service with the
Company or any Affiliate thereof, in any one of the capacities set
forth above, Executive continues or commences the provision of
service to the Company or any Affiliate in any of the other
capacities specified above.
(f) The term “
Employer Entity ” means the Company or any Affiliate
thereof that employs the Executive at any time during the term of
this Agreement.
(g) The term “ Fiscal
2010 ” shall mean the year that commenced on July 1,
2009 and will end on June 30, 2010.
(h) The term “Fiscal 2010
COI” means the consolidated continuing operating income of
the Company and its consolidated subsidiaries for Fiscal 2010,
determined in accordance with the same generally accepted
accounting principles that are applied by the Company’s
independent registered public accountants in their audit of the
consolidated financial statements of the Company and its
Subsidiaries for Fiscal 2010 (the “2010 Financial
Statements”), except that there shall be excluded from the
computation of such consolidated operating income (i) all non-cash
stock-based compensation costs, and (ii) all non-cash impairment
charges, if any, recognized in the Company’s 2010 Financial
Statements.
(i) The term “ Plan
Performance Goal ” means Fiscal 2010 COI in an amount at
least equal to ninety percent (90%) of the Fiscal 2010 COI that is
set forth in the Company’s Annual Operating Plan for Fiscal
2010 as approved by the Company’s Board of Directors at its
meeting on May 21, 2009. Notwithstanding the
foregoing, however, at any time prior to the end of Fiscal 2010,
the Compensation Committee may adjust or change the Plan
Performance Goal to reflect the occurrence of (i) any
extraordinary event, (ii) any material corporate transactions,
(iii) any material changes in corporate capitalization,
accounting rules or principles or in the Company’s methods of
accounting, (iv) any material changes in applicable law, or
(v) any other material change or event of similar nature
(each, an “Extraordinary Event”), but only if any such
Extraordinary Event was not reasonably
foreseeable at
the time the Plan Performance Goal then in effect under this 2010
Incentive Plan had been established and would, in the sole opinion
of the Committee (x) make it unlikely that Plan Performance
Goal will be achieved or (y) make it likely that the Plan
Performance Goal would be achieved solely by reason of occurrence
of such Extraordinary Event. Notwithstanding the
foregoing, however, the occurrence of changes in the competitive
environment or changes in economic or market conditions in the
Company’s markets, whether or not expected or reasonably
foreseeable, shall not by themselves constitute Extraordinary
Events that may be the basis of a change in the Plan Performance
Goal.
(j) The term “
Securities Law Restrictions ” shall mean restrictions
on the transferability of the Shares under applicable federal or
state securities laws.
(k) The term “
Successor ” mean any entity that (i) is the
surviving entity in a merger or consolidation with or other
statutory reorganization of the Company in which the separate
existence of the Company ceases, whether or not such merger,
consolidation or reorganization results in a Change of Control of
the Company or (ii) becomes the Parent of the Company by
reason of its direct or indirect acquisition of voting securities
of the Company representing the power to vote, directly or
indirectly, in the election of directors of the Company and to
elect at least a majority thereof, or (iii) acquires all or
substantially all of the assets of the Company (whether or not such
transaction constitutes a Change of Control of the
Company).
(l) The term “
Termination for Good Reason ” shall mean a termination
by Executive of his employment with his Employer Entity due to the
taking of a Good Reason Action (as defined in
Exhibit A hereto), provided such termination
meets the conditions expressly set forth in Exhibit A.
(m) The term “ Termination
Without Cause by the Company ” shall mean a termination,
by the Company or Executive’s Employer Entity (if other than
the Company), of Executive’s employment for any reason other
than (i) the death or disability of Executive or (ii) the
Misconduct of Executive (as defined in Exhibit A hereto),
provided that Executive does not continue in the service of the
Company or any of its Affiliates thereafter).
(n) The term “ Unvested
Shares ” shall mean those of the Shares issued hereunder
that are or remain subject the Company’s Reacquisition Rights
under Section 5 of this Agreement.
