This
CONSULTING AGREEMENT (this “ Agreement ”) is
made and entered into as of February 2, 2009 (the “
Effective Date ”) by and among Premier Exhibitions,
Inc., a Florida corporation, and its subsidiaries (the
“Company”), Foxdale Management, LLC, an Illinois
limited liability company (the “ Consulting Company
”), and Mr. Samuel Weiser (“ Consultant
”).
WHEREAS,
the Company is engaged in the business of developing and touring
museum quality exhibitions (the “ Business ”);
and
WHEREAS,
in connection with the Business, the Company desires to retain the
Consulting Company and Consultant to provide consulting services as
may be necessary and desirable to enable the Company to conduct the
Business as is more fully described below (the “
Consulting Services ”); and
WHEREAS,
the Company desires to contract with Consulting Company and
Consultant, and Consulting Company and Consultant desire to accept
such engagement from the Company, for the provision of the
Consulting Services upon the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the mutual covenants and conditions
contained herein and other good and valuable consideration, and
intending to be legally bound hereby, the Consulting Company,
Consultant and the Company agree as follows:
Section 1.
Consulting Services.
(a) During
the Term (as defined below), Consulting Company shall make
Consultant available to undertake and complete the Consulting
Services and agrees not to assign or delegate the Consulting
Services to any other party.
(b) Consultant
shall be engaged to act as the interim Chief Operating Officer of
the Company, authorized, as such, to execute documents and
agreements on behalf of the Company. Consultant’s engagement
with the Company shall be full-time. During the Term, Consultant
shall devote all of his time, attention, skill and ability as
required during usual business hours (and outside those hours, when
reasonably necessary to his duties hereunder) to the faithful and
diligent performance of such duties and the exercise of such powers
as may from time to time be assigned to or vested in Consultant by
the Board of Directors of the Company.
(c) It
is understood and agreed that (i) the Consulting Services
shall be undertaken (A) at the current offices of the Company
located at 3340 Peachtree Road, Suite 2250, Atlanta, Georgia
30326 (the “Company Headquarters”) or (B) from
such other location or locations as the Company may reasonably
determine; and (ii) Consultant shall be provided use of
adequate office space and secretarial support at the Company
Headquarters throughout the Term.
1
(a) As
compensation for the Consulting Services under this Agreement, the
Company shall pay to Consulting Company a consulting fee of One
Thousand Two Hundred Fifty Dollars ($1,250) per day, not to exceed
sixteen days (16) days per month, payable at the end of each
month during the Term.
(b) After
three (3) months of continuous service, Consultant shall be
eligible to receive additional compensation in the form of an
incentive award or bonus payable in cash, stock or a combination of
cash and stock in an amount to be determined by the Compensation
Committee of the Board or Directors of the Company based on
performance objectives and criteria established by the interim
Chief Executive Officer and the Board of Directors of the Company.
Payment of an incentive award is discretionary and not a
requirement for Consultant’s performance under this
Agreement.
(c) In
the event that Consultant is engaged as an employee pursuant to an
employment agreement, Consultant (i) shall be eligible to
participate in any bonus or incentive programs which the Company
institutes from time to time for the Company’s similarly
situated executive officers, subject to and on a basis consistent
with the terms, conditions, and overall administration of such
bonus or incentive programs by the Company; and (ii) shall be
entitled to participate in and to receive benefits under all
benefit plans and arrangements offered by the Company from time to
time to its similarly situated executive officers, subject to and
on a basis consistent with the terms, conditions, and overall
administration of such plans and arrangements by the Company.
Notwithstanding the foregoing, nothing in this Agreement is
intended, or shall be construed, to require or preclude the Company
from instituting or maintaining any bonus or incentive programs or
benefit plans or arrangements, nor shall the right of the Company
to modify, suspend or discontinue any and all bonus or incentive
programs or benefit plans or arrangements be limited.
Section 3.
Certain Expenses.
(a) Consultant
shall be entitled to reimbursement from the Company for all
reasonable expenses actually incurred by Consultant in connection
with the performance of the Consulting Services; provided that such
expenses are reasonably documented and pre-approved by the
Company.
Section 4.
Term; Termination.
(a) The
Term of this Agreement (the “Term”) shall commence on
the Effective Date and shall continue until February 28, 2009.
The Term shall automatically be extended by successive one (1)
month periods, unless, at least thirty (30) days prior to the
end of the applicable renewal Term, the Company shall deliver to
Consulting Company and Consultant, or Consulting Company and
Consultant shall deliver to the Company, written notice that the
Term shall not be so extended.
(b)
Death of Consultant . This Agreement shall terminate
automatically upon Consultant’s death. Upon the termination
of Consultant’s engagement due to death, the Company shall
pay to Consultant’s heirs as soon as practicable after the
effective date of such termination, any unpaid compensation earned
by Consultant through the effective date of such
termination.
(c)
Disability of Consultant . For purposes of this Agreement,
Consultant shall be deemed to be under a “Disability”
if Consultant shall be unable, by virtue of illness, physical or
mental incapacity, or disability (from any cause or causes
whatsoever), to perform Consultant’s essential job functions
hereunder, whether with or without reasonable accommodation, in
substantially the manner and to the extent required hereunder prior
to the commencement of such disability, for a period exceeding
thirty (30) consecutive calendar days. In the event Consultant
shall remain under a Disability for a period exceeding thirty
(30) days (whether business or non-business days and whether
consecutive or n
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