This Employment
Agreement (the “Agreement”) is entered into as of the
3rd day of September, 2009 (the “Effective Date”) by
and between Christopher J. Davino (the “Executive”) and
Premier Exhibitions, Inc., a Florida corporation (the
“Company”).
WHEREAS ,
the Executive presently serves as interim President and Chief
Executive Officer of the Company pursuant to an employment
agreement with the Company effective as of January 28, 2009
(the “Prior Agreement”);
WHEREAS ,
the Executive presently serves on the Board of Directors of the
Company (the “Board”);
WHEREAS ,
the Executive and the Company wish to provide for the continued
employment of the Executive on the terms and conditions set forth
herein; and
WHEREAS ,
effective as of the date hereof, the Executive and the Company
intend that the Prior Agreement shall cease to be of any force or
effect, except with respect to amounts that are due and owing to
the Executive under the Prior Agreement.
NOW,
THEREFORE , in consideration of the premises and of the mutual
covenants contained herein, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Executive (each
individually a “Party” and together the
“Parties”) agree as follows:
(a) The
Company hereby agrees to continue to employ the Executive, and the
Executive hereby agrees to continue to be employed by the Company,
subject to the terms and conditions of this Agreement, for the
period commencing on the Effective Date and ending on the earlier
of the third anniversary thereof or the Date of Termination (as
defined in Section 4(g) below) (the “Employment
Period”).
(b) This
Agreement sets forth the terms and conditions of the
Executive’s employment by the Company, represents the entire
agreement of the parties with respect to that subject, and except
as otherwise provided herein supersedes all prior understandings
and agreements with respect to that subject.
(c) The
Executive hereby acknowledges and agrees that this Agreement is
intended to and does replace the Prior Agreement and that the Prior
Agreement is cancelled, terminated and of no further force and
effect as of the Effective Date except as set otherwise forth
herein and provided further that Section 5 entitled
“Indemnification; Insurance” shall
survive the
Prior Agreement’s termination; provided, however, that
(i) any salary or bonus earned under Sections 2(a) and
(b) of the Prior Agreement through and including the day
immediately prior to the Effective Date that has not been paid by
the Company as of the Effective Date shall be paid to the Executive
within 10 days after the Effective Date and all rights and
remedies relating thereto under the Prior Agreement shall be
available to Executive thereunder until such amounts to be paid are
actually paid, and (ii) the Executive’s business
expenses incurred through and including the day immediately prior
to the Effective Date that are reimbursable pursuant to Section
3(a) of the Prior Agreement and have not been reimbursed by the
Company as of the Effective Date, shall be paid to the Executive on
the later of (x) 10 days after the Effective Date, or
(y) 10 days after the Company receives an invoice and
proper documentation from the Executive for such expenses; provided
that the Executive shall have submitted an invoice and proper
documentation for such expenses to the Company no later than
February 1, 2010.
(a)
Duties . The Executive shall be employed by the Company as
President and Chief Executive Officer, and the Executive shall
continue to serve on the Board, subject to re-election by the
shareholders of the Company. The Executive shall be responsible for
the general management of the affairs of the Company and shall
perform all duties incidental to such positions which may be
required by law and all such other duties as are properly and
lawfully required by the Board. The Executive shall report directly
to the Board.
(b)
Engaging in Other Employment . During the Employment Period,
the Executive shall devote substantially all of his business time,
energies and talents to serving as President and Chief Executive
Officer of the Company, and shall perform his duties
conscientiously and faithfully subject to the reasonable and lawful
directions of the Board, and in accordance with the policies, rules
and decisions adopted from time to time by the Company, its Board
and any employing affiliates. During the Employment Period, it
shall not be a violation of this Agreement for the Executive,
subject to the requirements of Section 11, to (i) serve
on civic or charitable boards, (ii) with the consent of the
Board, which consent shall not be unreasonably withheld or denied,
serve on no more than three corporate boards unrelated to the
Company (and retain all compensation in whatever form for such
service), it being understood that the Executive’s service on
corporate boards described on Exhibit A hereto is
hereby approved as of the Effective Date, (iii) deliver lectures or
fulfill speaking engagements, and (iv) manage personal
investments, so long as such activities (individually or in the
aggregate) do not significantly interfere with the performance of
the Executive’s responsibilities as set forth in Section 2(a)
of this Agreement or the Executive’s fiduciary duties to the
Company.
