PREMIER EXHIBITIONS,
INC.
2009 EQUITY INCENTIVE
PLAN
1.
Establishment, Objectives, Duration, Prior Plans.
a. Premier
Exhibitions, Inc., a Florida corporation (hereinafter referred to
as the “Company”), hereby establishes an equity
compensation plan to be known as the “Premier Exhibitions,
Inc. 2009 Equity Incentive Plan” (hereinafter referred to as
the “Plan”). The Plan permits the granting of
Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units,
Performance Shares, Performance Units and Other Stock-Based Awards.
The Plan is effective as of June 17, 2009 (the
“Effective Date”), subject to the approval of the Plan
by the shareholders of the Company at the 2009 Annual Meeting.
Definitions of capitalized terms used in the Plan are contained in
the attached glossary, which is an integral part of the
Plan.
b. The objectives
of the Plan are to attract and retain the best available personnel
for positions of substantial responsibility, to provide additional
incentive to Participants and to optimize the profitability and
growth of the Company through incentives that are consistent with
the Company’s goals and that link the personal interests of
Participants to those of the Company’s
shareholders.
c. No Award may be
granted under the Plan after the day immediately preceding the
tenth (10th) anniversary of the Effective Date, or such earlier
date as the Board shall determine. The Plan will remain in effect
with respect to outstanding Awards until no Awards remain
outstanding.
d. If the
Company’s shareholders approve the Plan at the 2009 Annual
Meeting, the Premier Exhibitions, Inc. 2007 Restricted Stock Plan,
as amended (the “2007 Plan”), the Premier Exhibitions,
Inc. 2000 Stock Plan (the “2000 Plan”) and the Premier
Exhibitions, Inc. Amended and Restated 2004 Stock Option Plan, as
amended (the “2004 Plan”) will terminate in their
entirety effective immediately after the 2009 Annual Meeting;
provided that, all outstanding awards under the 2007 Plan, the 2000
Plan and the 2004 Plan as of the date of the 2009 Annual Meeting
shall remain outstanding and shall be administered and settled in
accordance with the provisions of the 2007 Plan, the 2000 Plan and
the 2004 Plan, respectively, and the applicable award
agreements.
2.
Shares Available Under the Plan.
a. The maximum
number of Shares that may be delivered pursuant to Awards under the
Plan shall be 3,000,000 Shares, any or all of which may be
delivered with respect to ISOs. The aggregate number of Shares
available for delivery under this Plan shall be subject to
adjustment as provided in Section 15; provided, however, that
no such adjustment shall affect the status of any Stock Option
intended to qualify as an ISO. Shares delivered pursuant to an
Award may be authorized but unissued Shares, treasury Shares,
including Shares purchased in the open market, or a combination of
the foregoing.
b. Each Share
delivered pursuant to a Stock Option or SAR, or an Award of
Restricted Stock, Restricted Stock Units, Performance Shares or
Other Stock-Based Awards with a per Share or per unit purchase
price at least 100% of Fair Market Value on the Date of Grant shall
be counted against the Share limits contained in this
Section 2 as one Share for every one Share subject thereto.
Each Share delivered pursuant to an Award of Restricted Stock,
Restricted Stock Units, Performance Shares or Other Stock-Based
Awards with a per Share or per unit purchase price of less than
100% of Fair Market Value on the Date of Grant shall be counted
against the Share limits contained in this Section 2 as two
(2) Shares for every one Share subject thereto.
c. If any Award
granted pursuant to this Plan terminates or is forfeited without
having been exercised in full, or if any Award granted pursuant to
this Plan is settled (or can be paid only) in cash, then the
underlying Shares, to the extent of any such forfeiture,
termination or cash settlement, again shall be available for grant
under this Plan and credited toward the Plan limit as set forth in
Section 2(a). Except as may be required by reason of
Section 422 and related provisions of the Code, Shares
delivered under the Plan as a Substitute Award or in settlement of
a Substitute Award shall not reduce or be counted against the
Shares available for Awards under the Plan and will not count
against the Plan limit as set forth in Section 2(a) to the
extent that the rules and regulations of any stock exchange or
other trading market on which the Shares are listed or traded
provide an exemption from shareholder approval for
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assumption, substitution,
conversion, adjustment, or replacement of outstanding awards in
connection with mergers, acquisitions, or other corporate
combinations.
d. Notwithstanding
any other provision herein, the following Shares shall not be added
to the maximum Share limit described above: (i) Shares
tendered in payment of the Exercise Price of a Stock Option,
(ii) Shares withheld by the Company or any Subsidiary to
satisfy a tax withholding obligation, and (iii) Shares that
are repurchased by the Company with Stock Option proceeds.
