EXHIBIT 99.1
EMPLOYMENT AGREEMENT
This Agreement is effective as of the 1st day of February 2006,
("Agreement") and is made by and between PREMIER EXHIBITIONS, INC., a Florida
corporation ("Company"), and XXXXXXX XXXXXXX, a resident of the State of Florida
("Executive").
WITNESSETH:
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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 Vice President and Chief
Financial Officer 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 devote not less than an
average of three (3) days per week during reasonable business hours at the
Company's headquarters located at 0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000, Xxxxxxx,
XX 00000 and the Executive shall not be required to relocate to any other
location unless the Executive consents otherwise in writing. The office for
performance of his services for the remaining two (2) days per week is to be
located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx X, Xxxxx, Xxxxxxx, or at such other
location as the Executive shall approve unless the Executive consents otherwise
in writing.
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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 $210,000 (the "Base Salary") which shall be subject to increase as set forth
in subsection (b) below.
The Base Salary shall be prorated over the time that the Executive
performs services under this Agreement in any calendar year during which
this Agreement shall become effective after January 1st thereof or shall
terminate before December 31st thereof.
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
increase of seven percent (7%) effective on each anniversary of the Effective
Date during the Term.
(c) Bonus. At the discretion of the Company's Board of Directors, Executive
shall be entitled to receive quarterly, semi-annual or annual bonuses.
(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 other 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.
(e) Office Expense Allowance. The Executive shall be paid an office expense
allowance of $1,000 per month. This office allowance shall be for administrative
costs, rent, utilities, insurance, and incidental supplies.
(f) Additional Services. The Executive's consulting firm and its personnel
may be engaged for professional services from time to time. Compensation for
these services shall be mutually agreed to by the parties. The Company will
provide the Executive an administrative assistant which compensation shall be
mutually agreed to by the parties.
(g) Stock Options. The Executive or his assigns is entitled stock options
to purchase 150,000 shares of the common stock of Company. Options to acquire
150,000 shares of common stock shall vest over a twenty-four month period. The
exercise price for all options granted to Executive hereunder shall be $3.65 per
common share, which is the closing bid price of such shares as of January 27,
2006. The options shall have an exercise period of ten (10) years from the date
of this Agreement and shall contain a cashless exercise provision. The form of
the option agreement is attached as Exhibit "A".
(h) Apartment Allowance and Relocation Expense. The Executive shall be paid
an apartment allowance of $1,250 per month. The Company agrees to reimburse
Executive for all reasonable and customary moving and other relocation expenses.
The Company shall pay such expenses upon delivery to the Company of a receipt or
other appropriate documentation for such expenses.
4. Benefits.
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(a) Vacation. For each calendar year during the Term, the Executive shall
be entitled to four (4) weeks of vacation (which shall accrue and vest, except
as may be hereinafter provided to the contrary, on each January lst thereof)
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 the affairs of the Company or any of its subsidiaries or
affiliates may permit.
(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.
(c) Automobile Allowance. During the term of this Agreement, the Company
shall pay Executive $750.00 per month as an automobile allowance plus automobile
insurance to be applied to any automobile expenses incurred by Executive.
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
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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 not less
than 100% of the Executive's Base Salary until the Executive's first anniversary
date, 200% of the Executive's Base Salary on or after the Executive's first
anniversary date, and 299% of the Executive's Base Salary on or after the
Executive's second anniversary date.
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
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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, three of the four 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 Tampa, Florida, and the Company shall continue to maintain an
office 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
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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: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx X
Xxxxx, Xxxxxxx 00000
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
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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
circuit court in Hillsborough County, Florida.
(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) Attorney's Fees. In the event any action is commenced, for the
enforcement of this Agreement, Executive is entitled to the payment by the
Company of any and all attorney's fees, costs, and expenses he may incur
contemporaneously.
(d) 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.
(e) Counterparts. This Agreement may be executed in counterparts, all of
which shall constitute one and the same instrument.
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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: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Its: President
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EXECUTIVE:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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