EMPLOYMENT AGREEMENT
Exhibit 10.6#
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
Xxxx X. Xxxxx (the “Executive”).
WITNESSETH:
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:
1. Term of Employment
(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.
2. Duties.
(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 0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000, Xxxxxxx, XX 00000, 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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4. Benefits.
(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.
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)
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, and any other equity awards in
the form of Restricted Stock or stock options granted to the executive, not yet vested shall vest
immediately. For purposes sections (vii) and (viii), “Sale” of the Company shall mean any sale or
merger of the Company in which the shareholders of the Company just prior to the sale or merger
sell more than fifty-percent (50%) of the outstanding shares of common stock of the Company or
substantially all of the assets of the Company are sold, with “substantially all” meaning any
transaction that would reduce the gross revenues of the Company by more than fifty-percent (50%) to
an unrelated third-party in an arms-length negotiated transaction for fair value. To the extent
required by Section 409A of the Internal Revenue Code, any lump sum payment payable to Executive
under this section shall be made on the date that is six months following the date of the
termination, or as soon as administratively practicable thereafter, but in no event later than 90
days thereafter.
(e) “Good Reason” means and shall be deemed to exist if, without the Executive’s prior
consent, (a) the Executive suffers a material diminution in the duties, responsibilities or
effective authority associated with his titles and positions; (b) a reduction by the Company of the
Executive’s Base Salary below the amount set in Section 3(a); or (c) the Company without just cause
fails to pay the Executive’s accrued compensation or to provide for the Executive’s accrued
benefits when due. The Executive is required to provide notice of the Good Reason within 90 days of
its occurrence. In the event the Executive intends to terminate his employment with the Company for
Good Reason, his prior written notice shall specify the particular act or acts, or failure to act,
which is or are the basis for the Executive’s decision to so terminate his employment for Good
Reason. The Company shall be given 30 days after such notice to correct such act or failure to
act. Upon failure of the Company, within such 30 day period, to correct such act or failure to
act, the Executive may proceed to terminate his employment with the Company. However, in no event
shall the Executive be entitled to terminate this Agreement under this subsection (e) during the
Initial Term.
(f) Termination Without Good Reason. Upon 30 days prior written notice to the
Company, the Executive shall have the right to terminate his employment hereunder without Good
Reason or any reason at all. In such event, the Executive shall be entitled to: (a) any Base
Salary earned but unpaid through the date of termination; (b) payment of any unpaid expense
reimbursements and unused accrued vacation days through the date of termination; and (c) any other
vested payments and/or benefits, including the restricted stock, to which the Executive is
entitled to receive under this Agreement or otherwise in accordance with the terms of any
applicable benefit plan or arrangement.
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(g) Expiration of Term. Expiration of the Term because one or the other party elects not to
renew the employment relationship beyond the Initial Term or the then-current Renewal Term does not
constitute an early termination of the employment relationship for severance purposes. In such an
event, 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.
6. Restrictive Covenants.
(a) Acknowledgments. The Executive and the Company agree that the Executive is being
employed in an important fiduciary capacity with the Company and that the Company is engaged in a
highly competitive business. The Executive and the Company further agree that it is appropriate to
place reasonable limits as set forth herein on his ability to compete with the Company to protect
and preserve the legitimate business interests and goodwill of the Company.
(b) General Restrictions.
(i) For purposes of this Agreement, “Restricted Period” shall mean the Term together with a
period of twelve (12) months after the effective date the Executive’s employment with the Company
ends, regardless of the reason. A business shall be considered “Competitive with the Company” if
it offers products or services that are substantially similar to those being provided by the
Company as of the Effective Date of this Agreement, or if it offers products or services that are
otherwise directly competitive with or substitutable for the Company’s products and services as of
the Effective Date.
(ii) During the Restricted Period, the Executive will not engage or participate in or finance
(or take active steps to prepare to engage or participate in or finance, or to accept an offer of
employment or a contractual relationship to engage or participate in or finance), directly or
indirectly, as principal, agent, employee, employer, consultant, investor or partner, or assist in
the management of, or own any stock or any other ownership interest in, any business that is
Competitive with the Company. After the end of the Term, the covenant in this Section shall
restrict the Executive’s conduct only within a fifty (50) mile radius of Atlanta, Georgia (the
“Restricted Territory”). Notwithstanding the foregoing, the ownership of not more than five
percent (5%) of the outstanding securities of any company listed on any public exchange or
regularly traded in the over-the-counter market, assuming the Executive’s involvement with any such
company is solely that of a security holder, shall not constitute a violation of this Section.
(c) Non-Solicitation Covenants.
(i) During the Restricted Period, the Executive will not directly or indirectly, for himself
or on behalf of another, solicit, or attempt to solicit, any officer, member,
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manager, contractor,
consultant, executive or employee of the Company to leave, terminate or minimize his engagement or
relationship with the Company or to accept employment or an engagement or relationship elsewhere if
so accepting would involve leaving, terminating or minimizing his or her employment, engagement or
contractual relationship with the Company.
