This Employment
Agreement (this “Agreement”) is effective as of the
28th day of June, 2009, and is made by and between PREMIER
EXHIBITIONS, INC. , a Florida corporation (the
“Company”), and John A. Stone (the
“Executive”).
WHEREAS, the
Company desires to employ the Executive in accordance with the
terms and conditions contained in this Agreement; and
WHEREAS, the
Executive desires to accept such employment and to render his
services in accordance with the terms and conditions contained in
this Agreement; and
NOW, THEREFORE, in
consideration of the promises and the mutual covenants set forth in
this Agreement, and intending to be legally bound, the Company and
the Executive agree as follows:
(a)
Offer/Acceptance/Effective Date . The Company hereby offers
employment to the Executive, and the Executive hereby accepts
employment with the Company, subject to the terms and conditions
set forth in this Agreement.
(b)
Term . The term of this Agreement shall commence as of the
date referenced above (the “Effective Date”) and shall
remain in effect until the date that is one (1) year after the
Effective Date (the “Initial Term”). Unless either
party notifies the other party, at least 45 days prior to the end
of the Initial Term that it does not wish to renew the employment
term beyond the end of the Initial Term, the term of the
Executive’s employment will automatically renew for
successive one-year “Renewal Terms” unless and until
either party, at least 45 days prior to the end of the then
current Renewal Term, elects not to renew the employment term
beyond the end of the then current Renewal Term. Notwithstanding
the foregoing, Section 5 of this Agreement discusses
circumstances under which the Executive’s employment may be
terminated either by the Executive himself or by the Company other
than for non-renewal of the employment term as provided in this
Section 1(b). As used in this Agreement, “Term”
refers to the entire term of the Executive’s employment under
this Agreement.
(a)
General Duties . The Executive shall serve as the
Company’s Chief Financial Officer, reporting directly to the
Chief Executive Officer. The Executive shall perform duties that
are customary for a Chief Financial Officer in the Company’s
industry and shall perform any additional duties that are assigned
to him by The Company’s Chief Executive Officer and Board of
Directors (the “Board”) from time to time. Without
limiting the generality
of the
foregoing, the Executive shall be responsible for managing and
overseeing the Company’s financial affairs.
(b)
Best Efforts . The Executive shall: (a) conduct himself
at all times with integrity and in an ethical manner;
(b) devote substantially all of his effort, working time,
energy, and skill (vacations and absences due to illness excepted)
to the duties of his employment; (c) perform his duties
faithfully, loyally, and industriously, and in a manner that
accords with the fiduciary relationship that a senior executive
officer owes to his employer, and (d) follow and implement
diligently all lawful management policies and decisions of the
Company.
(c)
Location of Employment . The Executive shall work at the
Company’s headquarters located at 3340 Peachtree Road, NE,
Suite 2250, Atlanta, GA 30326, or wherever the Company’s
headquarters shall move from time to time.
3.
Compensation and Expenses .
(a)
Base Salary . For the services of the Executive to be
rendered by him under this Agreement, the Company will pay the
Executive an annual base salary of two hundred and twenty thousand
dollars ($220,000) (the “Base Salary”). The Company
shall pay the Executive his Base Salary in equal installments no
less than semi-monthly.
(b)
Performance Bonus . The Executive shall be eligible to be
considered for annual performance awards consistent with incentive
compensation programs established by the Board for senior
executives. Such awards may take the form of cash bonuses, stock
option grants or grants of restricted stock at the discretion of
the Board. Nothing in this Agreement shall be interpreted to convey
that a performance bonus or other award of cash, option or stock is
guaranteed to the Executive under the terms of this Agreement; all
such awards shall be made in the sole discretion of the
Board.
(c)
Expenses . In addition to any compensation received pursuant
to this Section 3, the Company shall reimburse the Executive
for all reasonable, ordinary and necessary travel, entertainment
and approved office expenses incurred in connection with the
performance of his duties under this Agreement, provided that the
Executive properly accounts for such expenses to the Company in
accordance with the Company’s policies and
practices.
(d)
Restricted Stock . As of the Effective Date, the Company
shall grant the Executive seventy-five thousand (75,000) shares of
the common stock of the Company, which shares shall be restricted
(the “Restricted Stock”). The Restricted Stock shall
vest, subject to the Executive’s continued employment in
good-standing with the Company through the applicable vesting date,
as follows: one-third on the first year anniversary date of the
start of the Term; one-third on the second year anniversary date of
the start of the Term; and one-third on the third year anniversary
date of the start of the Term. The Restricted Stock shall be
represented by a restricted stock agreement, the terms of which
shall be consistent with this subsection, and shall contain such
other terms as are consistent with the Company’s award of
restricted stock to other senior executives of the
Company.
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(a)
Personal Days . For each calendar year during the Term, the
Executive shall be entitled to six paid personal days. Unused paid
personal days will not carryover from calendar year to calendar
year. Accrued but unused paid personal days will not be paid upon
termination of this Agreement.
(b)
Vacation . For each calendar year during the Term, the
Executive shall be entitled to three weeks of vacation without loss
of compensation or other benefits to which he is entitled under
this Agreement. The Executive shall take his vacation at such times
as the Executive may select and as the affairs of the Company may
permit. Unused vacation time will not carryover from calendar year
to calendar year. Accrued but unused vacation time will be paid
upon termination of this Agreement.
