Exhibit
10.1.2
FIRST AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This First Amended and Restated
Employment Agreement (this “ Agreement ”) is
made and entered into as of April 26, 2009 by and between Golf
Trust of America, Inc., a Maryland corporation (the “
Company ”), and Michael C. Pearce (the “
Employee ”).
WHEREAS , the Employee has been employed as the
Company’s Chief Executive Officer and President pursuant to
the terms of an Employment Agreement dated November 8, 2007, by and
between the Company and the Employee (the “ Original
Employment Agreement ”);
WHEREAS , subsequent to the Original Employment Agreement,
the Board of Directors of the Company (the “ Board
”) approved certain modifications to the Employee’s
compensation package; and
WHEREAS , the Company and the Employee desire to modify the
Original Employment Agreement by amending and restated the Original
Employment Agreement in its entirety as set forth
herein.
NOW, THEREFORE , the parties, intending to be legally bound and in
consideration of the promises and mutual covenants and agreements
contained herein, hereby stipulate and agree as follows:
1.
Term of Employment
. The Company hereby continues to employ the
Employee as an employee of the Company and the Employee hereby
accepts continued employment from the Company.
2.
Duties of Employee
.
(a)
The Employee shall be employed by the
Company as its Chief Executive Officer and President. The
Employee’s duties shall include, but not be limited to, those
duties and responsibilities set forth in the Company’s Second
Amended and Restated Articles of Incorporation and the
Company’s Bylaws, as either may be amended from time to time
(the “ Duties ”). In addition to these
services, the Duties will include such other services and duties
commensurate with the Employee’s position with the Company as
the Board may, from time to time, assign to the
Employee.
(b)
The Employee shall at all times discharge
the Employee’s responsibilities and duties in compliance with
the rules and regulations of the Company and in accordance with the
policies and directives of the Company adopted from time to time.
(c)
The Employee shall serve the Company
faithfully in the performance of the Employee’s Duties and
shall devote the Employee’s time and best efforts to the
Employee’s employment, including the requirements of the
Company and the performance of the Employee’s Duties.
The Employee shall not during the term of this Agreement be
engaged in any other business activity which interferes with the
Employee’s obligations under this Agreement, whether or not
such business activity is pursued for gain, profit, or other
pecuniary advantage, without the prior written approval of the
Board.
3.
Compensation
. For all services rendered by the Employee under
this Agreement, the Employee shall be entitled to compensation in
accordance with the following:
(a)
Base Salary . On December 17, 2007, the Board increased the
Employee’s annual salary (“ Annual Base Salary
”) to $180,000, and the Company shall continue to pay such
Annual Base Salary until adjusted as provided for herein. The
Employee shall be paid according to the Company’s normal
payroll practices, less normal and appropriate withholdings.
This Annual Base Salary shall be adjusted by the Company on
an annual basis to account for cost of living changes (as
determined by the Company in its reasonable discretion), and may
also be increased based on merit at the Company’s
discretion.
(b)
Stock Options . The Golf Trust of America, Inc. 2007 Stock
Option Plan (the “ 2007 Plan ”) was approved by
the Company’s stockholders at the 2007 Annual Meeting of
Stockholders held on December 14, 2007 (the “ 2007 Annual
Meeting ”). Upon approval of the 2007 Plan, the
Employee’s stock appreciation rights granted under the
Original Employment Agreement terminated and the Employee received
in their place a grant of 275,000 options to purchase the
Company’s common stock at an exercise price equal to $2.10
(the “ 2007 Stock Options ”). The 2007
Stock Options vest on each of the first three anniversaries of the
grant date in the following amounts: 91,667 vested on December 14,
2008; 91,667 will vest on December 14, 2009; and 91,666 will vest
on December 14, 2010. On February 27, 2009, 85,000 options to
purchase the Company’s common stock at an exercise price
equal to $1.10 were issued to the Employee pursuant to the
2007 Plan (the “ 2009 Stock Options ;” and
together with the 2007 Stock Options, collectively, the “
Stock Options ”). The 2009 Stock Options vest on
each of the first three anniversaries of the grant date in the
following amounts: 28,334 will vest on February 27, 2010;
28,333 will vest on February 27, 2011; and 28,333 will vest on
February 27, 2012. Notwithstanding anything herein or in the
2007 Plan to the contrary, all unvested Stock Options will
automatically vest upon a termination Without Cause (as defined
below), the Employee’s death or Disability (as defined below)
or a Change in Control (as defined below) of the Company or other
similar fundamental corporate transaction. The Stock Options
were granted in accordance with the terms and conditions of the
2007 Plan and any grant agreement entered into by and between the
Company and the Employee. For purposes of this Agreement, the
term “ Change in Control ” shall mean (i) any
merger or consolidation of the Company with or into another entity;
provided , however , a merger or consolidation
of the Company shall not constitute a “Change in
Control” if the holders of the outstanding voting securities
of the Company (determined immediately prior to such merger or
consolidation) own a majority of the outstanding voting securities
of the surviving corporation (determined immediately following such
merger or consolidation), (ii) any sale or transfer by the Company
of all or substantially all of its assets, or (iii) any tender
offer or exchange offer for or the acquisition, directly or
indirectly, by any person or group of all or a majority of the
then-outstanding voting securities of the Company.
4.
Fringe Benefits
. The Employee shall receive with other similarly
situated employees of the Company, all of the fringe benefits to be
established by the Company, together
2
with the following additional fringe
benefits, provided that the Employee is otherwise eligible and
desires to participate.
(a)
Reimbursement for all business expenses
which are ordinary, necessary and reasonable, including, without
limitation, travel expenses, incurred by the Employee in accordance
with the policies, practices and procedures of the Company that may
be in effect from time to time and in connection with the
performance of the Employee’s Duties; provided that the
Employee presents appropriate substantiation for such expenses in a
form acceptable to the Internal Revenue Services and in compliance
with the Company’s then applicable policy. On December
17, 2007, the Board granted the Employee a monthly car allowance of
$400, and the Company shall continue to pay such allowance in
accordance with the terms of this Agreement.
(b)
The Employee shall be entitled to
participate in all Company sponsored group insurance policies and
programs or elect to have the Company remit premiums on his behalf
for third-party health coverage if such coverage is less costly
than the Company-provided programs.
(c)
During each full calendar year of
employment, the Employee shall be entitled to four weeks of paid
vacation time. The Employee shall also be paid for observed
Company holidays.
5.
Termination of
Employment .
This Agreement shall terminate as
follows:
(a)
Death or Disability
. The Employee’s employment
shall terminate automatically upon the Employee’s death.
For purposes of this Agreement, the Employee shall be deemed
to be “ Disabled ” (the defined term including
“ Disability ”) if the Employee suffers an
illness or disability resulting in the Employee’s inability
to perform the essential functions of the Employee’s Duties
hereunder, with or without reasonable accommodation, for a period
of one-hundred eighty (180) consecutive days. If the Employee
is Disabled, then the Company shall give to the Employee written
notice of its int