(ii) During the Restricted Period, the Executive will not directly or indirectly, for himself
or on behalf of another, solicit, or attempt to solicit, any of the Company’s customers or clients,
or any of the Company’s prospective customers or clients that the Executive knew were being
targeted by the Company during the Term. Notwithstanding the foregoing, after the end of the Term
the restriction in this Section shall apply only to customers or suppliers or prospects with whom
the Executive had material contact during the Term and nothing in this subparagraph (ii) shall be
deemed to prohibit the Executive from calling upon or soliciting a customer or supplier if such
action relates solely to a business which is not Competitive with the Company. For purposes of this
Section, “material contact” with a customer, supplier or prospect includes (A) direct personal
contact with such parties, (B) direct supervision of other employees or personnel of the Company
who have direct personal contact with such parties, or (C) substantial knowledge of non-public
information about the Company’s business relationship with or business strategies with respect to
such parties.
(d) Notice to Future Employers. If the Executive leaves the employ of the Company
for any reason, (i) the Executive shall, during the Restricted Period, inform any subsequent
employers or business partners of the existence and provisions of Section of this Agreement and, if
requested, provide a copy of such section to such employer or business partner, and (ii) the
Company may, during the Restricted Period, notify any future employer or business partner of the
Executive of the existence and provisions of such section of this Agreement.
(e) THE EXECUTIVE REPRESENTS AND WARRANTS THAT THE KNOWLEDGE, SKILLS AND ABILITIES HE
POSSESSES AT THE TIME OF COMMENCEMENT OF HIS EMPLOYMENT HEREUNDER ARE SUFFICIENT TO PERMIT HIM, IN
THE EVENT OF TERMINATION OF HIS EMPLOYMENT HEREUNDER, TO EARN A LIVELIHOOD SATISFACTORY TO HIMSELF
WITHOUT VIOLATING ANY PROVISION OF THIS AGREEMENT, FOR EXAMPLE, BY USING SUCH KNOWLEDGE, SKILLS AND
ABILITIES, OR SOME OF THEM, IN THE SERVICE OF A NON-COMPETITOR.
(f) Disclosure of Confidential Information. The Executive acknowledges that during
his employment with the Company 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, methods of operation, trade secrets, customer information,
personnel information and other confidential information (the “Confidential Information”) obtained
by the Executive in the course of his employment with the Company shall be deemed
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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 (or as required by law or by legal process
such as subpoena, etc.), 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. All tangible
Confidential Information must be returned to the Company upon the termination of this Agreement.
Confidential Information shall not be deemed to include any contract, draft or other template legal
form in the Executive’s possession prior to having been employed by the Company. Except as to
trade secrets, this restrictive covenant will survive for two (2) years following the termination
of this Agreement. This restrictive covenant has no time limit as it relates to trade secrets.
(g) Enforcement of Restrictions. The parties hereby agree that any violation by the
Executive of the covenants contained in this Section 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.
(h) Special Severability. The terms and provisions of this Section are intended to be
separate and divisible provisions and if, for any reason, any one or more of them is held to be
invalid or unenforceable, neither the validity nor the enforceability of any other provision of
this Agreement shall thereby be affected. It is the intention of the parties to this Agreement that
the potential restrictions on the Executive’s future employment imposed by this Section be
reasonable in both duration and geographic scope and in all other respects. If for any reason any
court of competent jurisdiction shall find any provisions of this Section unreasonable in duration
or geographic scope or otherwise, the Executive and the Company agree that the restrictions and
prohibitions contained herein shall be effective to the fullest extent allowed under applicable law
in such jurisdiction.
7. 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.
8. Indemnification and Insurance
(a) Indemnification. The Company shall indemnify and hold harmless Executive from,
against and in respect of any and all losses arising out of or relating to the performance of the
Executive’s services (including, without limitation, attorneys’ fees and expenses);
provided, however, the Company shall have no obligation under this Section 8 to
indemnify Executive for any losses to the extent that such losses (i) are determined by a
court of competent jurisdiction in a final judgment or (ii) are determined by arbitration, pursuant
to
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Section 11 of this Agreement, to have resulted from (A) the gross negligence or willful
misconduct of Executive in the performance of Executive’s employment duties and/or the duties and
obligations outlined in this Agreement, (B) any violation of law by Executive in the performance of
Executive’s employment duties and/or the duties and obligations outlined in this Agreement, or (C)
breach of the terms of this Agreement by Executive.
(b) Insurance. The Company shall cause Executive to be covered under the Company’s
directors and officers liability insurance policy upon a basis consistent with the Company’s
similarly situated executive officers, subject to and on a basis consistent with the terms and
conditions of such directors and officers liability insurance policy.