(o) The term “ Vested
Shares ” shall mean those of the Shares issued pursuant
hereto that have ceased to be subject to the Company’s
Reacquisition Rights under Section 5 of this
Agreement.
(p) The term “Vesting
Conditions” shall mean the conditions set forth in
Section 4 hereof that must be satisfied for any or all of the
Unvested Shares to become Vested Shares.
1.2
Definitions of Certain Other Terms . Other terms
used in this Agreement with initial capital letters that are not
defined in Section 1.1 above shall have the respective
meanings given to such terms elsewhere in this Agreement or in the
Plan.
1.3
Rules of Construction . The provisions of this
Agreement will not be construed against a party by reason of the
fact that such party or its counsel was the principal draftsman of
this Agreement or such provisions. Unless the context
otherwise requires: (i) words importing the singular include
the plural and vice versa; (ii) words importing gender include
all genders; (iii) the terms “ include ”
and “ including ” shall mean “include
without limitation” or “including but not limited
to” and (iii) unless the context clearly indicates
otherwise, the terms “ herein ,” “
hereof ,” “hereto,” “
hereinafter ” and “ hereunder ” and
any similar terms shall refer to this Agreement as a whole and not
to the section, subsection, paragraph or clause where such term
appears.
1.4
Headings . The Section, subsection and paragraph and any
other headings in this Agreement have been inserted for convenience
of reference only and shall not affect the construction or
interpretation or the application of any of the terms or provisions
of this Agreement.
2.
Issuance of Shares . The Company hereby
irrevocably offers to issue to Executive an aggregate of one
hundred and one thousand thirty-four (101,034) shares of its common
stock (the “Shares”), on the terms and subject to the
conditions and the restrictions and the Company’s
Reacquisition Rights set forth herein. Executive’s
execution and delivery to the Company of this Agreement, without
condition or reservation of any kind whatsoever, together with the
Spousal Consent in the form accompanying this Agreement, duly
executed by Executive’s Spouse, , within ten (10) business
days of July 31, 2009, the date as of which the Company
executed this Agreement, shall constitute Executive’s
acceptance of this offer, on the terms and subject to such
conditions, restrictions and the Company Reacquisition Rights, and
this Agreement shall thereupon represent a binding and enforceable
agreement of the parties.
3.
Consideration . Executive acknowledges and agrees
that he is not paying or providing any consideration (monetary or
other) to the Company for the issuance of the Shares to him pu
rsuant to Section 2 above. Instead, the Company is
entering into this Agreement as an inducement to Executive to
remain in the Company’s Continuous Service and to devote his
utmost efforts to the achievement of the Plan Performance Goal and
the satisfaction of the other Vesting Conditions, which shall
constitute good and valuable consideration for the obligations of
and the performance of this Agreement by the Company in accordance
with and on the terms and subject to the conditions set forth
herein; provided , however , that it is further
acknowledged and agreed by Executive that the only consideration to
be received by the Company for or in respect of the vesting of any
of the Shares under Section 4 and the termination of its
Reacquisition Rights under Section 5 hereof with respect to
any Unvested Shares shall be the satisfaction of the Vesting
Conditions.
4.
Vesting of Shares . Subject to the following
terms and satisfaction of the Vesting Conditions set forth below in
this Section 4, the Shares shall vest (that is, become Vested
Shares) in four (4) annual installments, the first three (3)
of which shall each be in the amount of 25,258 of the Shares, with
the fourth and final installment in the amount of 25,260 shares, as
follows:
4.1
Time-Vested Shares . If and only if no cessation
of Executive’s Continuous Service (as defined above) has
occurred prior to July 31, 2010, then, on of that date, the
initial installment of 25,258 of the Shares shall become Vested
Shares and shall, therefore, cease to be subject to the
Company’s Reacquisition Right and the other restrictions
contained in this Agreement, other than any applicable Securities
Law Restrictions.