Moreover, all Shares covered by a SAR, to the extent that it is
exercised and settled in Shares, and whether or not Shares are
actually delivered to the Participant upon exercise of the right,
shall be considered delivered pursuant to the Plan.
e. Subject to
adjustment as provided in Section 15 of this Plan, the
following limits shall apply with respect to Awards and any
Dividend Equivalents that are intended to qualify for the
Performance-Based Exception:
(i) The maximum
aggregate number of Shares that may be subject to Stock Options or
SARs granted in any calendar year to any one Participant shall be
1,200,000 Shares.
(ii) The maximum
aggregate number of Shares of Restricted Stock and Shares subject
to Restricted Stock Units and Other Stock-Based Awards granted in
any calendar year to any one Participant shall be
600,000 Shares.
(iii) The maximum
aggregate number of Shares deliverable under Performance Shares
granted in any calendar year to any one Participant shall be
750,000 Shares.
(iv) The maximum
aggregate compensation that can be paid pursuant to Performance
Units or cash-based Awards under Section 10 granted in any
calendar year to any one Participant shall be $1,200,000 or a
number of Shares having an aggregate Fair Market Value not in
excess of such amount.
(v) The maximum
Dividend Equivalents that may be paid in any calendar year to any
one Participant shall be $300,000.
3.
Administration of the Plan.
a. The Plan shall
be administered by the Compensation Committee of the Board or such
other committee (the “Committee”) as the Board shall
select consisting of two or more members of the Board each of whom
is intended to be a “non-employee director” within the
meaning of Rule 16b-3 (or any successor rule) of the Exchange
Act, an “outside director” under regulations
promulgated under Section 162(m) of the Code, and an
“independent director” under the NASDAQ Global Market
rules. The members of the Committee shall be appointed from time to
time by, and shall serve at the discretion of, the
Board.
b. Subject to
Applicable Laws and the provisions of the Plan (including any other
powers given to the Committee hereunder), and except as otherwise
provided by the Board, the Committee shall have full and final
authority in its discretion to take all actions determined by the
Committee to be necessary in the administration of the Plan,
including, without limitation, discretion to: select Award
recipients; determine the sizes and types of Awards; determine the
terms and conditions of Awards in a manner consistent with the
Plan; construe and interpret the Plan and any Award Agreement or
other agreement or instrument entered into under the Plan;
establish, amend, or waive rules and regulations for the
Plan’s administration; and make all other determinations
which may be necessary or advisable for the administration of the
Plan.
c. The Board may
reserve to itself any or all of the authority and responsibility of
the Committee under the Plan or may act as administrator of the
Plan for any and all purposes. To the extent the Board has reserved
any authority and responsibility or during any time that the Board
is acting as administrator of the Plan, it shall have all the
powers of the Committee hereunder, and any reference herein to the
Committee (other than in this Section 3(c)) shall include the
Board. To the extent any action of the Board under the Plan
conflicts with actions taken by the Committee, the actions of the
Board shall control.
d. Notwithstanding
the above, the Board or Committee may, by resolution, expressly
delegate to a special committee, consisting of one or more
directors who are also officers of the Company, the authority,
within specified parameters established by the Board or Committee,
to (i) designate Employees to be recipients of Awards under
the Plan, and (ii) to determine the number of such Awards to
be received by any such Participants; provided ,
however ,
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that such delegation of duties and
responsibilities to an officer of the Company may not be made with
respect to the grant of Awards to Employees who are subject to
Section 16(a) of the Exchange Act on the Date of Grant, or who
as of the Date of Grant are reasonably anticipated to be become
“covered employees” within the meaning of
Section 162(m) of the Code during the term of the Award. The
acts of such delegates shall be treated hereunder as acts of the
Board or Committee, as applicable, and such delegates shall report
regularly to the Board or Committee, as applicable, regarding the
delegated duties and responsibilities and any Awards so
granted.
e. All
determinations and decisions made by the Committee pursuant to the
provisions of the Plan and all related orders and resolutions of
the Committee shall be final, conclusive and binding on all
persons, including the Company, its Subsidiaries, its shareholders,
Directors, Employees and their estates and
beneficiaries.
