SETTLEMENT AGREEMENT AND MUTUAL SPECIAL RELEASE
Exhibit 10.2
SETTLEMENT AGREEMENT AND MUTUAL SPECIAL RELEASE
1. PARTIES: The parties to this Settlement Agreement and Mutual Special Release (“AGREEMENT”)
are XXXXXXX XXXXXX AGENCY, LLC (“XXXXXXX XXXXXX”) and XXXX XXXXXXX (“XXXXXXX”), on the one hand,
and PREMIER EXHIBITIONS, INC. (“PREMIER”) and JAM EXHIBITIONS, LLC (“JAM”), on the other.
2. RECITALS: This AGREEMENT is made with reference to the following facts:
2.1 On March 21, 2006, XXXXXXX XXXXXX filed a complaint in Los Angeles Superior Court entitled
Xxxxxxx Xxxxxx Agency, LLC v. Premier Exhibitions, Inc., Case No. SC089055 (the “ACTION”). By the
ACTION, XXXXXXX XXXXXX seeks to recover commissions in the amount of approximately $1,200,000
relating to exhibitions entitled Bodies...The Exhibition featuring preserved human bodies (the
“EXHIBITIONS”) produced by PREMIER in conjunction with JAM and Concert Promotions International
(“CPI”).
2.2 XXXXXXX XXXXXX never served its complaint in the ACTION on PREMIER as the parties were
engaged in settlement negotiations and, consequently, PREMIER has not filed a responsive pleading
in the ACTION. Nonetheless, PREMIER generally denies the allegations contained in the Complaint in
the ACTION.
2.3 By entering into this AGREEMENT, the parties now wish to resolve any disputes between them
relating to the ACTION and to agree to the terms and conditions set out in the AGREEMENT in order
to settle and dispose of, fully and completely, any and all claims arising therefrom.
3. OBLIGATIONS OF PREMIER AND JAM:
3.1 PREMIER and JAM agree to pay XXXXXXX XXXXXX a total of $500,000 in $100,000 installments
due on or before each of the following dates: June 1, 2006, November 1, 2006, June 1, 2007,
November 1, 2007 and June 1, 2008. PREMIER and JAM are jointly and severally liable under this
AGREEMENT.
3.2 The failure to make any payment in a timely manner as required under paragraph 3.1, above,
would be a breach of this AGREEMENT. If PREMIER and/or JAM do not cure such a breach within five
business days after written notice pursuant to paragraph 9.12 of this AGREEMENT, PREMIER and JAM
shall be in material breach of this AGREEMENT. The parties acknowledge and agree that the damage
which would accrue from such a breach would be difficult to ascertain and, therefore the parties
are making this provision for liquidated damages in the event of such a breach. Accordingly, in the
event of such material breach, PREMIER and JAM shall be obligated, jointly and severally, to pay
XXXXXXX XXXXXX a total of $600,000 as commissions relating to the EXHIBITIONS, which amount shall
be become immediately due and payable. Any and all payments made under paragraph 3.1, above, shall
be credited against this amount.
4. OBLIGATIONS OF XXXXXXX XXXXXX:
4.1 Within five business days of the full execution of this AGREEMENT and receipt of the first
installment payment required under paragraph 3.1, above, XXXXXXX XXXXXX will file a request for
dismissal with prejudice of the entire ACTION and provide a conformed copy of such dismissal to
PREMIER after it is entered by the Court.
4.2 In the event of a breach as described in paragraph 3.2, above, XXXXXXX XXXXXX will give
PREMIER and JAM an opportunity to cure the breach by giving notice pursuant to paragraph 9.12 of
this AGREEMENT and waiting five business days thereafter before initiating any action.
5. TERMINATION OF ALLEGED AGENCY RELATIONSHIP BETWEEN XXXXXXX XXXXXX AND PREMIER: XXXXXXX
XXXXXX, on the one hand, and PREMIER, on the other hand, acknowledge and agree that the agency
agreement between the parties with respect to the EXHIBITIONS alleged by XXXXXXX XXXXXX in its
complaint in the ACTION is hereby terminated. Accordingly, except with respect to the obligations
created by or arising out of this AGREEMENT, XXXXXXX XXXXXX, on the one hand, and PREMIER, on the
other hand, acknowledge and agree that neither of them has any ongoing obligations to the other
under any alleged agency agreement.