(c)
Location . The Executive’s principal office shall be
at the principal executive offices of the Company in Atlanta,
Georgia, located at 3340 Peachtree Road, Suite 2250, Atlanta,
Georgia 30326; provided that the Executive may be required under
reasonable business circumstances to travel outside of such
location in connection with performing his duties under this
Agreement. The Executive shall be provided use of adequate office
space and secretarial support at the Company’s principal
executive offices during the Employment Period.
2
(d)
Board Service . During the Employment Period, the Company
shall use its best efforts to cause the Executive to be nominated
for re-election to the Board.
(e)
Affiliates . The Executive agrees to serve, without
additional compensation, as an officer and director of each of the
Company’s wholly-owned affiliates as of the date hereof, as
determined by the Board, provided that such service is covered by
Sections 8 and 9 of this Agreement.
(a)
Base Salary . During the Employment Period, the Company
shall pay the Executive an annualized base salary (“Annual
Base Salary”) at a rate of $290,000, payable in regular
installments in accordance with the Company’s normal payroll
practices (but in no event less frequently than bi-weekly
installments). During the Employment Period, the Annual Base Salary
shall be reviewed by the Board or a committee thereof, for increase
only, at such time as the salaries of other senior executives of
the Company are reviewed generally. If so adjusted, the Annual Base
Salary shall be adjusted for all purposes of this
Agreement.
(b)
Annual Incentive . For each fiscal year during the
Employment Period, the Executive shall be eligible to participate
in an annual incentive plan under terms and conditions no less
favorable than other senior executives of the Company; provided
that the Executive’s “target” annual incentive
opportunity shall be 50% of his Annual Base Salary (or such higher
percentage as determined by the Board or a committee thereof from
time to time); provided further that the annual incentive for the
fiscal year ending February 28, 2010 shall be pro-rated for
the period commencing on the Effective Date through and including
the end of such fiscal year. The Executive’s payment under
the annual incentive plan shall be based on the extent to which the
predetermined performance objectives established by the Board or a
committee thereof (and acceptable to the Executive) have been
achieved; provided that at least one-half of the annual incentive
opportunity shall be based on the extent to which the Company
achieves pre-established quantitative financial metrics; provided
further that the performance objectives may be based on performance
during semi-annual, quarterly or shorter measuring periods within
the fiscal year. Except as otherwise provided in
Section 5(a)(ii) of this Agreement, the Executive must be
employed on the last day of the fiscal year to receive payment of
any annual incentive earned for that fiscal year. Except as
otherwise provided in Section 5(a)(ii), the annual incentive,
if earned, will be paid to the Executive by the Company no later
than two and one half months after the later of (i) the end of
the applicable fiscal year, or (ii) the end of the calendar
year in which the fiscal year ends.
(i) As
determined by the Board or a committee thereof, the Executive shall
be eligible for grants of equity compensation awards under the
Premier Exhibitions, Inc. 2009 Equity Incentive Plan, or any
successor plan (the “Equity Incentive Plan”) in
accordance with the Company’s policies, as in effect from
time to time at levels commensurate with other senior executives of
the Company.
3
(ii) On
September 3, 2009, the Company shall grant to the Executive a
nonqualified stock option to purchase 1,170,000 shares of the
Company’s common stock (the “Stock Option”). The
Stock Option shall have an exercise price per share equal to the
closing price per share of the Company’s common stock on the
date of grant, as reported on the NASDAQ Global Market, and shall
otherwise be granted upon the terms, and subject to the conditions,
of the Equity Incentive Plan and the award agreement evidencing the
grant of the Stock Option, a copy of which is attached as
Exhibit B to this Agreement.