4. Eligibility
and Participation.
a. Each Employee,
Director and Consultant is eligible to participate in the
Plan.
b. Subject to the
provisions of the Plan, the Committee may, from time to time,
select from all eligible Employees and Directors those to whom
Awards shall be granted and shall determine, in its sole
discretion, the nature of any and all terms permissible by
Applicable Law and the amount of each Award.
c. Notwithstanding
the foregoing provisions of this Section 4, Incentive Stock
Options may be granted only to eligible Participants who are
Employees of the Company (or a Parent or Subsidiary as defined in
Section 424(e) and (f) of the Code). Eligible
Participants who are service providers to a Subsidiary may be
granted Stock Options or Stock Appreciation Rights under this Plan
only if the Subsidiary qualifies as an “eligible issuer of
service recipient stock” within the meaning of
Section 409A of the Code.
5. Stock
Options. Subject to the terms and provisions of the
Plan, the Committee, at any time and from time to time, may grant
Stock Options to Participants in such number as the Committee shall
determine. Each Stock Option grant shall be evidenced by an Award
Agreement and shall be subject to the following
provisions:
a. All Stock
Options shall be separately designated Incentive Stock Options or
Nonqualified Stock Options at the time of grant. Any Incentive
Stock Option granted under the Plan shall contain such terms and
conditions, consistent with the Plan, as the Committee may
determine to be necessary to comply with Section 422 of the
Code.
b. The Exercise
Price for each Stock Option shall be determined by the Committee,
in its sole discretion, and shall be at least equal to the Fair
Market Value of a Share on the Date of Grant. In the case of an
Incentive Stock Option granted to a Ten Percent Stockholder, the
Exercise Price for each grant of a Stock Option shall be at least
equal to one hundred ten percent (110%) of the Fair Market Value of
a Share on the Date of Grant.
c. Each Stock
Option shall expire at such time as the Committee shall determine
at the time of grant; provided , however , no Stock
Option shall be exercisable later than the tenth (10th) anniversary
of its Date of Grant. In the case of an Incentive Stock Option
granted to a Ten Percent Stockholder, the Incentive Stock Option
shall not be exercisable later than the fifth (5th) anniversary of
its Date of Grant.
d. Each Stock
Option shall specify the period or periods of continuous service by
the Participant with the Company or any Subsidiary that is
necessary, the Performance Objectives that must be achieved, or any
other conditions that must be satisfied, before the Stock Option or
installments thereof will become exercisable. Such provisions shall
be determined in the sole discretion of the Committee and need not
be the same for each grant or for each Participant.
e. The Award
Agreement shall specify whether the Exercise Price shall be payable
to the Company: (i) in cash or its equivalent;
(ii) subject to such terms, conditions and limitations as the
Committee may prescribe, by tendering (either by actual delivery or
attestation) unencumbered Shares previously acquired by the
Participant exercising such Stock Option having an aggregate Fair
Market Value at the time of exercise equal to the total Exercise
Price, (iii) by any other method approved or accepted by the
Committee in its sole discretion, including, if the Committee so
determines, a cashless broker-assisted exercise that complies with
all Applicable Laws, and (iv) by a combination of the
foregoing methods. The Committee may limit any method of payment
for administrative convenience, to comply with Applicable Laws, or
otherwise.