4.2
Performance-Vested Shares . If a determination is
made by the Administrator (as defined in the Plan) that Company has
achieved the Plan Performance Goal and:
(a) the Executive has been in
the Continuous Service of the Company or any other Employer Entity
between the date hereof and July 31, 2010, inclusive, then, on the
date such determination is made, or July 31, 2010 (whichever is
late), the second installment of 25,258 of the Shares shall become
Vested Shares and shall thereupon cease to be subject to the
Company’s Reacquisition Right and the other restrictions
contained in this Agreement, other than any applicable Securities
Law Restrictions;
(b) the Executive has remained
in the Continuous Service of the Company or any other Employer
Entity between the date hereof and June 30, 2011, inclusive, the
third installment of 25,258 of the Shares shall, on June 30, 2011,
become Vested Shares and shall thereupon cease to be subject to the
Reacquisition Right of the Company and the other restrictions
contained in this Agreement, other than any applicable Securities
Law Restrictions;
(c) the Executive has remained
in the Continuous Service of the Company or any other Employer
Entity between the date hereof and June 30, 2012, inclusive,
then, the fourth and final installment of 25,260 of the Shares
shall, on June 30, 2012, become Vested Shares and shall
thereupon cease to be subject to the Reacquisition Right of the
Company and the other restrictions contained in this Agreement,
other than any applicable Securities Law Restrictions
.
4.3
Effect of a Termination of Executive’s Employment Without
Cause or for Good Reason. Notwithstanding anything
to the contrary that may be contained elsewhere in this Agreement,
if there occurs a Termination Without Cause or a Termination for
Good Reason of Executive’s employment with the Company or any
Affiliate thereof at any time that any of the Shares are Unvested
Shares, and Executive does not continue in the Continuous Service
of the Company or any of its Affiliates thereafter, then such
Unvested Shares shall thereupon become Vested Shares without the
necessity of any action by the Company or Executive.
4.4
Effect of Change of Control . If a Change of
Control (as defined in the Plan) occurs, while any of the Shares
continue to be Unvested Shares, then the applicable provisions of
Section 11 of the Plan shall govern the vesting of any
Unvested Shares by reason of such Change of Control.
5.
Reacquisition and Reconveyance of Unvested Shares upon a
Termination of Continuous Service.
5.1
Reacquisition Rights. Notwithstanding anything to the
contrary that may be contained elsewhere in this Agreement, the
Company shall have the right to reacquire some or all of the
Unvested Shares (the “Reacquisition Right”), as
follows:
(a) Termination of
Continuous Service Prior to July 31, 2010. The
Company shall have the right (but not the obligation) to exercise
its Reacquisition Right to reacquire all 101,034 Unvested Shares or
such lesser number thereof as the Administrator deems in its sole
and absolute discretion to be appropriate, in the event that there
is a cessation or termination of Executive’s Continuous
Service (other than by reason of a Termination Without Cause or a
Termination for Good Reason) prior to July 31,
2010.
(b) Failure of Plan
Performance Goal. If Executive has remained in the
Continuous Service of the Company through July 31, 2010, but
it is determined by the Administrator that the Company has failed
to achieve the Plan Performance Goal, then, the Company shall
become entitled to exercise its Reacquisition Rights to reacquire
all of the then remaining 75,776 Unvested Shares or such lesser
number thereof as the Administrator deems in its sole and absolute
discretion to be appropriate.
(c) Cessation of Continuous
Service After Achievement of Performance Goal. If
the Administrator has determined that the Performance Goal has been
achieved, but:
(i) Executive ceases to remain
in the Company’s Continuous Service through at least
June 30, 2011 (other than by reason of a Termination Without
Cause or a Termination for Good Reason), the Company shall become
entitled to exercise its Reacquisition Right to acquire all of the
then remaining 50,518 Unvested Shares or such lesser number
thereof as the Administrator deems in its sole and absolute
discretion to be appropriate; or
(ii) Executive’s
Continuous Service ceases after June 30, 201
