Contract
Exhibit 99.1
This Agreement made effective as of April 17, 2008, (“Agreement”) and is made by and
between PREMIER EXHIBITIONS, INC., a Florida corporation (“Company”), and XXXXX XXXXXXX, a resident
of the State of Virginia (“Executive’’).
WITNESSETH:
WHEREAS, the Company desires to employ Executive in accordance with the terms and conditions
contained in this Agreement and wishes to ensure the availability of the Executive’s services to
the Company;
WHEREAS, the Executive desires to accept such employment and render his services in accordance
with the terms and conditions contained in this Agreement;
WHEREAS, the Executive and the Company desire to enter into this Agreement, which will fully
recognize the contributions of the Executive and assure harmonious management of the Company’s
affairs.
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:
1. Term of Employment
(a) Offer/Acceptance/Effective Date. The Company hereby offers employment to the
Executive, and the Executive hereby accepts employment subject to the terms and conditions set
forth in this Agreement.
(b) Term. The term of this Agreement shall commence on the date first indicated above
(“Effective Date”) and shall remain in effect for a period of three (3) years thereafter (“Term”).
2. Duties.
a. General Duties. The Executive shall serve as General Counsel of the Company with
duties and responsibilities that are customary for such executives and any other duties and
responsibilities specifically assigned to him by the Board of Directors of the Company.
b. Best Efforts. The Executive covenants to use his best efforts to perform his
duties and discharge his responsibilities pursuant to this Agreement in a competent, diligent, and
faithful manner.
c. Location of Employment: The Executive shall perform his duties hereunder at his
office at 000 Xxxxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx Xxxxx, Xx. 00000. The Executive shall travel
to Premier’s headquarters at 0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000, Xxxxxxx, XX 00000 when necessary
to perform his duties and obligations herein.
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 $250,000.00 (the “Base
Salary”) which shall be subject to increase as set forth in subsection (b) below.
The Company shall pay the Executive his Base Salary in equal installments no less
than semi-monthly.
(b) Base Salary Adjustment. The Base Salary shall be subject to a minimum 4%
base salary increase on each anniversary of the Effective Date during the Term.
(c) Bonus. At the discretion of the Company, Executive shall be entitled to receive
quarterly, semi-annual or annual cash bonuses and/or shall be entitled to additional stock option
and/or stock grants.
(d) 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 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.
4. Benefits.
(a) Vacation. For each calendar year during the Term, the
Executive shall be entitled to four weeks of vacation (which shall accrue
and vest, except as may be hereinafter provided to the contrary, on each
January 1st thereof) without loss of compensation or other benefits to
which he is entitled under this Agreement. Notwithstanding the foregoing,
the Executive acknowledges and agrees that to the extent reasonably
necessary he will be responsible for performing his duties and
responsibilities as General Counsel during any such vacation. The
Executive shall take his vacation at such times as the Executive may
select and as the affairs of the Company or any of its subsidiaries or
affiliates may permit.
(b) Health Insurance. Executive shall be entitled to a
payment of $125/month as compensation for his “concierge” service medical
fee. Such payment shall allow for normal increases over time as necessary
to cover the cost of the fee.
| (i) | In the event that the health insurance coverage, currently extended to Executive and his family through Executive’s wife’s employment at Norfolk Southern Corporation, is terminated, the Company shall pay the annual premium for health insurance for the Executive and his family through the Term of this agreement. The Executive shall have the option, in his sole discretion, to choose his health insurance plan. |
(c) Disability. The Company shall pay the annual premium for the
Executive’s disability insurance, such costs not to exceed $2,000.00
annually.
(b) Employer Benefit Programs. In addition to the compensation to which the Executive
is entitled 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
employees, including programs of life, disability, basic medical and dental, and supplemental
medical and dental insurance.
5. Termination.
(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) the Executive is convicted of a crime involving moral turpitude, dishonesty,
fraud, or any other crime relating to the Company; or
(ii) the Executive engages in conduct that constitutes willful gross neglect or
willful gross misconduct in carrying out his duties under this Employment
Agreement, resulting, in either case, in material economic harm to the Company; or
(iii) the Executive fails to perform any material obligation set forth in this
Agreement and such failure is not cured by the Executive within thirty days after
written notice to Executive by Company.
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 Executive shall be entitled to all compensation and benefits that have accrued as of
the date of termination.
(b) Death or Disability. This Agreement and the Company’s obligations
hereunder will terminate upon the death or disability of the Executive. For purposes of this
Section 5(b), “disability” shall mean that for a period of six (6) months in any twelve-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 any termination of this Agreement due to death or disability, the Company will pay
the Executive or his legal representative, as the case may be, his 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 terminated as a result of a disability, until the date upon
which the disability policy maintained pursuant to Section 4 (b) (ii) begins payment of benefits)
plus any other compensation that may be due and unpaid.