(d)
Vacation . During the Employment Period, the Executive shall
be eligible for paid vacation in accordance with the
Company’s policies, as may be in effect from time to time,
for its senior executives generally; provided that the Executive
shall be entitled to paid vacation time of no less than four
(4) weeks per calendar year (including each partial calendar
year during the Employment Period). The Executive shall use such
vacation time at such reasonable time or times each year as he may
determine.
(e)
Benefits . During the Employment Period, and except as
otherwise provided in this Agreement, the Executive shall be
eligible to participate in all welfare, perquisites, fringe
benefit, insurance, retirement and other benefit plans, practices,
policies and programs, maintained by the Company and its affiliates
applicable to senior executives of the Company generally, in each
case as amended from time to time; provided that the Company may
not take any action that would have the effect of materially
reducing the overall value of the Executive’s benefits
package as in effect on the Effective Date.
(f)
Expense Reimbursements . The Executive shall be reimbursed
for all travel and other out-of-pocket expenses actually and
properly incurred by the Executive during the Employment Period in
connection with carrying out his duties hereunder in accordance
with the Company’s policies, as may be in effect from time to
time, for its senior executives generally, or if none, in
accordance with substantiation requirements under applicable law
(including the Internal Revenue Code of 1986, as amended (the
“Code”)), pertaining to the deductibility of such
expenses; provided that, notwithstanding anything contained in
those policies to the contrary, (i) the Executive shall
receive $2,000 per month, payable on the first day of each month
during the Employment Period, for a housing stipend, and
(ii) the Executive shall be reimbursed for the cost of his
roundtrip, coach class airline tickets (and related ground
transportation and parking) for weekly trips actually taken during
the Employment Period between Atlanta, Georgia (or, if the
Executive is traveling outside of such location in connection with
performing his duties under this Agreement, such other location)
and New York, New York (or Newark, New Jersey).
4. Termination of Employment .
(a)
Death . The Executive’s employment shall terminate
automatically upon the Executive’s death during the
Employment Period.
(b)
Disability . If the Company determines in good faith that
the Disability of the Executive has occurred during the Employment
Period (as defined below), it may give to the Executive written
notice in accordance with Section 14 of this Agreement of its
intention to terminate the Executive’s employment. In such
event, the Executive’s employment with the
4
Company shall
terminate effective on the 30th day after receipt of such notice by
the Executive (the “Disability Effective Date”),
provided that, within the 30-day period after such receipt, the
Executive shall not have returned to full time performance of the
Executive’s duties. For purposes of this Agreement,
“Disability” shall mean the inability of the Executive
to perform the essential duties of the position held by the
Executive by reason of any medically determined physical or mental
impairment that lasts for 180 consecutive days in any one-year
period, all as determined by an independent licensed physician
mutually acceptable to the Company and the Executive or the
Executive’s legal representative.
(c)
Cause . The Executive’s employment with the Company
may be terminated during the Employment Period with or without
Cause. For purposes of this Agreement, “Cause” shall
mean:
(i) the
Executive’s continued failure to substantially perform
Executive’s employment duties (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) any
act of fraud, material misappropriation, embezzlement or similar
material dishonest or material wrongful act by the Executive;
or
(iii) the
Executive’s continued abuse of alcohol, prescription drugs or
any substance which materially interferes with Executive’s
ability to perform services on behalf of the Company or
Executive’s use of illegal drugs; or
(iv) the
Executive’s commission of, conviction for, or plea of guilty
or nolo contendere to, a felony, or a crime involving moral
turpitude; or
(v) a
material breach by the Executive of the covenants set forth in
Section 11 hereof that has a material adverse effect on the
Company.
No act or
failure to act on the part of the Executive shall be considered
“willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company.