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f. The Award
Agreement shall set forth the extent to which the Participant shall
have the right to exercise the Stock Option following termination
of the Participant’s employment or provision of services to
the Company and/or its Subsidiaries, as the case may be. Such
provisions shall be determined in the sole discretion of the
Committee, need not be uniform among all Stock Options, and may
reflect distinctions based on the reasons for
termination.
g. Notwithstanding
anything in this Section 5 to the contrary, Stock Options
designated as ISOs shall not be eligible for treatment under the
Code as ISOs, and shall instead be treated as Nonqualified Stock
Options, to the extent that either (i) the aggregate Fair
Market Value of Shares (determined as of the Date of Grant) with
respect to which such Stock Options are exercisable for the first
time by the Participant during any calendar year (under all plans
of the Company and any Subsidiary) exceeds $100,000, taking Stock
Options into account in the order in which they were granted, or
(ii) such Stock Options otherwise remain exercisable but are
not exercised within three (3) months after termination of
employment (or such other period of time provided in
Section 422 of the Code).
6. Stock
Appreciation Rights. Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to
time, may grant SARs to Participants in such number as the
Committee shall determine. The Committee may grant Freestanding
SARs, Tandem SARs, or any combination of these forms of SAR. Each
SAR grant shall be evidenced by an Award Agreement and shall be
subject to the following provisions:
a. The Grant Price
for each grant of a Freestanding SAR shall be determined by the
Committee, in its sole discretion, and shall be at least equal to
the Fair Market Value of a Share on the Date of Grant. The Grant
Price of Tandem SARs shall be equal to the Exercise Price of the
related Stock Option.
b. Each SAR shall
expire at such time as the Committee shall determine at the time of
grant; provided , however , no SAR shall be
exercisable later than the tenth (10th) anniversary of its Date of
Grant.
c. Each
Freestanding SAR shall specify the period or periods of continuous
service by the Participant with the Company or any Subsidiary that
is necessary, the Performance Objectives that must be achieved, or
any other conditions that must be satisfied, before the
Freestanding SAR or installments thereof will become exercisable.
Such provisions shall be determined in the sole discretion of the
Committee and need not be the same for each grant or for each
Participant.
d. Tandem SARs may
be exercised for all or part of the Shares subject to the related
Stock Option upon the surrender of the right to exercise the
equivalent portion of the related Stock Option. A Tandem SAR may be
exercised only with respect to the Shares for which its related
Stock Option is then exercisable. Notwithstanding any other
provision of this Plan to the contrary, with respect to a Tandem
SAR granted in connection with an ISO: (a) the Tandem SAR will
expire no later than the expiration of the underlying ISO;
(b) the value of the payout with respect to the Tandem SAR may
be for no more than one hundred percent (100%) of the excess of the
Fair Market Value of the Shares subject to the underlying ISO at
the time the Tandem SAR is exercised over the Exercise Price of the
underlying ISO; and (c) the Tandem SAR may be exercised only
when the Fair Market Value of the Shares subject to the ISO exceeds
the Exercise Price of the ISO.
e. Upon the
exercise of a Stock Appreciation Right, a Participant shall be
entitled to receive payment from the Company in an amount
determined by multiplying: (i) the excess of the Fair Market
Value of a Share on the date of exercise over the Grant Price; by
(ii) the number of Shares with respect to which the SAR is
exercised. The payment upon the SAR exercise shall be in cash,
Shares of equivalent value, or in some combination thereof, as
determined by the Committee in its sole discretion. The
determination of the Committee with respect to the form of payout
of SARs shall be set forth in the Award Agreement pertaining to the
grant of the Award.
f. Each Award
Agreement shall set forth the extent to which the Participant shall
have the right to exercise the SAR following termination of the
Participant’s employment with or provision of services to the
Company and/or its Subsidiaries, as the case may be. Such
provisions shall be determined in the sole discretion of the
Committee, need not be uniform among all SARs granted pursuant to
this Plan, and may reflect distinctions based on the reasons for
termination.