(c) Voluntary Termination. Prior to any other termination of this Agreement, the
Executive may, on thirty (30) day’s prior written notice to the Company given at any time,
terminate his employment with the Company. Upon any such termination, the Company shall pay the
Executive his Base Salary at such time pursuant to Section 3(a) through the date of such
termination of employment (which shall include any vested and accrued but unused vacation time).
(d) Termination without Cause. If the Company terminates Executive’s employment for
any reason other than “Cause” as defined in Section 5(a) above, Executive shall be entitled to an
immediate lump sum payment equal to 100% of the Executive’s Base Salary.
6. Restrictive Covenants.
(a) Competition with the Company. The Executive covenants and agrees that, during the
Term of this Agreement, the Executive will not, without the prior written consent of the Company,
directly or indirectly (whether as a sole proprietor, partner, stockholder, director, officer,
employee or in any other capacity as principal or agent), compete with the Company. Notwithstanding
this restriction, Executive shall be entitled to invest in stock of other competing public
companies so long as his ownership is less than 5% of such company’s outstanding shares.
(b) Disclosure of Confidential Information. The Executive acknowledges that during
his employment he will gain and have access to confidential information regarding the Company and
its subsidiaries and affiliates. The Executive acknowledges that such confidential information as
acquired and used by the Company or any of its subsidiaries or affiliates constitutes a special,
valuable and unique asset in which the Company or any of its subsidiaries or affiliates, as the
case may be, holds a legitimate business interest. All records, files, materials and confidential
information (the “Confidential Information”) obtained by the Executive in the course of his
employment with the Company shall be deemed confidential and proprietary and shall remain the
exclusive property of the Company or any of its subsidiaries or affiliates, as the case may be.
The Executive will not, except in connection with and as required by his performance of his duties
under this Agreement, for any reason use for his own benefit or the benefit of any person or entity
with which he may be associated, disclose any Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever without the prior
consent of the Board of Directors of the Company, unless such information previously shall have
become public knowledge through no action by or omission of the Executive.
(c) Subversion, Disruption or Interference. At no time during the term of this
Agreement shall the Executive, directly or indirectly, interfere, induce, influence, combine or
conspire with, or attempt to induce, influence, combine or conspire with, any of the employees of,
or consultants to, the Company to terminate their relationship with or compete with or ally against
the Company or any of its subsidiaries or affiliates in the business in which the Company or any of
its subsidiaries or affiliates is then engaged in.
(d) Enforcement of Restrictions. The parties hereby agree that any violation by
Executive of the covenants contained in this Section 6 will likely cause irreparable damage to the
Company or its subsidiaries and affiliates and may, as a matter of course, be restrained by process
issued out of a court of competent jurisdiction, in addition to any other remedies provided by law.
7. Change of Control.
(a) A “Change of Control” shall mean the occurrence of any one of the following events:
(i) during the term of this Agreement, four of the seven current members of the
Board of Directors, a majority as of the Effective Date, no longer comprise a
majority of the Board of Directors of the Company; or
(ii) any “person,” as such term is used in Sections 3(a)(9) and 13(d) of the
Securities Exchange Act of 1934, as amended (other than the Executive or entities
controlled by the Executive), becomes a “beneficial owner,” as such term is used in
Rule 13d-3 promulgated under that act, of 25% or more of the voting power of the
Company; or
(iii) all or substantially all of the assets or business of the Company is disposed
of pursuant to a merger, consolidation or other transaction (unless the
shareholders of the Company immediately prior to such merger, consolidation or
other transaction beneficially own, directly or indirectly, in substantially the
same proportion as they owned the voting power of the Company, all of the voting
power or other ownership interests of the entity or entities, if any, that succeed
to the business of the Company);
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company
on the date on which a Change of Control occurs (the “Change of Control Date”), the Company will
continue to employ the Executive and the Executive will remain in the employ of the Company for the
period commencing on the Change of Control Date and ending on the expiration of the Term, to
exercise such authority and perform such executive duties as are commensurate with the authority
being exercised and duties being performed by the Executive immediately prior to the Change of
Control Date. If after a Change of Control, the Executive is requested, and, in his sole and
absolute discretion, consents to change his principal business location, the Company will reimburse
the Executive for his relocation expenses, including without limitation, moving expenses, temporary
living and travel expenses for a time while arranging to move his residence to the changed
location, closing costs, if any, associated with the sale of his existing residence and the
purchase of a replacement residence at the changed location, plus an additional amount representing
a gross-up of any state or federal taxes payable by Executive as a result of any such
reimbursements. If the Executive shall not consent to change his business location, the Executive
may continue to provide the services required of him hereunder in Virginia Beach, Virginia and the
Company shall continue to pay office expenses for the Executive at that location commensurate with
the Company’s office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue
to honor the terms of this Agreement, including Base Salary and other compensation set forth in
Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in
effect on the Change of Control Date (but subject to such reductions as may be required to maintain
such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date there shall have
occurred a material reduction in Executive’s compensation or employment related benefits, a
material change in Executive’s status, working conditions or management responsibilities, or a
material change in the business objectives or policies of the Company and the Executive voluntarily
terminates employment within ninety (90) days of any such occurrence, or the last in a series of
occurrences, then the Executive shall be entitled to receive, subject to the provisions of
subparagraphs (e) and (f) below, a lump-sum cash payment equal to 299% of Executive’s current Base
Salary in addition to any other compensation that may be due and owing to the Executive under
Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained
by the Company which became payable after payment of the lump-sum provided for in paragraph (d),
upon or as a result of the exercise by Executive of rights which are contingent on a Change of
Control (and would be considered a “parachute payment” under Internal Revenue Code 280G and
regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added
to such lump-sum, do not exceed 299% of the Executive’s Base Salary (as computed in accordance with
provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated
thereunder) for determining whether the Executive has received an excess parachute payment. Any
such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to
participate in all meetings and negotiations related thereto.