(d)
Good Reason . The Executive’s employment with the
Company may be terminated by the Executive during the Employment
Period with or without Good Reason. For purposes of this Agreement,
“Good Reason” shall mean any of the following without
the Executive’s consent:
(i) a
material negative and non-temporary change, diminution or reduction
in the Executive’s current authority, title, reporting
relationship or duties as Chief Executive Officer that has the
practical effect of materially diminishing the Executive’s
current authority (including as a result of a sale of all or
substantially all of the Company’s assets to a third party),
or the assignment to the Executive of material duties that are
materially and negatively inconsistent with the Executive’s
position as Chief Executive Officer, in either case of a magnitude
that changes the fundamental character of the Executive’s job
as Chief Executive
5
Officer to such
an extent as to constitute a de facto demotion, and in either case
excluding for this purpose any action not taken in bad faith and
that is remedied by the Company within 10 days after receipt of
notice given by the Executive (it being understood that if the
Executive does not continue to be the Chief Executive Officer of a
public company following a “Change in Control” (as such
term is defined in the Equity Incentive Plan), then Good Reason
shall be deemed to exist); or âA
(ii) the
Executive’s removal from the position of Chief Executive
Officer of the Company; or
(iii) The
Company requiring the Executive to be based at any office or
location more than 50 miles from the location provided in Section
2(c) of this Agreement; or
(iv) any
material reduction in the overall value of the Executive’s
compensation and benefits package (including, without limitation,
any amendment to the Stock Option or Equity Incentive Plan that has
the effect of materially reducing the overall value of the
Executive’s compensation and benefits package); or
(v) any
other action or inaction that constitutes a material breach by the
Company of the terms of this Agreement;
provided,
however, that the Executive’s employment may be terminated by
the Executive for Good Reason if (x) an event or circumstance
set forth in the clauses of this Section 4(d) above shall have
occurred and the Executive provides the Company with written notice
thereof within 30 days after the Executive has knowledge of
the occurrence or existence of such event or circumstance, which
notice shall specifically identify the event or circumstance that
the Executive believes constitutes Good Reason, (y) the
Company fails to correct the circumstance or event so identified
within 30 days after the receipt of such notice, and
(z) the Executive resigns effective within 90 days after the
date of delivery of the notice referred to in clause
(x) above.
(e)
End of Employment Period . The Executive’s employment
shall terminate automatically upon the third anniversary of the
Effective Date.
(f)
Notice of Termination . Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated
by Notice of Termination to the other party hereto given in
accordance with Section 14 of this Agreement. For purposes of
this Agreement, a “Notice of Termination” means a
written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated and
(iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination
date (which date shall be not more than 30 days after the
giving of such notice). The failure by the Executive or the Company
to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company, respectively,
hereunder or preclude the Executive or the Company,
6
respectively,
from asserting such fact or circumstance in enforcing the
Executive’s or the Company’s rights
hereunder.
(g)
Date of Termination . “Date of Termination”
means (i) if the Executive’s employment is terminated by
the Company for Cause, or by the Executive for Good Reason, the
date of receipt of the Notice of Termination or any later date
specified therein within 30 days of such notice, as the case
may be, (ii) if the Executive’s employment is terminated
by the Company other than for Cause or Disability, 30 days
after the date of receipt of the Notice of Termination or any later
date specified therein, (iii) if the Executive voluntarily
resigns without Good Reason, the date on which the terminating
party notifies the other party that such termination shall be
effective, provided that the Company may, in its sole discretion,
make such termination effective on any date, it elects in writing,
between the date of the notice and the proposed date of termination
specified in the notice, (iv) if the Executive’s
employment is terminated by reason of death, the date of death of
the Executive, (v) if the Executive’s employment is
terminated by the Company due to Disability, the Disability
Effective Date or (vi) if the Executive’s employment is
terminated at the end of the Employment Period, the end of the
Employment Period.
(h)
Resignation from All Positions . Notwithstanding any other
provision of this Agreement, upon the termination of the
Executive’s employment for any reason, unless otherwise
requested by the Board, the Executive shall immediately resign from
all positions that he holds or has ever held with the Company and
its affiliates, other than his position on the Board. The Executive
shall be treated for all purposes as having so resigned from such
positions upon termination of his employment, regardless of when or
whether he executes any documentation to effectuate such
resignations.
5. Obligations of the Company Upon Termination
.
