Exhibit 10.43
COLLECTORS UNIVERSE,
INC.
FISCAL 2010 MANAGEMENT INCENTIVE
PLAN
This FISCAL 2010 MANAGEMENT INCENTIVE PLAN (the
“2010 Management Incentive Plan” or the “2010
Incentive Plan”) of Collectors Universe, Inc, a Delaware
corporation (the “Company”) is hereby adopted and
approved as of June 1, 2009, with reference to the
following:
A. WHEREAS,
in 2006 the Company’s Board of Directors adopted and its
stockholders approved the Company’s 2006 Equity Incentive
Plan (the “ 2006 Equity Plan ” or the “
2006 Plan ”), which provides for the granting of
options to purchase Common Stock, Restricted Stock Awards, Stock
Appreciation Rights and Restricted Stock Units (as defined in the
2006 Plan) to officers and other key employees and directors of the
Company or its Affiliates (as defined in Section 2.1 of the 2006
Equity Plan); and
B. WHEREAS,
the Compensation Committee of the Board has determined that it is
advisable and in the best interests of the Company and its
stockholders that this 2010 Management Incentive Plan be approved
and implemented to provide for the grant of Restricted Stock
Awards, in accordance with the 2006 Equity Plan and the terms and
provisions of this 2010 Management Incentive Plan, to the
Company’s three (3) executive officers: Michael J.
McConnell, its CEO, David G. Hall, its President, and Joseph
J. Wallace, its CFO (collectively, the “
Participants ” and each a “ Participant
”).
1.
Purposes and Administration of the 2010 Incentive Plan
.
1.1
Purposes of the Plan . This 2010 Management
Incentive Plan has been adopted in place of a cash-based annual
management incentive plan of the types adopted by the Compensation
Committee in previous years, primarily for the following purposes:
(i) to establish incentives that will focus management on
achieving a turn-around in the Company’s financial
performance in fiscal 2010, as well as providing incentives for
them to remain in the Company’s employ thereafter,
(ii) to reduce the maximum compensation that the Participants
can earn in fiscal 2010, as compared to fiscal years 2009 and 2008,
and (iii) to reduce cash outflows in fiscal 2010 by paying
such incentive compensation, if earned, in Restricted Shares rather
than cash.
1.2
Administration of the 2010 Incentive Plan . This
2010 Incentive Plan will be administered by the Compensation
Committee, which shall have the authority to interpret and
construe, and to adopt all necessary rules and regulations for
administering, this Plan. All decisions and
determinations of the Committee with respect to this 2010 Incentive
Plan shall be final and binding on and nonappealable by the Company
and the Participants.
2.
Definitions . Unless otherwise defined elsewhere
in this 2010 Incentive Plan, the following terms shall have the
respective meanings given to them below in this Section
2.
“ Board ” means the Board of
Directors of the Company.
“ CEO ” means the
Company’s Chief Executive Officer.
“ CFO ” means the
Company’s Chief Financial Officer.
“ Code ” means the Internal
Revenue Code of 1986, as heretofore amended and as may be amended
hereafter, and the regulations promulgated thereunder.
“ Compensation Committee ” or
“ Committee ” means the Compensation Committee
of the Board. The Committee has, for purposes of Section
162(m) of the Code, been designated by the Board as a compensation
committee with the authority set forth in Section 1.2 hereof
and elsewhere in this Plan and is comprised of three or more
directors, all of whom are outside directors within the meaning of
Section 162(m) of the Code.
“ Common Stock ” shall mean
the Company’s common stock, par value $.001 per share, as the
same may be changed hereafter as a result of any recapitalization
of the Company’s authorized or outstanding common stock or
any amendment to the Company’s Certificate of
Incorporation.
“ Company ” shall mean
Collectors Universe, Inc., a Delaware corporation, and any
successor thereto.
“ Consultant ” shall mean any
natural person who, in a capacity other than as an employee or
Outside Director (as defined in the 2006 Equity Plan), renders bona
fide advisory or consulting services to the Company or any of its
Affiliates pursuant to a contract entered into directly with the
Company or any such Affiliate, provided , 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.