6. SPECIAL RELEASES AND PROMISES:
6.1 Release By XXXXXXX XXXXXX and XXXXXXX: Except with respect to the obligations created by
or arising out of this AGREEMENT, XXXXXXX XXXXXX and XXXXXXX, and each of them, for themselves and
their respective affiliates, agents, employers, employees, representatives, attorneys,
predecessors, successors and assigns, and each of them (the “XXXXXXX XXXXXX RELEASORS”), hereby
release and absolutely and forever discharge PREMIER, JAM, CPI and Xxx Tour, and each of them, and
their respective affiliates, agents, officers, directors, employers, employees, representatives,
attorneys, predecessors, successors and assigns (the “PREMIER RELEASEES”) from any and all claims,
demands, grievances, liabilities, debts, accounts, obligations, costs, expenses, liens, actions and
causes of action, of every kind and nature whatsoever, existing on the effective date of this
AGREEMENT, whether known or unknown, anticipated or unanticipated, suspected or unsuspected, which
the WILLLAM XXXXXX RELEASORS, have or claim to have, now or hereafter, against the PREMIER
RELEASEES, or any of them, arising out of or in connection with the EXHIBITIONS, the events
described in the ACTION, the ACTION, the prosecution or defense of the ACTION or the negotiation
and documentation of this AGREEMENT.
6.2 Release by PREMIER and JAM: Except with respect to the obligations created by or arising
out of this AGREEMENT, PREMIER and JAM, and each of them, for themselves, CPI and Xxx Tour, and
their respective affiliates, agents, employers, employees, representatives, attorneys,
predecessors, successors and assigns, and each of them (the “PREMIER RELEASORS”), hereby release
and absolutely and forever discharge XXXXXXX XXXXXX and XXXXXXX, and each of them, and their
respective affiliates, agents, officers, directors, employers, employees, representatives,
attorneys, predecessors, successors and assigns (the “XXXXXXX XXXXXX RELEASEES”) from any and all
claims, demands, grievances,
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liabilities, debts, accounts, obligations, costs, expenses, liens, actions and causes of
action, of every kind and nature whatsoever, existing on the effective date of this AGREEMENT,
whether known or unknown, anticipated or unanticipated, suspected or unsuspected, which the PREMIER
RELEASORS have or claim to have, now or hereafter, against the XXXXXXX XXXXXX RELEASES, or any of
them, arising out of or in connection with the EXHIBITIONS, the events described in the ACTION, the
ACTION, the prosecution or defense of the ACTION or the negotiation and documentation of this
AGREEMENT.
6.3 Inapplicability of Civil Code §1542: Each of the parties to this AGREEMENT acknowledges
and agrees that the releases contained in this AGREEMENT are special releases and that §1542 of the
Civil Code of the State of California is not applicable. If and to the extent it should be
determined that the releases contained in this AGREEMENT are not special releases, contrary to the
parties’ acknowledged intention and agreement, each party specifically waives the benefit of the
provisions of §1542 of the Civil Code of the State of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
6.4 Waiver of Unknown Claims: Each party hereby acknowledges that such party is aware that
such party may later discover facts in addition to or different from those which such party now
knows or believes to be true with respect to the subject matter of this AGREEMENT and that it is
such party’s intention, notwithstanding, to fully, finally and forever, settle and release all of
the claims released by this AGREEMENT, known or unknown, suspected or unsuspected, which now exist,
may exist or previously existed between the parties. In furtherance of such intention, the releases
given in this AGREEMENT shall be and shall remain in effect as a full and completed release,
notwithstanding the discovery or existence of any such additional or different facts. The parties,
further, accept and assume the risk that such facts may turn out to be different from the facts now
known or believed to be true by the parties and agree that the releases given in this AGREEMENT
shall remain in all respects effective and shall not be subject to termination or rescission by
reason of any such difference in fact.