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: | Xxxxx Xxxxxx | |||||
| 0000 Xxxxxxxxx Xxxx, XX | ||||||
| Xxxxx 0000 | ||||||
| Xxxxxxx, XX 00000 | ||||||
| To the Executive: | Xxxx X. Xxxxx | |||||
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. Arbitration.
(a) Any dispute between the parties under this Agreement, or any dispute between the parties
relating to the breach of this Agreement, the Executive’s employment with Company, or the
termination thereof, will be resolved (except as provided below) through informal arbitration by an
arbitrator, who is licensed to practice law in some jurisdiction in the United States of America,
and who is selected under the rules of the American Arbitration
Association. The arbitration will be conducted under the rules of said Association which are
applicable to employment disputes, to the extent they do not conflict with this Agreement.
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(b) The arbitrator will have the right only to interpret and apply the provisions of this
Agreement and may not change any of its provisions. The determination of the arbitrator will be
conclusive and binding upon the parties and judgment upon the same may be entered in any court
having jurisdiction thereof. The arbitrator will give written notice to the parties stating his,
her or its determination, and will furnish to each party a signed copy of such determination.
(c) The expenses of arbitration will be borne equally by the Executive and the Company, and
each party will bear its own costs, including attorneys’ fees; provided, however, that the
arbitrator shall have the power to award such expenses and costs, including attorneys’ fees, to the
prevailing party in accordance with applicable law. The arbitrator shall also have the power to
require the Company, at the beginning of the proceedings, to fully or partially reimburse (or
provide an advance to) the Executive for the expenses of arbitration (but not for costs, including
attorneys’ fees) in the event the Executive can demonstrate that the amount of the expenses of
arbitration is an unreasonable impediment to adjudication of his claims in arbitration. If the
arbitrator awards a monetary amount to either party in excess of $1,000,000, the party against whom
the award was made may seek judicial resolution of the dispute under a de novo standard before any
court with appropriate jurisdiction over the matter.
(d) Notwithstanding the foregoing, the Company will not be required to seek or participate in
arbitration regarding any breach by the Executive of his obligations under Section 6 hereof, but
may pursue its remedies for such breach in a court of competent jurisdiction in state or federal
courts located in the State of Georgia. Any arbitration or action pursuant to this Section 11 will
be governed by and construed in accordance with the substantive laws of the State of Georgia,
without giving effect to the principles of conflict of laws of such State.
12. Miscellaneous.
(a) Governing Law, Venue. The provisions of this Agreement will be governed by and
construed in accordance with the laws of the State of Georgia without giving effect to the
principles of conflict of laws of such State.. The Executive agrees that the state and federal
courts located in the State of Georgia shall have jurisdiction in any action, suit, or proceeding
against the Executive based on or arising out of this Agreement and the Executive hereby: (a)
submits to the personal jurisdiction of such courts; (b) consents to service of process in
connection with any action, suit or proceeding against the Executive; and (c) waives any other
requirement (whether imposed by statute, rule of court or otherwise) with respect to personal
jurisdiction, venue, or service of process.
(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.
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(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) Facsimiles/PDF’s/Counterparts. This Agreement may be executed in counterparts,
all of which shall constitute one and the same instrument. Facsimile copies and electronic
Portable Document Format files of executed signature pages transmitted by electronic mail will be
deemed original for all purposes.
(e) Section 409A of the Code. This Agreement and the benefits provided hereunder are
intended to be exempt from or to comply with the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended, and Treasury regulations and other applicable guidance issued by
the Treasury Department or Internal Revenue Service thereunder (collectively, “Section 409A”), and
shall be interpreted and administered consistent with such intent. To the extent required for
compliance with the requirements of Section 409A, references in this Agreement to a termination of
employment shall mean a “separation of service” with the meaning of Section 409A. Notwithstanding
the terms of Section 3, Section 4 or Section 5 of this Agreement, to the extent the Executive is a
“specified employee” (as defined by Section 409A) at the time of termination of employment and a
payment or provision of a benefit is required to be delayed by six months pursuant to Section 409A,
distribution shall be made no earlier than the six-month anniversary of termination of employment.
(f) Withholding. The Company may withhold from any amounts payable under this
Agreement such federal, state or local income taxes to the extent the same are required to be
withheld pursuant to any applicable law or regulation.
(g) Captions. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect.
(h) Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement or the Executive’s Term hereunder for any reason to
the extent necessary to the intended provision of such rights and the intended performance of such
obligations.
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IN WITNESS WHEREOF, the Company and the Executive have duly executed this Agreement as of the
date first above written.
| COMPANY: | ||||
| PREMIER EXHIBITIONS, INC. | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Its: | ||||
| EXECUTIVE: | ||||
| /s/ Xxxx X. Xxxxx | ||||
| Xxxx X. Xxxxx | ||||
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