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7. Restricted
Stock. Subject to the terms and provisions of the
Plan, the Committee, at any time and from time to time, may grant
or sell Shares of Restricted Stock to Participants in such number
as the Committee shall determine. Each grant or sale of Shares of
Restricted Stock shall be evidenced by an Award Agreement and shall
be subject to the following provisions:
a. Each grant or
sale of Shares of Restricted Stock shall constitute an immediate
transfer of the ownership of Shares to the Participant in
consideration of the performance of services, subject to the
substantial risk of forfeiture and restrictions on transfer as
provided in this Section 7.
b. Each such grant
or sale may be made without additional consideration or in
consideration of a payment by such Participant that is less than
the Fair Market Value per Share at the Date of Grant.
c. The Award
Agreement shall specify the Period of Restriction for each
Restricted Stock grant, which period shall be determined in the
sole discretion of the Committee and need not be uniform among all
Shares of Restricted Stock granted pursuant to this
Plan.
d. During the
applicable Period of Restriction, the transferability of the
Restricted Shares shall be prohibited or restricted in the manner
and to the extent prescribed by the Committee at the Date of Grant
(which restrictions may include, without limitation, rights of
repurchase or first refusal in the Company or provisions subjecting
the Restricted Shares to a continuing substantial risk of
forfeiture in the hands of any transferee).
e. Unless otherwise
determined by the Committee in its sole discretion and set forth in
the Award Agreement, to the extent permitted or required by
Applicable Law, as determined by the Committee, Participants
holding Shares of Restricted Stock may be granted the right to
exercise full voting rights with respect to those Shares during the
Period of Restriction.
f. Any such grant
or sale of Restricted Stock may require that any or all dividends
or other distributions paid thereon during the period of such
restrictions be automatically deferred and reinvested in additional
Restricted Shares, which may be subject to the same restrictions as
the underlying Award.
g. Unless otherwise
directed by the Committee, (i) all certificates representing
Shares of Restricted Stock will be held in custody by the Company
until all restrictions thereon have lapsed, together with a stock
power or powers executed by the Participant in whose name such
certificates are registered, endorsed in blank and covering such
Shares, or (ii) all uncertificated Shares of Restricted Stock
will be held at the Company’s transfer agent in book entry
form with appropriate restrictions relating to the transfer of such
Shares of Restricted Stock.
h. The Committee
may provide in an Award Agreement that the Award of Restricted
Stock is conditioned upon the Participant making or refraining from
making an election with respect to the Award under
Section 83(b) of the Code. If a Participant makes an election
pursuant to Section 83(b) of the Code concerning a Restricted
Stock Award, the Participant shall be required to file promptly a
copy of such election with the Company.
8. Restricted
Stock Units. Subject to the terms and provisions of
the Plan, the Committee, at any time and from time to time, may
grant or sell Restricted Stock Units to Participants in such number
as the Committee shall determine. Each grant or sale of Restricted
Stock Units shall be evidenced by an Award Agreement and shall be
subject to the following provisions:
a. Each such grant
or sale of Restricted Stock Units shall constitute the agreement by
the Company to deliver Shares to the Participant following the end
of the Period of Restriction in consideration of the performance of
services.
b. Each such grant
or sale of Restricted Stock Units may be made without additional
consideration or in consideration of a payment by such Participant
that is less than the Fair Market Value per Share at the Date of
Grant.
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c. The Award
Agreement shall specify the Period of Restriction for each
Restricted Stock Unit grant, which period shall be determined in
the sole discretion of the Committee and need not be uniform among
all Shares of Restricted Stock granted pursuant to this
Plan.
d. Each Award
Agreement shall set forth the payment date for the Restricted Stock
Units, which date shall not be earlier than the end of the
applicable Period of Restriction.
e. The Committee,
in its sole discretion, may pay earned Restricted Stock Units by
delivery of Shares or by payment in cash of an amount equal to the
Fair Market Value of such Shares (or a combination thereof). The
determination of the Committee with respect to the form of payout
of Restricted Stock Units shall be set forth in the Award Agreement
pertaining to the grant of the Award.