7. REPRESENTATIONS AND WARRANTIES:
7.1 Nor-Assignment: Each of the parties to this AGREEMENT hereby represents and warrants that
such party has not heretofore assigned or transferred, or purported to assign or transfer, to any
person whomsoever any of the claims, demands, grievances, liabilities, debts, accounts,
obligations, costs, expenses, liens, actions or causes of action released by the terms of this
AGREEMENT. Each party to this AGREEMENT further agrees to indemnify and hold harmless any other
party from and against the assertion by any third party of any such claims, demands, grievances,
liabilities, debts, accounts, obligations, costs, expenses, liens,
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actions or causes of action, including reasonable attorneys’ fees and costs incurred, arising
out of or in connection with any such assignment or transfer by such party.
7.2 Authority: Each person executing this AGREEMENT on behalf of a corporation or other legal
entity warrants that he or she holds the position indicated beneath his or her signature and that
he or she has been duly authorized by said corporation or other legal entity to execute this
AGREEMENT on its behalf.
8. SEVERABILITY: In the event that any covenant, condition or other provision of this
AGREEMENT is held to be invalid, void or unenforceable, in whole or in part, by an arbitrator or
any court of competent jurisdiction, the same shall be deemed severable from the remainder of this
AGREEMENT and shall in no way affect, impair or invalidate any other covenant, condition or
provision contained in this AGREEMENT. If any such covenant, condition or other provision shall be
deemed invalid due to its scope or breadth, such covenant, condition or other provision shall be
construed so as to be limited to the maximum scope or breadth permitted by law.
9. MISCELLANEOUS:
9.1 Independent Advice: Each party to this AGREEMENT acknowledges and agrees that such party
has had the opportunity throughout the negotiation and documentation of this AGREEMENT to seek
representation by attorneys of the party’s choice and obtain advice with respect to the terms of
this AGREEMENT and the effect of the releases given in this AGREEMENT. Each party to this AGREEMENT
further acknowledges and agrees that such party has read this AGREEMENT, knows the contents of this
AGREEMENT and, in executing this AGREEMENT, has relied solely on the party’s own judgment, belief
and knowledge, and the advice and recommendations of the party’s attorneys and/or advisors,
concerning this AGREEMENT, and has not been induced to enter into this AGREEMENT by any
representation or statement of any other party not expressly contained in this AGREEMENT.
9.2 Successors and Assigns: This AGREEMENT shall be binding upon and shall inure to the
benefit of the parties to this AGREEMENT and their respective, affiliates, agents, representatives,
heirs, spouses, successors and assigns.
9.3 Integration: This AGREEMENT sets forth the entire agreement between the parties relating
to the subject matter of this AGREEMENT. All agreements, covenants, representations and warranties,
express or implied, oral or written, of the parties with regard to the subject matter hereof are
incorporated in this AGREEMENT and the documents referred to herein which constitute the entire
contract between the parties. No other agreements, covenants, representations or warranties,
express or implied, oral or written, have been made by any party to any other party with respect to
the subject matter of this AGREEMENT. All prior and contemporaneous conversations, negotiations,
possible and alleged agreements, representations, covenants and warranties with respect to the
subject matter hereof are waived, merged in this AGREEMENT and superseded by it. This AGREEMENT is
an integrated agreement, its terms are intended by the parties as a final expression of their
agreement with respect to the subject matter and may not be contradicted by evidence of any prior
agreement or contemporaneous oral agreement. The parties further intend that this AGREEMENT and the
documents referred to
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herein constitute the complete and exclusive statement of its terms and that no extrinsic
evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving
this AGREEMENT.
9.4 No Admission of Liability: Each party acknowledges and agrees that this AGREEMENT
accomplishes the compromise of disputed claims and is not intended to constitute an admission of
liability, wrongdoing or error on the part of any party or their respective employees, agents,
attorneys, representatives, or parent, subsidiary or affiliated companies. Any liability,
wrongdoing or error is expressly denied by each party to this AGREEMENT.
9.5 Additional Documents: In addition to the documents to be delivered as provided in this
AGREEMENT, each of the parties agrees to execute and deliver such additional documents and take
such other action as may be reasonably required to carry out the terms of this AGREEMENT.
9.6 Titles and Captions: Titles and captions contained in this AGREEMENT are inserted as a
matter of convenience and for reference, and are not intended and shall not be construed to define,
limit, extend or otherwise describe the scope of this AGREEMENT or any provision of this AGREEMENT.