“ Continuous Service with the
Company ” shall mean (i) employment by the Company
or an Affiliate thereof, (ii) service as a member of the Board
of the Company or of 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 an
Excused Absence (as hereinafter defined). For purposes
of this Agreement, a cessation or termination of a
Participant’s Continuous Service with the Company shall be
deemed to have occurred if such Participant ceases to provide
services to the Company and its Affiliates in at least one of the
three capacities set forth above for any reason other than an
Excused Absence. Notwithstanding the foregoing, however,
a termination or cessation of Continuous Service of a Participant
shall not be deemed to have occurred if, within not more than ten
(10) days following the termination or cessation of his Continuous
Services service with the Company or any Affiliate in any one of
the three capacities set forth above, Participant continues or
commences the provision of service to the Company or any Affiliate
in any of the other capacities specified above. For
purposes hereof, each of the following shall constitute an “
Excused Absence ”: (x) vacations,
(y) illnesses (other than permanent disability, as defined in
Section 22(e)(3) of the Code), and (z) leaves of absence that
have been approved in writing by the Company or any Affiliate for
which a Participant is providing services.
“Dutch Auction Tender Offer
” shall mean that certain
tender offer by the Company for the repurchase from its
stockholders of up to 1,750,000 shares of its Common Stock at a
price per share of not less than $5.00 and not greater than $5.40,
which is to be publicly announced and to be commenced on
June 2, 2010 (the “ Commencement Date
”).
“ Fiscal 2010 ” means the
Company’s fiscal year ending June 30, 2010.
“ Fiscal 2010 COI ” means the
consolidated continuing operating income of the Company and its
consolidated subsidiaries in 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.
The terms “ herein ”, “ hereof
”, “ hereto ”, “ hereinafter
”, “ hereunder ” and “
hereinafter ” and any similar terms shall refer to
this Plan as a whole and not to the Section, paragraph or clause
where any such term appears, unless the context clearly indicates
otherwise.
The terms “ including ” and
“ include ” mean “including but not
limited to” or “includes without
limitation”.
The term “ Market Value ”
shall mean:
(a) the
average of the closing sale prices per share of Common Stock during
the applicable Measurement Period ( as hereinafter defined) on the
Nasdaq Stock Market or the principal stock exchange (as the case
may be) on which the Common Stock is then listed or admitted to
trading, if the Company’s Common Stock during that
Measurement Period is listed or admitted to trading on the Nasdaq
Stock Market or a stock exchange which reports closing sale prices,
provided , that if no closing sale price is quoted on any
day during that Measurement Period, then the Market Value for such
day shall be the closing sale price per share of the Common Stock
on the Nasdaq Stock Market or such principal stock exchange (as the
case may be) on the next succeeding day for which a closing sale
price is reported;
(b) the
average of the closing bid and asked prices per share of the Common
Stock in the over-the-counter market during the applicable
Measurement Period, if the Company’s Common Stock is not then
listed or admitted to trading on the Nasdaq Stock Market or a stock
exchange which reports closing sale prices; or
(c) if
neither paragraph (a) nor (b) above is applicable during
the Measurement Period, then the Market Value shall be determined
by the Committee in good faith using any reasonable method of
evaluation, which determination shall be conclusive and binding on
all interested and affected parties.
“ Measurement Period ” shall
mean whichever of the following periods is of longer duration:
(i) the period commencing (10) trading days preceding the
Commencement Date of the Dutch Auction Tender Offer, or
(ii) the forty (40) trading days immediately preceding the
date as of which the Restricted Shares are awarded to the
Participants under this 2010 Plan.
“ Permitted Assign ” shall
mean any Person to whom a Participant has transferred or assigned
any of his Restricted Shares, or any right thereto or interest
therein, as and to the extent permitted by the 2006 Equity Plan or
the Restricted Stock Agreement evidencing the award hereunder of
his Restricted Shares.
“ Person ” means any natural
person, corporation, limited liability company, general or limited
partnership, joint venture, trust, estate or any other lawfully
organized and existing entity.
“ Plan Performance Goal ”
means Fiscal 2010 COI in an amount at least equal to ninety percent
(90%) of the Company’s Fiscal 2010 COI as 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,