SETTLEMENT AGREEMENT AND MUTUAL
SPECIAL RELEASE
1.
PARTIES : The parties to this Settlement Agreement and
Mutual Special Release (“AGREEMENT”) are WILLIAM MORRIS
AGENCY, LLC (“WILLIAM MORRIS”) and RICK KRANIAK
(“KRANIAK”), on the one hand, and PREMIER EXHIBITIONS,
INC. (“PREMIER”) and JAM EXHIBITIONS, LLC
(“JAM”), on the other.
2.
RECITALS : This AGREEMENT is made with reference to the
following facts:
2.1 On
March 21, 2006, WILLIAM MORRIS filed a complaint in Los
Angeles Superior Court entitled William Morris Agency, LLC v.
Premier Exhibitions, Inc., Case No. SC089055 (the
“ACTION”). By the ACTION, WILLIAM MORRIS seeks to
recover commissions in the amount of approximately $1,200,000
relating to exhibitions entitled Bodies...The Exhibition
featuring preserved human bodies (the “EXHIBITIONS”)
produced by PREMIER in conjunction with JAM and Concert Promotions
International (“CPI”).
2.2
WILLIAM MORRIS never served its complaint in the ACTION on PREMIER
as the parties were engaged in settlement negotiations and,
consequently, PREMIER has not filed a responsive pleading in the
ACTION. Nonetheless, PREMIER generally denies the allegations
contained in the Complaint in the ACTION.
2.3 By
entering into this AGREEMENT, the parties now wish to resolve any
disputes between them relating to the ACTION and to agree to the
terms and conditions set out in the AGREEMENT in order to settle
and dispose of, fully and completely, any and all claims arising
therefrom.
3.
OBLIGATIONS OF PREMIER AND JAM:
3.1
PREMIER and JAM agree to pay WILLIAM MORRIS a total of $500,000 in
$100,000 installments due on or before each of the following dates:
June 1, 2006, November 1, 2006, June 1, 2007,
November 1, 2007 and June 1, 2008. PREMIER and JAM are
jointly and severally liable under this AGREEMENT.
3.2 The
failure to make any payment in a timely manner as required under
paragraph 3.1, above, would be a breach of this AGREEMENT. If
PREMIER and/or JAM do not cure such a breach within five business
days after written notice pursuant to paragraph 9.12 of this
AGREEMENT, PREMIER and JAM shall be in material breach of this
AGREEMENT. The parties acknowledge and agree that the damage which
would accrue from such a breach would be difficult to ascertain
and, therefore the parties are making this provision for liquidated
damages in the event of such a breach. Accordingly, in the event of
such material breach, PREMIER and JAM shall be obligated, jointly
and severally, to pay WILLIAM MORRIS a total of $600,000 as
commissions relating to the EXHIBITIONS, which amount shall be
become immediately due and payable. Any and all payments made under
paragraph 3.1, above, shall be credited against this
amount.
4.
OBLIGATIONS OF WILLIAM MORRIS:
4.1 Within
five business days of the full execution of this AGREEMENT and
receipt of the first installment payment required under paragraph
3.1, above, WILLIAM MORRIS will file a request for dismissal with
prejudice of the entire ACTION and provide a conformed copy of such
dismissal to PREMIER after it is entered by the Court.
4.2 In the
event of a breach as described in paragraph 3.2, above, WILLIAM
MORRIS will give PREMIER and JAM an opportunity to cure the breach
by giving notice pursuant to paragraph 9.12 of this AGREEMENT and
waiting five business days thereafter before initiating any
action.
5.
TERMINATION OF ALLEGED AGENCY RELATIONSHIP BETWEEN WILLIAM
MORRIS AND PREMIER: WILLIAM MORRIS, on the one hand, and
PREMIER, on the other hand, acknowledge and agree that the agency
agreement between the parties with respect to the EXHIBITIONS
alleged by WILLIAM MORRIS in its complaint in the ACTION is hereby
terminated. Accordingly, except with respect to the obligations
created by or arising out of this AGREEMENT, WILLIAM MORRIS, on the
one hand, and PREMIER, on the other hand, acknowledge and agree
that neither of them has any ongoing obligations to the other under
any alleged agency agreement.
6.
SPECIAL RELEASES AND PROMISES:
6.1 Release
By WILLIAM MORRIS and KRANIAK: Except with respect to the
obligations created by or arising out of this AGREEMENT, WILLIAM
MORRIS and KRANIAK, and each of them, for themselves and their
respective affiliates, agents, employers, employees,
representatives, attorneys, predecessors, successors and assigns,
and each of them (the “WILLIAM MORRIS RELEASORS”),
hereby release and absolutely and forever discharge PREMIER, JAM,
CPI and Sam Tour, and each of them, and their respective
affiliates, agents, officers, directors, employers, employees,
representatives, attorneys, predecessors, successors and assigns
(the “PREMIER RELEASEES”) from any and all claims,
demands, grievances, liabilities, debts, accounts, obligations,
costs, expenses, liens, actions and causes of action, of every kind
and nature whatsoever, existing on the effective date of this
AGREEMENT, whether known or unknown, anticipated or unanticipated,
suspected or unsuspected, which the WILLLAM MORRIS RELEASORS, have
or claim to have, now or hereafter, against the PREMIER RELEASEES,
or any of them, arising out of or in connection with the
EXHIBITIONS, the events described in the ACTION, the ACTION, the
prosecution or defense of the ACTION or the negotiation and
documentation of this AGREEMENT.
6.2 Release
by PREMIER and JAM: Except with respect to the obligations
created by or arising out of this AGREEMENT, PREMIER and JAM, and
each of them, for themselves, CPI and Sam Tour, and their
respective affiliates, agents, employers, employees,
representatives, attorneys, predecessors, successors and assigns,
and each of them (the “PREMIER RELEASORS”), hereby
release and absolutely and forever discharge WILLIAM MORRIS and
KRANIAK, and each of them, and their respective affiliates, agents,
officers, directors, employers, employees, representatives,
attorneys, predecessors, successors and assigns (the “WILLIAM
MORRIS RELEASEES”) from any and all claims, demands,
grievances,
2
liabilities,
debts, accounts, obligations, costs, expenses, liens, actions and
causes of action, of every kind and nature whatsoever, existing on
the effective date of this AGREEMENT, whether known or unknown,
anticipated or unanticipated, suspected or unsuspected, which the
PREMIER RELEASORS have or claim to have, now or hereafter, against
the WILLIAM MORRIS RELEASES, or any of them, arising out of or in
connection with the EXHIBITIONS, the events described in the
ACTION, the ACTION, the prosecution or defense of the ACTION or the
negotiation and documentation of this AGREEMENT.
6.3
Inapplicability of Civil Code §1542: Each of the
parties to this AGREEMENT acknowledges and agrees that the releases
contained in this AGREEMENT are special releases and that
§1542 of the Civil Code of the State of California is not
applicable. If and to the extent it should be determined that the
releases contained in this AGREEMENT are not special releases,
contrary to the parties’ acknowledged intention and
agreement, each party specifically waives the benefit of the
provisions of §1542 of the Civil Code of the State of
California, which provides as follows:
A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH
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