(a)
Termination by Company without Cause; by Executive for Good
Reason; or by Company for Failure to Renew . If (x) the
Company terminates Executive’s employment or this Agreement
other than for Cause, death or Disability during the Employment
Period, (y) the Executive terminates his employment or this
Agreement for Good Reason during the Employment Period, or
(z) the executive’s employment is terminated on the
third anniversary of the Effective Date:
(i)
Accrued Benefits . The Company shall pay to the Executive in
a lump sum in cash the sum of (A) the portion of the
Executive’s Annual Base Salary earned through the Date of
Termination, to the extent not theretofore paid, (B) the
amount of any annual incentive that has accrued for a completed
fiscal year preceding the Date of Termination, but has not yet been
paid to Executive, (C) any accrued but unused vacation pay
through the Date of Termination, to the extent not theretofore
paid, and (D) the Executive’s business expenses that are
reimbursable pursuant to Sections 1(c) and 3(f) but have not been
reimbursed by the Company as of the Date of Termination (the sum of
the amounts described in clauses (A) through and including
(D) shall be referred to as the “Accrued
Benefits”). The Accrued Benefits shall be paid in a single
lump sum within 14 days after the Date of Termination (or with
respect to the accrued annual incentive, such earlier date
specified in the applicable plan document).
7
(ii)
Severance . Subject to Section 6 of this Agreement, the
Company shall pay to the Executive:
(A) A
lump sum payment equal to 150% of his Annual Base Salary, payable
within 14 days after the Release described in Section 6
becomes effective and irrevocable in accordance with its terms or
such later date as required by Section 22 hereof.
(B) A
lump sum payment equal to the annual incentives, if any, the
Executive would have received for the fiscal year during which the
Date of Termination occurs (the “Termination Year”) had
the Executive remained employed through the conclusion of the
Termination Year, without pro-ration, based on the following
methodology: (I) the portion of any annual incentive allocated
to performance goals measured over a period that commenced on or
after the first day of the Termination Year and ended on or before
the Date of Termination shall be calculated based on actual
performance results with respect to those goals; (II) the
portion of any annual incentive allocated to each qualitative
performance goal measured over a period that has not ended as of
the Date of Termination shall be calculated based on the average
achievement level for the goals described in clause (I) of
this Section 5(a)(ii)(B); provided that if clause
(I) does not apply because there are no such completed
measuring periods, then the portion of the annual incentive
allocated to each qualitative performance goal shall be based on
the average achievement level, if any, for the qualitative goals
established for the Executive in the fiscal year immediately prior
to the Termination Year; provided further that if there were no
qualitative goals established for the Executive for the fiscal year
immediately prior to the Termination Year, then the portion of the
annual incentive allocated to each qualitative performance goal
shall be calculated assuming target level of achievement for each
such goal; and (III) the portion of any annual incentive
allocated to each quantitative performance goal measured over a
period that has not ended as of the Date of Termination shall be
calculated as follows: the target for such goal shall be pro-rated
based on the number of full calendar months that have elapsed
during the Termination Year and prior to the Date of Termination,
and the achievement level for such goal shall be based on the
extent to which actual performance through the month that ended
immediately prior to the month in which the Date of Termination
occurs compares to the pro-rated target. Notwithstanding the
foregoing, if as of the Date of Termination, the Board or a
committee thereof has not established performance goals for the
Executive with respect to the Termination Year, then the annual
incentive shall be calculated based on the average payout
percentage for the annual incentives granted to the Executive in
the immediately preceding fiscal year; provided further that if the
Date of Termination occurs prior to the end of the fiscal year that
includes the Effective Date, then the annual incentives shall be
calculated assuming target performance. The payment pursuant to
this Section 5(a)(ii)(B) shall be made within 14 days
after the Release described in Section 6 becomes effective and
irrevocable in accordance with its terms and shall be in lieu of
any annual incentives that the Executive would have otherwise been
entitled to receive under the terms of the annual incentive plans
covering the Executive for the Termination Year.
(C) The
Stock Option (to the extent then outstanding and not already
vested) will vest in full.