8. Assignability. The rights and obligations of the Company under this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of the Company, provided
that such successor or assign shall acquire all or substantially all of the assets and business of
the Company. The Executive may assign his rights to compensation under this Agreement to a
corporation, partnership, or trust controlled by the Executive.
9. Severability. If any provision of this Agreement is deemed to be invalid or
unenforceable or is prohibited by the laws of the state or jurisdiction where it is to be
performed, this Agreement shall be considered divisible as to such provision and such provision
shall be inoperative in such state or jurisdiction and shall not be part of the consideration
moving from either of the parties to the other. The remaining provisions of this Agreement shall be
valid and binding.
10. Notice. Notices given pursuant to the provisions of this Agreement shall be sent
by certified mail, postage prepaid, or by overnight courier, or telecopier to the following
addresses:
| To the Company: | 0000 Xxxxxxxxx Xxxx, XX | |||
| Xxxxx 0000 | ||||
| Xxxxxxx, XX 00000 | ||||
| To the Executive: |
Either party may, from time to time, designate any other address to which any such
notice to it or him shall be sent. Any such notice shall be deemed to have been delivered upon the
earlier of actual receipt or four days after deposit in the mail, if by certified mail.
11. Indemnification. The Company and the Executive acknowledge that the
Executive’s services as an officer of the Company exposes the Executive to risks of personal
liability arising from, and pertaining to, the Executive’s participation in the management of the
Company. The Company shall defend, indemnify and hold harmless the Executive from any actual cost,
loss, damages, attorneys’ fees, or liability suffered or incurred by the Executive arising out of,
or connected to, the Executive’s services as an officer of the Company or any of its current,
former, or future subsidiaries to the fullest extent allowed by law. The Company will not have any
obligation to the Executive under this section for any loss suffered if the Executive voluntarily
pays, settles, compromises, confesses judgment for, or admits liability with respect to
without the approval of the Company. Within thirty (30) days after the Executive receives notice
of any claim or action which may give rise to the application of this section, the Executive shall
notify the Company or its counsel in writing of the claim or action with a copy thereof. The
Executive’s failure to timely notify the Company of the claim or action will relieve the Company
from any obligation to the Executive under this section. The Executive will reasonably assist the
Company in the defense of any action. The Company will not indemnify Executive for any intentional
acts or misconduct engaged in by Executive, including, but not limited to, any acts which could
result in cause termination pursuant to section 5(a), above.
12. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida and the sole and exclusive venue for any
litigation arising out of this contract will be the state courts of Hillsborough County, Florida.
(b) No Xxxxxxx Xxxxxxx. Executive acknowledges that he will come into possession of
material non-public information about the Company. Accordingly, he will not trade (or cause or
encourage in any fashion any third party to trade) in any securities of the Company while in
possession of any such non-public information regarding the Company and shall further abide by all
black-out periods, window periods, and other sales restrictions that the Company may reasonably
impose.
(b) Waiver/Amendment. The waiver by any party to this Agreement of a
breach of any provision hereof by any other party shall not be construed as a waiver of any
subsequent breach by any party. No provision of this Agreement may be terminated, amended,
supplemented, waived or modified other than by an instrument in writing signed by the party against
whom the enforcement of the termination, amendment, supplement, waiver or modification is sought.
(c) Entire Agreement. This Agreement represents the entire agreement between the
parties with respect to the subject matter hereof and replaces and supersedes any prior agreements
or understandings.
(d) Counterparts. This Agreement may be executed in counterparts, all of which shall
constitute one and the same instrument. Transmission by PDF and electronic mail will be legally
binding.
IN WITNESS WHEREOF, the Company and the Executive have duly executed this Employment
Agreement as of the date first above written.
| COMPANY: PREMIER EXHIBITIONS, INC. |
||||
| By: | ||||
| Xxxxx Xxxxxxxx, President | ||||
| EXECUTIVE: |
||||
| Xxxxx Xxxxxxx | ||||