9. Performance
Units and Performance Shares. Subject to the terms
and provisions of the Plan, the Committee, at any time and from
time to time, may grant Performance Shares or Performance Units to
Participants in such number as the Committee shall determine. Each
grant of Performance Shares or Performance Units shall be evidenced
by an Award Agreement and shall be subject to the following
provisions:
a. Each Performance
Unit shall have an initial value of $1.00. Each Performance Share
shall have an initial value equal to the Fair Market Value of a
Share on the date of grant. The Committee shall set Performance
Objectives in its sole discretion which, depending on the extent to
which they are met, will determine the value and/or number of
Performance Units or Performance Shares that will be paid to the
Participant. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with each Participant and need not be
uniform among all Awards of Restricted Stock Units granted pursuant
to this Plan.
b. The Award
Agreement shall specify the Performance Period for each grant of
Performance Shares and Performance Units, which period shall be
determined in the sole discretion of the Committee and need not be
uniform among all grants of Performance Shares and Performance
Units pursuant to this Plan.
c. Subject to the
terms of this Plan, after the applicable Performance Period has
ended, the holder of Performance Units or Performance Shares shall
be entitled to receive payout on the value and number of
Performance Units or Performance Shares earned by the Participant
over the Performance Period, to be determined as a function of the
extent to which the corresponding Performance Objectives have been
achieved.
d. Each Award
Agreement shall set forth the settlement for the Performance Shares
and Performance Units, which date shall not be earlier than the end
of the Performance Period and following the Committee’s
determination of actual performance against the Performance
Objectives and related goals established by the
Committee.
e. Payment of
earned Performance Shares shall be made in Shares equal to the
value of the earned Performance Shares. The Committee, in its sole
discretion, may pay earned Performance Units in the form of cash or
in Shares (or in a combination thereof) equal to the value of the
earned Performance Units. The determination of the Committee with
respect to the form of payout of Performance Units shall be set
forth in the Award Agreement pertaining to the grant of the
Award.
10. Other
Stock-Based Awards.
a. Subject to the
terms and provisions of the Plan, the Committee, at any time and
from time to time, may grant or sell Other Stock-Based Awards that
may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Shares or
factors that may influence the value of Shares, including, without
limitation, convertible or exchangeable debt securities, other
rights convertible or exchangeable into Shares, purchase rights for
Shares, awards with value and payment contingent upon performance
of the Company or business units thereof or any other factors
designated by the Committee, and awards valued by reference to the
book value of Shares or the value of securities of, or the
performance of specified Subsidiaries or affiliates or other
business units of, the Company. The Committee shall determine the
terms and conditions of such awards, including the Period of
Restriction, if applicable. Shares delivered pursuant to an award
in the nature of a purchase right granted under this
Section 10 shall be purchased for such consideration, paid for
at such times, by such methods, and
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in such forms, including, without
limitation, cash, Shares, other awards, notes or other property, as
the Committee shall determine.
b. Cash awards, as
an element of or supplement to any other Award granted under this
Plan, may also be granted pursuant to this Section 10 of this
Plan.
c. The Committee is
authorized to grant Shares purely as a “bonus” and not
subject to any restrictions or conditions, or to grant Shares or
other Awards in lieu of obligations of the Company or a Subsidiary
to pay cash or deliver other property under the Plan or under other
plans or compensatory arrangements, subject to such terms as shall
be determined by the Committee.
11. Dividend
Equivalents. At the discretion of the Committee,
Awards granted pursuant to the Plan may provide Participants with
the right to receive Dividend Equivalents, which may be paid
currently or credited to an account for the Participants, and may
be settled in cash and/or Shares, as determined by the Committee in
its sole discretion, subject in each case to such terms and
conditions as the Committee shall establish. No Dividend
Equivalents shall relate to Shares underlying a Stock Option or SAR
unless such Dividend Equivalent rights are explicitly set forth as
a separate arrangement and do not cause any such Stock Option or
SAR to be subject to Section 409A of the Code.
12. Compliance
with Section 409A. Awards granted under this
Plan shall be designed and administered in such a manner that they
are either exempt from the application of, or comply with, the
requirements of Section 409A of the Code. To the extent that
the Committee determines that any award granted under the Plan is
subject to Section 409A of the Code, the Award Agreement shall
incorporate the terms and conditions necessary to avoid the
imposition of an additional tax under Section 409A of the Code
upon a Participant. Notwithstanding any other provision of the Plan
or any Award Agreement (unless the Award Agreement provides
otherwise with specific reference to this Section): (i) an
Award shall not be granted, deferred, accelerated, extended, paid
out, settled, substituted or modified under this Plan in a manner
that would result in the imposition of an a
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