(D) If
the Executive is in Atlanta, Georgia (or, if the Executive is
traveling outside of such location in connection with performing
his duties under this
8
Agreement, such
other location) on the Date of Termination, then the Company shall
reimburse the Executive (within 14 days after receipt of an
invoice from the Executive) for the cost of a one-way, coach class
airline ticket and related ground transportation and parking for
travel home to New York, New York; provided that (i) the trip
is taken by the Executive within 30 days after the Date of
Termination and (ii) the Executive shall have submitted an
invoice for such reimbursement at least 90 days after the Date
of Termination.
(b)
Other than for Good Reason; Cause . If the Executive shall
terminate employment without Good Reason or the Company shall
terminate the Executive’s employment for Cause during the
Employment Period, then the Company shall pay or provide to the
Executive the Accrued Benefits in accordance with
Section 5(a)(i) and the other benefits as provided in
Sections 5(d), 8 and 9, and shall have no other severance
obligations under this Agreement.
(c)
Death or Disability . If the Executive’s employment is
terminated by reason of the Executive’s death or Disability
during the Employment Period, then the Company shall pay or provide
to the Executive or his beneficiary or personal representative, as
the case may be, the Accrued Benefits in accordance with
Section 5(a)(i) and the other benefits as provided in Sections
5(d) (including accelerated vesting of the Stock Option), 8 and 9,
and shall have no other severance obligations under this
Agreement.
(d)
Effect on Other Plans, Agreements and Benefits . Subject to
the last sentence of this Section 5(d), nothing in
Section 5 or elsewhere in this Agreement shall prevent or
limit the Executive’s continuing or future participation in
any plan, program, policy or practice provided by the Company or
its affiliates and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the
Executive may have under any other contract or agreement with the
Company or its affiliates. Amounts that are vested benefits or that
the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any other contract or agreement
with the Company or its affiliates at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement. Notwithstanding the
foregoing, any severance benefits received by the Executive
pursuant to Section 5 of this Agreement shall be in lieu of
any severance benefits to which the Executive would otherwise be
entitled under any severance plan, program, policy or practice or
contract or agreement of the Company or its affiliates (other than
a retirement plan or other deferred compensation arrangement,
equity award (including the Stock Option), welfare benefit plan or
any similar plan or agreement which may contain provisions that
become operative on, or that may incidentally refer to accelerated
vesting or accelerated payment upon, a termination of the
Executive’s employment).
6. Release Requirement . The compensation and benefits
to be provided under Section 5(a)(ii) hereof shall be provided
only if the Executive timely executes and does not timely revoke a
release of claims in the form attached hereto as
Exhibit C (the “Release”). The Release must
be signed by the Executive or his legal representative, if
applicable, and become effective and irrevocable in accordance with
its terms (taking into account any applicable revocation period set
forth therein), within 30 days after the date of the
Executive’s termination of employment. Notwithstanding the
foregoing and anything in the Release, if any of the designated
Releasees as defined in the Release are engaged in active
litigation or threatening to
9
commence
litigation against Executive in connection with his official duties
with the Company or in any way related to the Company at the time
of termination of employment and they do not timely execute a
mutual release of Executive for such litigation within 15 days
of termination of employment, Executive will not be obligated to
sign such Release or release such parties and he will still be
entitled to full severance payments hereunder. In consideration for
such severance payments, Executive agrees to sign a substantially
similar Release acceptable to him and the Company that strikes the
parties that refuse to release him, provided however, his severance
obligations will not be tied to the execution of such
release.
7. Full
Settlement . The Company’s obligation to make the
payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Company or any of its affiliates may have against the
Executive or others. In no event shall the Executive be obligated
to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company
agrees to pay (within 14 days following the Company’s
receipt of an invoice from the Executive, subject to
Section 22 of this Agreement) at any time from the Effective
Date through the Executive’s remaining lifetime, (or, if
longer, through the 20th anniversary of the Effective Date), to the
full extent permitted by law, all legal fees and expenses which the
Executive (or his heirs or legal representatives) may reasonably
incur as a result of any contest by either Party (including, as the
case may be, the Company, any of its affiliates or their respective
predecessors, successors or assigns, or the Executive, his estate,
beneficiaries or their respective successors and assigns) of the
validi
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