9.7 Waiver: No breach of any provision of this AGREEMENT can be waived unless in writing.
Waiver of any one breach of this AGREEMENT shall not be deemed to be a waiver of any other breach
of that or any other provision of this AGREEMENT.
9.8 Modification and Amendment: No modification or amendment of any of the terms or provisions
of this AGREEMENT shall be binding upon any party to this AGREEMENT unless made in writing and
signed by such party or by a duly authorized representative or agent of such party.
9.9 Agreement to be Governed by California Law: This AGREEMENT shall be governed by and
construed in accordance with the internal laws of the State of California applicable to contracts
entered into and wholly performed within said state. Any action filed respecting the Parties’
rights or liabilities under or in connection with this Agreement must be filed in the County of Los
Angeles, State of California. Should any such action be filed, the Parties agree to submit to the
jurisdiction of the Court in which the lawsuit is filed and that service can be effected by mail to
the addresses set forth in paragraph 9.12 of this AGREEMENT.
9.10 No Construction: No party to this AGREEMENT or such party’s attorney shall be deemed to
be the drafter of this AGREEMENT for purposes of interpreting or construing any of the provisions
of this AGREEMENT. This AGREEMENT shall be interpreted in accordance with the fair meaning of its
language and not strictly for or against any of the parties to this AGREEMENT.
9.11 Attorneys’ Fees: In the event of any dispute respecting the Parties’ rights or
liabilities under or in connection with this Agreement, the prevailing party in any proceeding
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to enforce or defend a claim under or relating to this Agreement shall be entitled to recover
the costs incurred in connection with such dispute by such party including such party’s reasonable
attorneys’ fees.
9.12 Notices: Any notice that is required or permitted under this Agreement may be given by
mail, courier, facsimile or hand delivery as follows:
If to PREMIER and JAM:
| Premier Exhibitions, Inc. 000 Xxxxxxxxxxxx Xxxx., Xxxxx 000 Xxxxxxxx Xxxxx, Xxxxxxxx 00000 Attention: Xxxxx Xxxxxxx Facsimile No.: (000) 000-0000 |
JAM Exhibitions, LLC 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxx Xxxxxx |
| With a copy to: | With a copy to: |
| Xxxxxx X. XxXxxxxxx, Esq. XxXxxxx Xxxxx World Trade Center 000 Xxxx Xxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000-0000 Facsimile No.: (000) 000-0000 |
Xxxxx X. Xxxx, Esq. DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP 000 X. XxXxxxx, Xxxxx 0000 Xxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 |
If to XXXXXXX XXXXXX and XXXXXXX:
| Xxxxxxx Xxxxxx Agency, LLC Xxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxxx Xxxxxxxxxx |
Xxxxxxx Xxxxxxx 000 Xxxx Xxxx Xxxx Xxxx Xxxxxxxxxx Xxxxx, XX 00000 Facsimile No.: (000) 000-0000 |
With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Rintala, Smoot, Xxxxxxxx & Xxxx LLP
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Rintala, Smoot, Xxxxxxxx & Xxxx LLP
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Notices by courier, facsimile or hand delivery shall be deemed effective upon delivery.
Notices by mail only shall be deemed effective three business days after mailing. Any party may
change his or its address or facsimile number by notifying in writing the other Parties of his or
its change of addresses.
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9.13 Execution in Counterparts: This Agreement may be executed in counterparts and when each
party has signed and delivered at least one such counterpart to each of the other Parties, each
counterpart shall be deemed an original, and all counterparts taken together shall constitute one
and the same Agreement, which shall be deemed binding and effective as to all Parties. This
Agreement may be executed via facsimile signatures, which shall have the same force and effect as
if they were original signatures. Each of the Parties hereto shall, however, also provide original
signatures to the other Parties, although the failure to do so shall not render this Agreement
invalid.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this AGREEMENT as of June
___, 2006.
| XXXXXXX XXXXXX AGENCY, LLC | PREMIER EXHIBITIONS, INC. | |||||
By
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Its
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| JAM EXHIBITIONS, LLC | ||||||
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