(c)
Employee Benefit Programs . In addition to the compensation
to which the Executive is eligible pursuant to the provisions of
Section 3 above, during the Term the Executive will be
entitled to participate in any stock option plan, stock purchase
plan, pension or retirement plan, and insurance or other employee
benefit plan that is maintained at that time by the Company for its
senior executive employees, including programs of life, disability,
basic medical and dental, and supplemental medical and dental
insurance. Executive’s coverage under all such medical and
dental insurance shall be in effect as of the Effective Date. Any
such participation is subject in all respect to the terms and
conditions of such plans and programs.
(a)
Termination for Cause . The Company may terminate the
Executive’s employment pursuant to this Agreement for
“Cause” upon the occurrence of any of the following
events: (i) Executive’s failure to substantially perform
Executive’s employment duties and/or the duties and
obligations outlined in this Agreement (other than any such failure
resulting from Executive’s incapacity due to physical or
mental illness) which are demonstrably willful and deliberate on
Executive’s part and which are not remedied in a reasonable
period of time after receipt of written notice from the Company; or
(ii) conviction of, or a plea of guilty or no contest by,
Executive to a crime that constitutes a felony involving moral
turpitude. No act or failure to act on the part of Executive shall
be considered “willful” unless it is done, or omitted
to be done, by Executive in bad faith or without reasonable belief
that Executive’s action or omission was in the best interests
of the Company.
In the event the
Company intends to terminate the Executive’s employment for
Cause, the Company shall provide the Executive with written notice
specifying the particular act or acts, or failure to act, which is
or are the basis for the Company’s decision to so terminate
the Executive’s employment for Cause. Except in the case of a
violation of Section 6 of this Agreement, the Company shall
give Executive 30 days after such notice to correct such act
or failure to act. Upon failure of the Executive, within such
30 day period, to correct such act or failure to act to the
Company’s satisfaction, the Company may proceed to terminate
his employment.
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Upon any
termination for Cause, the Executive shall have no right to
compensation, bonus, severance, or other reimbursement pursuant to
this Agreement or otherwise, except that the Executive shall be
entitled to all compensation and benefits that have accrued, except
for accrued but unused personal time, and all restricted stock that
has vested as of the effective date of termination.
(b)
Death . This Agreement and the Company’s obligations
hereunder will terminate upon the death of the Executive. Upon the
termination of this Agreement due to the death of the Executive,
the Company will pay the Executive’s legal representative the
Base Salary (which may include any accrued but unused vacation
time) at such time pursuant to Section 3(a) through the date of
such termination of employment, plus any other compensation that
may be due and unpaid.
(c)
Disability . This Agreement and the Company’s
obligations hereunder will terminate upon the disability of the
Executive. For purposes of this Section 5(c),
“disability” shall mean that for a period of six months
in any 12-month period, the Executive is incapable of substantially
fulfilling the duties set forth in this Agreement because of
physical, mental or emotional incapacity resulting from injury,
sickness or disease as determined by an independent physician
mutually acceptable to the Company and the Executive. Upon the
termination of this Agreement due to the disability of the
Executive, the Company will pay the Executive or his legal
representative, as the case may be, the Base Salary (which may
include any accrued but unused vacation time) at such time pursuant
to Section 3(a) through the date of such termination of employment
(or, if the Company has a disability policy in effect at the time
of termination, until the date upon which such disability policy
begins payment of benefits, subject to Section 12(e) below), plus
any other compensation that may be due and unpaid.
(d)
Termination without Cause or by the Executive for Good
Reason . Upon 30 days prior written notice to the
Executive, the Company may terminate the Executive’s
employment hereunder for any reason other than “for
Cause”. Upon 30 days prior written notice to the
Company, the Executive may terminate his employment hereunder with
the Company for “Good Reason” (as defined below in (e)
and subject to the Company’s right to cure as also provided
in (e)). In either such event, the following terms and conditions
shall apply: (i) except as provided for in subsections (v),
(vi), (vii) and (viii) below, Executive shall receive
four (4) months of his Base Salary paid in accordance with the
Company’s standard payroll practices; (ii) if Executive
is terminated before the first anniversary date of the Term,
one-third of his Restricted Stock shall vest immediately;
(iii) if Executive is terminated after the first anniversary
date of the Term but before the second anniversary date of the
term, one-third of his Restricted Stock that was scheduled to vest
on the second anniversary date of the Term shall vest immediately;
(iv) if Executive is terminated after the second anniversary
date of the Term but before the third anniversary date of the term,
one-third of his Restricted Stock that was scheduled to vest on the
third anniversary date of the Term shall vest immediately;
(v) if the Company replaces the Chief Executive Officer during
the Initial Term and Executive is terminated within ninety
(90) days of commencement of the new Chief Executive
Officer’s term, Executive shall not be entitled to any Base
Salary (other than accrued but unpaid Base Salary) but all
Restricted Stock, and any other equity awards in the form of
Restricted Stock or stock options granted to the executive, not yet
vested shall vest immediately; (vi) if the Company replaces
the Chief
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Executive
Officer after the Initial Term but prior to the third anniversary
of the Effective Date and Executive is terminated within ninety
(90) days of commencement of the new Chief Executive
Officer’s term, Executive shall be entitled to four
(4) months Base Salary and all Restricted Stock, and any other
equity awards in the form of Restricted Stock or stock options
granted to the executive, not yet vested shall vest immediately;
(vii) if the Company is sold during the Initial Term and
Executive is terminated within one-hundred and eighty
(180) days of the “Sale,” all Restricted Stock,
and any other equity awards in the form of Restricted Stock or
stock options granted to the Executive, not yet vested shall vest
immediately; (viii) if the Company is sold during after the
Initial Term but prior to the third anniversary of the Effective
Date and Executive is terminated within one-hundred and eighty
(180) days of the “Sale,” Executive shall be
entitled to four (4) months Base Salary and all Restricted
Stock,
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